The Pew Charitable Trusts and Atlantic Council
Forum on Law of the Sea
Transcript – Select Highlights
Willard InterContinental Washington Hotel
Wednesday, May 9, 2012
Keynote Addresses by:
Secretary Leon Panetta
General Martin E. Dempsey
Admiral Robert J. Papp, Jr.
Panel One: How Ratification Will Enhance and Protect America’s Commercial Economic Opportunities:
Jennifer Warren, Lockheed Martin Corporation
John Ryan, Level 3 Communications, Inc.
R. Bruce Josten, U.S. Chamber of Commerce
Martin J. Durbin, American Petroleum Institute
Panel Two: How Ratification Will Strengthen America’s Military, Foreign Policy and National Security:
Heather Conley, Center for Strategic and International Studies
Dr. John Nagl, Center for a New American Security
Professor John Norton Moore, University of Virginia School of Law
John Negroponte, Former U.S. Deputy Secretary of State
Keynote Address by:
Leon E. Panetta, Secretary of Defense
Thank you very much, John. I really appreciate your kind introduction and thank you for your commitment to public service and your great contribution to this country. We all have – all of us who had the chance – many of us have had the chance to serve with you have tremendous respect for your many years of service and you’ve served this nation both in uniform, as a leader at the Department of Defense, and of course in the United States Senate.
Good afternoon, and it’s a pleasure to be able to be here with Marty Dempsey, my pal over there in running the Department of Defense. And you don’t have to worry; that place is so damn big, and there are so many people that they don’t even know we’re here right now. (Laughter.) Eisenhower said it was such a huge complex building that you could walk in a major and come out a general. (Laughter.)
And I think it – David Brinkley had – (chuckles) – another good one. He said there was a lady who went up to a guard in the Pentagon and said, sir, can you help me; I’m pregnant, and I’m about to deliver a baby. And the guard said, ma’am, you should not come into this building in that condition. (Laughter.) And she said, when I came into this building, I wasn’t in that condition. (Laughter.) It’s a big – a big place. (Laughter.)
And it’s a – it’s a great privilege to have a chance to be here to discuss an issue of such immense importance to our nation’s prosperity and to our nation’s national security. I want to commend, obviously, Senator Warner, the Pew Charity’s Trust (sic), Chuck Hagel, and the Atlantic Council. Let me commend Chuck too for his leadership in support of this country’s long overdue ratification of the Law of the Sea Convention.
Now, let me also acknowledge Senator Trent Lott, who I had the pleasure of serving with in the House. And let me tell you: Seeing here – him in this room, I feel a hell of a lot better about the possibility of ratification. (Laughter.)
This afternoon, I’d also like to pay tribute to another statesman that has long supported the ratification of the convention, Dick Lugar. He is a friend, and he’s a tremendous friend to national security and a friend to our nation’s oceans. This country has benefited immensely from his many years of leadership in the Senate, on foreign policy, on national security issues. He is, in every sense of the word, a statesman. And these days, as my colleagues – my former colleagues here all know, most important thing is those that are willing to reach across and to try to see if they can find solutions to the problems that confront this country. And he often reached across the aisle to try to find consensus on some of the most challenging issues of our times, and that’s what leadership is all about.
Our country desperately needs that kind of bipartisan spirit and leadership that Dick Lugar embodies. And I guess, what an enormous tribute to Dick Lugar’s distinguished career and what a great legacy it would be for him if we were able to ratify the Convention on the Law of the Seas in his watch. I think that would be a wonderful thing to be able to do. (Applause.)
As many of you know, I’ve long been passionate about oceans policy and the need to be able to work with and develop and to protect our marine resources – (this is ?) a very important resource for this country, for ourselves, for our children and for future generations.
My love of the ocean goes back to my childhood along the California coast. My grandfather was actually in the Italian merchant marine, used to sail in the great sailing ships of the day around the world, fished off California, fished off Alaska. I was born and raised in Monterey, and it’s a community, as many of you know – fishing community that was made famous by John Steinbeck in his books, particularly the one on Cannery Row. Central California coastline, I can say very objectively, is one of the most beautiful in the world. And it is. And one of my proudest accomplishments as a member of Congress was establishing the Monterey Bay National Marine Sanctuary.
President John Kennedy once said that our oceans are the “salt in our blood,” and I think that’s true. They are critical to the very life of our nation: critical to our health, to our economy, critical to our recreation, critical to our weather systems, critical to our trade and critical to our security.
Recently, before I took the jobs in the administration, I had the honor to chair an oceans commission and later co-chaired the Joint Oceans Commission Initiative with Admiral Jim Watkins. Both commissions confirmed the importance of our oceans. But more importantly, both strongly supported the accession and ratification of the Law of the Seas Convention. The time has come – the time has come for the United States to have a seat at the table. The time has come for the United States to fully assert its role as a global leader and to accede to this important treaty. It is the bedrock legal instrument underpinning public order across the maritime domain.
We are the only permanent member of the U.N. Security Council that is not a party to it. China, France, Russia, Britain, other countries, Germany, India, 161 countries – 161 countries have ratified this treaty and approved it. We are the only industrialized country in the world that has not approved it. This puts us at a distinct disadvantage, particularly when it comes to disputes over maritime rights and responsibilities, when we have to engage those 161 other nations, including several rising powers, which are already parties to that treaty. In years past, several Senate committees – they’ve examined the convention, they’ve examined its various elements in hearings. And earlier committee votes were approved by large bipartisan majorities. Accession also has the broad support among major U.S. industries. And this is an important point. This isn’t – this isn’t just something that’s supported by the diplomatic community, the environmental community. This is supported by the business community.
Companies that are dealing with offshore oil, dealing with offshore energy, shipbuilding, commercial shipping, communications companies, on and on and on, industries that have to deal with our offshore resources – they need this treaty to do business. They need this treaty to be able to do their business and to accomplish their goals.
The same is true when it comes to national security. You have already heard the importance that Chairman Marty Dempsey attaches to U.S. ratification of the treaty. His views are echoed by leadership throughout the Department of Defense, by the chief of naval operations, by the commandant of the Marine Corps, by the Coast Guard commandant, as well as other leaders throughout the Pentagon and throughout our national security apparatus. Let me take a few minutes, if I can, just to outline why I too believe that this treaty is absolutely critical to U.S. national security, why it is time to move forward with this important issue, and why the longer we delay – the longer we delay, the more we undermine our own national security interests.
The United States is at a strategic turning point after a decade of war. I’ve made that point time and time again. We’re facing obviously the requirement that we reduce the defense budget by $487 billion over the next 10 years pursuant to the directions of the Congress and the Budget Control Act. This is one of the few times in our history that as we begin to come down from a war and from a period of threats to our national security, the problem is that even as these was recede, we face a large number of security challenges that continue to challenge our national security.
We confront transnational threats like violent extremism, terrorism, the kind of thing that we heard of just over these last few days – those threats continue – the destabilizing behavior of nations like Iran and North Korea, military modernization across the Asia-Pacific region, and turmoil in the Middle East and North Africa and elsewhere. At the same time, we’re dealing with the changing nature of warfare, the proliferation of lethal weapons, lethal materials, and the growing threat of cyber intrusion and cyber attacks.
These are all real and growing challenges. And the reality is that they are beyond the ability of any single nation to resolve alone. That is the nature of the world we live in today. And that’s why a key part of our new defense strategy that we developed at the Defense Department is to try to meet these challenges by modernizing our network of defense and innovative security partnerships – kind like we have at NATO, kind we have elsewhere, parts of the world – to try to develop those partnerships so that we can support a rules-based international order that promotes stability, that promotes security and that promotes safety.
And that’s also why the United States should be exerting a leadership role in the development and interpretation of the rules that determine legal certainty on the world’s oceans. Let me give you some reasons why this treaty is essential to a strong national security. First, as the world’s pre-eminent maritime power – and we are, and we will remain so – this country has one of the largest coastlines and extended continental shelves in the world. We have more to gain from accession to the convention than almost any other country because of the interests we have from our coastline, from our oceans and from our intercontinental shelves.
By moving off of the sidelines, where we are now, and sitting at the table of nations that have ceded to this treaty, we can defend our interests, we can lead the discussions, and we would be able to influence those treaty bodies that develop and interpret the Law of the Sea. If we’re not there, then they’ll do it and we won’t have a voice. In that way, we could ensure that our rights are not whittled away by the excessive claims and erroneous interpretation of others. And that’s what’s happening now. It would give us the credibility to support and promote the peaceful resolution of disputes within a rules-based order.
Second, by joining the convention, we would protect our navigational freedoms and global access for our military, our commercial ships, our aircraft, and our undersea fiber optic cables.
As it currently stands, we are forced to assert our rights to freedom of navigation, asserting, hopefully, customary international law, which can change to our own detriment. Treaty law remains the firmest legal foundation upon which to base our global presence – on, above, and below the seas. By joining the convention, we would help lock in the rules that are favorable to freedom of navigation and our own global mobility.
Third, accession would help lock in a truly massive increase in the country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad continental shelf beyond that zone. Fourth, accession would ensure our ability to reap the benefits of opening – the opening of the Arctic, a region of increasingly important maritime security and economic interest. We already see countries that are posturing for new shipping routes and natural resources as Arctic ice cover melts and recedes.
The convention is the only means for international recognition and acceptance of our extended continental shelf claims in the Arctic, and we are the only Arctic nation that is not a party to the convention. Accession would also preserve our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea route.
Finally, our new defense strategy emphasizes the strategically vital arc extending from the western Pacific and East Asia into the Indian Ocean region and South Asia. Becoming a party to the convention would strengthen our position in these key areas. For example, there are numerous countries that sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, the Persian Gulf and the South China Sea. The United States has long declared our interests and our respect for international law, for freedom of navigation, for the peaceful resolution of disputes. We have demonstrated our commitment to those interests through our consistent presence and engagement in these critical maritime regions.
By not acceding to the convention, we give up the strongest legal footing for our actions. We potentially undercut our credibility in a number of Asia-focused multilateral venues, just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes. We’re doing that in the South China Sea and elsewhere. How can we argue – how can we argue that other nations must abide by international rules when we haven’t officially accepted those rules ourselves?
Another hot spot is the Strait of Hormuz. The strait remains a vital sea lane of communications to us and our partners. And we are determined to preserve freedom of transit there in the face of Iranian threats to impose a blockade. U.S. accession to the convention would help strengthen worldwide transit passage rights under international law and would further isolate Iran as one of the few remaining nonparties to the convention.
These are the key reasons for ratifying this treaty, reasons that are critical to our sovereignty and to our national security. And that’s why I fail to understand the arguments on the other side of this issue.
For example, the opponents of accession have put forward the myth that the Law of the Sea Convention would force us to surrender U.S. sovereignty. Nothing, nothing could be further from the truth. Not since we acquired the lands of the American West and Alaska have we had such a great opportunity to expand U.S. sovereignty.
There are some who claim that accession to the convention will restrict our military’s operations and activities or limit our ability to collect intelligence on territorial seas. And again, quite simply, they are very wrong. The convention in no way – in no way harms our intelligence collection activities or constrains our military operations, nor will our military activities be subject to review or scrutiny by any international court or tribunal. On the contrary, U.S. accession to the convention preserves our freedom of navigation and over flight rights as bedrock treaty law, the firmest possible legal foundation for those activities.
America has always been and will always be a maritime nation. Since President Teddy Roosevelt dispatched the Great White Fleet in 1907 on its circumnavigation of the globe, we have been a global maritime power. Our new defense strategy recognizes our return to our maritime roots and the importance to our military of freedom of navigation and global mobility. We are making investments and force structure decisions to preserve that mobility.
Freedom of navigation is absolutely essential to any global power, but it applies to all maritime states everywhere. And the Law of the Sea Convention helps ensure that this freedom is preserved and secured through reasoned, deliberate international rules which are fully in accord with the freedom of navigation asserted by the United States around the world for decades. It provides the stable, recognized legal regime we absolutely need to conduct our global operations today, tomorrow and into the future.
Very frankly, this should not even be a close call. This should not even be a close call. The Law of the Sea Convention is supported by major U.S. industries, by the Chamber of Commerce, by our oil, energy, shipbuilding, shipping and communications companies, by fishing and environmental organizations, along with past and present Republican and Democratic administrations and the entire national security leadership of the United States. We cannot afford to fail.
By finally acceding to the convention, we will help make our nation more secure and more prosperous for generations to come. America is the strongest power in the world. We are strong because we play by the rules. Let us approve these rules, not ignore them. Let us approve these rules and let us all commit today that for the sake of America, for the sake of our national security, for the sake of our prosperity and for the legacy of Dick Lugar, let’s approve these rules by ratifying the Law of the Sea Convention.
Thank you very much. (Applause.)
Keynote Address by:
General Martin E. Dempsey, Chairman, Joint Chiefs of Staff
Thank you, Senator Hagel and Senator Warner, and good to see you as always. Don’t let the uniform fool you; I actually do care about the sea. (Laughter.)
I do want to mention one thing. The senator was talking about NATO, and I – this last week I was over in Brussels meeting with our chiefs of defense, the 28 of us who are the leaders of our respective armed forces. And our – my Canadian – we were talking about the Asia-Pacific, and they were asking me, what does it mean, this shift to the Pacific, this rebalancing to the Pacific? And I was explaining all of that. And then it occurred to me to remind them that NATO has a border on the Pacific; it’s actually the western border of Canada and the United States. So in a way, the North Atlantic Alliance has interests in the Pacific just as much as they have interests in the Atlantic.
With that, it’s my privilege to join Secretary Panetta today to speak in support of the Law of Sea Convention. My voice joins past and present senior civilian and military defense leaders to include our Joint Chiefs of Staff, and it echoes every chairman of the Joint Chiefs of Staff since the convention was first sent to the Senate in 1994.
This long line of support has been so consistent because of what the convention would do for our armed forces. It codifies navigational rights and freedoms essential for our global mobility. It helps sustain our combat forces in the field. It includes the right of innocent passage through foreign territorial seas, the right of transit passage through international straits and the right to exercise high-seas freedoms in foreign exclusive economic zones, all without permission or prior notice.
It affirms the sovereign immunity of our warships and other public vessels, and it gives us the framework to counter excessive claims by states seeking to illegally restrict movement of vessels and aircraft. Now, these are all rights and capabilities that we want and that we need. In fact, they are of our own making. We negotiated them into the convention to advance our national security interests.
Of course, we could always rely on the same approach we used 200 years ago. At that time, we commissioned the Navy’s first ships to safeguard our seaborne merchants against the Barbary pirates. But the force of arms does not have to be and should not be our only national security instrument. The convention provides an additional way to navigate an increasingly complex international security environment.
Aside from the compelling practical benefits, ratification now represents an unprecedented opportunity. First, the convention offers an opportunity to exercise global security leadership. Over 160 nations are party to it, including every Arctic nation and permanent U.N. Security Council member. Even so, the world looks to us for leadership. We have the world’s largest and most capable navy, the world’s largest economy and the largest exclusive economic zone. We will become the leader within the convention as soon as we enter it, and that’s never been more important.
On, over and under the oceans, nations are making competing claims or posturing themselves to restrict the movement of others. These actions impact the United States, but they impact our allies and our friends even more. As a party to the convention, we can help resolve conflicts, strengthen alliances and foster innovative partnerships. We have never been better poised or more welcome to lead a global security order benefiting all peaceful nations.
Second, the convention secures legitimate global freedom of access for our armed forces. Today we rely on customary international law and assert it through our physical presence: warships and aircraft transiting and challenging illegal restrictions. Some say this alone is sufficient. But it plays into the hands of foreign states that over time want to bend customary law to restrict movement on the oceans, and it puts our warships and aircraft on point to constantly challenge their claims.
Now, we’re strong enough for this role. We can and will continue to defend our interests, and we’ll do that with force when necessary. But we can also be smart. We can leverage law to mitigate the need for physical assertion. Under the Law of the Sea Convention, we can be both, that is, both strong and smart.
Finally, joining the Law of the Sea Convention will strengthen our strategic position in Asia. The western Pacific is a mosaic of competing claims for territory and for resources. This is a critical region where, as a Pacific nation, our security and economic prosperity are inextricably linked. We have a vested interest in mitigating any conflict in the Asia-Pacific before it occurs.
The convention gives us another tool to effectively resolve conflicts at every level. It provides a common language, and therefore a better opportunity to settle disputes with cooperation instead of cannons.
In closing, the convention provides a stable and predictable legal framework, which has never been more important to the United States. It validates the operations we conduct today and realizes our vision for a secure future. It seizes on an opportunity to lead in a way that advances our strategy while preserving our freedom of action for generations to come.
Thank you again for the opportunity to speak with you today and for your support of the armed forces of this great nation. Thank you very much. (Applause.)
Admiral Robert J. Papp, Jr., Commandant,
U.S. Coast Guard
Thank you very much, Senator Warner. Senator Lott, good to see you. I want to thank Senator Hagel and our 21st commandant of the Coast Guard, Admiral Jim Loy. Great to see you in the audience, sir.
I just walked out of a Senate Appropriations hearing, so this should be a piece of cake. (Laughter.) And I want to recognize the very distinguished panel members that you’ve had up here this morning – experts in policy and economics and business. I don’t know what expert I am. I’m just a practitioner and a sailor, so perhaps I can provide you a little bit different perspective this morning.
And I never presumed that anybody in the room really knows me. And I suspect there are a lot of people here that don’t know me, in spite of my friends that I do see a few here in the audience. So I thought by way of introduction and also to put my comments into perspective, I would ask how many people have ever read any of the books of the series by Patrick O’Brian about the – oh, very good, very good. If you haven’t read the books, perhaps you’ve seen the movie, “Master and Commander,” with Russell Crowe.
Well then, you know, all I have to do is have you think of my fictional alter ego – (laughter) – Captain Jack Aubrey, captain of the sailing ship Surprise for her majesty’s navy – a frigate. And there really are a lot of similarities between my fictional hero and myself. We’re both sailors, of course. Jack Aubrey spent many years at sea; I spent many years at sea. Jack Aubrey was the captain of a square rig sailing vessel; I was the captain of a square rig sailing vessel, our training ship, the barque Eagle. Captain Jack Aubrey, as portrayed by Russell Crowe in the movie, is ruggedly handsome. (Laughter.) Fortunately for me, my wife Linda thinks I’m ruggedly handsome. (Laughter.) Jack Aubrey, once again as portrayed by Russell Crowe, looks good in a uniform. And my wife, of course, thinks I look good in a uniform. And Jack Aubrey, as portrayed by Russell Crowe in the movie, has long, blonde flowing hair. (Laughter.) What was that? (Laughter.) My wife Linda happens to like Russell Crowe’s long, blonde flowing hair. (Laughter.)
But if you watch the movie or if you read the books, whenever Aubrey sits down to instruct his officers on how to keep the advantage in battle, which is very important for a sailing ship, he instructs his officers that you must hold the weather gauge. Now for those of you who don’t understand what the weather gauge is, if you’re a sailor, you understand that if you’re upwind of your objective, it gives you an advantage because it makes your sailing ship easier to maneuver – to maneuver yourself down on the target. And oftentimes far inferior ships with smaller guns and perhaps fewer people were able to defeat much larger ships because they held the weather gauge.
So holding the weather gauge in the days of sail when the ship was at a tactical advantage relative to other ships, the ship with the weather gauge had greater ability to maneuver, was better able to maintain its position of advantage and dictated the terms of naval engagement. So whether you read O’Brian’s fictional accounts of the Royal Navy in the 1800s or you study navy history for any period prior to the last century, you know that through most of the world’s history, the primary means of governance at sea was by warships or privateers, using canon shot, the swivel gun and maritime raids.
The weather gauge was crucial to tactical advantage. The weaker ships easily fell prey to those who were to were windward and with greater firepower and maneuverability. But as I said before, sometimes even inferior opponents could defeat much stronger ones, if they held the weather gauge.
So we’ve evolved from those days of governing the oceans almost solely through conflict, and rightly so. Sovereign states acting in concert have established on the land and the seas that the rule of law and legitimacy through a common legal regime is an essential form of governance. The adherence of states to unifying system of rules serves the benefit of all states. The adherence of states on the seas to that rule of law establishes governance for the conduct of ships, nations, companies and individuals. It reinforces and it preserves the legitimacy of sovereign states while condemning the illicit criminal networks, pirates, terrorists or other bad actors.
I’m not suggesting that the rule of law will ever eliminate conflict on the sea, but we know from experience that a system of maritime governance is essential to regulating human activity and commerce and will aid in regulating the behavior of states and by reducing the risk of conflict. Clear and enforceable legal regimes promotes stability, clarify expectations and boost confidence for the economic activity and establish a level of predictability and order. In other words, you have predictability, conformity and confidence and consistency.
The best example that I think of that sailors use on a daily basis is the international rules of the road. Now the international rules of the road for many, many years were just common practice, but it depended upon where you practiced it in the world. Different areas in the world had different practices. There was some consistency between them, but you didn’t have the predictability unless you understood the region you’re going to. So for hundreds of years – later groups got together and codified international rules of law so that when you’re sailing a ship around the world, you have predictability, you have conformity and you have confidence. Ships don’t even have to speak to each other because we know what we’re supposed to abide by and everybody follows the rules, under most circumstances.
Now some may offer that the United States Navy or a Coast Guard warship is the only law of the sea that the U.S. needs. And I disagree. We’ll always have that option when absolutely necessary, but our legitimacy as a sovereign state and as the world leader in maritime affairs depends upon and rests in the rule of law.
The Law of the Sea Convention codifies that rule of law in the maritime domain. Joining the Law of the Sea Convention will provide the U.S. with a strategic-level weather gauge, essentially, to address emerging challenges that threaten the nation and enhance the Coast Guard’s ability to safeguard American people, our environment and other ocean resources that will benefit all Americans.
Joining the convention will also anchor the Coast Guard as – in our international leadership role for the United States in maritime affairs. The Coast Guard leads the United States delegation at the International Maritime Organization or IMO. And to properly govern, through a set of minimum safety and security standards, foreign flag vessels entering ports, carrying almost 90 percent of the goods that fuel our economy and contribute to our national prosperity.
My personal experience as the head of delegation during the General Assembly this year was, quite frankly, embarrassing. Every time I went into a meeting, whether bilateral or multilateral, I had to suffer and endure the criticisms of even lesser countries criticizing us, as the world’s leader in maritime affairs, why we have not acceded to the Law of the Sea Treaty. Every time I got into a meeting to discuss policy and initiatives and goals and priorities for the United States, the opening conversation and argument was why has not the United States supported this treaty?
And as we look to the future – and I know Heather Conley was talking a little bit about the Arctic and some of the challenges we have up there in terms of our resources and the extent of our continental shelf claims. There are only eight Arctic nations. We’re one of them, and the only one that hasn’t acceded the treaty.
And over the next few years when Canada takes over the chairmanship of the Arctic Council and then the United States, we have the opportunity over a four-year period to advance some very important issues for the United States of America, but not unless we accede to the treaty and have that governing doctrine in place.
So joining the convention through IMO, the Coast Guard works to conclude maritime treaties that improve safety at sea, prevent marine pollution, ensure ship and port security, and provide standards for the training and certification of seafarers. These maritime treaties are the tools for implementing and enforcing the rights and obligations established by the convention. And they directly benefit Americans each and every day.
The sinking of the HMS (sic; RMS) Titanic nearly 100 years ago was the catalyst for accelerating international ship safety and navigation standards and greater maritime cooperation, reflected in many of the agreements developed through the IMO. Of course, the recent Costa Concordia tragedy is a stark reminder that we have to remain ever-vigilant to continue to press for effective standards that are regularly enforced. We depend upon our allies working through the IMO to develop and enforce such standards under the principles of the convention.
We live in a maritime world. We rely up on the sea for commerce. Ninety percent of our trade for this country comes by sea. The convention is the international legal framework on the usage of the oceans. We face a dynamic strategic environment, and preserving the freedom of navigation on the sea and protecting U.S. maritime sovereignty remains key to our U.S. interests.
Joining the convention will lock in vital navigation rights that ensure the mobility of Coast Guard cutters, Navy warships and other U.S. vessels and aircraft, and will protect America’s sovereign rights over offshore resources that the Coast Guard is charged with protecting on behalf of the American people.
The Coast Guard is responsible for enforcing the nation’s laws on the waters and on vessels over which we have jurisdiction. And our reach is global. The Coast Guard stops an average of more than half a ton of cocaine each and every day far out at sea and prevents it from entering the United States. Excessive territorial sea claims by other nations not only impact our mobility but can interfere with our drug interdiction efforts and other law enforcement activities.
The convention’s 12-nautical-mile territorial sea boundary secures vital boarding rights for the United States Coast Guard. The convention also secures the important rights of approach and visit by Coast Guard cutters to determine a vessel’s nationality and provides the process for enforcing U.S. laws on the many stateless vessels that dominate the illicit trade in drugs and people coming towards our country.
The convention sets overarching framework for cooperative law enforcement at sea, … an important force multiplier for the United States Coast Guard. On a daily basis we rely upon bilateral and multilateral international agreements and cooperation with partner nations to effectively interdict and combat threats to the United States of America, especially drug trafficking, migrants, smuggling and proliferation of weapons of mass destruction.
These agreements that we have, these multilateral and bilateral agreements, enable us to quickly counter the threat and then release on-scene personnel and cutters and aircraft to continue other operations across vast ocean operating areas. But every time we enter into one of these agreements, once again the opening argument is, why hasn’t the United States acceded to the Law of the Sea Treaty? And we have to start at basics to negotiate agreements that are very important for our country.
So when diplomatic negotiations over where to bring and prosecute contraband and detainees are prolonged because the United States is not a party to the convention, we keep our front-line cutters, our scarce front-line cutters and personnel and boarding teams, sidelined from the battle. We miss actionable intelligence and items that are out there because we have our people tied up as we struggle with the legal regimes. Joining the convention better positions the United States to interpret and demand adherence to convention provisions that ensure rapid disposition of cases and better protect America’s maritime security.
The nation really needs to take an azimuth check on the Law of the Sea Convention. And if it does, I’m confident that a thoughtful assessment will reaffirm that the convention has been and remains a success for United States diplomacy that furthers our United States interests. It will provide the nation with the weather gauge strategically and better enable the Coast Guard to protect Americans from the sea, to protect Americans from threats delivered by the sea, and to protect the sea itself.
And as Captain Aubrey would say – whenever he was faced with seemingly impossible circumstances and his crew was trying to persuade him to back down from these impossible circumstances, he would just look at them and say, there’s not a moment to lose. I’m here to tell you this morning, as regards to accession to the Law of the Sea Treaty, there is not a moment to lose. Thank you very much for your attention this morning. (Applause.)
Panel One: How Ratification Will Enhance and Protect America’s Commercial Economic Opportunities:
Jennifer Warren, Vice President, Technology Policy & Regulation,
Lockheed Martin Corporation
Thank you for those reassuring words. (Laughter.) Good morning. And seriously, thank you to Senator Warner, Senator Hagel, the Pew Charitable Trust and the Atlantic Council for convening this forum. I look forward to being able to share with you Lockheed Martin’s interest in the Law of the Sea.
However, I think while I will get to explaining our long-standing interest in this area, I think it’s very important to start off by saying that recent developments in deep seabed resources have really sharpened our interest in seeing the Law of the Sea ratified as soon as possible. We have a very strong and clear commitment to this, and we look forward to working with the Senate to achieve that goal, most importantly so that the U.S. can become an active player in the International Seabed Authority.
First a little bit about our history. The company has been engaged in deep seabed exploration activities for almost 40 years. And we’ve done that both directly as our company but also through consortia. In the ’70s and ’80s, almost going back to 1969, a predecessor company, Lockheed Missiles and Space, developed and demonstrated a technology, a capability for harvesting minerals and metals on the deep seabed floor.
We also generated over 80 patents and invested in what, you know, would be 2010 dollars, $500 million in independent R&D. So we’ve taken it very seriously. We’ve conducted surveys in the Clarion-Clipperton Zone, which extends, for those of you who don’t know, from Baja California to Hawaii. And we did so prior to either the treaty or the U.S. domestic statute being in place.
The work that we’ve undertaken has formed a basis for both claims that were sent by the Department of State prior to the treaty to the United Nations – (clears throat) – excuse me – and as the basis for NOAA licenses for exploration. And the licenses were issued obviously under the Deep Seabed Hard Minerals (sic; Mineral) Resources Act in 1984.
So while we have maintained our licenses in the intervening years and a general interest in the treaty itself, the market and other conditions in these – in this period really didn’t justify additional significant financial investments. In fact, other U.S.-based claims that coexisted at the same time period have since been dissolved or abandoned. So the Lockheed Martin claims are now the only current active U.S-based claims. And both the increased market value of the resources as well as technology advances that will improve our abilities to access these resources have really changed the business proposition.
A little bit about the resources themselves. The deep seabed floor of the Clarion-Clipperton Zone – which, as I mentioned, is where the Lockheed Martin claims are, as well as several other foreign claims, which we’ll come back to – contain polymetallic nodules composed of manganese, nickel, copper, cobalt and other minerals, as well as, as was mentioned earlier, rare earth elements. These minerals and rare earth elements are valuable inputs for both commercial and governmental interests, and therefore are arguably quite of strategic value to the United States.
The changed market circumstances and technology availability alone would create for us a sense of urgency. But the importance of these resources is also well-understood internationally. Other countries are moving forward quickly and aggressively to access them. In fact, the first four ISA – International Seabed Authority – licenses for deep seabed exploration were granted last July. Two of the four are held by China and Russia.
As a consequence of the ISA moving forward already, the urgency is particularly acute. And the implications, we would argue, are significant for the United States. For one thing, we believe it is in our national and economic interest to ensure an expanded source of rare earth elements, given the virtual monopoly that is widely reported as existing today for those resources.
Others may see this differently. And we – we’re very careful about not trying to conflate our interests with broad U.S. interests. But as the only U.S.-based claimant, our view is pretty straightforward. Business initiatives to exploit deep seabed mineral resources will only be able to secure the necessary financial investments if it’s done pursuant to the existing international framework. It really is that simple.
The framework is there to establish and protect legal rights to claims. And the legal-certainty theme you’ve heard throughout the panel applies here. And for a U.S.-based claim to be protected, the U.S. must be a party to the Law of the Sea and an active participant in the International Seabed Authority as it moves to develop the rules for exploitation of the deep seabed. That’s its next agenda item.
We think it’s worth nothing also, for those that are concerned about jurisdiction, that the International Seabed Authority is not the only international regulatory framework in place that governs access to vital resources. One only has to look to satellites for another example, and actually it’s a very successful one.
The U.S. has been a long-time member of the International Telecommunications Union, the ITU. It’s a U.N.-affiliated agency that has the responsibility and – to govern access to orbital resources and radio spectrum. And it has done so successfully. And the United States government and industry working together have accessed those resources very successfully over the years by participating in that – in that entity and shaping the rules. We believe we can and should do the same in the ISA and therefore urge ratification of the Law of the Sea. Thank you very much. (Applause.)
Panel One: How Ratification Will Enhance and Protect America’s Commercial Economic Opportunities:
John Ryan, Chief Legal Officer, Level 3 Communications, Inc.
Thank you, Senator Warner. And thank you, Senator Hagel and the Pew Charitable Trust and the Atlantic Council, for inviting us to share our views on the law of the sea forum.
Level 3 Communications joins other members of the forum here, as well as other members in the submarine cable industry, in urging the Senate to take up and ratify the convention, as it will provide U.S. businesses that operate submarine cables with a level of certainty, with respect to their operations, that we – that we currently do not enjoy. Ratification of the treaty will enhance U.S. businesses’ ability to compete internationally, putting us on a level playing field with many of our competitors who already have access to the benefits of the treaty.
I’d like to give you a little background on Level 3 Communications’ current operations and why we care so much about the convention. We operate a fiber optic communication system that carries much of the world’s Internet traffic. We operate one of the largest Internet protocol networks in the world. That Internet protocol network, fiber optic network connects to 45 countries, extends to North America, around Latin America, Europe, the Middle East, Africa and the Asia-Pacific region. Our extensive undersea facilities consist of approximately 35,000 subsea miles connecting to those continents that I mentioned before.
One of our greatest assets is our direct command and control of that network. That physical network runs on fiber that’s owned by Level 3, over electronics that are owned and operated by Level 3. And those fiber facilities are upgradeable to be able to handle the increases in traffic that Senator Warner mentioned. We use that international subsea cable, us and others who operate subsea facilities, to carry Internet traffic, to carry voice traffic, to carry video traffic outside of North America.
Because of globalization and the ever-expanding use of the Internet, the statistics are somewhat mind-boggling. From 1995 to 2007, in those 12 years, estimates are that subsea capacity leading to and out of the United States increased by 27,000 – so a 27,000-fold increase in overall capacity through 2007. The Internet wasn’t video-ready in 2007. So in the five years since 2007, you can take those numbers and multiply them even more. As the Internet continues to expand, the last 100 years have been about expanding our ear lobes around the world. The next 100 years are going to be about expanding our eyeballs around the world. And in order to do that, more subsea capacity needs to be deployed.
We strongly support ratification of the treaty for three primary reasons. First, the convention improves protection for international submarine cables. Since Level 3 and other telecommunications providers project the demand for Internet services will continue to explode, it is essential to protect this critically important global network infrastructure from damage or disruption. When it breaks, you need to fix it fast. Any uncertainty in protecting the infrastructure puts the U.S. and U.S.-based companies at a competitive disadvantage relative to our competitors who are members of the convention. And that uncertainty inhibits economic growth and investment.
Second, the convention includes meaningful dispute resolution procedures that are – that relate to the operation and implementation of subsea cables. Under the treaty, parties that have access to the treaty have access to compulsory dispute resolution procedures that protect submarine cable operators against onerous and unreasonable permitting or coastal states who refuse to allow the installation of subsea cable facilities. That dispute resolution provisions are one of the principle benefits of the U.S. accepting the treaty. And it is one that U.S. companies do not currently enjoy while many of our competitors overseas do.
Third, the convention expands the right and clarifies the right to lay and maintain subsea cables. Several provisions of the convention establish the rights of nations and private parties to lay and maintain submarine cables on the continental shelf in the exclusive economic zone and on the bed of the high seas.
In conclusion, we look forward to looking – to working with you, Senator Warner and Senator Hagel, to gain the support needed in the Senate to secure ratification of the convention. Others will talk about the benefits that ratification will bring to national security and to enhancing our diplomatic role in the world, but I’m here to tell you that, with respect to the operation of subsea cables, it will improve our economic security by providing certainty and leveling the playing field we face with our competitors. Thank you. (Applause.)
Panel One: How Ratification Will Enhance and Protect America’s Commercial Economic Opportunities:
R. Bruce Josten, Executive Vice President, Government Affairs,
U.S. Chamber of Commerce
Thank you, Senator Warner, and let me thank the Pew Charitable Trust and the Atlantic Council, as well as Senator Warner and Senator Hagel for their participation in this event today.
Briefly, we see this treaty and convention as being long overdue. It will establish the needed international legal framework that would allow American business and industry to compete for strategic resources, as Marty has just mentioned. It would create navigational systems. It would provide rights of way for undersea cable, which is crucial and going to be increasingly important to global telecommunications. It secures, in our view, our nation’s sovereign rights over extensive marine areas off the shelf and, as Marty emphasized repeatedly and importantly, to any business provides the needed certainty and stability to take the risk and make the investments that are going to be needed here in global marine enterprises.
Failure for the United States to approve the Law of the Sea Treaty will be a strategic disadvantage to not just American industry, but to the nation at large. Unlike most other treaties, I think it’s important to remember this will form the basis of maritime law regardless of whether or not the United States joins officially. By ratifying this treaty, we become a mission of the Commission on Limits of the Continental Shelf, not just a part of the treaty; and it’s that body that will ultimately determine the validity of each country’s claims to these extensions off the continental shelf and ensure exploration for needed natural resources. This is an essential action that’s needed to protect the interests of our American industry and the development and use of these resources.
This is the next and new American frontier, and probably for a generation or more. It holds hope, if you will, for the next big thing in this country in terms of energy resources – and not just energy resources. It’s important that the U.S. Geological Survey estimates for us that nearly a hundred billion barrels of oil, trillions of cubic feet of natural gas as well as deposits of industrial metals from copper to lead, and importantly, rare earth minerals, which is crucial to the United States military as well as industry – and important to recognize that 85 percent of known deposits of rare earth minerals today are in China, not here, and we need access to them.
Business needs international recognition of legal rights to exploit these resources that could be claimed, and some are trying to claim. We have nations kind of posting flags in the Arctic underground and saying this is ours. Business simply will not invest or explore or take the risk in the extended shelf until it’s clear and certain that their licenses to these deposits will not only be recognized here in America, but by all other nations participating in this treaty. We need protection against erosion of legal rights as we go in to explore and exploit. We need to have our government actively involved in defending those interpretations and those rights and understandings of the Law of the Sea, and that has to be done very simply through the Law of Sea Convention, or it’ll be done without us and without our government’s voice.
Ratifying this treaty is needed to enable us to be able to obtain that international recognition of those resources, and the cost of nonparticipation in this treaty today by our government is simply too high a cost and too high a price to pay for America.
We strongly encourage the Senate to ratify this treaty. It has twice been voted out of the Senate Foreign Relations Committee, bipartisan votes in both cases, I think in ’04, in ’07, if I remember correctly. We haven’t yet made it to the floor for a full vote. It is long overdue. Bear in mind this started with President Nixon, was amended by Reagan, amended by Clinton, amended by two Bush administrations. I think the concerns that came up over decades have been thoroughly vetted, thoroughly addressed and completely resolved. I’m glad to participate and endorse us ratifying this treaty as soon as possible. (Applause.)
Panel One: How Ratification Will Enhance and Protect America’s Commercial Economic Opportunities:
Martin J. Durbin, Executive Vice President,
American Petroleum Institute
Thank you, Senator Warner. Senator Warner, Senator Hagel, distinguished guests, again, thank you for convening this event. And of course, thank you for the invitation to participate as well.
America’s oil and natural gas industry needs the certainty and predictability provided by the Law of the Sea Convention to continue providing the energy that keeps our nation and our economy moving and to fully realize the potential of significant advances in technology that allow us to extend operations into areas once considered out of reach and uneconomic.
The convention provides a clear, objective means of determining where authority exists, eliminating uncertainty and the potential for creating jurisdictional conflicts between nations. Given the rapid economic and political changes sweeping the world, the U.S. can’t afford to be left out of the process any longer if we want to ensure that U.S. companies engaged in offshore energy production are to remain competitive in the global market.
To remain competitive, these companies spend billions annually looking for and producing oil and natural gas around the world. They make their investment decisions by weighing carefully the level of risk against the potential for returns on investment. And the simple fact is they’re more likely to invest in projects that they believe offer security during their operations and certainty in their returns.
As advances in technology push us further from our shores, this inevitably increases the potential for conflicts with other nations’ territorial claims and creates a more pressing need for certainty and stability in the delineation of boundaries. The convention defines the rights and responsibilities of nations in their use of the world’s oceans and would provide that certainty and that – and that stability.
In addition, it will give the U.S. a seat at the table as the Continental Shelf Commission continues the process of dividing up millions of square miles of offshore territory and assigning management rights to all the marine resources. This process of dividing offshore territory has been described by some as probably the last big shift in ownership of territory in the history of the earth. We can’t emphasize strongly enough that the U.S. cannot be left out of this process.
Convention broadens the definition of the continental shelf in a way that favors the United States with its broad continental margins, particularly in the North Atlantic, Gulf of Mexico, the Bering Sea and of course the Arctic. In the case of the United States, this brings an additional 4.1 million square miles of ocean under U.S. jurisdiction. That’s more than 3 billion acres, an area larger than the U.S. land area.
Our companies are interested in taking advantage of the resources in those areas beyond 200 miles in ways that continue to demonstrate environmentally sound drilling and development and production technologies. So it is in the best interest of the United States to follow the convention’s procedures for establishing the outer limits of the continental margin beyond 200 miles wherever appropriate. In so doing, the United States could expand its areas for mineral exploration and development by close to 300,000 square miles.
We need to get on with the mapping work and other analyses and measurements required to substantiate the extent on – the extent of our shelf. And some of the best technology for accomplishing this resides right here in the United States. Establishing the continental margin beyond 200 miles is particularly important in the Arctic, where there are already a number of countries vying to expand their offshore jurisdictional claims.
The U.S. Geological Survey estimates that about one quarter of the world’s undiscovered oil and natural gas lies beneath Arctic waters. And modern technology now makes it possible to access some of those resources. So it’d not only help the United States meet its growing energy needs but would contribute significant royalty payments to the federal treasury.
One other important consideration is international oil trade. U.S. companies are leading participants in the global oil market. And about 44 percent of U.S. maritime commerce consists of petroleum and petroleum products. The convention’s protection of navigational rights and freedoms advances the ongoing energy interests of the U.S. Trading routes are secured by provisions in the convention combining customary rules of international law with new rights of passage through straits and archipelagos. So accession to the convention would put us in a much better position to invoke such rules and rights.
Steady growth in the demand for petroleum throughout the world means increases in crude oil and product shipments in all directions throughout the globe. Again, the convention can provide protection of navigational rights and freedoms in all these areas through which tankers will be transporting larger volumes of oil and natural gas.
From an energy perspective, we see the potential future pressures building in terms of both marine boundary and continental shelf delineations and in marine transportation. Today the U.S. relies on oil and natural gas for 62 percent of the energy it consumes. And according to the Energy Information Administration, projections for 2035 show that oil and natural gas for 62 percent of the energy it consumes. And according to the Energy Information Administration, projections for 2035 show that oil and natural gas will continue to provide nearly 57 percent of a growing U.S. energy demand. That’s even with significant increases in renewable energy – renewable energy use.
So the question isn’t will we need more oil and natural gas, but where will we get it. And Law of the Sea Convention will provide the necessary certainty and predictability to ensure we have access to another significant potential energy resource.
In short, we believe the Law of the Sea Convention offers the U.S. the chance to exercise needed leadership in addressing these pressures and protecting the many vital U.S. ocean interests. If the U.S. were not to become a party to the convention, it could negatively affect any opportunity to lay claim to vitally needed natural resources.
Today the U.S. does not participate, even as an observer, in the Continental Shelf Commission. We’re now watching from the outside as the guidelines and protocols for conduct on the world’s oceans are developed and as certain provisions of the convention are implemented. We can’t allow this to continue. The Law of the Sea Convention is good for our nation, and we at API certainly urge the Senate to give its approval. Thank you.
Panel Two: How Ratification Will Strengthen America’s Military, Foreign Policy and National Security:
Heather Conley, Senior Fellow and Director, Europe Program,
Center for Strategic and International Studies
Senator Warner, thank you so much, as well to Senator Hagel and the Pew Charitable Trust and the Atlantic Council. It’s a great privilege to be with you.
When – those who study the Arctic, we call us the frozen chosen. And – but the last four years the Center for Strategic and International Studies has dedicated itself to a project called the Geopolitics of the High North. We are joined by several other think tank partners in focusing on this evolving region. And we had the opportunity to look at U.S. strategic interests in the Arctic.
And what I’d like to do is just for a moment take a step back and think about the two defining historical frameworks and what I can consider the most significant geostrategic phases of U.S. leadership in the Arctic. That of course would be the Second World War and then during the Cold War.
In the Second World War, the U.S. needed to create supply routes by air and sea to resupply the Soviet Eastern Front through the port of Murmansk and to prevent a potential invasion. So when called upon, our nation stepped forward. And as a result, we did great infrastructure development in Alaska and really created an – I think an extraordinary moment in our history.
And then again at the height of the Cold War – and again, I guess we’ll invoke President Eisenhower’s name once again – he created a continental deterrence and defense system, of course known as the DEW Line, the Distant Early Warning Line. And at that moment – again, to imagine this, roughly 25,000 people were involved in some aspect of constructing the DEW Line. More than 3,000 soldiers from the Army Transportation Corps prepared to unload ships in the Arctic. And today if you travel off the beaten path in Alaska, you may find some rusted and aging infrastructure that reminds us of the DEW Line.
Now I don’t mean to wax nostalgic about another time or another place in our history, but I invoke this important piece of history because I want us to recall American leadership in the Arctic at its very best. When we have a national imperative to do something important, we can do it. When we wish to build something durable, we can do it. And when we have a national vision and know where we want to go, we can get there.
So I believe it is time that the United States prepares for the third defining geostrategic phase for the 21st century Arctic. This time, very thankfully, we aren’t fighting an existential threat. But we must fight for a long-term national economic and security strategy and vision for the Arctic. How much of this rapidly transforming region do we want to explore? How much of our national heritage do we want to protect? How do we wish to tap into this region’s abundant natural and mineral resources? Do we wish to secure America’s most northern border?
For the Arctic, in a continuation of American leadership in this region, the answer begins with the Law of the Sea Treaty. As many of you know, the Arctic region is a frozen ocean, which is rapidly thawing, surrounded by a coastal states – five Arctic coastal states. Therefore the Arctic is governed internationally by the Law of the Sea Treaty.
So our second question is do we want to lead or do we want to be left behind? Do we want to follow Russia, Norway, Denmark and Canada in submitting scientific claims to explore, protect and potentially exploit resources beyond our outer continental shelf? Today we are abdicating our leadership as Russia is submitting its second round of scientific claims to the Lomonsov Ridge, an undersea mountain chain that goes under the North Pole, at the very end of this year, a critical issue for our – extending our continental shelf.
Does the U.S. want to lead in the creation of new jobs and new opportunities to gain energy independence? As the first panel, I think, in very clear ways illustrated, we have enormous amounts of economic opportunity to explore in our American Arctic. According to the U.S. Geological Survey, the Arctic could hold up to 12 percent of the world’s undiscovered oil resources and 30 percent of natural gas resources. As was mentioned, the mineral resources – America’s largest iron ore mine is Alaska. Rare earth potentially could be there – nickel, all the critical elements of a 21st century economy. But today we cannot tap into those resources that lie beyond our exclusive economic zone.
This summer, Shell Oil will likely drill in the Beauford and Chukchi Seas. According to one study that was conducted in Alaska, nearly 55,000 jobs could be created. Drilling on Alaska’s outer continental shelf could make Alaska the eighth largest oil producer in the world before Nigeria, Libya, potentially Norway. How much economic activity do we want to forgo? How many jobs do we not want to create?
As the most significant maritime power in the world, will we be able to maintain freedom of navigation in international waters as they become ice-free? Increasingly, as the polar icecap recedes, we are seeing new shipping opportunities through the Northern Sea route. The Bering Strait will become an increased area of traffic. And we have to make sure that the United States can secure our homeland and protect the citizens of Alaska as we – you see this increase in human and commercial activity. We also must preserve our missile defense architecture, again, prevent – ensure freedom of navigation and prevent any acts of terrorism that could come from a thawing Arctic.
But I can’t answer any of these questions today, because I don’t know how long it will take us to ratify the Law of the Sea Treaty. But with each passing day that we do not ratify, we place America’s national security in the north and our economic vitality at risk.
Now throughout this presentation, I have not uttered once the words “United Nations.” And while I fully respect the diversity of views in this country about the United Nations, this really isn’t about the U.N. It is about us. It is about how the United States wishes to lead in the 21st century, be that in the Arctic, in the South China Sea or anywhere where our maritime interests are at stake.
For the past 30 years, we have been able to maintain our leadership without ratifying the Law of the Sea Treaty. We’ve accepted it as customary international law. We have continued to negotiate the treaty’s terms in our favor, as Deputy Secretary Negroponte said. But we’ve been able to stand back. This is no longer the case. The status quo is no longer sufficient. Other states are using the law of the sea to their full advantage. And by our continued inaction, we are losing strategic advantage in the Arctic.
With 12,500 miles of coastline, 360 major commercial ports and the world’s largest exclusive economic zone, the United States now must decide whether it’s going to lead boldly or have – or just remain outside the treaty, afraid to join it, react when necessary, miss shaping our security environment and certainly missing economic opportunities that come with it. Ladies and gentlemen, this is not how an exceptional nation acts. This is not American leadership as I know it and as I have studied in the Arctic.
Finally, let me close by something that I’ve heard many senior Coast Guard officials say. And the Coast Guard is certainly the front line of protecting U.S. strategic interests in the Arctic today. They tell us that the Arctic is now. It is upon us. And therefore, the ratification of the Law of the Sea must be now as well. Thank you.
Panel Two: How Ratification Will Strengthen America’s Military, Foreign Policy and National Security:
Dr. John Nagl, Non-Resident Senior Fellow and Former President,
Center for a New American Security
Well, thank you, Senator Warner, for your continuing leadership in the national security of this nation. I’d like to thank Senator Hagel as well. I find some symmetry, some beauty in the fact that the two old Army dogs from Nebraska are engaged in this effort to get the U.N. Convention on the Law of the Sea passed.
As Senator Warner noted, I’m now a professor at the U.S. Naval Academy. My remarks today are informed by the work of my friends in the Department of Leadership, Ethics and Law at the Naval Academy and by the good work of Will Rogers – that is his real name – (laughter) – who at the Center – who’s right over here – who at the Center for a New American Security, because the old American security just wasn’t good enough, recently published a paper titled “Security at Sea: The Case for Ratifying the Law of the Sea Convention.” My remarks are informed by all of the work of those friends of mine. But of course, nothing I say is the official opinion of the Navy, although I have yet to meet anyone in the armed forces of the United States of America who does not strongly endorse the passage and the ratification of this convention.
As Heather just noted, the United States has protected its maritime interests for many, many years without ratifying the Law of the Sea. For more than 30 years we’ve enjoyed the protections afforded by customary international law, in large part because countries around the world have recognized those customary practices as the appropriate rules of the road at sea.
But this approach of relying only on customary practice is ever more risky and will increasingly peril U.S. national security interests. The rise of modern navies, from Asia to South America, is giving countries a greater reason and a greater capability to challenge existing maritime norms and redefine them in ways that protect their own national interests, even at the expense of important, long-standing maritime rules, such as the freedom of navigation at sea. And this is nowhere more apparent than in the South China Sea, where today, China’s outsized claim to the entire South China Sea region flies in the face of both customary international law and the Law of the Sea Treaty. Moreover, China, Thailand and other countries are reinterpreting customary international law, even the laws enshrined in the Law of the Sea Convention, in ways that run counter to long-standing interpretation and, more importantly for our purposes, to American national interests.
Ratifying this treaty will help the United States counter efforts by rising powers seeking to reshape the rules that have been so beneficial to the global economy and to U.S. national security, and will strengthen those provisions in the Law of the Sea that codify customary international law and continue to protect U.S. interests. By becoming a full party to the treaty, the United States can avail itself of a legitimate and recognized framework for adjudicating disagreements that will enable the United States to sustain access to the global commons, including fora like the Law of the Sea Tribunal.
Ratifying the treaty will also enable the United States to strengthen a whole range of ongoing security activities. As Heather noted, the Navy and the Coast Guard are our key instruments of power at sea. Ratifying the Law of the Sea will strengthen their ability to do their job and work with others to protect American interests in areas including counter proliferation, perhaps the most serious threat facing the United States today, and counter piracy.
Ratifying the Law of the Sea would also enable the United States to lay sovereign claim to deep-sea oil and natural gas resources on our extended continental shelf. And I thought the first panel did a great job of talking to the jobs, the job potential, the tax revenues that can accrue to the United States and further strengthen our national security. Our last chairman said that the national debt is our biggest national security problem; we’ve got to find ways to get a hold of that. There is – there are dollars for the taking that companies simply can’t make the risk profile work given the – our failure to ratify the Law of the Sea.
The Law of the Sea permits countries to submit claims to the U.N. Commission on the Limits of the Continental Shelf, which would expand U.S. sovereignty to the extended shelf that’s – that – the estimates are that that’s about twice the size of California. Submitting a claim to the commission would enable the United States to lay sovereign claim to these resources, significantly expanding domestic production of oil and natural gas, providing more assured access to energy resources. This would obviously significantly improve U.S. national security by helping close our trade deficit and by providing more assured access to energy in case a major crisis were to occur, choking off access to foreign energy imports for any length of time.
We need to encourage the private sector to develop these resources. Our failure to ratify the Law of the Sea has had a chilling effect on commercial resource exploration and exploitation. Many of the companies, as we discussed this morning, have been reluctant to operate beyond the 200-mile nautical economic exclusion zone due to lack of formal legal protections that would require them to assume more risk than they need to. We can’t afford to keep these roadblocks in place.
And finally, ratifying the Law of the Sea will put the United States in a better position to protect its maritime interests in strategic regions around the globe. Nowhere is this more clear than in the Arctic, as Heather just noted, an area that’s going to be one of the most important maritime regions in the globe in this 21st century. Russia, the United States and other Arctic-bordering countries are increasing activity in the Arctic as the melting of the global ice cap provides more access to new shipping routes and natural resource deposits. Arctic countries are jockeying for power by revamping the sea floor, increasing their military presence, and this has real security implications for the United States.
Without ratifying the Law of the Sea, the United States is ill-positioned to lay claim to the strategic energy and mineral reserves on its extended continental shelf on the Arctic, and we can’t even challenge claims that other countries make to the U.N. Convention on the Limits of the Continental Shelf, even if those claims conflict with U.S. ones, because we’re not even at the table. Many countries like Russia are preparing to submit claims to the commission. We can’t lose out on our ability to lay sovereign claims to the extended continental shelf by not being party to the treaty. We can’t continue to operate from a position of weakness rather than strength.
This also has important implications for our ability to wield influence in other places around the globe, and we’re in bad company on this, it saddens me to say. We join Afghanistan, North Korea, Libya and Iran as countries that have not ratified the U.N. Convention on the Law of the Sea. By and large, that’s not company we want to keep.
While ratifying the Law of the Sea won’t address every challenge the U.S. will confront at sea, it will substantially improve our ability to protect our global interests by providing a stronger legal foundation for our maritime activities and by helping to shape and enforce international norms and legal authorities. Perhaps just as importantly, ratifying the treaty will protect and enhance U.S. sovereignty by allowing the United States to make sovereign claims to the natural resources that lie in the seabed on the extended continental shelf.
The United States has been a maritime founder – a maritime power since its founding. And I’ve gained, since I started working at the Naval Academy a few months ago, a real appreciation for how important our domination of the seas has been to our economic development as a country.
The growing importance of the maritime demand to U.S. interests, the rapidly changing global security environment all mean that we need to have every tool at our disposal to ensure that we remain the world’s strongest naval power. (Inaudible) – looking at me and just giving me hell right now. (Laughter.) Ratifying the Law of the Sea will put America on a path of continued maritime pre-eminence for the decades ahead. I’m going to pay for this with my Army buddies. We owe ourselves and the nation nothing less.
And let me close by answering Senator Warner’s challenge at the start of the talk. Most of all – the single most important reason to ratify the treaty is that ratifying U.N. Convention on the Law of the Sea will make life easier for all of the midshipmen who have to struggle every semester to understand why it is that the U.S. refuses to ratify – (laughter) – this perfectly good treaty that is endorsed by every significant military leader we’ve had for two generations.
And this is a wonderful demonstration, Senator, of the doctrine of separation of powers. But we can find other ways to teach them that. (Laughter.) So let’s make life easier for our – (chuckles) – midshipmen and our Coast Guard Academy cadets, ratify this thing and get America back where it deserves to be, in a position of naval intellectual leadership, moral leadership for the entire world. Thank you. (Applause.)
Panel Two: How Ratification Will Strengthen America’s Military, Foreign Policy and National Security:
Professor John Norton Moore, Walter L. Brown Professor of Law,
University of Virginia School of Law
Senator Warner, Senator Hagel, Senator Lott and distinguished participants in the negotiations and discussions today, the United States was not simply just another player in the Law of the Sea negotiations. The United States unequivocally led the world in the negotiations leading to this convention and in the renegotiations of Part XI that met all of Ronald Reagan’s conditions set out for that provision.
Under two Republican presidents, a unique National Security Council office was set up that represented 18 federal agencies of the United States government, and also put together a 100-member private-sector advisory committee that was representing the full spectrum of affected American industry and oceans interest. Rarely has federal policy so fully represented both all of American industry and all of the affected agencies of the United States government.
The result was one of the most stunning successes in multilateral negotiation in American history. Just to touch on a few of the extraordinary victories for the United States in this: We won all of our interests in navigational freedom, including the critical issue for the chiefs of transit passage through, over and under straits used for international navigation, that we were told by the academic community ahead of time that we could never win and would never have the votes. We won it. Navigational freedom is the single most important struggle for the future in the oceans. This convention unequivocally protects United States navigational freedom, the movement of our commerce, the movement of our United States Navy.
In addition to that, the United States ended up with the largest area of resource jurisdiction of any nation in the world. With the 200-mile economic zone and the extended continental shelf, it more than doubles the entire land mass of the United States of America in the extension of resource jurisdiction – more than any other nation in the world.
In addition to that, there are critically important resources and strategic minerals in the deep ocean. One of the absolute bottom-line needs of the United States that we told others is we had to have assured access to those copper, nickel, cobalt and manganese and rare earth in those nodules in the deep ocean floor. We won a mechanism to give us private property rights in four sites that were the best in the world, that reflected the work that Lockheed and many others had done, the United States spending more than any other country in the world in its industry developing those sites.
We believe today that just looking at the aggregate value of the mineral resources in those sites that are very much at risk in this question of moving forward on advice and consent, it’s about a trillion dollars. It’s about the cost of the war in Iraq. And if we look simply at the latest estimate of the resources in the extended continental shelf of the United States that’s beyond 200 nautical miles, again, the figure comes up of about a trillion dollars in the value of that extended shelf even beyond 200 nautical miles.
So the United States has done extremely well. Other countries in the world that participated in the negotiation with me – they’ll come up to me and say, what in the world is going on? You won more than any other nation in the world. Absolutely, unequivocally, everything the United States wanted, you got, including the renegotiation of all of Ronald Reagan’s conditions. What’s going on? Why are you not moving forward?
And on that I’d like to spend a few moments on some of the arguments that one hears in opposition. Now many of the opponents are some of my very good friends. I come from the Republican side of the aisle. At one point I chaired a small committee that didn’t amount to anything in the Republican National Committee on oceans policy. And so I’m sorry that some of these are on my side of the aisle, but I’m going to just have to tell it as I see it in the interests, I believe, of our country and our military and our commercial interests.
And I believe the real problem here is one of really just kind of not getting the facts right under the convention. Good people, but they – they’re hearing arguments that aren’t accurate. And the – there’s a wonderful story, by the way, as to the importance of getting your facts right. It is the two neighbors, the lady that had a pet rabbit and her neighbor next door that had a German shepherd. And as you might imagine, to the horror of the owner of the German shepherd, the shepherd brings in one day the neighbor’s rabbit all covered with dirt. And oh, there’s goes the relationship; what do I do? So he thought about very quickly, took the rabbit out of the German shepherd’s mouth, went in, just very, very carefully washed it off, lovingly used the blow-dryer on it, snuck across the fence and stuck it back in the hutch. And at that point, he just waited by the fence to see what would happen. And a cry went up, sure enough, and he ran to the fence. What’s wrong? What’s wrong? My rabbit died, we buried him, and now he’s back in the hutch. (Laughter.) Well, ladies and gentlemen, you need to get your facts right.
And one argument that you hear over and over is somehow the United States is losing its sovereignty. Nothing could be further from the truth. This is 180 degrees off. The United States has not a single article in this convention that is removing an ounce of sovereignty of the United States. And we’ve already seen that what it’s really doing is massively increasing the area of sovereign rights of the United States in resources in an area larger than the Louisiana Purchase and the acquisition of Alaska combined. This is a staggering increase.
And by the way, if you look at the question of was this some international negotiation, just internationalists trying to create some new international thing, the new international economic order, there were those that tried that. But you know what this negotiation really did? What it really did is have the greatest expansion of national resource jurisdiction in the history of the world, the expansion of the 200-mile EEZ in the continental shelf. That was the core of it. The international agency that was created is a minor part of it, and we’ll talk about that in a moment. So the sovereignty argument is not just wrong, it’s 180 degrees wrong.
The second argument you hear sometimes is that somehow, this will interfere with our military or our naval interests, security interests of the United States. Again, nothing could be further from the truth. I’m happy to say that for the most part, the opponents have largely dropped these arguments after it’s become absolutely embarrassingly clear to them that every single one of the chiefs have always supported it, that all of the (SEACs ?) supported it, that all of the chiefs of naval operations have supported it, that every commander in chief of the United States have supported it of both political parties, and this is one that’s absolutely a no-brainer. The Navy was the strongest group that worked with me on a day-to-day basis at winning everything we needed in this negotiation on the security side.
The third argument you hear, again, is this (internationalist ?) – somehow, we created this International Seabed Authority that some – that’s going to take over the world’s oceans. Well, again, nothing can be further from the truth. In 25 years of work so far, it has a staff of about 39, counting the drivers and the secretaries. Some of the organizations that are opposing the Law of the Sea are considerably larger organizations than the International Seabed Authority, which I do not think is in the risk of taking over the world at this point.
The International Seabed Authority, I might add as well, has very, very narrow, limited area of jurisdiction. It is to create property rights in deep-ocean mineral resources. Why did we agree to this? Why did we want it? Because you have to have property rights to develop those four mine sites of the United States in the mid-ocean that – again, each of those mine site is about the size of the state of Rhode Island. You can’t just grow out and grab the nodules. You have to have legal certainty to expend the billion dollars upfront to develop one of these operations and to help us and the Treasury and all the rest that goes with it.
Now finally, let me just add very briefly, one of the newer arguments is a concern about revenue sharing on the extended continental shelf, that is, revenue sharing that over the life of a 12-year well would be about an average of about 2.3 percent of the value of production at that site from the well.
Now, why did we agree to that? We agreed to that because this was an unbelievable bargain. The United States was able to get the entire extended continental shelf of the United States going out over 600 miles off Alaska into the Arctic, for example, and what’s the price we paid for that? 2.3 percent of the minerals?
I suggest to you that’s a little bit better deal than the acquisition of Alaska. And I personally feel very proud that I was able to do that for the United States in this negotiation.
The arguments against it would simply mean that the United States industry will not go out, as they told you earlier today, to develop the extended continental shelf. If they won’t develop the extended continental shelf, we won’t get the tax revenues, we won’t get the development. In essence, the arguments here are that we ought to forget about the 98 percent of the value of all those resources because of the 2.3 percent revenue sharing that we would be paying to get international recognition.
Now, what was wrong with sort of the facts on the argument here, the factual arguments on the other side are wrong in believing that the United States has this area. We have never claimed this area to this date. The broadest the United States has claimed today is the 200 nautical mile economic zone proclaimed by Ronald Reagan. We have not to this day made a claim beyond that because we know full well that in order to get international recognition to that vast area, the largest in the world, we did the best of any other nation in the world in that we had a deal that was the 2.3 percent.
And by the way, it gets better than that, because it isn’t just our paying the 2.3 percent; the Russians are going to pay the 2.3 percent and the Canadians are going to pay the 2.3 percent and everybody else that has an extended continental margin. And we, ladies and gentleman, are the only country in the world that has a permanent veto over where those funds get distributed to other countries in the world. If you’d like, you can think about it as an extension of the United States AID budget. So I think it’s a pretty good deal all around in relation to where we’re going.
Finally, Senator Warner, let me just end by saying, one the most important elements here of what it’s really all about is the rule of law. The United States led the world in putting together an extraordinarily clear and effective rule of law for the world’s oceans. That rule of law was in our interest, in the international community interest, very strong, very good for our security and our economic interests. We need to move forward to solidify that and to have the United States go back to its leadership. I wish we had been providing the leadership in oceans in this period since we’ve not moved forward, but sadly, we haven’t. We have lost the leadership in that period; we need to get it back. I could not agree more with the wonderful call for leadership that we just heard. Thank you. (Applause.)
Panel Two: How Ratification Will Strengthen America’s Military, Foreign Policy and National Security:
John Negroponte, Former U.S. Deputy Secretary of State
Thank you very much, Senator. Thank you for your presence, Senator Warner. It’s good to see you again.
Actually, Senator Warner, we actually go back to 1970 when I was a staffer, one of those whippersnappers on the National Security Council staff. And I was given the assignment of helping coordinate the preparation of President Nixon’s first directive on the Law of the Sea. And that’s how we met. And I’ve been working on this issue off and on in the ensuing years. I went to Caracas to the first conference. John Warner was there. I knew – I’ve known pretty much all the negotiators – Jack Stevenson, John, Elliot Richardson, George Aldrich.
I don’t know if David Colson is in the room, but the importance of David Colson is that he was one of those who renegotiated the famous Chapter 11 of the deep-seabed mining agreement. This is not the bankruptcy Chapter 11, this is the seabed-mining Chapter 11, which I think we rightly judged was perhaps a bit too socialistic for American taste. And we refused to sign on that basis.
But then, in an extraordinary – really extraordinary diplomatic development, the international community came to us and said, hey, for you we will really make a very important exception. We’re willing to reopen a chapter of this agreement for negotiation if we can – and try to reach some sort of accommodation on our differences, if you’re willing to do that. And so went – we accepted and we went through that process and got a Chapter 11 that was then to our satisfaction. It may not have been perfect, but it certainly made an effort to accommodate our – particularly our commercial and economic interests.
Well, President Reagan’s role was kind of interesting because initially, when he came to office, there was an effort on his behalf – if I remember correctly – led by former Secretary of Defense Donald Rumsfeld to go around and campaign against the Law of the Sea agreement in the early 1980s. And I think in a way it is this very firm position that the United States took that then resulted in the willingness of the international community to seek to accommodate us.
So we’re at this very important juncture. We’ve made these two efforts, as was mentioned, to get the treaty through the Senate. I was the last, actually, administration witness in the last administration before the Senate Foreign Relations Committee on behalf of the State Department, together with colleagues from the Pentagon. What gives me encouragement this time is it seems that the level of support, particularly the political level of support, manifested by an important conference like this one, not only the senators – the respective senators’ involvement but also the fact that Leon Panetta – who’s been a long-time supporter of the treaty – well, the secretary of defense, the actual current secretary of defense will be coming to testify at lunch – or to speak to us at lunch today. So I think that’s what this treaty needs. It needs support at a very high political level. It’s obviously in the political, economic and security interests of our country. And I think in terms of its diplomatic impact, I think it would send a message, if we were able to get this treaty ratified finally – and I’m confident that one of these days we will succeed in doing that – that it will also send a message of real partnership between the United States and the international community. And it will be very, very warmly welcomed, indeed.