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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.
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