Executive Summary

This position paper analyzes the Department of Defense's interests in having the United States become a party to the 1982 UN Law of the Sea Convention (Convention), as modified by the recently negotiated Part XI Implementation Agreement (Agreement). This new Agreement corrects the flaws identified by the United States in the deep seabed mining regime set out in the Convention.

Our principal judgment is that public order of the oceans is best established by a universally accepted law of the sea treaty that is in the U.S. national interest. We believe the opportunity created by the new Agreement meets this test. Reliance upon customary international law in the absence of the modified Convention would represent a necessarily imprecise approach to the problem as well as one which requires the United States to put forces into harm's way when principles of law are not universally understood or accepted. A Universal Convention is the best guarantee of avoiding situations in which U.S. forces must be used to assert navigational freedoms, as well as the best method of fostering the growth and use of various conflict avoidance schemes which are contained in the Convention.

The Convention, as modified, is not a perfect solution to all oceans policy issues. However, the compromises embodied in the Agreement and the Convention as a whole establish an ocean regulatory regime that is, on balance, in the national security interest of the United States. We now have before us a rare window of opportunity to resolve favorably the deep seabed mining issues, as well as to solidify the vital navigation and other resource issues which are addressed by the Convention.

The Department of Defense's key conclusions are:

DOD has long been a major proponent of achieving a comprehensive and stable legal regime with respect to traditional uses of the oceans. A universally accepted Convention, as modified by the Agreement, would promote our strategic goals of free access to and public order on the oceans and in the superjacent airspace.

Over 150 States, including the U.S., participated in the negotiation of the Convention between 1973 and 1982. Save for Part XI, we achieved our fundamental objectives of solidifying and defining the nature of maritime claims, restraining the growth of excessive maritime claims, and codifying key legal provisions in the areas of environment, fisheries, and sovereign immunity which balance the vital interests of maritime and coastal states.

Since 1979 DOD and the Department of State have been actively involved in countering excessive maritime claims through the Freedom of Navigation (FON) program. This combination of diplomatic and operational challenges is less desirable than establishment through the Convention of universal norms of behavior and conflict resolution mechanisms.

With 62 States now having ratified, the Convention will enter into force in November 1994. Under the sponsorship of the UN Secretary General, the United States and other states have worked hard on a comprehensive set of modifications to Part XI. An Agreement has been finalized and will be offered for adoption by the UN General Assembly in late July. Negotiators of the Agreement were guided by the specific objections to Part XI articulated by President Reagan in 1982.

Correction of the Part XI flaws now allows the United States to take advantage of the opportunity to adhere to the modified Convention so as to realize its national security benefits, and permit us to ensure those rights from within the structure of the Convention.

Between 1973 and 1982, over 150 states participated in the negotiation of the Third United Nations Convention on the Law of the Sea (Convention). Save for the provisions dealing with deep seabed mining, the Convention was a success from the U.S. perspective. It secured much needed agreement on the breadth of the territorial sea (12 nautical miles (NM)) in the face of a large number of nations seeking to establish territorial sea claims of up to 200 NM or more, and struck a positive balance between coastal states and maritime states on issues such as marine pollution, fisheries and mineral resource exploitation, and navigational freedoms through the waters and airspace of exclusive economic zones (EEZs), territorial seas, straits, and archipelagic waters.

However, while United States maritime interests were significantly preserved in the balance struck between coastal state interests in security and resource protection, the provisions dealing with deep seabed mining in Part XI of the Convention were not satisfactory. As a result, on July 9, 1982,[18 Weekly Comp. Pres. Doc. 877 (July 9, 1982).] President Reagan announced that eleven sessions of negotiations had failed to produce a universal agreement which accommodated the diverse interests represented at the conference on the full range of oceans use. Of particular concern to the U.S. and other developed countries were those seabed mining provisions that deterred development, did not guarantee a decision making role for the

U.S. which fairly reflected its interests, permitted amendments to the regime without state party consent, mandated transfers of privately owned technology, permitted sharing of benefits by national liberation movements, and failed to assure access for those pioneer investors who sought to develop deep seabed resources privately.[Id. See also, James L. Malone, The United States and the Law of the Sea, 24 VA. J. INT'L LAW 785 (1984).] Virtually all major maritime and industrialized nations have declined to become parties to the Convention in its original form. However, 62 other states have agreed to be bound by the Convention and it will enter into force on November 16, 1994.

In 1983, President Reagan issued the U.S. Ocean Policy Statement 19 Weekly Comp. Pres. Doc. 383-385 (Mar. 10, 1983). which declared, in essence, that the United States would follow the non-seabed-mining provisions of the Convention because they reflected "traditional uses the of oceans" and "generally confirm existing maritime law and practice." In that same 1983 statement, President Reagan asserted a 200 NM EEZ on behalf of the United States, in addition to confirming the United States exercise of sovereign jurisdiction over the resources of the continental shelf.

In addition to the 1983 declaration of the 200 NM EEZ, President Reagan also announced that the United States would "exercise and assert its navigation and overflight rights and freedoms on a worldwide basis consistent with ... the Convention [but not] ... acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses." President Reagan's statement reaffirmed the ongoing U.S. practice since 1979 of challenging, through diplomatic and navigational assertions, maritime claims which were inconsistent with the Convention. In excess of 110 diplomatic protests, as well as 35-40 operational challenges per year, have been made since 1979 under the Freedom of Navigation (FON) Program Dept. of State, Limits in the Seas No. 112, United States Responses to Excessive National Maritime Claims (March 9, 1992). Illegal claims which have been challenged include: improper straight baseline claims, excessive territorial sea claims, and claims which restrict the right of transit passage or innocent passage by all ships (including warships) without prior notice or permission.

Finally, to extend the breadth of the United States territorial sea (3 NM) to that authorized by the Convention, President Reagan issued a Proclamation on December 27, 1988 24 Weekly Comp. Pres. Docs. 52 (Dec. 27, 1989). extending the Territorial Sea of the United States and its possessions to 12 NM.

The text of the Convention is the result of nine years of negotiations in which the United States was an active participant. The Convention opened for signature on 10 December 1982. It consists of 320 articles and nine annexes, covering virtually every topic of importance to coastal and maritime states. Among the topics covered: breadth of the territorial sea, exclusive economic zone (EEZ), contiguous zones, and continental shelf, freedom of navigation and overflight; the laying of cables and pipelines; rights of transit, innocent and archipelagic sea lanes passage; right of states to conduct marine scientific research; a balancing of rights between fishing states and coastal states concerning management of fish stocks, as well as empowerment of regional fishing compacts; creation of special regimes for the management and protection of marine mammals, anadromous, and highly migratory fish species; apportionment of responsibility between the coastal states and flag states to take measures to protect the marine environment; and establishment of a broad range of dispute settlement options so that universal Participation would be reasonably assured. However, as noted above, Part XI of the Convention established both a regime and institutions to administer mining of the deep seabed which were objectionable to the United States and most other industrialized countries.

In 1990, then UN Secretary-General Javier Perez de Cuellar convened informal meetings in New York to begin negotiation of a multilateral instrument which would correct the objectionable portions of Part XI. The object was universal adherence to the Convention. Approximately 30 developing and developed countries participated in the discussions which resulted, in early 1994, in a Draft UN General Assembly Resolution and Draft Agreement Relating to Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea (hereinafter Agreement).

The Part XI Agreement and Draft General Assembly Resolution have been crafted so as to incorporate by reference the provisions of the Convention which are not objectionable (the entire Convention less specified provisions in Part XI). Most parties and non-parties to the Convention are expected to sign the Agreement, including most industrialized nations. Since the Convention will enter into force for over 60 states in November 1994, those states which have agreed to be bound by the Convention may signal their assent to the Agreement through, in essence, silent consent procedures. The legal significance of the draft UN General Assembly Resolution is that it eliminates the requirement to amend the Convention through the convening of an entirely new Law of the Sea Conference or by use of the Convention's 2/3 vote amendment procedures. For the Agreement to formally enter into force, 40 states must register their approval of the Agreement by either signing it or failing (in the case of states which have already ratified the Convention) to "opt out" within one year after the Agreement provisionally applies. While the Agreement will not formally enter into force until there are 40 state parties, it will be provisionally applied to signatory states from November 16, 1994, when the Convention enters into force.

There is consensus among all Federal agencies that accession to the Law of the Sea Convention is a priority. Following extensive interagency coordination in conjunction with Presidential Review Directive- 12, an Executive Branch policy decision was formulated in May 1993 that: (a) the U.S. should provide leadership to find solutions to the Part XI dilemma; (b) the non-seabed provisions of the Convention are the appropriate legal framework for governance of the oceans; and (c) the U.S. should, as a matter of high priority, become an active participant in efforts to reform the Convention.

National security interests have been a critical component over the 25 years spent in seeking a comprehensive Convention. They were at the heart of the Clinton Administration's policy of finding a satisfactory solution to the Part XI problem so that the United States could sign the Convention. The national security interests in having a stable oceans regime are, if anything, even more important today than in 1982 when the world had a roughly bipolar political dimension and the U.S. had more abundant forces to project power to wherever it was needed. [see figure 1 The navigational rights and freedoms embodied in the

Convention are in daily use by the naval and air forces of the United States and its allies. The core rights assured by the Convention include the following: The Right of Innocent Passage. This right of ships to continuous and expeditious passage which is not prejudicial to the peace, good order, or security of coastal states is a primary right of nations in foreign territorial seas. Naval vessels need this right to be able to conduct their passage expeditiously and effectively. The Convention plays a special role in codifying the customary right of innocent passage and contains an the exhaustive list of the types of shipboard activities which are forbidden while a ship is engaged in innocent passage.

DOD's ability to maintain forward presence depends on its ability to sustain military operations around the globe. The vast majority of logistics support and equipment travels on both public vessels or under DOD charter arrangements. Effective utilization of this scarce sealift capacity is dependent upon open sea lanes of communication so that this shipping can enjoy unimpeded and expeditious passage.

Authority can use to supplement diplomacy or to provide potent and flexible power if diplomatic efforts fail.

The regime of transit passage extends to both surface navigation of recognized international straits as well as overflight. The Strait of Gibraltar is the gateway for the flight of many US military aircraft to and from bases in the Eastern United States to littoral areas in the Mediterranean as well as the Middle East and Turkey. The right of overflight is exercised daily in routine sustainment operations, emergency logistics resupply efforts (Israel 1973), and in combat situations when land-overflight rights have been denied (Raid on Libya, 1986).

The Convention codifies the historic regime permitting free transit through and over international straits while upholding the needs of major maritime states who could not accept the extension of territorial seas to 12 NM without a corresponding guarantee of an unimpeded right of transit through and over international straits. Over 135 straits, which would have been closed as a result of the extension of the territorial seas to 12 NM, are open to free passage under the regime of transit passage. Less restrictive than innocent passage, ships and aircraft under the transit passage regime may pass through straits continuously and expeditiously in their normal mode. Accordingly, submarines may pass through straits submerged, naval task forces may conduct formation steaming, aircraft carriers may engage in flight operations, and military aircraft can transit unchallenged. In three significant conflicts the regime of transit passage would have and has played a critical role:

During the 1973 Yom Kippur War, overflight of the Strait of Gibraltar enabled U.S. military aircraft to conduct emergency resupply of Israel following the denial of overflight of land territory by certain NATO Allies. John Norton Moore, 7he Regime of Straits and UNCLOS, 74 Am. J. INT'L LAw 77, 81 (1980).

Following the state-sponsored terrorist attack on U.S. armed forces in Berlin, U.S. military aircraft overflew the Strait of

Gibraltar to conduct a raid on Libya on April 14, 1986, after certain NATO Allies denied the U.S. permission to overfly their land territory.

In the recent Persian Gulf War, the exercise of the right of transit passage enabled U.S. and other coalition naval and air forces to traverse through the critical choke points of Hormuz and Bab el Mandeb. [see figure 2] Archipelagic Sea Lanes Passage. The right of transit by ships and aircraft through archipelagos, such as the Philippines, the Bahamas, and Indonesia, can have a significant impact on the ability of military forces to proceed to an area of operations in a timely and secure manner. Archipelagic sea lanes passage permits transits in the normal mode between one part of the high seas or EEZ and another through the normal routes used for international navigation or though International

Maritime Organization approved sea lanes. To date, there has been a general compliance with the Convention by nations claiming archipelagic status.William L. Schachte (Rear Adm., USN ret.), Remarks before the 25th Annual Law of the Sea

Conference, Law of the Sea Institute, University of Hawaii, 6-9 August 199 1, Malmo, Sweden (Manuscript Available in DOD REPOPA Files). [see figure 3]

Figure 3. The Indonesian Archipelagic Crossroads. The straits in the Indonesian Archipelago are a major choke-point in the most direct and cost-effective maritime route linking the Pacific and Indian Oceans. Unimpeded transit through straits and sea lanes under the regime of archipelagic sea lanes passage is critical to the movement of trade goods, strategic minerals, military forces, and energy supplies to sustain the U.S. economy. High Seas Freedoms. The Convention makes an important contribution in defining the types of activities which are permissible on and over the high seas. Under the principle of "due regard" to the rights of other high seas users, U.S. forces remain free to engage in task force maneuvering, flight operations, military exercises, surveillance and intelligence activities, and ordnance testing and firing.

The concept of sovereign immunity of warships and other public vessels has come under increasing assault by coastal states wishing to circumscribe this historic right on the basis of security or pollution control concerns. Article 236 of the Convention contains a vitally important codification of the customary principle that naval auxiliaries are entitled to the same immunity from enforcement by other than the flag state as warships enjoy. To support military operations around the globe, there must be the assurance that military vessels and their cargoes can move freely without being subject to levy or interference by coastal states.

Recent events in Korea, Haiti and the former Yugoslavia are important reminders that we still live in an uncertain and dangerous world. Threats to world order and U.S. interests in the postCold war era include:

These challenges are considerably different that those which dominated thinking in the era following World War II. What has not changed, however, is that many U.S. economic, political, and military interests are located far away from the United States.

The United States has always been a maritime nation and we must have substantial air and sealift capabilities to enable our forces to be where and when needed. Assurance that key sea and air lines of communication will remain open as a matter of international legal right and not contingent upon approval by coastal or island nations is a fundamental premise in our defense posture.

The Convention continues to serve an important function in safeguarding our national security interests. Because the Convention is regarded as authoritative, it guides the behavior of states, promoting stability of expectations and providing clear benchmarks for issue resolution. For example, provisions in the Convention have been invaluable in resolving the following issues which have strong national security implications: Bilateral discussions with the former Soviet Union following the Black Sea "bumping" incident, resulting in the US-USSR Uniform Interpretation of the Rules of International Law Governing Innocent Passage Through the Territorial Sea signed at Jackson Hole, Wyoming on September 23, 1989; and Technical level discussions between U.S. and Indonesian representatives concerning archipelagic sea lanes passage through the Indonesian archipelago.

A universal convention offers considerable promise because of the flexibility which it provides to states to resolve disputes over conflicting uses of the sea through the employment of any of four dispute resolution mechanisms. Even though the United States and other powers will not submit to compulsory jurisdiction for military matters, a mechanism for resolving lesser disputes provides an additional method of managing conflict. The large number of "hot spots" on the globe (Haiti, Korea, Somalia, Rwanda, the Middle East, the Persian Gulf, the former Soviet Union, and the former Yugoslavia) underscore the need for additional non-military methods of resolving conflicts.

Without international respect for the freedoms of navigation and overflight set forth in the Convention, exercise of our forces' mobility rights could be jeopardized. Disputes with littoral states could delay action and be resolved only by protracted political discussions. The response time for U.S. and allied/coalition forces based away from potential areas of conflict could lengthen.

Deterrence could be weakened - particularly when our coalition allies do not have sufficient power projection capacity to resist illegal claims. Forces may arrive on the scene too late to make a difference, affecting our ability to influence the course of events consistent with our interests and treaty obligations. [see figure 4]

Figure 4. Transit Passage: Battle Group Cost and Time Savings If prevented from transiting through the Indonesian Archipelago and the Malaccan Straits, a battle group transiting from Yokosuka, Japan to Bahrain would have to reroute around Australia. Assuming a steady 15 knot pace, the six ship baffle group (all consuming conventional fuel) would require an additional 15 days and 94,050 gallons of fuel to transit an additional 5,800 NM. Additional fuel cost would be approximately $2.9 million.

To be secure and influential in the political arena, the United States must maintain its economic viability. In the 12 years since the United States rejected the Convention's seabed mining regime, our country has become more economically interdependent than ever upon access to global markets. U.S. economic growth is closely linked to the world economy as a whole and the majority of that trade is carried on and over the world's oceans. Seaborne commerce exceeds 3.5 billion tons annually and accounts for 80 percent of trade among nations. Universal adherence to the Convention would provide the predictability and stability which international shippers and insurers depend upon in establishing routes and rates for global movement of commercial cargo. Increased costs of goods and services resulting from coastal state restrictions on navigation and communications would adversely impact our entire economy.

The reality that U.S. economic interests are global in nature underscores the need to uphold the transit rights under a widely accepted and comprehensive international legal regime. The Convention's dispute resolution provisions, its fixed rules for determining the breadth and access to maritime resources in the EEZ and continental shelf, and its provisions which preserve "flag state" control over vessel-source pollution all support the "stability of expectations of investment bankers, insurance companies and others who underwrite and support shipping, offshore exploration and drilling and many other activities at sea." John R. Stevenson & Bernard H. Oxman, The Future of the United Nations Convention on the Law of the Sea, 88 Am. J. INT'L LAW 488 (1994).

One of the principal accomplishments of the LOS Convention is the establishment of a clear set of maritime zones: the territorial sea, contiguous zone, EEZ, and continental shelf, which uphold the security and resource interests of coastal states, balanced against the interest of maritime nations to have relatively open access to the oceans for navigation, overflight, and telecommunications. This careful balance of maritime zones reverses a disturbing trend in jurisdictional creep in which some states claimed territorial seas of up to 200 NM in order to create a monopoly over coastal resources or for purposes of security. Excessive maritime claims may not disappear altogether if the United States signs the Agreement; however, as an insider, the U.S. would be in a stronger position to assert the Convention's clear rules for establishing the baselines from which the territorial sea is measured, as well as the unambiguous rules for determining the existence of bays.

As a party to the Convention, the United States also will be entitled to make use of the dispute resolution apparatus to contest those excessive claims. Since 1979, the United States has unilaterally contested excessive coastal claims diplomatically and operationally through the FON Program. Those actions may still be required to enforce the norms of the Convention; however, to the extent we can decrease reliance upon FON challenges, the United States avoids political and military risks and other costs. Also, because the Convention provides explicit rules for fixing maritime boundaries, there should be a corresponding lessening in tension over the normative rules to be applied. In addition, from the perspective of the smaller coastal states, our be coming party to the Convention would create less perceived pressure on those states to assert excessive claims to achieve parity with the U.S. and other major maritime nations. [see figure 5]

Figure 5. Jurisdictional Creep The LOS Convention contains a key agreement between coastal states and maritime states that coastal states would have control of resources in the 200 NM EEZ in exchange for broad navigational rights beyond the 12 NM territorial sea. This agreement reversed a disturbing trend by coastal states to make 200 NM, or greater, territorial sea claims. As of July 1994, 19 states still claim territorial seas in excess of 12 NM. The chart shows the impact which excessive maritime claims have on navigational freedom. The white areas would come under coastal state territorial control if territorial seas were extended to 200 NM.

The Department of Defense is committed as a matter of policy to the norm established by Part XII of the Convention, which

affirms that "States have the obligation to protect and preserve the marine environment." Although the Convention provides a

framework for retaining navigational access to the world's oceans, the practical abilities of naval forces to gain access to foreign

ports and bases for distant operations and to resist some types of coastal state claims are heavily influenced by the perceptions

of coastal states that the U.S. warships and other public vessels are being operated in an environmentally responsible manner.

The goal of our environmental program is to ensure that our shore installations and operational commands worldwide are able

to accomplish their assigned missions while meeting our environmental obligations.See, e.g., Sherri Wasserman Goodman,

Deputy Undersecretary of Defense for Environmental Security, DoD's New Vision for Environmental Security,

DEFENSE ISSUES, Vol. 9, No. 24. To meet this overall goal of environmental compliance and to maintain credibility with the

world community at large, the military Departments have made a heavy commitment of resources to:

Actively participate in the international fora (such as the International Maritime Organization) which adopt and

promulgate realistic procedural and substantive environmental standards affecting maritime operations;

Modify our operational practices or, as appropriate, acquire waste processing equipment, to mitigate the environmental

impacts of military operations;

Conduct extensive research to develop technical solutions to the problems of processing shipboard wastes and

development of special coatings and industrial processes to further limit sources of pollution from ship hulls.

The Department will continue to be proactive in the area of environmental protection as a matter of national law and policy.

Nevertheless, to resist excessive maritime claims and to maintain the principle of sovereign inununity (guaranteed in Article 236

of the Convention) requires both a legal commitment to environmental protection as well as a history of sound management of

environmental hazards. In the latter respect, the United States has a solid record. But failing to become committed to the

comprehensive environmental norms in the Convention would inevitably hamper our ability to maintain diplomatically the

balance between our interests in -freedom of navigation and protection of the marine environment.

The Convention establishes a delicate balance between the rights of coastal states to adopt certain measures to protect the

marine environment close to their shores and the general right of a flag state to exercise prescriptive and enforcement

jurisdiction over incidents as sea, routine operational practices, design, and training of crewmembers. The Convention

establishes a similar balance between the responsibility of states to curb all sources of marine pollution and the rights of maritime

states to exercise their high seas freedoms. Since the Convention and most states take the position that states cannot avoid their

overarching responsibilities under the Convention (or customary international law) to protect the marine environment through a

claim of sovereign immunity, the U.S. has worked hard to maintain a leadership position in the International Maritime

Organization (IMO), based in London.The IMO is expressly recognized in Article 211 as the "competent" international

organization to decide questions relating to vessel design and construction as well as restrictive navigational schemes

to protect the environment (e.g., traffic separation schemes in straits and archipelagic waters). The United States and all

major maritime powers have refused to sign the 1982 Convention, yet all actively participate in the IMO, the institutional

sponsor for a number of other related conventions, including:

The 1973 Convention and 1978 Protocol for the Prevention of Pollution from Ships (MARPOL)Protocol of 1978

Relating to the International Convention for the Prevention of Pollution from Ships of 1973, Done at London

February 17, 1978. (Protocol incorporates, with modifications, the provisions of the 1973 convention, including

its annexes and protocol.);

The 1972 Convention on Prevention of Collisions at Sea (COLREGS);Convention on the International Regulations

for Preventing Collisions at Sea, Done at London October 20, 1972, 28 UST 3459, TIAS 8587. and

The 1972 Convention on the Prevention of Marine Pollution (London Dumping Convention).Convention on the

Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Done at Washington, London, Mexico

City and Moscow December 29, 1972, 26 UST 2403, TIAS 8165, 1046 UNTS 120.

The common frame of reference for all three of these IMO-sponsored conventions is the Law of the Sea Convention. In the

IMO context, the United States has successfully urged positions which tend to hold those flag states accountable for failing to

uphold applicable environmental protection norms. By the same token, the United States over the years has been successful in

urging realistic and practical methods of dealing with unilateral restrictions on navigation or the rights of sovereign immune

vessels which would potentially impair our operational freedoms in the name of environmental protection.

Once again, the Convention is the glue that holds together diverse maritime interests in the environmental field. By becoming a

party to the Convention, the United States will be in a better position to influence events in forums like the IMO. Moreover, our

general ability to curtail the growth of unilateral claims which restrict navigation also will be strengthened.

From the standpoint of promoting international peace and stability, the Department strongly supports the Convention because it

is one of the few comprehensive legally binding instruments committed to global environmental security. As noted above, DOD

has made a significant policy and fiscal commitment to operate in an environmentally responsible manner to assure itself access

to foreign ports, bases, and airfields, as well as to set a standard which other nations will follow. In examining the factors which

precipitated the current and past instabilities in Haiti, Ethiopia, Somalia, the Sudan and elsewhere among developing and

undeveloped states, it is clear that envirom-nental mismanagement played a significant role. The Convention requires: states to

ensure tgat activities under their jurisdiction do not cause environmental damage to other states or result in the spread of

pollution beyond their own offshore zones; to minimize the release of harmful substances into the marine environment from

land-based sources; to protect fragile ecosystems; and to conserve living resources.

Since over 80% of marine pollution emanates from land-based sources, it serves U.S. national security interests to promote

universal accession to the Convention as a method of addressing conflicts which arise out of the transboundary movement of

pollutants.

The management of fish stocks is becoming an increasingly contentious issue for those states which rely upon fishing to feed

their populations. Even though DOD's mission does not include fisheries management, the Department has a legitimate interest

in encouraging solutions or mechanisms to resolve conflict between coastal states and/or among fishing states competing for

diminishing fish stocks which are beyond the scope of a nation's management jurisdiction.

The Convention provides a legal baseline which sanctions the actions of regional fishing organizations to deal with conservation

issues. The Convention also levies important duties on coastal states to manage their fishery resources to the limits of their

maximum sustainable yield. These principles are the legal cornerstones for the UN-sponsored Conference on Straddling Fish

Stocks and Highly Migratory Fish Stocks, as well as the upcoming UN-sponsored Conference on High Seas Fishing. Until

such time as there is international agreement on the regime for managing fish stocks beyond a coastal state's EEZ, the fisheries

management precepts of the Convention, together with its encouragement to fishing states to enter into regional agreements, are

fundamental to maintaining order between fishing and coastal states. Finally, if current efforts to conclude a universal agreement

on straddling stocks and high seas fishing do not meet with success, the dispute resolution provisions of the Convention (which

authorize application of provisional measures to prevent serious harm to the marine environment) provide parties with a

non-military method of constructively resolving disputes.

The United States has played an important role in promoting workable solutions to fisheries management problems. By

acceding to the Convention, the U.S. will be in a much stronger position to exercise influence in efforts to achieve moderate

solutions to fisheries management problems. The Convention provides the U.S. government with the tools to formulate

workable diplomatic solutions. [see figure 6, "U.S. Reeling Over Canada Fishing Toll", USA Today, June 15, 1994]

The trend towards greater coastal state control over fish stocks and living resources beyond 200 NM is indicative of a general

trend by coastal states to also exercise greater dominion and control over maritime activities in the water column of its EEZ or

over its continental shelf. Like the current trend in fishing disputes, states have proposed measures which encroach upon

navigational freedoms because of perceptions that navigation is harmful to the living marine resources or that navigation will

interfere with exploitation of the resources of the continental shelf. Coral reef ecosystems are coming under tremendous

pressures because of population growth (3.5 billion of the 5.6 billion people on earth now live in coastal areas), poor resource

management, and land-based sources of pollution. World attention has only recently been focused on this problem. Certain

states have reacted by proposing high seas zones - particularly in coral reef or polar areas - which could restrict or place

"off-limits" navigation because of these areas' special ecological sensitivity or importance to coastal fish stocks. DOD's

perspective, of course, is that navigation is an environmentally benign activity if flag states properly regulate their flag vessels.

Also, additional regulation of navigation is an ineffective method of addressing the root cause of most marine pollution -

land-based sources.

Continued offshore development of areas of the continental shelf for fish farming and oil and gas extraction (particularly in

critical navigational choke points) will inevitably impact on the navigational freedoms which DOD must preserve to meet its

operational commitments worldwide. At the widely attended "Strait of Malacca Conference" on June 14-15, 1994, it was

argued that:

The coastal state's right to explore for oil and use the Strait for economic development is greater than the international

community's right to use the Strait; and

The newness of the transit passage regime lends uncertainty as to whether the regime has become a customary practice

of international law

As noted in Figures 2 and 4, the Strait of Malacca is a strategic waterway which DOD uses to move forces from Pacific bases

to the Indian Ocean and Persian Gulf These arguments, coupled with the trend towards special zones which restrict or prohibit

navigation, reinforce the basic theme that the Convention provides the best structural and normative framework for the United

States to attack objectionable claims as well as channel conflicts between competing ocean users.

In the view of the Department of Defense, significant interests of the United States are advanced by becoming a party to the

Convention.

Negotiations of the Agreement were late in coming in part because many nations regarded the Convention to be a "package

deal" and states had to accept the good with the bad to maintain balance between the various groups of states which

participated in the negotiation: developing vs. developed states; mineral producing vs. non-mineral producing states; coastal vs.

maritime states. Consequently, states like Yemen, Iran, Morocco, Egypt, Greece, Indonesia, Malaysia, Iran, Spain and the

Philippines, at one time or another, have asserted that key navigational principles (particularly the regime of transit passage) are

not customary international law but a benefit flowing from the Convention. Remaining outside of the Convention tends to

reinforce those arguments. There is also general acknowledgement by the maritime powers that rejection of a "reasonable"

Convention by them could create a highly unstable situation vis-a-vis those states which have already ratified the Convention.

In addition to potential for "backlash" if the United States continues to refuse to become party to the Convention as modified,

accession will enable the United States to avoid arguments by states that Convention rights are contractual and only available to

parties to the Convention.

From the standpoint of promoting global stability, universal accession to the Convention, as modified by the Agreement, will

stabilize and fix the customary rules which states now argue do or do not exist. Unlike the 1958 Geneva Convention on the

High Seas, which, according to the preamble, is a codification of "the rules of international law of the high seas," many

international legal scholars view the LOS Convention as containing numerous provisions that codify customary international law,

as well as a number of provisions that represent progressive development of the law. Since the United States is committed to

international order determined by the rule of law, accession will put doubts to rest as to the legal underpinnings of U.S. policy

towards the Convention. Moreover, since many important provisions that protect our national security interests are to be found

in the very carefully drafted details of the text. Customary international law is unlikely to incorporate such detail and nuance.

It is inevitable through the passage of time that change to the Convention will be necessary to adapt it to new conditions. If the

United States were to remain a nonparty to the Convention, the only way that it could seek to influence changes in the LOS

regime would be through unilateral action, which could lead to increased international friction. The U.S. does not seek a static

system, and welcomes the gradual adaptation of the Convention to new circumstances, by agreement among states.

CONCLUSION

A universal regime for governance of the oceans is needed to safeguard U.S. security and economic interests, as well as to

defuse those situations in which competing uses of the oceans are likely to result in conflict. In addition to strongly supporting

our interests in freedom of navigation, the Convention provides an effective framework for serious efforts to address pressures

upon the oceans resulting from land and sea-based sources of pollution and overfishing. Moreover, the Agreement provides us

with a near-term opportunity to join with other industrialized nations in a widely accepted international order to regulate and

safeguard the many diverse activities, interests, and resources in the world's oceans. Historically, this nation's security has

depended upon the ability to conduct military operations over, under, and on the oceans. The best guarantee that this free and

unfettered access to the high seas will continue in the years ahead is for the U.S. to become a party to the Convention, as

modified by the Agreement, at the earliest possible time.

While U.S. military forces are generally free to navigate, consistent with international law as reflected in the 1982 LOS

Convention, there have been many instances where our rights have been challenged. Some examples:

In 1967 the Soviet Union denied passage through the Northeast Passage in the Arctic to two U.S. Coast Guard

icebreakers. As a result, they were unable to complete their mission. This route has been denied to U.S. surface vessels

since then.

In 1973, Libya enclosed a huge area of water in the Gulf of Sidra as an "historic bay." Although the world has largely

rejected the claim, Libya's willingness to use force ("line of death") has deterred many from exercising their rights.

-In 1982 and 1987, Soviet forces interfered with the operations of U.S. naval frigates nlar Peter the Great Bay. The

Soviets claim the bay is "historic" and the waters as internal. The United States considers these to be international waters.

After the August 1985 transit of the U.S. Coast Guard icebreaker Polar Sea through the Northwest Passage, public

opinion resulted in a restrictive Canadian law claiming high seas areas as internal waters and closing international straits.

To maintain our access to the Northwest Passage, the United States agreed not to transit with Coast Guard icebreakers

without Canada's consent to the conduct of marine scientific research during the passage.

In January 1988, two Soviet border guard vessels "bumped" the USS Caron and USS Yorktown engaged in innocent

passage in the territorial sea off the Crimean Peninsula. [see figure 71

Having claimed a 200 NM territorial sea since 1947, Peru regularly intercepts U.S. planes far off the coast of Peru.

After an incident in 1989, the Chief of Staff of the Air Force, a passenger on an intercepted aircraft, demanded that the

U.S. file a diplomatic protest. Later, in April 1992, a Peruvian fighter aircraft intercepted and shot at a USAF C-130

aircraft, killing one crewmember and wounding two others. Peru attempted to justify its action asserting that the U.S.

aircraft was within its illegal 200 NM territorial sea/airspace.

Other States' forces are even more constrained than the United States, often acquiescing in excessive maritime claims, because

they do not have the naval resources to support operational challenges.