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President's Statement on Advancing U.S. Interests in the World's Oceans

Published online by Cambridge University Press:  27 February 2017

Kevin D. Futch
Kevin D. Futch*
Affiliation:
The George Washington University Law School
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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 46 , Issue 4 , July 2007 , pp. 886 - 890
Copyright
Copyright © American Society of International Law 2007

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Footnotes

*

This text was reproduced and reformatted from the text appearing at the White House website (visited July 23, 2007) <http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html>.

References

2 U.N. Convention on the Law of the Sea, Dec. 10, 1982 S Treaty Doc, NO. 103-39 (1994), 1833 U.N.T.S. 3, 397(hereinafter LOSC).

3 See David D. Caron&Harry N. Scheiber, The United States and the 1982 Law of the Sea Treaty, ASIL Insight, June 11 2007<http://www.asil.org/insights/2007/06/insights070611.html> describing the possible risks posed by delay of U.S. accession, e.g. “treaties without leadership can decay”).

4 See Dough Struck ,Russia's Deep-Sea flag-Planting a North Pole Strikes a Chill in Canada,Wash.Post,Aug 7,2007,at A8 (discussing reactions of other countries to Russia's territorial claims); Doyle, Alister, Russia's Seabed Flag Heralds Global Ocean Carve-Up, Reuters, Aug. 15, 2007 Google Scholar <http://www.reuters.com/article/topNews/idUSL0880605120070815.>

5 For recent debate on whether LOSC poses positive or negative significance for U.S. interests, see Clark, Vern&Pickering, Thomas, Op-Ed, A Treaty that lifts All Boats, N.Y. Times, July 14, 2007 Google Scholar, at Al 1, available at <http://www.nytimes.com/2007/07/14/opinion/14pickering.html> Jack Goldsmith &Jeremy Rabkin, A Treaty the Senate Should Sink, Wash. Post, July 2, 2007, at A19; Negroponte, John D.&England, Gordon, Op-Ed, Reap the Bounty, Wash. Times, June 13, 2007 Google Scholar, at A17, available at <http://www.state.gOv/s/d/2007/86345.htm> (arguing U.S. accession to LOSC supports U.S. maritime security and economic rights); Meese, Edwin, III, et al., The United Nations Convention on the Law of the Sea: The Risks Outweigh the Benefits, Heritage Foundation, May 16, 2007 Google Scholar,<http://www.heritage.org/research/internationalorganizations/wml459.cfm> The Kojo Nnamdi Show: Who Owns The Ocean?(WAMU 88.5FM, American University Radio broadcast Aug. 6,2007)available at <http://wamu.org/programs/kn/07/08/06.php> (35-minute segment featuring Prof. John Norton Moore, Prof. Jeremy Rabkin, and Captain Patrick Neher, Director of International Law for the U.S. Navy).

6 The current Bush administration has expressed support for LOSC before, but this is the first time the President has publicly stated his position. See White House Press Briefing by Scott McClellan, June 22,2004,<http://www.whitehouse.gov/news/releases/2004/06/20040622-3.html> (mentioning President Bush's “positive reaction” to LOSC); Caron, supra note 3, n. 6 (describing February 8, 2007 Letter from National Security Council Advisor, Stephen Hadley, to Senator Joseph Biden expressing “shared interest in moving forward” with LOSC).

7 See Charl ie Savage, Bush Allies Slam His Support of Maritime Treaty, B. Globe, July 29, 2007, at A6, available at <http://www.boston.com/news/nation/articles/2007/07/29/bushalliesslamhissupportofmaritimetreaty> (stating Senator Helms prevented a hearing on LOSC in the Senate); Caron, supra note 3 (describing how Senate procedural customs have been used to prevent a vote on LOSC); Frank J. Gaffney, Jr., Don't Get LOST, NAT'L Rev. Online, Mar. 18, 2004,<http://www.nationalreview.com/gaffney/gaffney200-403181156.asp> (describing Senate opposition to LOSC in 2004).

8 See Sean D. MURPHY, Principles of International Law 339 (2006) (discussing the three U.N. Conferences on the Law of the Sea that resulted in the current convention).

9 See Barry E. Carter et al., International Law 835-36 (4th ed. 2003) (describing historical development of LOSC including its foundation on customary international law); Caron, supra note 3.

10 See LOSC, supra note 2. For more information on living resources provisions, see Eugene H. Buck, Congressional Research Service, U.N.Convention on the Law of the Sea: Living Resources Provisions (2003) (finding LOSC living resources provisions in line with U.S. policy).

11 President Reagan said the Administration would support ratification of the Convention if six objectives with respect to seabed mining could be achieved. The six objectives were a seabed regime that would: Not deter development of any deep seabed mineral resources to meet national and world demand Assure national access to these resources by current and future qualified entities to enhance U.S. security of supply, to avoid monopolization of the resources by the operating arm of the international authority, and to promote the economic development of the resources; Provide a decision-making role in the deep seabed regime that fairly reflects and effectively protects the political and economic interests and financial contributions of participating states; Not allow for amendments to come into force without approval of the participating states, including, for the U.S., the advice and consent of the Senate; Not set other undesirable precedents for international organizations; and Be likely to receive the advice and consent of the Senate, e.g. the convention should not contain provisions for the mandatory transfer of private technology and participation by and funding for national liberation movements[.] James E. Mielke, Congressional Research Service, Deep Seabed Mining: U.S. Interests and the U.N. Convention on the Law of the Sea (2005) (citing Statement by the President, U.S. Policy and the Law of the Sea (Jan. 29, 1982), in DEP'T. ST. BULL., Mar. 1982, at 54; White House Fact Sheet [accompanying Presidential Statement], Jan. 29, 1982, id. at 54-55); available at <http://digital.library.unt.edu/govdocs/crs/per-malink/meta-crs-230:1> see also Carter, supra note 9, at 836; Murphy, supra note 8, at 339; Caron, supra note 3.

12 Murphy, supra note 8, at 339.

13 See Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, S. Treaty DOC. NO. 103- 39, at 263 (1994), 1836 U.N.T.S. 41; Murphy, supra note 8, at 339-40.

14 See Mielke, supra note 11 (describing the original objections to the Part XI and how the 1994 Agreement satisfied those objections). For further analysis of the 1994 Agreement, see Oxman, Bernard H., The 1994 Agreement and the Convention, 88 AM.J.INT'L L. 687 (1994)CrossRefGoogle Scholar (concluding the 1994 Agreement “substantially accommodates the objections of the United States and other industrial states to the deep seabed mining provisions” of LOSC).

15 S. Treaty Doc. NO. 103-39 (1994).

16 See S. Exec. Rep. 108-10 (2004).

17 See Status of the United Nations Convention on the Law of the Sea, <www.un.org/Depts/los/reference_files/status2007.pdf>(last visited Aug. 24, 2007).

18 Caron, supra note 3 (describing how after the SFRC's unanimous report in favor of LOSC, members of the Senate blocked placement of LOSC on the unanimous consent calendar); Gaffney, supra note 7 (describing Senate opposition to LOSC in 2004); Savage, supra note 7 (stating Senator Helms refused to give LOSC a hearing in the Senate).

19 See Status of the United Nations Convention on the Law of the Sea, supra note 17.

20 See Carter, supra note 9, at 836; Murphy, supra note 8, at 365 (parties to the Convention include “virtually all North Atlantic Treaty Organization … states, China, and Russia”).

21 Gaffney, supra note 7 (“[T]his accord would constitute the most egregious transfer of American sovereignty, wealth, and power to the U.N. since the founding of that “world body.”).

22 See Jeremy Rabkin, The Law of the Sea Treaty: A Bad Deal for America, Competitive enter. Inst., June 1, 2006, at 4, available at <http://www.cei.org/pdf/5352.pdf>.

23 David Ridenour describes LOSC Article 212 requiring states to adopt laws to “prevent, reduce and control pollution of the marine environment” as “Kyoto Protocol style regulations.”David A. Ridenour, Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage, National policy analysis,<http://www.nationalcenter.org/MPA542LawoftheSeaTreaty.html.> Also, Jeremy Rabkin gives some examples of how the Convention could complicate U.S. environmental concerns. For instance, he describes how the Seabed Authority established by the Convention has already been urged to regulate ‘ ‘bioprospecting for commercial applications of new species,” a practice that scientists believe may offer keys to developing new cancer or antibiotic drugs. He also cites an Irish claim against the United Kingdom to prevent the building of a nuclear power plant that may indirectly affect marine life in Irish waters as evidence of how the convention could be used to infringe on U.S. interests. See Rabkin, supra note 22, at 9.

24 See LOSC, supra note 2, art. 110.

25 See Savage, supra note 7. For further discussion of this scenario, see Rabkin, supra note 22, at 4-5 (discussing possible U.S. justifications for seizure of foreign ship in this scenario, e.g., that foreign ship's actions were akin to piracy; also discussing possible seizure of U.S. vessel engaged in intelligence gathering); Ridenour, supra note 23.

26 Goldsmith, supra note 5.

27 David Ridenour also noted that intelligence collection and other uses of Autonomous Underwater Vehicles and Remotely Operated Underwater Vehicles would be hindered by Article 20 of LOSC that requires “submarines and all other underwater vehicles” to surface within a foreign state's territorial waters. Whereas submarines may not be affected by Article 20 due to 48 years of customarily passing through territorial waters submerged, unmanned vehicles have no such custom to shade interpretation of Article 20. See Ridenour, supra note 23.

28 See Murphy, supra note 8, at 340 (citing generally S. Treaty Doc. No. 103-39).

29 Rabkin, supra note 22, at 4.

30 See Caron, supra note 3 (quoting Jeane Kirkpatrick's testimony before the Senate Armed Forces Committee).

31 For counterpoints to most arguments against LOSC, see David B. Sandalow, Law of the Sea Convention: Should the U.S. Join?, Brookings inst., Aug. 2004, available at http:// www.brook.edu/comm/policybriefs/pb137.pdf. For general discussion about the influence of LOSC on the rule of law, see Bernard H. Oxman, The Rule of Law and the United Nations Convention on the Law of the Sea, 1 EUR. J. INT'L L. 353 (1996).

32 See Clark, supra note 5; Lawrence S. Eagleburger&John Norton Moore, Opportunity on the Ocean, Wash. Post, July 30,2007, at A15; Negroponte, supra note 5. Also, John Moore has said that the price the U.S. has paid in national security for not having ratified LOSC can be seen in Malaysia and Indonesia having refused to join a U.S.-led agreement on interdicting ships suspected of smuggling nuclear weapons because the U.S. is not a member of LOSC. See Savage, supra note 7.

33 See Marjorie Ann Browne, Congressional Research Service, The U.N. Law of the Sea Convention and the United States: Developments Since October 2003, at 6 (2004) (quoting Legal Advisor William H. Taft IV during hearings before the Senate Armed Services Committee saying, “The Convention will not affect our efforts … to interdict vessels suspected in the proliferation of weapons of mass destruction … The Convention recognizes numerous legal bases for taking enforcement action against vessels … for example, exclusive port and coastal State jurisdiction … exclusive flag State jurisdiction . .. and universal jurisdiction over stateless vessels.”)

34 See Letter from Former Legal Advisors Herbert J. Hansell etal. to Senators William H. Frist et al. (April 17, 2004) in 98 AM. J. INT'L L. 307,308 (2004) (stating that while reservations are prohibited under the Convention, the U.S. “will make it clear in an understanding” that the U.S. alone will judge what constitutes its military activities under LOSC).

35 See Clark, supra note 5; Negroponte, supra note 5.

36 See Paul L. Kelly, Senior Vice President, Rowan Companies, Inc., Presentation at the Global Offshore Drilling 2005 Conference: Evaluating the Impact of the Law of the Sea Treaty on Future Offshore Drilling (Apr. 19, 2005).

37 See LOSC, supra note 2, arts. 56-57.

38 See Testimony of John Norton Moore, U.N. Convention on the Law of the Sea: Hearing on S. Treaty Doc. No. 103-39 Before the S. Comm. on Foreign Relations, 108th Cong. 10 (2003) available at <http://www.senate.gov/∼foreign/testimony/2003/MooreTestimony031014.pdf> James C. Kraska, Commander, JAGC, U.S. Navy, Panel Presentation at the Symposium in Remembrance of Lous B. Sohn at The George Washington University School of Law: The Law of the Sea Convention: A National Security Success (October 24, 2006).

39 See Moore, supra note 38; Murphy, supra note 8, at 365-67 (summarizing statements of William H. Taft, IV); Letter from Former Legal Advisors, supra note 34.

40 See Gaffney, supra note 7; Savage, supra note 7.

41 Noyes, John E., The United States, The Law of the Sea Convention, and Freedom of Navigation, 29 Suffolk Transnat'L L. Rev. 1, 2 (2005)Google Scholar (citing Law of the Sea and Related Boundary Issues; United Nations Convention on the Law of the Sea; United States’ non party status, 2001 Digest ch. 12, A(1)(a))

42 Supporters of LOSC include the U.S. Navy, the American Petroleum Institute, the Center for Seafarers’ Rights, and Greenpeace, among others. See Moore, supra note 38, at 2-3; Ridenour, supra note 22.

* This text was reproduced and reformatted from the text appearing at the White House website (visited July 23, 2007) <http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html>