U.S. Department of State
95/09/16 Address: Amb. Colson on the Law of the Sea
Bureau of Oceans, International Environmental & Scientific Affairs
 
 
 
               THE LAW OF THE SEA:  AVENUE TO COOPERATION 
                                   by 
                         Ambassador David A. Colson 
                    Deputy Assistant Secretary for Oceans 
                          U.S. Department of State 
 
                             Presented to the  
                 Maritime Law Association of the Philippines 
 
                              September 19, 1995 
 
 
I would like to thank the Maritime Law Association for inviting me here 
this evening to speak to you on the Law of the Sea, a topic we in the 
United States Government view with great importance.  I have titled my 
remarks "The Law of the Sea:  Avenue to Cooperation" because I believe 
the 1982 United Nations Convention on the Law of the Sea as now amended 
provides the foundation and the opportunity for closer cooperation 
between and among all countries on matters pertaining to ocean use. 
 
Today, even as we speak, people throughout the world are closer to each 
other, and more knowledgeable about each other's activities, than ever 
before.  Even though Washington D.C. and Manila geographically may be 
separated by thousands of miles, and even though there is a 12 hour time 
difference, one can know what is going on in our respective capital 
cities virtually as events are happening.  CNN cable news epitomizes the 
ability to have instantaneous coverage of breaking events worldwide. 
 
Knowledge of a few basic keystrokes on a computer can open the world to 
people everywhere.  The wonders of Internet make available to all of us 
information of all sorts.  For example, if anyone on August 23 of this 
year accessed on Internet the U.S. Federal Register, which is the 
official U.S. publication for U.S. laws, regulations, and announcements, 
he or she would have viewed a State Department notice providing five 
pages of geographic coordinates defining the U.S. exclusive economic 
zone. 
 
Not only have communication advances brought us closer, but commercially 
the world is linked more tightly than it was just a few decades ago.  
International trade, often conducted through multi-national 
corporations, has decreased the "distance factor" between countries.  
International trade, for the most part, particularly for countries like 
the Philippines and the United States, is achieved through ocean going 
commerce.  Approximately 95% of U.S. imports and exports by bulk occur 
via shipping.  And, it is my understanding that most of the Philippines 
international trade also relies upon ocean shipping. 
 
The oceans more and more bring us together -- not separate us.  And as 
our dependence on international commerce increases, their role as a 
marine highway only increases.  Ocean navigation today affects in the 
deepest sense the economic well being and national security of virtually 
every country:  super tankers; fishing vessels; commercial merchant 
ships; warships.  We need them all, and they need to use the oceans 
under the rules set out in international law. 
 
As the world's dependence on this traditional use of the seas has 
increased, technology has made it possible to reach out to deeper waters 
for the oceans resources. 
 
Accompanying these changes -- and in part as a result of them --  
coastal States began to assert control over new activities further off 
their shores and to assert controls over international shipping in their 
waters.  These national claims were often inconsistent and excessive. 
 
The Third United Nations Conference on the Law of the Sea had three key 
objectives designed to address these issues:  (1) to maintain high seas 
freedoms of navigation and overflight; (2) to give the coastal State a 
certain amount of jurisdictional control over its offshore area; and, 
(3) to protect the marine environment while providing a stable legal 
regime for international shipping.  And, it sought to do this by 
reaching agreement on a Convention that established an acceptable, and 
comprehensive, set of rules widely supported by the entire international 
community. 
 
It was desired, at the outset of negotiations, that this body of law, 
much of which would reflect customary international law, would contain 
acceptable limits of national jurisdiction.  And, it was expected that 
any country making a claim that exceeded the negotiated limit to align 
its national law with the Convention. 
 
It indeed was a negotiating triumph in 1982 when the Third United 
Nations Conference on the Law of the Sea concluded giving evidence that 
so many countries could agree on a comprehensive set of rules covering 
virtually every aspect of jurisdiction and uses in, over, and under the 
oceans, with deep seabed mining excepted. 
 
As I assume you know, one year after the 60th instrument of ratification 
was deposited with the United Nations, the Convention entered into force 
on November 16, 1994, for those countries having deposited their 
ratifications.  The Philippines is formally a party, and is to be 
congratulated, having deposited its ratification on May 8, 1984.  And, 
as I assume you know, while recognizing that the LOS Convention serves 
fundamental U.S. interests, the United States viewed Part XI of the 
Convention, which addresses deep seabed mining, as seriously flawed.  
For that reason, the United States did not sign the Convention in 1982. 
 
But more negotiations have occurred at the international level to fix 
the provisions of Part XI.  And, an agreement reforming the seabed 
mining provisions of the Convention  was adopted by the United Nations 
General Assembly on July 28, 1994.  The Agreement, entitled the 
Agreement Relating to the Implementation of Part XI of the 1982 United 
Nations Convention on the Law of the Sea of December 10, 1982, was 
approved by an overwhelming majority of the members of the United 
Nations and opened for signature the following day.  The United States 
did sign this agreement on July 29, 1994, and, thus, the differences 
that did exist between many developing countries, such as the 
Philippines, and developed countries, such as the United States, 
concerning deep seabed mining have been overcome. 
 
I am pleased to report that the Clinton Administration, following years 
of bipartisan support for the objective of a universally acceptable 
Convention, firmly supports the LOS Convention as now amended.  On 
October 7, 1994, President Clinton transmitted the Convention and the 
Part XI Agreement to the Senate for its advice and consent to accession.  
I have had the honor to testify on behalf of the Administration at 
several congressional hearings in support of the now amended Convention.  
It is, however, difficult to predict the timing of formal consideration 
by the Senate. 
 
The President also transmitted the Secretary of State's commentary on 
the amended Convention to the Congress.  This commentary was published 
in March 1995, in a special issue of the State Department Dispatch.  We 
have brought only a few copies, but we can get a copy to anyone who 
would like to leave a name and address with us.  I should also add that 
this issue of the Dispatch is also available on the Internet, and we 
would be happy to give you the particular Internet address. 
 
I would like to take a moment to review some of the basic tenets of U.S. 
ocean policy and to suggest that many are shared by the Philippines. 
 
Given its size and its role as a global power, the United States has a 
broad range of ocean interests.  As a maritime State, dependent upon the 
oceans for trade and for national security, we have vital interests in 
maintaining the freedom of the seas.  I suggest that the Philippines 
shares this interest.  Navigational freedoms on the high seas, and 
navigation rights through territorial seas, international straits, and 
archipelaigic waters are key elements in securing our security and 
commercial interests. 
 
The United States, like the Philippines, is also a coastal State having 
great interest in preserving, protecting and reaping the benefits of the 
marine resources and environment adjacent to our coasts.  Balancing the 
interests of a maritime State, as we are, with that of a coastal State, 
as we are, is not always an easy task.  Domestically, we often have to 
reach compromises in our national approach to ocean issues in order to 
balance our competing interests. 
 
The United States strongly believes that the LOS Convention identifies 
the appropriate balance between our interests as maritime States and our 
interests as coastal States.  Since the conclusion of the LOS 
negotiations, each succeeding U.S. Administration has recognized the LOS 
Convention as the cornerstone of United States oceans policy. 
 
The LOS Convention brings a needed consistency to the order of the 
world's oceans.  In particular, it stabilizes the breadth of the 
territorial sea at 12 miles and establishes important navigation 
regimes:  of innocent passage through the territorial sea; of transit 
passage through straits used for international navigation; of 
archipelagic sea lanes passage in archipelagos.  According to the 
information available to us, 129 states currently claim a territorial 
sea of 12 miles or less.  Several of these claims reflect recent actions 
by States which have rolled back claims that exceeded the 12 mile 
breadth.  Seventeen countries presently claim territorial seas that 
exceed this limit. 
 
We know that in 1961 the Philippine government claimed as its 
territorial sea the limits set forth in the 1898 Treaty of Paris.  The 
United States has made its position well known that these limits, as in 
the case in many other situations, merely identified the islands that 
pertained to the Philippines, and that the limits never had any legal 
significance in their own right as far as ocean jurisdiction is 
concerned.  Thus, it would appear appropriate that as a party to the LOS 
Convention the Philippines would modify its territorial sea limits to 
bring it into line with the provisions of the Convention. 
 
There is another issue of difference, and that is the requirement by the 
Philippines and some other States for foreign warships to obtain 
permission, or to give notification, prior to engaging in innocent 
passage through the territorial sea.  There is no basis in the 
Convention for such requirements and they are inconsistent with the 
negotiating record.  One would hope that these requirements would, too, 
be modified. 
 
One part of the Convention that is of particular interest to the 
Philippines is Part IV:  Archipelagic States.  The Philippines is 
recognized as one of the leaders in advancing this concept and in 
convincing the international community to accept it.  At the First 
United Nations Conference, in the mid-1950s, the Philippines, along with 
the former Yugoslavia, submitted proposals regarding applying straight 
baselines to archipelagos.  Again, at the unsuccessful Second United 
Nations Law of the Sea Conference, the Philippines, along with 
Indonesia, raised the matter of archipelagoes. 
 
On the third attempt -- at the Third UN Law of the Sea Conference -- the 
Philippines, along with other key archipelagic States (including 
Indonesia, Fiji, and The Bahamas) was instrumental in securing a place 
for the archipelagic regime in the LOS Convention.  The Philippine 
government should be applauded for its perseverance:  convincing 150 
States that have diverse maritime interests to accept a new legal regime 
in the oceans is no easy task. 
 
Within specified archipelagic baselines (which can not exceed certain 
technical parameters), an archipelagic State can claim sovereignty over 
the waters, the air space and to the sea bed; and it may measure its 
territorial sea and exclusive economic zone from these baselines.  But 
the archipelagic provisions were carefully negotiated to balance the 
interests of the archipelagic State and that of the international 
community, which has used some archipelagic waters as normal routes of 
international navigation. 
 
Thus within archipelagic waters the navigation interests of the 
international community are protected.  First, in these waters, at a 
minimum, all ships enjoy the right of innocent passage.  Second, in sea 
lanes which are used as normal passage routes for international 
navigation or overflight, all ships and aircraft enjoy archipelagic sea 
lanes passage.  Such passage is to be conducted in "the normal mode 
solely for the purpose of continuous, expeditious, and unobstructed 
transit."  This means that overflight is allowed, submarines can transit 
submerged, and military battle groups can steam through in formation and 
conduct such operations as to protect the battle group, without prior 
notification or consent.  Of course, the resources within archipelagic 
waters and the exclusive economic zone are for the archipelagic state to 
exploit. 
 
There are specified rules in the Convention for archipelagic States to 
follow should they wish to designate sea lanes through the archipelago.  
Generally, such proposed designations must include all normal passage 
routes and must be submitted to the International Maritime Organization 
with a view to their adoption.  However, the archipelagic State is not 
required to formally designate sea lanes and in many cases may find it 
more feasible or convenient not to do so.  In the situation where no 
designation is made, the right of "archipelagic sea lanes passage may be 
exercised through the routes normally used for international 
navigation." 
 
It is our hope that as the Philippines and other States go forward to 
implement these provisions any differences will be resolved through 
consultations to ensure the rules of the Convention are followed.  Only 
through such a process will the benefits of the Convention be realized 
and that a foundation will be laid for future cooperation on ocean 
issues. 
 
And let me now turn to some of those other issues.  The Convention is a 
far reaching environmental accord, addressing vessel source pollution, 
ocean dumping, and land-based sources of marine pollution.  It has 
facilitated continuing improvement in the health of the world's oceans.  
In this area there are many important issues to be addressed, and if the 
international community does so within the framework provided for in the 
LOS Convention, there is great potential for progress.  In closing, I 
would like to note just two initiatives that are very important and 
which rely on the LOS Convention as the foundation for international 
cooperation. 
 
First, the International Coral Reef Initiative.  Coral reefs are an 
important, but fragile, living resource.  An international effort, the 
International Coral Reef Initiative (ICRI), is underway with the 
fundamental goal that coral reefs will be protected and thrive.  ICRI is 
based on the concept that the economic and ecological importance of 
coral reefs warrants efforts by the international community to give 
priority to coral reef issues within existing international, regional, 
and national fora.  ICRI is unique in that it reaches out to, and 
includes governments, multilateral agencies, and private organizations 
at all levels. 
 
The Philippine government is playing a key and vital role in ICRI's 
success.  As one of eight founding ICRI governments, the Philippines 
contributed its intimate knowledge of coral reefs, its expertise with 
community based reef management, and its logistical and personnel 
resources.  This past June, Dumaguete City hosted the successful global 
ICRI workshop which drew participants from all walks of life, and from 
all parts of the globe. 
 
On behalf of the ICRI Secretariat, I would like to thank the Philippine 
government for the instrumental role it has played in the initial stages 
of this effort.  I hope that the Philippines will continue to be an 
active player in this initiative.  And that the United States and the 
Philippines will continue to collaborate closely on this important ocean 
issue. 
 
A second new initiative is on the horizon.  In just a few weeks the 
United States will host a major meeting of the United Nations 
Environment Program which will address land-based sources of marine 
pollution.  This conference is a direct result of the United Nations 
Conference on Sustainable Development (UNCED), held in Rio a few years 
ago, but it relies on the LOS Convention for its foundation.  We hope in 
Washington to develop a program of action that will begin to address 
this type of pollution, including sewage, industrial and agricultural 
runoffs and sedimentation, which constitutes about 90% of the oceans 
pollution.  These land activities must be addressed if we are to protect 
our coastal habitats, fisheries, beaches and coral reefs. 
 
In concluding this evening, I would like to state again that I believe 
our two countries, both of which have a rich heritage linked to the 
oceans, have much in common in our maritime interests.  I am confidant 
that the relationships and interactions between the peoples and 
institutions of our two countries will continue to grow in a very 
positive way.  One reason for this cooperation will be a common goal of 
protecting the oceans for the welfare of our future generations through 
respect for the Law of the Sea. 
 
Thank you for giving me the opportunity to address you this evening.