- The Washington Times - Saturday, March 6, 2004

A recent Commentary article in The Washington Times about the U.N. Law of the Sea (LOS) Convention (Commentary, February 24), is inaccurate and misleading. As a former member of the U.S. delegation to the LOS Convention negotiations when Ronald Reagan was our president, a former Defense Department representative for ccean policy affairs, and one who recently testified as a private citizen before the Senate Foreign Relations Committee, I could not let this article pass without comment.

Military planners have long sought international respect for the freedoms of navigation and overflight as set forth in the LOS Convention. U.S. forces have recently experienced serious threats and challenges that differ greatly from those in the past. However, nothing new has changed the fact that many of our economic, political and military interests are located far away from the U.S.

We must have substantial air and sealift capabilities to enable our forces to be where needed, when needed. The Convention preserves the right of the U.S. military to use the world’s oceans to meet national security requirements. It is essential key sea and air lines remain open as an international legal right, and not be contingent upon approval by nations along the routes. A stable legal regime for the world’s oceans will help guarantee global mobility for our Armed Forces.

Contrary to the contention in the Feb. 24 opinion piece, the Reagan administration accepted all provisions of the Treaty except for Part XI dealing with deep seabed mining. In fact, President Reagan instructed the Executive branch in 1983 to act in accordance with all provisions as if the United States were a party, except for Part XI.

Work later began on a subsequent agreement to change the provisions of Part XI and overcome all U.S. objections to the earlier regime. This international Agreement, fundamentally changing Part XI, was signed by the United States in 1994.

The article also claims transfer of technology and scientific knowledge would be mandatory. However, that requirement was eliminated in the 1994 agreement. The Convention clearly does not require the United States to transfer any technology or scientific knowledge. After obtaining these legally binding changes to the deep seabed regime, the LOS Convention was sent to the Senate for its advice and consent.

The Feb. 24 article was also erroneous in stating that Articles 19 and 20 attempt to regulate intelligence and submarine activities in territorial seas. The LOS Convention is, if anything, more favorable to our navigation and security interests than the rules embodied in the 1958 Convention on the Territorial Sea, to which the United States is a party. Article 19 defines innocent passage through territorial seas in ways that more clearly protect our interests than the more general language of the 1958 Convention. Intelligence activities are not prohibited by this provision.

As under the 1958 Convention, a vessel engaged in certain intelligence activities simply does not have the benefit of claiming innocent passage. Article 20 merely repeats the rule from the 1958 Convention (and the consistent position of nations for more than 70 years) that submarines are to navigate on the surface in foreign territorial seas to enjoy the right of innocent passage.

Moreover, we achieved an important exception to this rule in the LOS Convention for submerged passage through straits that is not contained in the 1958 Convention.

Despite the article’s claim, the Treaty does not give the United Nations authority to levy taxes. The LOS Convention does not authorize taxation of individuals or corporations. There are revenue provisions for deep seabed mining operations and for oil and gas activities on the continental shelf beyond 200 miles. Under the terms of the LOS Convention, none of the revenues go to the United Nations or are subject to its control.

The article further criticizes the Convention’s provisions on dispute settlement. While the Convention does establish the International Tribunal for the Law of the Sea, parties may choose other methods of dispute resolution. The United States has determined to elect two forms of arbitration rather than the Tribunal or the International Court of Justice, should it become a party.

Concerning seabed mining, the United States and all parties to the 1994 Agreement would be subject to the Seabed Disputes Chamber. The United States helped shape the drafting of this provision so its companies will have access to the system and may elect commercial arbitration, and its interests are well-protected by the 1994 Agreement.

Further, the United States has excepted out certain categories of disputes, e.g., military activities, in accordance with Article 298 of the Convention.

Finally, the Article speculates other parties will oppose the U.S. declaration that parties have the exclusive right to determine which of their activities are “military activities.” This claim is without foundation; the right to which the declaration refers is a right of every nation.

There is now almost universal adherence to the LOS Convention, with 145 parties. The Convention establishes a stable and predictable legal framework for uses of the oceans. As a matter of substance, all his successors have agreed with President Reagan that the Convention sets forth the appropriate balance between the rights of coastal nations and the rights of maritime nations. The United States is both. The LOS Convention is a comprehensive agreement reflecting widely accepted positions on the uses of the oceans as well as longstanding and bipartisan U.S. oceans policy.

The Convention is good for America. The Senate Foreign Relations Committee has made an important contribution to our national security, prosperity and well-being in recommending we take our rightful place as a party.

ADM. W.L. SCHACHTE JR.

Adm. Schachte is a decorated combat veteran who served for 30 years as a line office and lawyer.

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