In fact, there likely is no act of government that could do more to expand American sovereignty than Senate ratification of the U.S.-initiated LOS Treaty. Failure to ratify would be a dereliction, equivalent to the failure to approve the Louisiana Purchase or the purchase of Alaska from Russia, both of which had vocal opponents at the time. By ratifying this important treaty, America would attain express recognition of the greatest expansion of U.S. marine resource sovereignty in the history of the United States.
Ratification would extend American sovereign rights to include exclusive U.S. economic access to the entire U.S. outer continental shelf, which encompasses enormous offshore marine wealth, including productive fisheries, abundant oil and natural gas resources and vast mineral deposits – including economically recoverable rare earth minerals that are vital to continued U.S. technological leadership.
Ratification would secure America’s rightful claims to vast areas of the Arctic, which otherwise can be – and are being – encroached upon by other nations. America would gain exclusive economic access, for example, to a zone of up to 600 miles beyond the coast of Alaska, 400 miles beyond the current 200-mile limit. America would also consolidate expanded sovereign rights over offshore marine resources off the coast of South Carolina, California, the Pacific Northwest and numerous U.S. Pacific Island Territories.
Only after ratification can our claims to the vast oil and gas resources of the continental shelf beyond 200 miles be made “final and binding” on other countries. Without ratification, our objections to claims by others fall on deaf ears. We have no right to place an American scientist on the panel reviewing continental shelf claims that may encroach on our rights, and our ability to influence the efforts of Russia and other nations to exploit that system is compromised. The effect of staying out is that we deny ourselves the benefits of the system creating “final and binding” limits while, as a practical matter, having little choice but to live with others’ claims legitimated by that system.
With ratification, America would gain a permanent seat – with veto power – on the international body that regulates access to seabed mineral resources in international waters beyond the continental shelf.
Without this veto power, America’s vital economic interests are subject to the whims of other nations. Without ratification, U.S. companies have no right of access to, and risk exclusion from, vast mineral resources off American shores beyond our continental shelf. It is highly unlikely that an American company and its creditors will risk making major investments in deep seabed mining when most countries of the world, including all other major industrial nations, are expressly required to recognize only the mining rights acquired under the LOS Treaty.
MYTH: The LOS Treaty is a United Nations treaty that reflects the priorities of nations other than the United States.
FACT: The United States’ security, economic, and environmental interests in the oceans are global. They are best secured by a global treaty recognizing our rights to act anywhere in the world in furtherance of those interests. That is what we sought when we initiated the law of the sea negotiations, and that is what we got. The fact that we used United Nations facilities simply made it easier and more efficient. Our willingness to accommodate the interests of other countries in a manner compatible with our own helped us to get what we wanted and convince others to sign on to the Treaty.
MYTH: Ratification would compromise U.S. military operations and enable an international body to impose limits on U.S. naval and over-the-ocean operations.
FACT: Ratification is, and has consistently been, supported by our senior military leaders. It would strengthen international legal protections for American military operations around the world necessary to combat terrorism and protect our security, and enhance our ability to prevent and resist claims by foreign states restricting those operations off their shores.
Ratification would strengthen and expand U.S. sovereignty and security, particularly when it comes to U.S. military operations off foreign shores. That is why all living former U.S. Presidents and Secretaries of State, the Joint Chiefs of Staff, current and former Army, Marine and Air Force generals and Navy and Coast Guard admirals have called for ratification. The LOS Treaty guarantees U.S. armed forces the legal right to move throughout and over the world’s oceans.
Under the Treaty, no foreign state would have jurisdiction over the U.S. military. With ratification, immunity from foreign enforcement actions would be secured, and the requirement to comply with foreign environmental regulations in foreign waters would not apply to U.S. warships and military aircraft.
The Treaty permits the United States to exclude military activities from its dispute settlement procedures, and the United States will make clear that it retains the sovereign right to define the parameters of its military activities.
MYTH: America doesn’t need the LOS Treaty because it can rely on U.S. military power to fully protect its sovereign rights and navigational interests.
FACT: Reliance on U.S. military power alone to protect America’s right to navigate past and operate in foreign shores around the world would cost American taxpayers a great deal. The Treaty is a major asset in restraining foreign claims.
U.S. military leaders have consistently expressed strong support for ratification because it would guarantee freedom of movement in international waters for America’s armed forces.
Additionally, the Treaty is essential to the alliances, partnerships and bilateral relationships that are a critical part of our security strategy. Access to foreign intelligence, bases and assets would be endangered whenever the United States turned to military force rather than international law to obtain recognition of rights from friendly governments.
Finally, investors are interested in stability. That stability comes from legal recognition of their rights, not from military escort. Corporations have a duty of due diligence to their stockholders. There is no long-term military solution to the need for a stable legal investment climate at sea. The United States insisted on the inclusion of treaty provisions guaranteeing final international maritime boundaries on the seabed because it is in America’s interest to provide the legal and political stability needed to encourage investment that enhances supply and reduces prices of vital raw materials. Ratification would strengthen that stability both at home and abroad.
MYTH: Ratification would somehow limit U.S. intelligence and submarine activities.
FACT: The LOS Treaty does not impose new limitations on U.S. intelligence or submarine activities. It removes or restricts old limitations.
The provisions of the Treaty requiring submarines to navigate on the surface when in innocent passage through the territorial sea are identical to those in the 1958 Convention on the Territorial Sea, to which the United States is a party. The United States was successful in securing in the Treaty a new right for U.S. submerged submarines and military aircraft to transit foreign waters in straits and archipelagoes, new limitations on foreign constraints on passage, and a new right to enter foreign territorial seas for the purpose of rescuing downed pilots or other personnel. In U.S. Senate hearings held in 2004, Defense Department, Central Intelligence Agency and Department of State witnesses all confirmed that current U.S. conformance with Treaty terms has not adversely impacted U.S. intelligence and submarine activities, and that U.S. ratification of the Treaty would enhance U.S. national security.
MYTH: There is no need to ratify now. The United States has done just fine without being a formal party to the LOS Treaty.
FACT: The need for LOS Treaty ratification has grown more urgent with time and current U.S. economic and security interests make immediate ratification imperative.
The United States has abided by virtually all of the Treaty’s terms since President Reagan committed us to do so. But America cannot secure its rightful claims under the Treaty without ratification. The world has changed dramatically since Ronald Reagan was President. The Arctic Ocean has become increasingly navigable and Arctic nations are laying claim to newly accessible regions. As the only Arctic nation that has not ratified the Treaty, the United States risks forfeiture of its legitimate claims to vast marine resources in this region. Moreover, without ratification, America’s ability to effectively block claims made by other nations with minimum cost to taxpayers is diminished, even when those claims encroach upon America’s rights and interests.
Ratification would protect and expand America’s right to install and maintain undersea cables throughout the world’s oceans – cables that carry the bulk of all U.S. Internet, voice and data communications traffic outside North America, as well as government and military communications. Those cables depend exclusively on legal protection; military protection is simply not a practical alternative. Control of this vital communications infrastructure is more important today than it was even five years ago and its importance grows every year. Today, foreign governments are trying to exact exorbitant fees and impose difficult restrictions on U.S. companies that wish to install or repair undersea cables off foreign shores. Ratification would grant international access rights that are more easily asserted and enforced by Treaty parties and their companies.
MYTH: The Treaty enables the U.N. to levy taxes on U.S. citizens.
FACT: The Treaty does not impose taxes on anyone.
In exchange for extending their rights to the continental shelf beyond 200 miles to the outer edge of the continental margin, the coastal states agreed to pay a small percentage of the value of oil and gas production beyond 200 miles into an international fund for developing countries. This is a coastal state obligation; it arises only in the event that there has been commercial production at a particular site for several years, increases gradually, and is directly related to the value of that production. Because there might be an indirect impact in some countries, the United States devised the precise formula in close consultation with major oil company representatives, which strongly supported coastal state jurisdiction over the continental margin and have interposed no objection to the formula set forth in the Treaty. In payment collection, American companies would deal only with the United States.
With respect to the hard minerals of the seabed beyond the continental shelf, mining entities will pay based on production from their mine sites. These funds will be used to defray the administrative costs of the Seabed Authority. Only if and when the payments exceed such costs will they too go into a fund for distribution to developing countries.
As a party to the Treaty, the United States would have a veto over the formula for determining payment amounts from the seabed beyond the continental shelf, as well as a veto over the formula for distributing funds from the entire area beyond 200 miles from the coast. This would give it effective control not only over the distribution of funds contributed by the U.S. and its citizens, but also over those funds contributed by foreign states with respect to their continental shelves and by foreign deep seabed mining entities. At present, the United States has no control over either.
MYTH: President Reagan believed the LOS Treaty was fatally flawed and could not be fixed.
FACT: President Reagan expressly endorsed most of the LOS Treaty. He stated that the United States would abide by it and expected other countries to comply as well. At the same time, he outlined important objections to the provisions of the Treaty regarding the mining of hard minerals beyond the limits of the continental shelf, along with practical proposals for resolving those objections. His successor, President Bush, arranged for the negotiation of a new agreement that successfully resolved President Reagan’s objections on terms favorable to the United States and other industrial states.
President Reagan objected to an earlier version of the deep seabed mining provisions, but he believed that his objections could be resolved. It was President Reagan who directed the United States government to abide by the Treaty, except for the mining provisions. Those provisions were renegotiated in 1994 on terms highly favorable to the United States. The 1994 Implementing Agreement successfully addressed each of the concerns raised by President Reagan.
MYTH: The International Seabed Authority (ISA) established by the LOS Treaty would be a super-regulatory body with jurisdiction over most of the world’s expanse of ocean.
FACT: The ISA has limited regulatory functions with respect to deep seabed mining outside of the territorial waters, exclusive economic zones and continental shelves of coastal States.
The ISA is not a United Nations body. It is not controlled by a bureaucracy. The role of the ISA is limited to exploration and exploitation of minerals in the area beyond the continental shelf. That area is very deep and is likely to contain only hard minerals, not oil and gas. Its mining regulations require the approval of the Council of the ISA, on which the United States, if a party to the Treaty, has a guaranteed seat and a veto.
MYTH: Ratification would require American companies to transfer technology to other nations.
FACT: Mandatory technology transfer was eliminated when the terms of the deep seabed mining regime were amended by the 1994 Implementing Agreement.
American companies are not obligated to transfer technology under the 1994 Implementing Agreement. The Treaty does encourage the voluntary sale of ocean technology on commercial terms, but it does not make the rights of either governments or private firms contingent in any way on such sales. These provisions can work to the advantage of U.S. technology firms.
MYTH: America does not need the international legal protections ratification would afford. The United States can safely continue to depend on customary international law.
FACT: Customary international law is weak compared to the legal protections that Americans would receive by ratifying the Treaty.
Customary international law cannot guarantee protection from excessive regulation in foreign waters and ports, proper interpretation of rights of innocent passage, release of impounded vessel and other protections essential to American industry.
Customary law is based on a process of claim and counterclaim, which undercuts U.S. interests in operations off foreign coasts. Under customary law, the United States’ ability to affect the evolution of greater coastal state control over our operations is limited and very costly. Global mobility is necessary to protect U.S. forces’ ability to respond anywhere in the world. That mobility is prejudiced when foreign states make unilateral claims purporting to restrict it. The Treaty is now the only plausible basis for challenging those claims. America’s capacity to persuade others to abide by the Treaty, and to accept our interpretation of its meaning, is undercut by U.S. failure to become a party. It is not enough to believe customary law is sound; if others do not agree, the United States will not able to secure global mobility for U.S. military forces at the lowest possible cost to American taxpayers.
MYTH: U.S. companies will invest in oil and gas and mining activities on America’s extended outer continental shelf regardless of whether the U.S. Senate ratifies the Treaty.
FACT: The greater the stability of legal and political expectations on which an investment is predicated, the greater the likelihood of investment on favorable terms. Given the United States’ otherwise stable investment climate, major oil companies will continue to be interested in investing in the U.S. continental shelf. However, in deciding on the terms under which they are prepared to proceed, these companies can be expected to consider the impacts here and abroad of the comparative uncertainties created by the United States’ failure to ratify the Treaty.
All other states with large continental shelves beyond 200 miles are party to the Treaty. All of them have commenced or are about to commence the process of establishing final and binding limits to their continental shelf claims beyond 200 miles pursuant to Treaty procedures. All of them have agreed to share some revenues from this area, which was the quid pro quo for agreement on coastal state control of the continental margin and a boost to the legitimacy of their claims. All of them have agreed to respect international standards regarding safety and environmental protection. The comparative difference will be particularly important in deeper areas of the continental shelf further from the coast, especially in the Arctic, where investors will need to account for the effects of legal and political uncertainties, in addition to the high costs and risks imposed by nature itself.
The Treaty offers the United States enhanced security for investments in the continental shelf, and enhanced security for navigational rights and freedoms necessary to transport oil to refineries and markets. That is why the American Petroleum Institute, the International Association of Drilling Contractors, the National Ocean Industries Association and the entire oil and gas sector strongly support ratification.
MYTH: Ratification would needlessly expose the United States to baseless and opportunistic environmental lawsuits, including suits based on alleged U.S. contributions to global climate change.
FACT: There is no basis for such concerns. States can only be sued by other states under the LOS Treaty. In almost two decades, only two claims alleging breach of pollution obligations have been decided under the Treaty; one failed and one was settled before arbitration on the merits. The LOS Treaty contains no rules or standards on climate change.
Article 212 of the LOS Treaty (Pollution from or through the atmosphere) simply obligates states to "adopt laws and regulations to prevent, reduce and control pollution of the marine environment from the atmosphere.” The United States already complies with this provision and, in fact, has some of the world’s strongest marine pollution laws.