Moments in U.S. Diplomatic History

The Marooned Law of the Sea Treaty


unlaw_of_sea_treatyThe Law of the Sea Treaty (formally known as the Third United Nations Convention on the Law of the Sea, or UNCLOSIII) is a 17 part agreement which was adopted in 1982 and which establishes a comprehensive set of rules governing oceans. Specifically, it defines the rights and responsibilities of nations regarding their use of the world’s oceans, establishing guidelines for business, the environment, and the management of marine natural resources and calls for technology and wealth transfers from developed to underdeveloped nations.

In addition, the Convention’s Part XI establishes specific jurisdictional limits on the ocean area that countries may claim, including a 12-mile territorial sea limit and a 200-mile Exclusive Economic Zone (EEZ) limit. One hundred sixty seven countries and the European Union ratified the Convention in full. The United States declined to adopt Part XI.

The U.S. argues that Part XI makes the treaty unfavorable to American economic and security interests. It asserts that the provisions of the treaty were not free-market friendly and were designed to favor the economic systems of Communist states.

Part XI of the Convention provides for a regime relating to minerals on the seabed outside any state’s territorial waters. It establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and to collect and distribute the seabed mining royalty. Many agencies in the U.S. government were wary of this authority, and even though the Defense Department supported the Law of the Sea in general, its language on “innocent passage” caused the U.S. to decline to ratify. The U.S. has held fast to its objection ever since.

In March 2004, the U.S. Senate Foreign Relations Committee recommended U.S. accession to the treaty in a unanimous vote, but the consensus stopped there. Constant debate has the issue of U.S. ratification of the treaty flopping like a fish. To this day, a full U.S. Senate vote has yet to be scheduled.

Hans Binnendijk, budget examiner at the Office of Management and Budget (OMB), discusses his role in charting the often stormy inter-agency negotiating process and why confirmation foundered on the obscure issue of manganese nodules. His oral history interview was conducted by Thomas Stern in 1996. Charles Higginson describes his involvement from the position of Executive Director of the Council on Ocean Law. His interview was conducted by Raymond Ewing beginning October 13, 1998.

Go here for other Moments on the UN and on negotiations.

 

“Money moves the government as does legislation”

OfficeOfManagementAndBudget-Seal.svgBINNEDIJK: I had a fascinating couple of years at OMB…. I handled the Law of the Seas which turned out to be the bridge to my next job. The OMB job had tremendous perspective. I got to see how the government really works. Money moves the government as does legislation. We were responsible for oversight in both areas.

I went to an awful lot of inter-agency meetings, representing OMB even though I was quite junior at that stage. But I could deal with people at the deputy assistant secretary level and in some cases even at the assistant secretary level because they needed my approval to get money. That power gave me some standing in the meetings, even at my rank and age. So it was a great place to start a government career.

As a budget examiner, I had the opportunity every year to review agency programs under my purview. The programs fell into two categories: a) operational ones like OPIC [the Overseas Private Investment Corporation], CIEP [Clean Energy Initiative Program], ITC [International Trade Center] and b) more policy-oriented programs like Vietnam and the Middle East. The first category was essentially a straightforward budget analysis: Where does the money go? What do we get for it? Sometimes, but infrequently, we might ask “why?”

The second group involved, as I said, many policy considerations….The Law of the Seas and Vietnam fell into the second category. The programs in that category required budgetary and economic analyses, but also required a broader perspective if the conclusions were to have any meaning. Perhaps our budget examiner’s instincts led us in the first place to look at budgetary requests with “green eye shades.” We had to overcome that tendency to look at the big picture….

I had regular contacts with Hill staffers, mostly on the Law of the Seas. At that point, the focus was on the 200-mile economic fisheries zone. Since I knew that we would eventually have to deal with draft legislation on this issue, I convened an inter-agency meeting to develop an administration position on this issue.

President [Gerald] Ford, in the midst of a tough election campaign, needed the support of the coastal states. He basically said that he would approve the extension of the fisheries zone to the 200-mile limit.…

“A strategy to make the draft legislation so bad that the President would have to veto it”

Ambassador John Norton Moore, the senior official representing the State Department on the Law of the Seas inter-agency committee, was very reluctant to extend economic and fishing zone to 200 miles. He appeared to have a strategy to make the draft legislation so bad that the President would have to veto it. Moore was a wonderful person, but in the case of the 200-mile economic zone, viewed the issue as an international lawyer — which he was.

He was firmly opposed to the U.S. moving unilaterally to control vast water areas. He knew that if the U.S. did that, other countries would follow, raising tensions and conflicts which would have been detrimental to us as well as the whole world.

He preferred to deal with the issue in an international treaty, rather than a unilateral piece of U.S. legislation. So he mounted a campaign of non-cooperation with the Congress on its draft; he thought that no Executive Branch representative should assist Hill staffers in improving the draft; he hoped that it would have been so bad that the President would have been forced to veto it. That created a real problem for the bureaucrats.

ford-portraitHe didn’t however count on the political context in which all legislation was being considered in 1976. President Ford was up for re-election; he needed the support of coastal states. In fact, Ford had privately told people that he would sign the legislation if re-elected.

So the Executive Branch had a very senior official unwilling to improve a piece of legislation which his boss — the President — was supporting. That situation created a dilemma for us who were aware of the split….

I saw the train wreck coming and tried to compose a letter, which was approved and sent to the Hill, which in essence said that if Congress had to pass the legislation then before it, it should at least make changes stipulated in the letter. Congress made a few of those changes. I think that Moore had a different agenda than the President….

I don’t want to suggest the President endorsed the Congressional direction. I was pretty sure that he had assured Congressional leaders that he would not stand in their way; publicly he was neutral on the issue. So Moore took a large risk. Moore opposed the legislation and wanted to make that pitch to the President but could not sell his views. As I said, for political reasons, Ford was not about to challenge Congress.

My view was that the Ford and Moore views were bound to clash, unless the legislation was sufficiently improved to at least mollify the internationalists. I knew that the President would sign the bill as it stood at the time; I thought it was worth a try to improve it…That was done at the 11th hour and I am not sure it had very much of an impact. The President signed the legislation….

“The Law of the Seas was incredibly complicated“

The Law of the Seas was incredibly complicated. It required many inter-agency meetings. People made careers out of the subject. There were negotiations going on all over the world on various aspects of the agreement — there was a lot of traveling by U.S. officials. The complexities of the total package required the involvement of a lot of agencies, some of whom had very important stakes in the outcome.

There was a man by the name Lee Ratiner who started with Commerce and then moved to Interior, who played a delicate game. Interior had a great interest in deep-sea manganese nodules as a resource. He viewed his role as the protector of those resources for the U.S. He was very vocal in the inter-agency meetings.

DoD [Department of Defense] was also well represented; it was interested in “free and innocent” transit through various straits. So it opposed the extension of the existing three-mile territorial zones. So there were a number of agencies who felt they had major stakes at play in the Law of the Seas negotiations and therefore took vigorous positions on some issues. That raised many clashes.

It was very interesting to watch the inter-agency meetings with each agency taking stances; if you understood the motivations, then some of the positions taken were understandable. It was through this process that I began to really understand the ties that various agencies had to Congressional committees, to Congressmen and Senators and to staffers.

The Senators from the Armed Services Committee were supportive of the positions taken by the military; the Commerce and Interior committees supported Ratiner. The whole process was a real lesson for me on how the government really works. I think it worthy of note that in those days OMB and the NSC [National Security Council] worked very closely together.

So we examiners were able to have a pretty good feel for where the President stood on issues of concern to them. As I said, we did meet with Hill staffers so that examiners in those days had a pretty good knowledge of the positions of the various major actors in town. That was very helpful for it allowed us to have an important voice in the decision-making process….

“The main struggles were between those agencies responsible for natural resources and those for national security”

The Law of the Seas was a unique experience because the issues were non-budgetary in the main. My involvement in those deliberations came from our legislative responsibilities. OMB had a division which managed the administration’s participation in the legislative process; it was a very small branch. Much of the substantive review responsibilities fell on the budget examiners. Therefore we in the budget division had close contacts with our colleagues in the legislative division as well as the NSC staffers….

In 1976, I moved from the Office of Management and Budget to the National Security Council. As I have mentioned, in OMB I had been responsible for the Law of the Seas work done by that agency.

I had been involved in deep-sea bed mining and economic zone issues, including questions concerning the relationship of those matters to U.S. national security interests — e.g. freedom of transit, freedom of navigation, etc. I had worked closely on those issues with an NSC staff member — Commander Flynn, a naval officer. When he was re-assigned, I was asked whether I would like to replace him. And that is how I got to the NSC staff.

While at the NSC, the actual Law of the Seas convention was in its final negotiating stage. During the 1974-76 period, we had a series of on-going inter-agency battles as we hammered out the U.S. final positions on the many, many issues raised by the Law of the Seas. The main struggles were between those agencies responsible for natural resources and those for national security.

manganese-nodules_1Manganese nodules was a big issue. The Third World claimed its share of these resources as a “common legacy of mankind.” That brought forth a major ideological debate which preoccupied the Executive Branch. Many of the resource agencies, like Interior, took a very firm stance against Third World claims for share of the sea’s resources.

On the other hand, the foreign policy/national security agencies were much more interested in our own military rights or broader foreign policy concerns. There was a continual pulling and tugging between these points of view — “where you sit determines how you stand.”

In the final analysis, the Law of the Seas was never ratified by the Senate, but it is now nevertheless enforced by the international community. The Law of the Seas as everyone knows was a long and prolonged process. We still have not ratified the convention — more than twenty years after the start of the negotiations. There is a convention; having worked on it so assiduously and having shaped much of it, it would be nice if the U.S. would now ratify it.

“We may in fact have been hoodwinked ourselves by the CIA’s cover story”

In the mid and late 1970s, the major issue was the nodules — their exploitation and ownership. I am not sure what is holding it up today. The nodules was just one illustration at the time of the concern existing in the U.S. about giving up any controls to an international body. That concern is of course still alive and well today; it was a major issue in the 1996 presidential campaign.

In general, this was not my concern; after all we do it all the time now. I personally did not believe that the manganese nodules had that much value so I was not too concerned by giving up control over that resource to an international body.

I thought that from a military and strategic view point, we had a lot at stake on such issues as the right of free and innocent passage as well as the opportunity to operate in the economic zones of other countries. Those were far more important issues — and advantages — for the U.S. than the nodules. So I thought that the advantages of the treaty far outweighed the disadvantages and therefore did and still believe that it should be ratified by the U.S.

We may have made a mistake by assuming that our strategic and military rights would have been satisfied with or without a treaty because of our power; I think that may have been more wishful thinking than reality. Our assumption led us to make the resource issues uppermost in our list of objectives, rather than the strategic and military ones. It was true that in terms of fisheries and economic zones there were major resources at stake, which we claimed.

But the deep-sea mining was not an important resource. Our position was dictated more by the Glomar Explorer [a U.S. explorer ship sent to locate and raise a sunken Soviet nuclear submarine in the Pacific Ocean] and CIA operations. We may in fact have been hoodwinked ourselves by the CIA’s cover story.

“It was not just rich vs. poor or East vs. West”

My work on the Law of the Seas brought me into contact with representatives of the private sector concerned with one phase or another of the draft treaty. These were essentially information-exchange opportunities. I was not subjected to lobbying — that came later. I learned a lot about how the U.S. government handles a very complicated subject like the Law of the Seas.

In fact, it became a traveling road show with negotiations being held all over the world. U.S. representatives were on the road all of the time. Country alliances changed depending on the specific issues. It was not just rich vs. poor, or East vs. West; sometime alliances would be formed by coastal states with similar coast lines, peninsular countries would align, etc.

There were several very strange international alliances which one would not expect given the state of international affairs in the late ‘70s. In Washington, there were very few governmental bureaucracies which could not legitimately claim some interest in one Law of the Seas issue or another. That made coordination a very complicated task –probably one of the widest ever undertaken by an administration.

I thought that our coordination efforts were more successful than most of other nations. We had a lot of talented people working on the issues, engaged in the debate. We had a pretty good inter-agency coordinating mechanisms; we had good lead negotiators who knew their briefs thoroughly, well supported by experts.

I think we were well represented in international councils, despite the complicated nature of the subject and the broad participation by many, many U.S. agencies, not to mention Congressional interests. We did on occasion cede leadership on specific issues to another country and then we would make some of our expertise available to that country if necessary.

Jeane-kirkpatrick-official-portrait_1-255x301So we were central to the development of the draft treaty. In the final analysis, the make-or-break issue was an ideological related to rights of Third World countries, the kind of considerations that Jeanne Kirkpatrick [first woman to serve as U.S. Ambassador to the United Nations] tackled five years later at the UN.

Much of the nonaligned Third World took an ideological position on manganese nodules; in retrospect, it was a rather silly issue. No one is mining that resource twenty years later and those nodules may never be an important resource.

Although still very junior, my work on the Law of the Seas was a good initiation to such eternal issues like Congressional-Executive relations and inter-agency coordination. I was involved, both in OMB and the NSC, in trying to prevent Executive Branch representatives from straying too far from Presidential guidance, representing their own institutional perspectives rather than that of the politically elected officials and their Cabinet.

There is always a tendency for the bureaucracies to represent their own narrow interests with Congressional committees, undercutting the goals of an administration. So I spent a lot of time trying to minimize that problem.…

One other lesson I learned from this experience was to view Congress as a partner — at least not an adversary as many of my colleagues did.…It was also clear to me that the legislative drafters had a lot of power. That re-emphasized my views on the importance of working with them.

“That whole generation has moved on and retired and there is nobody who knows what the Law of the Sea is about or what it entails“

Charles Higginson, Executive Director of the Council on Ocean Law

HIGGINSON: The status is that the U.S. is an interim member of the Law of the Sea Convention, which went into effect when 60 countries had signed it. I think it’s up to about 120 now, including the United States, but we haven’t ratified it. Our interim membership will cease on November 16th of this year [1998] unless we ratify it. Since the Senate has just closed for the year, we are not going to ratify it in time, so the U.S. will lose its membership in the Council and budgetary authorities of the Deep Sea Authority.

We already cannot have a judge on the court created for the international ocean claims in Hamburg. It’s too bad because this court is setting its rules and the initial decisions set up a lot of policy. The U.S. was the prime mover in the creation of this court. Jack Stevenson, our first negotiator, got agreement on most of these provisions. I think it’s a major loss that the U.S. is not a full member of the Law of the Sea Convention at this time….

Navy has a major interest in the Law of the Sea Convention…. The Freedom of Navigation provisions, if fully executed, mean that the Navy doesn’t have to keep asserting our unilateral freedom of navigation rights.

Two, the CoUSNavynvention does provide for carrier groups to operate in formation with planes on their decks and submarines can go through international straits at full submerged depth, which under sort of common international law (before the Law of the Sea Treaty, at least) was not allowed….

The seabed has almost ceased to be an issue. There were only four U.S. companies (now there are only three) that were potentially involved in deep sea mining. This turned out to be totally uneconomic.

Nobody is mining the sea bed for manganese nodules at the present time. The best studies that I’ve seen don’t expect it to be economic for another 20 years or so. That’s no longer a problem.

The problem is a problem of indifference. The Law of the Sea issues were front-burner 20 years ago. That whole generation has moved on and retired and there is nobody who knows what the Law of the Sea is about or what it entails….

It creates a new international court, some of whose powers are supranational. It does still have this provision in it that if there are proceeds from mining the seabed, a small percentage of those would go directly to the UN….

Basically, there is no movement on it because of Senate rules that the Chairman of the Senate Foreign Relations Committee determines when a treaty will come up before it….

The Convention provides for a coastal state to have a little more influence for common law on high seas fishing. In order to save the pollack in the Bering Sea, a fishing convention had to be worked out which also covered the high seas. The pollack swim around the Bering Sea in and out of the territorial waters, but there is a high sea donut hole. It’s only using the Law of the Sea provisions that the treaty meets international legal laws.

There is also a High Seas Convention on fishing which was drafted and approved after the Law of the Sea Convention was invented. That is dependent upon the Law of the Sea Convention both as to its authority and it looks to the International Maritime Tribunal in The Hague to settle disputes..…

The Navy has a full-court press in trying to get it approved. I don’t think it will get approved if there is a deep and thorough study of the matter just because there is enough internationalism in the Convention so that it draws opponents which are probably the majority in the present Senate.

 

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