[Senate Hearing 108-498]
[From the U.S. Government Publishing Office]
S. Hrg. 108-498
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
__________
MARCH 23, 2004
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred eighth congress
second session
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texas BARBARA BOXER, California
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
CRAIG THOMAS, Wyoming THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
(ii)
C O N T E N T S
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Page
MARCH 23, 2004
OPENING STATEMENTS
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 12
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 2
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska...... 29
WITNESSES
Gaffney, Frank, Jr., president and CEO, The Center for Security
Policy......................................................... 19
Prepared statement........................................... 77
Responses to additional questions from:
Senator Inhofe........................................... 80
Senator Jeffords......................................... 83
Senator Murkowski........................................ 82
Kelly, Paul L., senior vice president, Rowan Companies,
Incorporated; member, U.S. Commission on Ocean Policy.......... 21
Prepared statement........................................... 85
Responses to additional questions from:
Senator Inhofe........................................... 88
Senator Jeffords......................................... 91
Senator Murkowski........................................ 90
Leitner, Peter, author, ``Reforming the Law of the Sea Treaty:
Opportunities Missed, Precedents Set, and U.S. Sovereignty
Threatened''................................................... 24
Article, A Bad Treaty Returns...............................129-145
Prepared statement........................................... 92
Report, Law of the Sea Treaty: A Defective Document That
Should Not Be Ratified.....................................95-126
Responses to additional questions from:
Senator Inhofe........................................... 147
Senator Jeffords......................................... 152
Oxman, Bernard H., professor of law; director, Ocean and Coastal
Law Program, University of Miami School of Law................. 27
Article, The American Journal of International Law, Vol.
88:477; Vol. 88:488; Vol. 88:687..........................166-187
Prepared statement........................................... 155
Responses to additional questions from:
Senator Inhofe........................................... 188
Senator Jeffords......................................... 191
Turner, John F., Assistant Secretary, Bureau of Ocean and
International Environmental and Scientific Affairs, U.S.
Department of State: Accompanied by: William H. Taft IV, Chief
Legal Counsel, U.S. Department of State........................ 13
Prepared statement........................................... 66
Responses to additional questions from:
Senator Inhofe...........................................73, 77
Senator Jeffords......................................... 75
ADDITIONAL MATERIAL
Letters from:
American Petroleum Institute, International Association of
Drilling Contractors and National Ocean Industries
Association................................................ 4
Benton, David, Benton and Associates......................... 193
Clark, Vern, Admiral, U.S. Navy.............................. 65
Cox, Joseph, J., president, Chamber of Shipping of America... 194
Leaders of 11 major environmental groups..................... 9
Panetta, Leon E., chair, Pew Oceans Commission............... 11
Powell, Colin L., Secretary of State......................... 64
Simonds, Kitty M., executive director, Western Pacific
Regional Fishery Management Council........................ 196
Watkins, James D., Admiral, U.S. Navy (Retired), chairman,
U.S. Commission on Ocean Policy.........................58, 62-63
Resolution of the Commission on Ocean Policy..................... 62
Statements:
Cox, Joseph J., president & CEO, Chamber of Shipping of
America, given before the Senate Committee on Foreign
Relations on the U.N. Convention of the Law of the Sea,
October 21, 2003........................................... 194
Kelly, Paul L., senior vice president, Rowan Companies, Inc.,
on behalf of the American Petroleum Institute, The
International Association of Drilling Contractors, and The
National Ocean Industries Association before the Committee
on Foreign Relation, October 21, 2003...................... 4
Stevens, Hon. Ted, U.S. Senator from the State of Alaska.....11, 55
Watkins, James D., USN (Retired) chairman, U.S. Commission on
Ocean Policy, October 14, 2003............................. 59
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
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TUESDAY, MARCH 23, 2004
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 2 o'clock p.m. in
room 406, Senate Dirksen Building, Hon. James M. Inhofe
(chairman of the committee) presiding.
Present: Senators Inhofe, Chafee, Jeffords, Murkowski,
Thomas and Warner.
Also present: Senator Stevens.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. We will call the hearing to order. We have
a policy of starting exactly on time, and we want to be
consistent with that.
I want to open this hearing by thanking our witnesses in
advance for their testimony. The committee will receive
testimony this afternoon regarding the United Nations
Convention on the Law of the Sea. The United Nations Convention
on the Law of the Sea represents an international agreement.
The party nations are to comply with mandatory rules related to
the navigation of the seas, the use of the marine resources,
and the protection of the marine environment.
The Foreign Relations Committee held two hearings on this
last fall. It appears that the two hearings only vetted one
side. Everyone who was testifying was for it, so we thought we
would try to get a balanced hearing, and that is why we are
having the hearing today.
This committee is conducting the oversight hearing because
we have an obligation to ensure that this Convention is
consistent with protecting human health and the environment,
and does not adversely affect the sovereignty of the United
States. It is time to slow down and take a critical evaluation
of this Convention that deals with the outer continental shelf,
which is in the jurisdiction of this committee.
I have many concerns about the flawed provisions in this
Convention, specifically Article II, Section 3 that states,
``The sovereignty over the territorial sea is exercised subject
to this Convention and to other rules of international law.''
Also, when a Coastal State exploits non-living resources such
as oil permits on the continental shelf beyond the 200 nautical
miles, the Convention requires a Coastal State to make annual
payments starting in the sixth year of production to the
International Seabed Authority. This Authority is also granted
immunity and accountability from legal process, from search,
and any form of seizure wherever located and held, and exempted
from restrictions, regulations, controls and moratoria of any
nature.
We need to critically examine these concerns to ensure the
Authority cannot conduct itself in a matter outside the
recommendations of the Convention.
This Convention also contains numerous provisions relating
to the protection of the maritime environment, specifically
addressing pollution from multiple sources including land-based
pollution, ocean dumping vessels, and atmospheric pollution and
pollution from off-shore activities.
We need to take a closer look at these provisions, such as
Articles 208 and 210 of the Convention which requires Coastal
States to adopt laws and regulations that are no less effective
than international rules and recommended practices to prevent,
reduce and control pollution in the maritime environment from
seabed activities and dumping.
Furthermore, Article 207 requires states shall adopt laws
and regulations for pollution from land-based sources to
minimize to the fullest extent possible the release of toxic,
harmful and noxious substances into the marine environment.
Article 196 of the Convention addresses the issue of
invasive species, which is a major environmental issue facing
this country. This committee recognizes the detrimental effects
from introduction of invasive species and we are currently
reviewing legislation to address this issue independently.
Although the Convention appears to have affirmed a coastal
nation's exercise of its domestic authority to regulate the
introduction of invasive species into the marine environment,
we must critically evaluate the ability to fully address this
problem.
Although the focus of today's hearing, as a senior member
of the Senate Armed Services Committee, I am very troubled
about implications of this Convention on our national security,
particularly in view of our continuing war on terrorism. I want
to make it clear today that I intend to look into these issues
more fully before the Senate considers this Convention.
I think that is essentially why we are doing this. There
have been two hearings before. I want to get a broader
approach, hearing all sides. I am probably more than anything
else concerned about perhaps some national security problems
that could come up with the adoption of this Convention.
With that, I will give it to the Ranking Member of the
Environment and Public Works Committee, Senator Jeffords.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Thank you, Senator.
I want to express my strong support for the U.N. Convention
on the Law of the Sea. I would urge that the full Senate give
its advice and consent to the Convention as soon as possible.
The United States can no longer afford to postpone full
participation in this important international agreement.
Simply put, becoming a party to the Convention is vital to
our national security interests. It is vital to our economic
interests. It is vital to our efforts to conserve ocean
resources and to protect the marine environment.
Time is running out. The Convention will be open for
amendment later this year. If the United States is not a party
by that time, we will not be at the table when important
decisions are made regarding the future direction of the
Convention. This will obviously inhibit us from pursuing and
protecting our interests.
I want to thank Senator Lugar and the rest of the Foreign
Relations Committee for the fine job they did in crafting a
resolution for advice and consent. That resolution and the
declaration that it contains regarding the official U.S.
interpretation of certain provisions should dispel any concerns
that Senators might have with U.S. participation in the
Convention.
This is an issue that I care about a great deal and one
that I have been involved in for a long time. As a former Navy
officer on the first U.S. military ship to navigate the Suez
Canal when it reopened, I understand the importance of freedom
of navigation to our national security interests. During my
tenure in the House of Representatives, I served as an adviser
on the U.S. delegation to the Law of the Sea negotiations.
Since that time, I have maintained a strong interest in the
Law of the Sea as a comprehensive legal framework for managing
the many uses of the oceans.
My work in the Congress on environmental issues has also
reinforced the importance of promoting the obtainable
management of ocean resources and the protection of the marine
environment.
I would also remind my colleagues that this is not a
partisan issue. We must beat back any effort to make it one.
Nor is this an issue that caters to the interests of one
particular constituency. Indeed, I have seldom seen an issue
marked by such widespread agreement across the political
spectrum. A bipartisan, Presidentially appointed U.S.
Commission on Ocean Policy has expressed the unanimous support
for all U.S. participation, a full U.S. participation. I am
sure that Paul Kelly who is here today on behalf of the
Commission will have more to say on this.
I would also ask unanimous consent to submit for the record
a letter from retired Admiral James D. Watkins, the chairman of
the Commission, reiterating the Commission's support. I would
also point out that the U.S. Department of Defense supports
this treaty. Key segments of the U.S. industry, including the
oil and gas industry, support the treaty. The environmental
community supports it.
How often does this happen in this age? The U.S. Department
of Defense, and especially the U.S. Navy, favor full U.S.
participation because the Law of the Sea protects and enhances
the global movement of military operations that is so critical
to our national security.
As evidence of this, the Navy support, I would ask
unanimous consent to submit a letter from Admiral Vern Clark,
the current Chief of Naval Operations, expressing the strong
support of full U.S. participation in the Law of the Sea.
Senator Inhofe. Without objection, both the Watkins and the
Clark statements will be made a part of the record.
[The referenced documents can be found in Additional
Material:]
Senator Jeffords. Thank you, Mr. Chairman.
Similarly, key industrial and commercial interests also
support U.S. participation in the Law of the Sea for several
reasons. The Convention codifies important navigation rights
and freedoms. It confirms that Coastal States such as the
United States enjoy exclusive rights to the resources of the
200-mile exclusive economic zone. It secures the sovereign
rights of coastal rights such as the United States to explore
and develop the natural resources of their continental shelf
areas.
As testament to the support that the Convention enjoys from
various segments of industry, I would unanimous consent to
submit letters of support from the American Petroleum
Institute, the International Association of Drilling
Contractors, the National Ocean Industries Association, the
Chamber of Shipping America, and the Western Pacific Regional
Fishery Management Council.
Senator Inhofe. Without objection.
[The referenced documents follow:]
March 19, 2004.
Senator James M. Inhofe,
Senator James M. Jeffords,
U.S. Senate,
Washington, DC.
Dear Senators Inhofe and Jeffords: The American Petroleum Institute
(API), the International Association of Drilling Contractors (IADC) and
the National Ocean Industries Association (NOIA), are pleased to
provide for the Senate Environmental and Public Works Committee a copy
of our statement in support of U.S. ratification of the United Nations
Law of the Sea (LOS) Convention. The statement was delivered during an
October 2003 hearing before the Senate Foreign Relations Committee. We
would ask that our statement be made part of your committee's record
for the March 23, 2004 hearing on the LOS.
Thank you for considering the views expressed in this statement.
American Petroleum Institute.
International Association of
Drilling Contractors.
National Ocean Industries
Association.
______
Statement by Paul L. Kelly, Senior Vice President, Rowan Companies,
Inc. on Behalf of The American Petroleum Institute, The International
Association of Drilling Contractors, and The National Ocean Industries
Association before the Committee on Foreign Relations, Hearing on the
United Nations Convention on the Law of the Sea, October 21, 2003
Mr. Chairman and members of the Committee: Thank you for inviting
me to testify before you today to express the U.S. oil and natural gas
industry's views on the important subject of United States accession to
the United Nations Law of the Sea (LOS) Convention.
Taken together, the three associations I am representing here
today, the American Petroleum Institute (API), the International
Association of Drilling Contractors (IADC) and the National Ocean
Industries Association (NOIA), represent the full spectrum of American
companies involved in all phases of oil and natural gas exploration and
production in the oceans of the world, as well as the marine
transportation of petroleum and petroleum products.
The offshore oil and natural gas industry is a multibillion-dollar
industry. A recent economic survey of global ocean markets done in the
United Kingdom\1\ brings home clearly the economic significance of
offshore oil and natural gas production. Offshore oil and natural gas
is now the world's biggest marine industry where oil production alone
can have a value of more than $300 billion per annum. This compares to
global shipping revenues of $234 billion and expenditures of all the
world's navies amounting to $225 billion. Submarine cables, which
provide the ``worldwide'' part of the worldwide web and enable the very
existence of the internet, is the next largest marine business with $86
billion in revenues; and incidentally, that important industry is on
record as supporting United States accession to the LOS Convention. In
addition to activities in areas under United States jurisdiction such
as Alaska and the Gulf of Mexico, our Nation has substantial interests
in offshore oil and natural gas development activities globally, given
our significant reliance upon imported oil. U.S. oil and natural gas
production companies, as well as oilfield drilling, equipment and
service companies, are important players in the competition to locate
and develop offshore natural gas and oil resources. The pace of
technological advancement, which drove the need to define the outer
limits of the continental margin, has not abated. Advances in
technology and increased efficiencies are taking us to greater and
greater water depths and rekindling interest in areas that once were
considered out of reach or uneconomic.
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\1\ John Westwood, Barney Parsons and Will Rowley, Douglas Westwood
Associates, Canterbury, United Kingdom, Oceanography, vol. 14, no. 3/
2001.
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Recognizing the importance of the LOS Convention to the energy
sector, the National Petroleum Council, an advisory body to the United
States Secretary of Energy, in 1973 published an assessment of industry
needs in an effort to influence the negotiations. Entitled ``Law of the
Sea: Particular Aspects Affecting the Petroleum Industry,'' it
contained conclusions and recommendations in five key areas including
freedom of navigation, stable investment conditions, protection of the
marine environment, accommodation of multiple uses, and dispute
settlement. The views reflected in this study had a substantial impact
on the negotiations, and most of its recommendations found their way
into the Convention in one form or another.
Among the provisions that were influenced by the study are the
following:
confirmation of coastal state control of the continental
shelf and its resources to a distance of 200 nautical miles and beyond
to the outer edge of the continental margin, defined on the basis of
geological criteria;
establishment of a Continental Shelf Commission to advise
states in delimiting their continental shelves in order to promote
certainty and uniformity;
specific provisions on the settlement of disputes related
to the delimitation of continental shelves among states with opposite
or adjacent coasts;
revenue sharing applicable to development of resources
beyond 200 nautical miles based on a modest royalty beginning in the
sixth year of production;
recognition of the role of the International Maritime
Organization in setting international safety and select environmental
standards;
allocation of enforcement responsibility for safety and
environmental standards among states of registry, port states, and
coastal states;
requirements for the prompt release of detained vessels
and crews upon the posting of bond; and
a comprehensive system of dispute settlement allowing a
choice among the International Court of Justice, a specialized Law of
the Sea Tribunal, and arbitration.
Having been satisfied with changes made to the Convention, the U.S.
oil and natural gas industry's major trade associations, including API,
IADC and NOIA, support ratification of the Convention by the U.S.
Senate. Also, the Outer Continental Shelf Policy Committee, an advisory
body to the United States Secretary of the Interior on matters relating
to our offshore oil and natural gas leasing program, in 2001 adopted
resolutions supporting the United States acceding to the Convention.
offshore oil and natural gas resources
The Convention is important to our efforts to develop domestic
offshore oil and natural gas resources. The Convention secures each
coastal nation's exclusive rights to the living and non-living
resources of the 200-mile exclusive economic zone (EEZ). In the case of
the United States this brings an additional 4.1 million square miles of
ocean under U.S. jurisdiction. This is an area larger than the U.S.
land area. The Convention also broadens the definition of the
continental shelf in a way that favors the U.S. as one of the few
nations with broad continental margins, particularly in the North
Atlantic, Gulf of Mexico, the Bering Sea and the Arctic Ocean.
Considering the remarkable advances in offshore exploration
technology that have taken us farther and farther offshore into deeper
and deeper water, the assessment of the National Petroleum Council in
1973 seems remarkably prescient in retrospect; and that assessment
rings more true today than ever.
With what may be the largest and most productive continental shelf
in the world, the U.S. obtains about 28 percent of its natural gas and
almost as much of its oil production from the outer continental shelf
(OCS); this share of U.S. production is increasing thanks to new world
class oil discoveries in the deep waters of the Gulf of Mexico.
exploration moving farther from shore into deeper waters
Offshore petroleum production is a major technological triumph. We
now have world record complex development projects located in 5,000-
6,000 feet of water in the Gulf of Mexico which were thought
unimaginable a generation ago. Even more eye-opening, a number of
exploration wells have been drilled in the past 3 years in over 8,000
feet of water and a world record well has been drilled in over 9,000
feet of water. New technologies are taking oil explorers out more than
200 miles offshore for the first time, thus creating a more pressing
need for certainty and stability in delineation of the outer shelf
boundary. Before the LOS Convention there were no clear, objective
means of determining the outer limit of the shelf, leaving a good deal
of uncertainty and creating significant potential for conflict. Under
the Convention, the continental shelf extends seaward to the outer edge
of the continental margin or to the 200-mile limit of the EEZ,
whichever is greater, to a maximum of 350 miles. The U.S. understands
that such features as the Chukchi Plateau and its component elevations,
situated to the north of Alaska, are not subject to the 350-mile
limitation. U.S. companies are interested in setting international
precedents by being the first to operate in areas beyond 200 miles and
to continue demonstrating environmentally sound drilling development
and production technologies.
revenue sharing
The Convention provides a reasonable compromise between the vast
majority of nations whose continental margins are less than 200 miles
and those few, including the U.S., whose continental shelf extends
beyond 200 miles, with a modest obligation to share revenues from
successful minerals development seaward of 200 miles. Payment begins in
year six of production at the rate of 1 percent and is structured to
increase at the rate of 1 percent per year to a maximum of 7 percent.
Our understanding is that this royalty should not result in any
additional cost to industry. Considering the significant resource
potential of the broad U.S. continental shelf, as well as U.S.
companies' participation in exploration on the continental shelves of
other countries, on balance the package contained in the Convention,
including the modest revenue sharing provision, clearly serves U.S.
interests.
importance of delineating the continental shelf
The Convention established the Continental Shelf Commission, a body
of experts through which nations may establish universally binding
outer limits for their continental shelves under Article 76. The
objective criteria for delineating the outer limit of the continental
shelf, plus the presence of the Continental Shelf Commission, should
avoid potential conflicts and provide a means to ensure the security of
tenure crucial to capital-intensive deepwater oil and natural gas
development projects.
It is in the best interest of the U.S. to register its claims
extending the outer limits of our continental margin beyond 200 miles
where appropriate--in so doing the U.S. could expand its areas for
mineral exploration and development by more than 291,383 square miles.
We need to get on with the mapping work and other analyses and
measurements required to substantiate our claims, however. Some of the
best technology for accomplishing this resides in the United States.
Establishing the continental margin beyond 200 miles is particularly
important in the Arctic, where there are a number of countries vying
for the same resource area. In fact, Russia has already submitted
claims with respect to the outer limit of its continental shelf in the
Arctic.
resolution of boundary disputes
As regards maritime boundaries, there presently exist about 200
undemarcated claims in the world with 30 to 40 actively in dispute.
There are 24 island disputes. The end of the cold war and global
expansion of free market economies have created new incentives to
resolve these disputes, particularly with regard to offshore oil and
natural gas exploration. During the last few years hundreds of
licenses, leases or other contracts for exploration rights have been
granted in a variety of nations outside the U.S. These countries are
eager to determine whether or not hydrocarbons are present in their
continental shelves, and disputes over maritime boundaries are
obstacles to states and business organizations which prefer certainty
in such matters. We have had two such cases here in North America where
bilateral efforts have been made to resolve the maritime boundaries
between the U.S. and Mexico in the Gulf of Mexico and between the U.S.
and Canada in the Beaufort Sea. Both of these initiatives have been
driven by promising new petroleum discoveries in the regions. The
boundary line with Mexico was resolved in 2000 after a multi-year
period of bilateral negotiations. Negotiations with Canada, however,
seem to be languishing.
While such bilateral resolution is always an option, the Convention
provides stability and recognized international authority, standards
and procedures for use in areas of potential boundary dispute, as well
as a forum for dealing with such disputes and other issues.
The settlement we made with Mexico now makes it possible for leases
in the Gulf of Mexico issued by the Department of the Interior's
Minerals Management Service (MMS) to be subject to the Article 82
``Revenue Sharing Provision'' calling for the payment of royalties on
production from oil and natural gas leases beyond the EEZ. According to
MMS, seven leases have been awarded to companies in the far offshore
Gulf of Mexico which include stipulations that any discoveries made on
those leases could be subject to the royalty provisions of Article 82
of the Convention. MMS also reports that one successful well has been
drilled about 2.5 miles inside the U.S. EEZ. Details on how the revenue
sharing scheme will work remain unclear, and without ratification the
U.S. Government's ability to influence decisions on implementation of
this provision is limited or non-existent. This creates uncertainty for
U.S. industry.
gas hydrates
Ratification of the Law of the Sea Convention also has an important
bearing on a longer-term potential energy source that has been the
subject of much research and investigation at the U.S. Department of
Energy for several years: gas hydrates.
Gas hydrates are ice-like crystalline structures of water that form
``cages'' that trap low molecular weight gas molecules, especially
methane, and have recently attracted international attention from
government and scientific communities. World hydrate deposits are
estimated to total more than twice the world reserves of all oil,
natural gas and coal deposits combined.
Methane hydrates have been located in vast quantities around the
world in continental slope deposits and permafrost. They are believed
to exist beyond the EEZ. If the hydrates could be economically
recovered, they represent an enormous potential energy resource. In the
U.S. offshore, hydrates have been identified in Alaska, all along the
West Coast, in the Gulf of Mexico, and in some areas along the East
Coast. The technology does not now exist to extract methane hydrates on
a commercial scale. A joint industry group of scientists has been at
work in the Gulf of Mexico since May of this year examining the hydrate
potential in several deepwater canyons. This work is intended to help
companies find and analyze hydrates seismically and to complete an
area-wide profile of hydrate deposits.
In the Methane Hydrate Research and Development Act of 2000
Congress mandated the National Research Council to undertake a review
of the Methane Hydrate Research and Development Program at the
Department of Energy to provide advice to ensure that significant
contributions are made toward understanding methane hydrates as a
source of energy and as a potential contributor to climate change. That
review is now underway. The U.S. Navy has also done work on gas
hydrates, as has the U.S. scientific community, including universities
such as Louisiana State University and Texas A&M. Significant research
is also being conducted by scientific institutions in Japan. The United
States needs to have a seat at the table of the Continental Shelf
Commission in order to influence development of any international rules
or guidelines that could affect gas hydrate resources beyond our EEZ.
marine transportation of petroleum
Oil is traded in a global market with U.S. companies as leading
participants. The LOS Convention's protection of navigational rights
and freedoms advances the interests of energy security in the U.S.,
particularly in view of the dangerous world conditions we have faced
since the tragic events of September 11, 2001. About 44 percent of U.S.
maritime commerce consists of petroleum and petroleum products. Trading
routes are secured by provisions in the Convention combining customary
rules of international law, such as the right of innocent passage
through territorial seas, with new rights of passage through straits
and archipelagoes. U.S. accession to the Convention would put us in a
much better position to invoke such rules and rights.
u.s. oil imports at all-time high
The outlook for United States energy supply in the first 25 years
of the new millennium truly brings home the importance of securing the
sea routes through which imported oil and natural gas is transported.
According to API's Monthly Statistical Report published on October
15, 2003, imports of crude oil reached a new, all-time high in
September. At close to 10.4 million barrels per day, crude imports
surpassed the previous high reached in April 2001. When combined with
higher volumes for products such as gasoline, diesel fuel and jet fuel,
total imports amounted to nearly two thirds of domestic deliveries for
the month. This is an extraordinary volume of petroleum liquids being
transported to our shores in ships every day.
The Department of Energy's Energy Information Administration (EIA),
in its 2003 Annual Energy Outlook, projects that by 2025, net petroleum
imports, including both crude oil and refined products on the basis of
barrels per day, are expected to account for 68 percent of demand, up
from 55 percent in 2001. Looking at the October numbers from API makes
one wonder whether 2025 is fast approaching.
growing natural gas imports
ETA's 2003 Outlook also states that, despite the projected increase
in domestic natural gas production, over the next 20 years an
increasing share of U.S. gas demand will also be met by imports. A
substantial portion of these imports will come in the form of liquefied
natural gas (LNG). All four existing LNG import facilities in the U.S.
are now open, and three of the four have announced capacity expansion
plans. Meanwhile, several additional U.S. LNG terminals are under study
by potential investors, and orders for sophisticated new LNG ships are
being placed. This means even more ships following transit lanes from
the Middle East, West Africa, Latin America, Indonesia, Australia, and
possibly Russia, to name the prominent regions seeking to participate
in the U.S. natural gas market.
global significance of persian gulf exports
Another important factor to consider is that, according to EIA,
Persian Gulf exports as a percentage of world oil imports are in the
process of growing from 30 percent in 2001 to 38 percent in 2025. The
Persian Gulf is a long, semi-enclosed sea. Much of it lies beyond the
12-mile limit of the territorial sea but not beyond the 200-mile limit.
Within the Persian Gulf there are seven settled international maritime
boundaries and as many as nine possible maritime boundaries that have
not been resolved in whole or in part.\2\
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\2\ See ``Persian Gulf Disputes,'' comments prepared by Jonathan L.
Charney, Professor of Law, Vanderbilt University, for a conference on
``Security Flashpoints: Oil, Islands, Sea Access and Military
Confrontation,'' New York City on February 7-8, 1997.
---------------------------------------------------------------------------
Fortunately, from the standpoint of U.S. and world dependence on
Persian Gulf oil imports, the LOS Convention provides authority that in
those areas beyond the territorial sea the right of high seas
navigation applies to all vessels. According to the Convention, within
the territorial sea vessels have the right of innocent passage and, for
straits used for international navigation, the right of transit passage
applies. It goes without saying that the United States would be in a
better position to secure these rights in this unstable area if it were
a party to the Convention.
rising world oil demand
World oil demand in 2001 was 76.9 million barrels per day. Up to
1985 oil demand in North America was twice as large as Asia. As
developing countries improve their economic conditions and
transportation infrastructure we could soon see Asian oil demand
surpass North American demand. By 2025 world demand is expected to
reach nearly 119 million barrels per day. Steady growth in the demand
for petroleum throughout the world means increases in crude oil and
product shipments in all directions throughout the globe. The
Convention can provide protection of navigational rights and freedoms
in all these areas through which tankers will be transporting larger
volumes of oil and natural gas.
need for u.s. involvement in los governance
In conclusion, from an energy perspective we see potential future
pressures building in terms of both marine boundary and continental
shelf delineations and in marine transportation. We believe the LOS
Convention offers the U.S. the chance to exercise needed leadership in
addressing these pressures and protecting the many vital U.S. ocean
interests. Notwithstanding the United States' view of customary
international law, the U.S. petroleum industry is concerned that
failure by the United States to become a party to the Convention could
adversely affect U.S. companies' operations offshore other countries.
In November 1998, the U.S. lost its provisional right of participation
in the International Seabed Authority by not being a party to the
Convention. At present there is no U.S. participation, even as an
observer, in the Continental Shelf Commission--the body that decides
claims of OCS areas beyond 200 miles--during its important
developmental phase. The U.S. lost an opportunity to elect a U.S.
commissioner in 2002, and we will not have another opportunity to elect
a Commissioner until 2007.
The United States should also be in a position to exercise
leadership and influence on how the International Seabed Authority will
implement its role in being the conduit for revenue sharing from broad
margin States such as the U.S., yet the U.S. cannot secure membership
on key subsidiary bodies of the Seabed Authority until it accedes to
the Convention. Clearly United States views would undoubtedly carry
much greater weight as a party to the Convention than they do as an
outsider. With 143 countries and the European Union having ratified the
Convention, the Convention will be implemented with or without our
participation and will be sure to affect our interests.
It is for these reasons that the U.S. oil and natural gas industry
supports Senate ratification of the Convention at the earliest date
possible.
Senator Jeffords. All of these are urging the United States
to become a party to the Law of the Sea. Finally, the
environmental community also supports U.S. participation in the
Law of the Sea. This is because the Convention sets forth a
comprehensive legal framework obligating states to conserve and
manage living marine resources and to protect the marine
environment from all other sources of pollution.
As evidence of the environmental community's strong support
for the full U.S. participation, I ask unanimous consent that
the following letter signed by the leaders of the 11 major
environmental groups be placed in the record.
Senator Inhofe. Without objection.
[The referenced document follows:]
The Ocean Conservancy, Oceana, Center for International
Environmental Law, IUCN/World Conservation Union, Natural
Resources Defense Council, Scenic America, Environmental
Defense, National Environmental Trust, Physicians for
Social Responsibility, U.S. Public Interest Research Group,
League of Conservation Voters,
March 22, 2004.
Dear Senators Inhofe and Jeffords: On behalf of the undersigned
organizations and the millions of members we represent, we urge your
support for the Senate's advice and consent on the resolution of
ratification developed by the Foreign Relations Committee for U.S.
entry into the United Nations Convention on Law of the Sea (hereinafter
UNCLOS or Convention).
UNCLOS establishes law over a vast array of issues affecting the
world's oceans, ranging from maritime boundary delimitation, to
fisheries management, to the rights and duties of ships with regard to
navigation, to ownership of marine resources. The United States'
interests in becoming a signatory to the Convention are similarly broad
and diverse. There is general agreement in the environmental community
that, with the understandings and declarations recommended by the
Committee on Foreign Relations, UNCLOS serves the environmental
interests of the United States in providing a stable legal framework
for the promotion of environmental decisionmaking over time. We urge
accession at this time primarily to enable the United States to be a
full participant and negotiator in the future development of the terms
of the Convention. In large measure, UNCLOS is considered customary
international law by the United States; therefore, we gain nothing by
our failure to commit to the treaty, while we lose much.
The United States must fully engage our fellow nations and secure
the cooperation of the international community if we are to be
successful in protecting the oceans and their resources. Our failure to
ratify the Convention has hurt not only our international credibility,
but also our ability to effect future changes in the terms and
agreements upon which international law is based. Both the Commission
on Ocean Policy and the Pew Oceans Commission have recommended
accession to secure a positive framework for U.S. ocean management. In
sum, it is impossible to be a world leader relative to the health of
the oceans without full participation in the international rule of law
that applies to them.
We applaud the bipartisan leadership provided by Chairman Richard
Lugar and Senator Biden in, developing interpretive language, with the
help of the Administration, clarifying how UNCLOS provisions will be
implemented by the United States. Because of their efforts, U.S. full
authority to protect our marine environment and resources will be
preserved and remain capable of being exercised in the future. We urge
you to fully support expeditious ratification of this international
agreement to allow the United States to guide and shape international
ocean policy for future generations.
Sincerely,
Roger T. Rufe, President and CEO, The Ocean
Conservancy; Daniel B. Magraw, Jr.,
President, Center for International
Environmental Law; Frances Beinecke,
Executive Director, Natural Resources
Defense Council; Andrew F. Sharpless, Chief
Executive Officer, Oceana; Fred Krupp,
Executive Director, Environmental Defense;
Meg Maguire, President, Scenic America;
Phillip E. Clapp, President, National
Environmental Trust; Scott Hajost,
Executive Director, IUCN-US, International
Union for the Conservation of Nature;
Robert K. Musil, Executive Director,
Physicians for Social Responsibility; Gene
Karpinksi, Executive Director, U.S. Public
Interest Research Group; Deb Callahan,
President, League of Conservation Voters.
Senator Jeffords. I would ask also unanimous consent to
submit to the record a letter from Pew Oceans Commission
supporting the Convention and urging Senator Frist to schedule
floor action at the earliest possible date.
Senator Inhofe. Without objection.
[The referenced document follows:]
Center for SeaChange,
Arlington, VA, March 15, 2004.
Hon. William H. Frist, Majority Leader,
U.S. Senate,
Washington, DC.
Dear Senator Frist: We write to urge you to schedule a vote on the
resolution of ratification for the United Nations Convention on the Law
of the Sea (the Convention) at the earliest opportunity, Ratifying the
Convention is of both substantive and symbolic importance in protecting
and restoring the health of our oceans.
Numerous recent studies and reports, including the report of the
Pew Oceans Commission, on which we served, have articulated serious
concerns about the state of our living oceans. The increasing, and
often conflicting, demands human society places on the oceans have
resulted in problems ranging from polluted beaches to collapsed
fisheries to disrupted coastal and ocean ecosystems.
Fortunately, there are solutions at hand for these problems. Their
implementation will require strong leadership and commitment. An
important step in exercising U.S. leadership would be ratification of
the Convention, as recommended by the Pew Oceans Commission and the
congressionally chartered U.S. Commission on Ocean Policy.
The United States is the world's greatest maritime power, with
strong international interests in military and commercial navigation,
communications, research, stewardship of living and non-living marine
resources, and marine environmental protection. We exercise
jurisdiction over the world's largest exclusive economic zone--an area
more than 20 percent larger than our nation's land area. Yet the United
States has not acceded to the treaty that provides the fundamental
framework for international ocean governance.
The Convention secures the United States' rights to protect, manage
and utilize the resources of its EEZ. The establishment of 200-mile
EEZs, combined with nations' rights and obligations under the treaty
for management and conservation of marine resources, promote
international cooperation in fisheries management. Its regime for
access for scientific research supports our efforts to understand the
oceans, including their significant role in regulating weather and
climate.
The oceans are a public trust and we believe it is our ethical and
civic responsibility to provide for their stewardship. Ratifying the
Convention would affirm the United States' commitment to protection and
management of the oceans and reassert our leadership on international
ocean policy. We urge the Senate to act promptly to ratify the
Convention.
Sincerely,
Leon E. Panetta,
Chair, Pew Oceans Commission.
On behalf of:
John Adams, President, Natural Resources Defense
Council; Carlotta Leon Guerrero, Co-
Director, Ayuda Foundation; Geoffrey Heal,
Ph.D., Garrett Professor of Public Policy
and Business Responsibility, Columbia
Business School; Tony Knowles, Former
Governor, Alaska; Julie Packard, Executive
Director, Monterey Bay Aquarium; Joseph P.
Riley, Jr., Mayor, Charleston, South
Carolina; Roger T. Rufe, Jr., President &
CEO, The Ocean Conservancy; Eileen
Claussen, President, Pew Center on Global
Climate Change; Mike Hayden, Secretary,
Kansas Department of Wildlife and Parks;
Charles F. Kennel, Ph.D., Director, Scripps
Institution of Oceanography; Jane
Lubebenco, Ph.D., Wayne and Gladys Valley
Professor of Marine Biology, Oregon State
University; Pietro Parravano, President,
Pacific Coast Federation of Fishermen's
Associations; David Rockefeller, Jr., Vice
Chairman, National Park Foundation; Kathryn
Sullivan, Ph.D., President & CEO, COSI
Columbus; Patten D. White, CEO, Maine
Lobstermen's Association.
Senator Jeffords. To conclude, I want to emphasize the
achieving our oceans policy objectives in all of these areas
requires international cooperation. The full participation in
the Law of the Sea provides the best opportunity for the United
States to engage in such cooperation in a manner that protects
and extends the U.S. interest. Unilateralism is simply not a
viable option on this matter.
Thank you very much, Mr. Chairman.
Senator Inhofe. Thank you, Senator Jeffords.
We have been joined by Senator Stevens. I know he is a
supporter of this treaty and wanted to make a statement. If it
is all right, I would recognize you at this time, Senator
Stevens, to make any statement you wish to make.
OPENING STATEMENT OF HON. TED STEVENS, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Stevens. Thank you very much, Mr. Chairman, and
members of the committee.
I did want to testify today. My position on Law of the Sea
has been varied. I recall when I came here in 1969 as a
freshman minority Senator, Senator Magnuson asked me to be the
member of the Commerce Committee that monitored the Law of the
Sea negotiations. I did that for a considerable period of time.
I would ask that my full statement appear in the record as
so read and let me just take a few minutes of your time of my
history on this.
Senator Inhofe. Without objection.
Senator Stevens. I really gained a great perspective from
those trips, traveling with many members of the Senate,
including Senator Claiborne Pell and so many others that were
involved in that Law of the Sea negotiation as the majority at
that time. I really was focused on fisheries and mining because
of my State having half the coastline of the United States and
such a tremendous potential from the point of view of mineral
resources.
I in the past have opposed this treaty because of the
limitations it put on both fishing and other resources of the
sea. I think that has been modified now and as pointed out in
my statement, what has been done during the period of time that
has passed since 1969 to modify this treaty so it does protect
American interests in both fishing and mining, in my opinion. I
am pleased with the declarations that have been worked out with
the Foreign Relations Committee and with the Administration
that go along with this treaty. I think these confirm the right
and sovereignty of the United States to manage their natural
resources, and they certainly do in view of the things I have
elaborated on in my statement, protect the fishery resources
off our shores that are so vital to the interests of my State.
I urge that you go along with the concept and help us get
this treaty ratified. I feel that with the passage of time, we
might lose some of these agreements we have not, and I think
the agreements do protect our interests in resources and in
fisheries, in particular.
If you would, I would appreciate it if you would put into
the record following my statement, the statement I made at the
international fisheries, the Law of the Sea Convention, at the
time when I was opposed to it. So you will see where the
opposition that I articulated then and why I and my State now
support the ratification of this treaty.
Senator Inhofe. Without objection, that will be included in
the record following your remarks.
Senator Stevens. If you have any questions for me, I would
be pleased to respond.
Senator Inhofe. I do not have any questions. Do you have
any questions?
Senator Jeffords. I have no questions.
Senator Stevens. Thank you for your courtesy.
Senator Inhofe. Thank you very much for your statement. We
appreciate that.
We have been joined by Senator Chafee. Senator Chafee, do
you have an opening statement you would like to share?
Senator Chafee. Yes, Mr. Chairman.
Senator Inhofe. You are recognized.
OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. I would like to just say as a member of the
Foreign Relations Committee, we did hold hearings on this
treaty and approved it in committee 19 to nothing. It is not
often these days where we get a 19 to nothing unanimous vote,
but we did do that on the Foreign Relations Committee in favor
of this treaty.
I would like to also just quote from Secretary Turner on
behalf of the Administration in his submitted testimony in
which he says,
``As of today, 145 parties including almost all of our
major allies have joined the Convention.''
He goes on to say,
``It is in the interest of the United States to become a
party to the Convention because of military, economic and
environmental benefits to the United States, and because U.S.
adherence will promote the stability of the legal regime for
the oceans which is vital to the U.S. national security, and
because U.S. accession will demonstrate to the international
community that when it modifies the regime to address our
concerns, we will join that regime.''
So I support the treaty and welcome the witnesses.
Senator Inhofe. Thank you, Senator Chafee.
Mr. Turner, would you take the table up here? We have two
panels today. The first will be the Administration, Mr. Turner,
and then that will be followed by four individuals who are
divided equally, both supporting and opposing the treaty.
So Mr. Turner, thank you very much for being here. You are
recognized for whatever time you want to take, although your
entire statement will be made a part of the record. We never
encourage people to talk for a long time.
STATEMENT OF JOHN F. TURNER, ASSISTANT SECRETARY, BUREAU OF
OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS,
U.S. DEPARTMENT OF STATE ACCOMPANIED BY: WILLIAM H. TAFT IV,
CHIEF LEGAL COUNSEL, U.S. DEPARTMENT OF STATE
Mr. Turner. Chairman Inhofe, Senator Jeffords and Senator
Chafee, it is a pleasure for me to appear before you today to
testify on Law of the Sea.
Indeed, last October, I was able to join four other
Administration witnesses who testified before the Senate
Foreign Relations Committee in strong support of the Law of the
Sea Convention. I am pleased to say again today that the
Administration continues to believe that there are compelling
reasons for the United States to become a party to this
Convention. A wide variety of ocean-related business groups and
associations of environmental organizations have endorsed the
Administration's position.
Mr. Chairman, I want to briefly emphasize three things in
my initial statement: No. 1, the historical U.S. support for a
comprehensive Law of the Sea Convention; No. 2, some of the
benefits the United States will receive in joining this
Convention; and No. 3, offer clarification of one critical
misunderstanding about the Convention that has surfaced
recently.
The United States has historically had a very strong
interest in codification of the international law of the sea.
We are already party to four Law of the Sea Conventions
established in 1958, but we have long felt these treaties left
some unfinished business. Thus, beginning with President Nixon,
the United States played a prominent role in development of the
comprehensive 1982 Convention. In 1983, President Reagan
announced that the United States would abide by all, all of the
Law of the Sea Convention's provisions except Part XI dealing
with deep seabed mining.
Thus, the United States has acted in accordance with this
treaty for more than 20 years. Part XI has been fundamentally
reworked in a legally binding manner to address the mining
concerns. The 1994 agreement provides for reasonable access by
U.S. industry to deep seabed minerals, overhauls the
decisionmaking rules, restructures the regime to embrace free
market principles, and includes the elimination of mandatory
technology transfers.
As the world's leading maritime power with the longest
coastline and largest exclusive economic zone in the world, the
United States will benefit more than any other Nation from this
Convention. Far from taking away our sovereignty, the
Convention affirms and extends U.S. sovereignty over vast
resources. It gives the U.S. sovereign rights over living
marine resources in our EEZ, including our fisheries out to 200
nautical miles.
The Convention also gives the United States sovereign
rights over mineral resources, including oil and gas found in
the seabed and subsoil of the continental shelf, both within
and beyond 200 miles. As a party, the United States would be
able to establish with legal certainty the outer limits of our
very extensive shelf, including off Alaska, off the Atlantic
Coast and the Gulf of Mexico.
The Convention also protects the freedom of U.S. entities
to lay submarine cables, fiber optic networks and pipelines, of
increasing importance to global communications, whether they be
military or commercial.
Part XII of the Convention establishes the legal framework
for the protection and preservation of the marine environment
that supports vital economic activities for this country. As a
party, the United States would be able to implement Part XII
through a variety of existing U.S. laws, regulations and
practices that are fully consistent with the Convention and
would not need to be changed in any way.
Mr. Chairman, there is another benefit of U.S. accession
that I feel very strongly about. The United States must be at
the table of the Convention's institutions that are already up
and running in order to influence and shape future outcomes
that will affect our vital economic and security interests such
as the delineation of continental shelves.
Turning to misunderstandings about the Convention, my
written testimony responds to many of these incorrect
assertions. I want to highlight one: the false assertion that
the U.S. accession to the Convention would adversely impact the
Proliferation Security Initiative, the PSI, launched by
President Bush last May in Krakow. The 14 nations participating
in PSI are committed to combating trafficking involving weapons
of mass destruction, their delivery systems and related
materials. Far from impeding PSI, joining the Convention would
actually strengthen the United States' PSI efforts. PSI
operating rules specify that activities are undertaken
consistent with relevant international law and frameworks,
including the Law of the Sea Convention.
The Convention provides a solid legal basis for taking
enforcement action against vessels and aircraft suspected of
engaging in proliferation of weapons of mass destruction. All
our PSI partners are parties to the Convention and observe its
provisions. The Navy believes that U.S. accession would greatly
strengthen its ability to support PSI objectives by reinforcing
and codifying freedom of navigation rights on which the Navy
depends for operational mobility.
Mr. Chairman, in summary, as of today 145 parties,
including almost all our major allies, have joined this
Convention. It is in the interests of the United States to
become a party now, to take full advantage of its military,
economic and environmental benefits; to promote the stability
of a legal regime for the oceans, and to demonstrate to the
international community that when it modifies the regime to
address concerns of the United States, that we will join that
regime.
The Administration strongly recommends that the Senate give
its advice and consent on the basis of the proposed resolution
before you.
Thank you very much, Mr. Chairman. I am pleased to have
accompanying me here today William Taft, Chief Legal Counsel
for the State Department and Secretary Powell, who with your
permission is available to join to answer any questions you or
the committee may have.
Senator Inhofe. All right, Mr. Taft, why don't you just
join Mr. Turner at the table.
Mr. Taft. Thank you, Mr. Chairman.
Senator Inhofe. We will go ahead and maybe do 5 minutes of
questions, and go longer if you want to.
I notice, Mr. Turner, in the Wall Street Journal and in the
New York Times, and I am going to read this. It says,
``The Bush Administration retreats from effort to win
ratification of the U.N. Convention on the Law of the Sea under
pressure from conservatives who contend it gives too much power
to the United Nations, but proponents say approval of the
treaty is key to winning allied support for Bush's
Proliferation Security Initiative and interdicting shipments of
weapons of mass destruction.''
Could you explain that? Is that a change of position? Could
you explain the accuracy of that statement?
Mr. Turner. Mr. Chairman, I can certainly say that I would
not be here today testifying before you if there were any
retreat or changed position of the Administration. I appear
before you today with the full support of the President, the
Vice President, Secretary Powell, and key Agencies within this
Administration that have to deal with the important security
and intelligence, military and commercial concerns of this
country.
There are just many compelling reasons for us to become a
member. I might relate one story to you, Mr. Chairman. A year
ago, the Russian Federation filed a claim on a great deal of
the Arctic as a part of their continental shelf. I find it
inconceivable that the United States would not be a member of
the Continental Shelf Commission, not even in the room. The
Nation with the most at stake in oil and gas, that has the most
geological information, not even in the room as the Russian
Federation and other countries start staking out claims to
their continental shelf. Indeed, the United States will want to
file their claim and will want to be a member.
Senator Inhofe. You made the statement in your opening
statement that the United States will benefit more than any
other nation.
Mr. Turner. The Law of the Sea Treaty is becoming an arena
for the world community to meet on several issues vital to the
United States, certainly access to oil and gas; the laying of
communication cables; the rights of commercial navigation;
access the military; how we are going to address the depletion
of our fisheries; addressing the issues of global pollution.
These are vital interests of the United States and we ought to
be at the table in charting those.
I might say, Mr. Chairman, that many old-time diplomats
question whether today we could negotiate a treaty this
favorable, this balanced to meet the interests of the United
States. In November, the treaty will be open for amendments and
there are certainly pressures that might want to change this
balance. It would seem to me that the United States should join
now.
Senator Inhofe. OK, well, Mr. Turner, you heard me say that
one of the concerns, and one of the reasons I wanted to have
this hearing was to look at national security ramifications.
You are contending that this actually enhances our ability to
protect those interests. As a non-party to the Convention, we
are allowed to search any ship that enters this 200-nautical-
mile area to determine if it could harm the United States or
pollute the maritime environment and so forth. But under the
Convention, the U.S. Coast Guard or others would not be able to
search any ship until the United Nations notifies and approves
the right to search a ship. Is that accurate or is that
inaccurate?
Mr. Turner. I am going to ask Mr. Taft to respond to that.
Senator Inhofe. OK.
Mr. Taft. I will have to look at that specific provision,
Mr. Chairman. I am not familiar with that, I am afraid to say,
but I think we ought to look at that.
Senator Inhofe. I think we should. Here we are in the
middle of a war and a very important function would be our
ability to search vessels. It seems rather strange to me that
you do not have a real good, fast, pat answer about that. I am
going to ask the second panel to maybe address that.
Senator Jeffords.
Senator Jeffords. Mr. Turner, if the United States becomes
a party to the Convention, will there be any need for new
environmental laws or regulations to meet our obligations under
the Convention?
Mr. Turner. Senator Jeffords, after a very careful
analysis, the treaty is in full accord and supportive of all
the comprehensive laws and regulations and programs that the
United States now has to protect the environment. In fact, it
is my contention that because of the leadership of the United
States to address coastal pollution, to manage its fisheries
and so forth, that our experience with our domestic law into
the international arena will benefit, but there is no need for
any accompanying legislative changes in our becoming a member
of Law of the Sea.
Senator Jeffords. Thank you.
Is the Law of the Sea consistent with the President's
Proliferation Security Initiative? Is there any basis for the
assertion that full U.S. participation in the Law of the Sea
will undermine this important initiative in any way?
Mr. Turner. Senator, the nations that have now joined us in
the President's important PSI are all members of this treaty,
PSI. None of its activities are prohibited by Law of the Sea.
As Admiral Mullen, Vice Chief of Naval Operations, testified
before Senator Lugar's committee, he said, ``The LOS would
greatly strengthen the Navy's ability to support the objectives
of PSI.'' The rules are completely compatible with the LOS and
as we look with our partners to maybe strengthen the regime of
boarding and intercepting vessels, that will be done more
easily and be facilitated if in fact we are all working within
the dialog and the platform of the Law of the Sea Convention.
Senator Jeffords. Thank you.
Would full U.S. participation in the Law of the Sea require
any changes in current United States practices regarding
enforcement of our environmental laws?
Mr. Turner. It would require no changes in the enforcement
of our current law.
Senator Jeffords. Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Jeffords.
We have been joined by Senator Thomas. Senator Thomas, do
you have an opening statement you would like to share with us?
Senator Thomas. No, sir, fortunately I do not.
Senator Inhofe. All right.
Senator Thomas. But I do want to say hello to my friend
John Turner, who comes from Wyoming, as I do. We have the
oceans there, you know, so we need to be concerned. John,
welcome.
Mr. Turner. Senator, good to see you. Thank you for coming.
Senator Thomas. Thank you, sir.
Senator Inhofe. Senator Chafee.
Senator Chafee. As you know, Mr. Chairman, I do support the
treaty. I am in coordination with the Secretary's remarks.
Senator Inhofe. Any questions?
Senator Chafee. No, I do not.
Senator Inhofe. All right.
Let me just get back to something that Senator Jeffords
brought up when he was talking about the enforcement, any
changes. Article 212 of the Convention requires States to adopt
laws and regulations for pollution from the atmosphere. I guess
the question would be, what laws that we have on the books
right now might have to be changed if we were to become a party
to the Convention?
Mr. Turner. As I understand those provisions, and maybe Mr.
Taft would like to speak, it encourages all the members, and I
think these were provisions helped negotiated by the United
States, that we all be better caretakers of these common
properties, marine resources and oceans; that we all work to
prevent coastal pollution; do a better job of watershed
management; of controlling our fisheries; of protecting coral
reefs.
I think the United States does have good comprehensive law
enforcement. In fact, other parties to the Convention can look
to the United States and their leadership. So there is nothing
in this particular treaty that would compel the Congress of the
United States or resource agencies, the Administration, to
change policy or put forth new proposals.
Senator Inhofe. Would it mean, though, that other countries
could use a provision maybe to force us to change a policy,
that is to maybe regulate CO2? I do not want to get
Senator Jeffords too excited here, but would that be a
possibility?
Mr. Turner. Mr. Chairman, I do not see anything in here
that would address people dictating to us, especially in the
arena of climate change.
Senator Inhofe. All right.
Mr. Turner. We would hope that other nations would be
better stewards and follow the U.S. leader in trying to protect
its important ocean resources.
Senator Inhofe. Senator Thomas, I am sure you have
questions.
Senator Thomas. No, sir, I do not.
Senator Jeffords. I have one additional one.
Senator Inhofe. Yes, of course.
Senator Jeffords. Isn't it true that Part XII provides only
some of the many provisions on protection of the marine
environment and protection of marine natural resources? For
example, the treaty supports the right of a port State to
impose environmental conditions as a condition of coming to a
U.S. port. Is that correct?
Mr. Turner. There are several povisions which would
encourage all parties to be better stewards of resources, and
specifically in answer to your question, the United States now
exercises its authority on ballast water coming into port. Any
ships coming to U.S. ports must exchange their ballast water at
least 200 miles out. The United States will look at increased
standards on invasive species and perhaps new standards for
ship ballast and ocean dumping. This is within the full rights
of the United States and it is in accord and embraced by the
treaty.
Senator Jeffords. Thank you.
Senator Thomas. Mr. Chairman, I would say to the Secretary
that I was in Jackson over the weekend and interestingly enough
I had not thought or talked much about this, but ran into a
number of people who raised the issue. I guess they were people
that were concerned about the U.N.-type of arrangement where we
enter into something and other people then can make the
decision for us. So it kind of takes away some of our autonomy,
and you have probably commented on that, but would you briefly
tell me how you would answer those folks?
Mr. Turner. Senator, the nice thing about this particular
treaty, we feel it embraces our sovereignty. It embraces U.S.
control over our natural resources, our continental shelf, our
right to regulate our fisheries, embark on oil and gas, and the
right of our military to have maximum flexibility out and
around the globe. So it protects and embraces U.S. sovereignty
in every category I can think of.
Mr. Taft. If I could just add, I think there was a concern
in the original treaty that certain activities regulating the
international seabed would have had a possibility of having the
United States be subject to laws that it did not agree with, so
we refused to join it. That has been fixed, as the Secretary
said in his statement. So it was the case, and that may have
been what these people were thinking about. The 1994 work that
was done changed the Convention and solved that problem.
Senator Inhofe. Senator Thomas, I brought this up earlier,
that the argument that we better do this because everyone else
is doing it always scares me a little bit. In so many of these
agreements, we have had lengthy discussion in this committee
and on the floor. On the Kyoto Treaty, the argument was used
there. Then you really examine it and find out that there would
be terrible economic consequences were we to have to comply
with that.
So I would like to look at these things independently. One
reason I wanted to have this hearing is because there was no
one at the two hearings before the Senate Foreign Relations
Committee who was opposed to it. I think that there are,
anytime you are dealing with something like this, I still want
to look and see if there are any laws that we have on the books
that could be changed. I am concerned about this being able to
board and search ships. That is something that would be,
particularly right now when we are in the middle of a war. So
these things we do want to pursue, and I appreciate it.
Are there any other questions of Mr. Turner? Mr. Turner, I
appreciate very much your being here and articulating your
position. We would ask you to retire the table, and our four
witnesses for panel two come forward.
Mr. Turner. Mr. Chairman?
Senator Inhofe. Yes, of course.
Mr. Turner. Thank you for allowing us this time. I would
concur with you that the last reason to join a treaty is
because others are members. I submit that joining this treaty
is in the best interests of the United States.
Thank you very much.
Mr. Taft. Thank you, Mr. Chairman. I will get an answer for
that question.
Senator Inhofe. OK, thank you so much.
The second panel consists of Mr. Frank Gaffney, president
and CEO of the Center for Security Policy; Mr. Paul Kelly,
senior vice president of Rowan Companies, Incorporated, a
member of the U.S. Commission on Ocean Policy; Mr. Peter
Leitner, author, Reforming the Law of the Sea Treaty; and Mr.
Oxman, professor at law, director, Ocean and Coastal Law
Program at the University of Miami School of Law.
We will go ahead and start in the order that I just
introduced you, starting with Mr. Gaffney.
Mr. Gaffney.
STATEMENT OF FRANK GAFFNEY, JR., PRESIDENT AND CEO, THE CENTER
FOR SECURITY POLICY
Mr. Gaffney. Mr. Chairman, members of the committee, thank
you very much.
Senator Inhofe. I would say the same things to you folks.
Since there are four of you, try to confine your opening
remarks to about 5 minutes, but your entire statement will be
made a part of the record.
Mr. Gaffney. I appreciate that, Mr. Chairman. Mostly, I
appreciate having an opportunity to testify on this treaty. As
you have pointed out several times, that opportunity was not
afforded us, those of us who are critical of the treaty,
concerned about its provisions, during the deliberations of the
Foreign Relations Committee.
I think given what is at stake here, which I would
respectfully submit are infringements upon the sovereignty and
the freedom of action on the seas and in some cases elsewhere
of this treaty, imposing on the United States. It is a travesty
not to have a much more rigorous, much more fulsome, much more
informed debate than has been possible to this point.
So I appreciate your accommodating us and I look forward
very much to expressing some of the concerns that I and my
colleagues have and answering your questions about them.
One fundamental question which the committee needs to think
about, and the Senate needs to deliberate about, is this
question of what did the 1994 agreement do to the underlying
treaty? It is my understanding that that treaty, that agreement
has not been formally ratified, certainly not in the way that
the underlying treaty has been; that it therefore cannot modify
in the way that you are being told it has modified; the
concerns that we have had going back to President Reagan's day
about both the seabed mining provisions contained in Part XI,
but more generally the sort of edifice of a new supra-national
organization called the International Seabed Authority, which
is really at the core of many of our concerns about sovereignty
and relinquishing sovereignty and submitting this country and
its maritime interests, both military and otherwise, to some
new international control.
Related thereto, of course, is the International Tribunal,
which is also spawned under the International Seabed Authority.
The kinds of questions that you pose today it seems to me may
be true at this moment, but what I think we need to do, what
the Senate most especially needs to do, is to look down the
road as this institution with American membership, with our
fealty, if you will, to the treaty begins to kick in and begins
to have both decisions made by this International Seabed
Authority and by this Tribunal impinge, as I frankly submit
they will inevitably on the decisionmaking and the kinds of
standards and the policies even of the U.S. Government and
certainly Members of the Congress.
I have to tell you that even before the recent reports
about what has been going on with the Iraqi Oil for Food
Program, I was concerned about this supra-national agency and
the authority that would be conferred upon it to determine in
no small measure what would be done with the resources of some
seven-tenths of the world's surfaces.
When you now have evidence accruing that vast kleptocratic
behavior was taking place in the United Nations under this
international-mandated activity, it has to raise additional
questions, I believe, as to whether this is an activity that we
wish to entrust to what are at the end of the day
unaccountable, unelected bureaucrats in the United Nations,
that will nonetheless be able to make far-reaching and
commercially very important decisions.
A question here about the rule of law. Judge Robert Bork
has written recently expressing concern about the extent to
which international judges and rulings are being increasingly
cited in our domestic jurisprudence. That raises questions
going to I think a point that you addressed, Mr. Chairman,
earlier about how does this thing evolve over time. Are we like
to see greater and greater infringement on the way we have
traditionally done business, whereby judges will on the basis
of laws you and your colleagues enact and the President signs?
Or do they do it on the basis of something else that somebody
unelected, unaccountable, and perhaps corrupt dictates?
I am frankly very troubled by what you have been told today
about this Proliferation Security Initiative, and the ability
that we will have to exercise the kind of authority that we
have to this point with respect to vessels on the high seas, to
say nothing of in our exclusive economic zone or territorial
waters, and whether we can stop them, whether we can search
them, whether we can seize them. It is not clear from the
reading of the treaty that what you have just been told, that
the PSI will be absolutely consistent with this treaty; that it
will be strengthened by this treaty. It is not clear that that
is true. It certainly seems to me, while this is not strictly
speaking in the jurisdiction of this committee, certainly the
probability that we will in the future, as we now see
increasing evidence of tankers passing through places like the
South China Sea being hijacked, that you could see us concerned
not only about what is happening on ships plying the world's
oceans that might be moving weapons of mass destruction-related
material, which is of course the focus of the PSI, but that are
in effect environmental terrorist instruments of mass
destruction, and whether we will be able, in fact, to stop
them.
If they are not pirates; if they are not flying no flag at
all; if they are not engaged in radio broadcasting, which as I
read it are the three conditions under which the treaty allows
you to do these kinds of seizures.
Senator Inhofe. Mr. Gaffney, you have gone over your time.
Mr. Gaffney. I know I have, Mr. Chairman. May I just wrap
up with one final point, because I know it is a particular
concern to this committee, the question of research on global
warming. I am advised that this is being interfered with by the
Russians as we speak in their Arctic areas. One of the previous
witnesses spoke to this. I believe this is a matter of, if we
are interested in finding out whether there is anything to
this, clearly monitoring what is going on in the Arctic areas,
including in the Russian areas, is something that we will want
to be able to do. It is not clear that you can do it under this
treaty. In fact, I think the treaty is going to give the
Russians excuses not to do it and encumber our ability to
pursue it.
So Mr. Chairman, finally, thank you very much for taking
the time this afternoon to give these sorts of concerns and a
great many more that time will not permit us to talk about
today, perhaps, some illumination. I hope that other colleagues
of yours and other committees that also have equities in this
treaty will also take the time to look into it before the
Senate is asked to consider it and give it its advice and
consent.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Gaffney.
Mr. Kelly, feel free to go over a little bit.
STATEMENT OF PAUL L. KELLY, SENIOR VICE PRESIDENT, ROWAN
COMPANIES, INCORPORATED; MEMBER, U.S. COMMISSION ON OCEAN
POLICY
Mr. Kelly. Thank you, Mr. Chairman. I appreciate your
inviting me to testify before the committee today on this
important topic. I am here representing the U.S. Commission on
Ocean Policy.
This Commission has taken a strong interest in the
international implications of ocean policy since the inception
of our work. Our 16 Commissioners were appointed by the
President with 12 coming from a list of nominees submitted by
the leadership of Congress in both parties. We represent a
broad spectrum of ocean interests. My background is actually in
the field of off-shore oil and natural gas production. I know
the Chairman has some questions on this topic which I would be
glad to get into later.
The Oceans Act of 2000 specifically charged our Commission
with developing recommendations on a wide range of ocean
issues, including recommendations for a national ocean policy
that will preserve the role of the United States as a leader in
ocean and coastal activities. With this charge in mind, the
Commission took up the issue of accession to the LOS Convention
at an early stage. At our second meeting held in November 2001,
Commissioners heard testimony from Members of Congress, Federal
Agencies, trade associations, conservation organizations, the
scientific community and Coastal States. We heard compelling
testimony from many diverse perspectives, all in support of
ratification of the Law of the Sea Convention.
After reviewing these statements and related information,
our Commissioners unanimously passed a resolution in support of
United States accession to the Convention. The fact that this
resolution was our Commission's first policy pronouncement
speaks to the real sense of urgency and importance attached to
this issue by my colleagues on the Commission.
The Commission's resolution was forwarded to the President,
Members of Congress, the Secretaries of State and Defense, and
to other interested parties. I have attached a copy of this
resolution for the record.
The responses we received have been very positive.
Secretary of State Colin Powell wrote that he ``shared our
views on the importance of the Convention.'' Admiral Vern
Clark, Chief of Naval Operations, stated that he ``strongly
believed that acceding to the Convention will benefit the
United States by advancing our national security interests and
ensuring our continued leadership in the development and
interpretation of the Law of the Sea.''
Ensuing hearings and the additional information we have
gathered have served to reinforce our conviction that
ratification is very much in our national interest. I would
like to share with you some of the reasons that our
Commissioners have unanimously adopted this view. First, the
Law of the Sea Convention was described by those who appeared
before the Ocean Commission as the foundation of public order
of the oceans and as the overarching framework governing rights
and obligations in the oceans.
The United States was involved in all aspects of the
development of the Convention including re-shaping the seabed
mining provisions in the early 1990's. As a consequence, the
Convention contains many provisions favorable to U.S.
interests. The oceans provide vital food and energy supplies,
facilitate waterborne commerce, and create valuable
recreational opportunities. It is in America's interest to work
with the international community to preserve the productivity
and health of the oceans and to secure cooperation among
nations everywhere in managing marine assets wisely.
There are a series of issues currently being considered by
parties to the Convention which could have tremendous economic
implications for the United States. Of particular interest is
the work of the Convention's Commission on the Limits of the
Outer Continental Shelf, which is charged with reviewing claims
and making recommendations on the outer limits of the shelf.
This determination will in turn be used to establish the extent
of Coastal State jurisdiction over continental shelf resources.
There are several reasons why direct participation in this
process would be beneficial. Namely, first, the LOS Convention
sets up ground rules by which coastal nations may assert
jurisdiction over exploration and exploitation of natural
resources beyond 200 miles to the outer edge of the continental
margin. This is particularly important to the United States,
which is one of only a few nations in the world with a broad
continental margin, so we have a lot of potential acreage for
development to be gained from this provision.
The continental margins beyond the U.S. exclusive economic
zone are rich not only in oil and natural gas, but also appear
to contain large concentrations of gas hydrates, which may
represent an important potential energy source in the future.
The work of the Continental Shelf Commission is now at a
critical stage. The Russians have submitted a claim in the
Arctic and have received comments on their claim from the
Commission. Other States are preparing their submissions which
are due in 2009 or within 10 years of a State becoming a party,
whichever is later. Considering the technical work to be done
in order to delineate our own shelf, 10 years is a short time
horizon.
Here in the United States, the University of New Hampshire
Center for Coastal and Ocean Mapping Joint Hydrographics
Center, in conjunction with NOAA and the USGS, has already
identified regions in U.S. waters where the continental shelf
is likely to extend beyond 200 nautical miles and is developing
strategies for surveying these areas. Bathymetric and seismic
data will be required to establish and meet a range of other
environmental, geological, engineering and resource needs.
The Minerals Management Service has estimated that there
could be just under 300,000 square miles that could be added to
the sea floor for potential resource development by the United
States once this delineation is done. I might add that we are
the leaders in technology in terms of knowing how to make these
determinations with our advanced sonar and computer and
computer graphics technology.
I also want to make the point which would be of particular
interest to this committee that the Convention provides a
comprehensive framework for protection of the marine
environment. The Convention includes articles mandating global
and regional cooperation, technical assistance, monitoring and
environmental assessment, and establishing a comprehensive
enforcement regime. The Convention specifically addresses
pollution from a variety of sources including land-based
pollution, ocean dumping, vessel and atmospheric pollution, and
pollution from off-shore activities.
The principles, rights and obligations outlined in this
framework are the foundation on which more specific
international agreements is based.
Senator Inhofe. We are going to have to wind up here.
Mr. Kelly. Let me just make the point in wrapping up that
the Ocean Commission as I indicated has been directed by our
enabling legislation to make recommendations to preserve the
role of the United States as a leader in ocean activities. But
in our opinion, we cannot remain a leader without playing a
role in the process. For this reason, we renew our Commission's
unanimous call for United States accession to the treaty.
Senator Inhofe. Thank you, Mr. Kelly.
Mr. Leitner, feel free to go ahead and take 7 minutes or so
if you need.
STATEMENT OF PETER LEITNER, AUTHOR, ``REFORMING THE LAW OF THE
SEA TREATY: OPPORTUNITIES MISSED, PRECEDENTS SET, AND U.S.
SOVEREIGNTY THREATENED''
Mr. Leitner. Thank you, sir.
Mr. Chairman, Mr. Jeffords, I really appreciate the
opportunity to be here today. I think you are giving a chance
to air some concerns which have been basically excluded from
the Senate Foreign Relations Committee hearings, and from what
I hear, also from the National Ocean Policy Commission
hearings, where it is hard to believe that if an extensive job
was done of finding diverse opinion, that opponents of the
treaty would not have been surfaced in the Commission hearings
as well.
The Convention is a seriously flawed document. It was
rightly rejected by President Reagan because it represents and
embodies a wide range of precedents, obligations and
restrictions that are deleterious to American national and
economic security interests.
The treaty has many precedent-setting provisions that are a
direct assault on the sovereignty of the United States and the
supremacy of the nation-state as the primary actor in world
affairs. None of these things have changed with the spurious
1994 agreement notwithstanding. The treaty is based upon a
couple of fundamental principles which through to today. One is
the common heritage of mankind principle, which asserts that
the oceans or the areas beyond national jurisdiction are the
common heritage of mankind, meaning they cannot be appropriated
by a particular country and must be shared by the global
commons. That philosophy, which was the clarion call of the new
international economic order back in the 1970's and the early
1980's, is still embodied in and is still a basic subtext of
this agreement.
In addition, the treaty and the organizations that it
brings forth are based upon the one-nation-one-vote principle,
which means that the United States will have the same voting
power in the assembly of the International Seabed Authority as
Guinea-Bissau. It does not represent American economic
interests at all and it gives a disproportionate weight to
small irresponsible states who have very little stake in the
oceans or in the world economic system at large.
I was first hired to get involved in the Law of the Sea
Treaty back in 1976 by the General Accounting Office. Then I
was assigned as an observer to the U.S. delegation for several
of the negotiating sessions, including the final session of the
Conference. My mission was to provide an alternative delegation
report to the Congress, to several congressional committees,
including House Merchant Marine and Fisheries, the
International Relations Committee and others, because they felt
that the delegation reports being given by the State Department
were inaccurate, misleading and presented an overly rosy
picture of the status of negotiations. After hearing the prior
speaker on the first panel from the State Department, I think
they are still suffering from the same affliction.
The treaty has a range of ramifications that are not wholly
related within the context of the treaty itself. It does have
collateral damage. In my position in the Defense Department for
many years, I have been dealing with high-tech transfers to
Third World countries, potential adversaries and trying to
control such trade in high-tech to terrorist sponsors as well.
Several years ago, the Chinese, came in asking for the most
advanced side-scan sonars, deep-sea bathymetric equipment,
remotely operated vehicles, cameras, sleds and other equipment
that they asserted they were going to use to help survey their
mine site in the mid-Pacific. They were using their status as a
pioneer investor under the Law of the Sea Treaty to acquire a
level of technology which is a direct threat to U.S. national
security.
The technology that they wound up eventually getting
approved was exactly what they asked for. It basically provided
the PRC with the ability to engage in the deepest ocean areas
to find, locate, disrupt, salvage or destroy U.S. sensor webs
and other types of equipment that we put on the ocean floor in
order to be able to monitor hostile traffic. We gave the
Chinese the ability to find, locate and destroy these systems.
The Chinese were using their status as a pioneer investor
in order to acquire technology they could not justify any other
way. When we fought this in the interagency process, we
immediately had lines drawn between treaty supporters and
treaty opponents where the argument was made in the State
Department, NOAA and some other Agencies that we need to
provide this technology to the Chinese as a sign of good faith
in the Law of the Sea Treaty and the development of
international law. It will have a consequence that will outlive
us all, unfortunately.
Much of the data that Mr. Kelly described in terms of the
surveys, the high-end computer simulations, the graphics, and
the high-resolution sonar images that will be required in order
to make claims under the Law of the Sea Treaty to areas of the
outer continental shelf, currently beyond 200 nautical miles,
would be the same type of data that an adversary can use in
order to get critical information about the physiography of our
coastline, in order to develop submarine routing schemes, find
underwater bastions or hiding places where a potential hostile
can implant sensors, and use a cruise missile launching
submarine in order to menace our coast. Unfortunately, the
resolution of the images acquired in the year 2004 is a whole
heck of a lot better than was able to be acquired in 1980, when
the treaty was negotiated. It puts that data in an entirely
different class of threat to the United States.
The treaty and its environmental provisions I believe are a
relic of an earlier era, an era where environmental damage was
presumed to be accidental or incidental to economic activity.
In the post-9/11 era, however, the world is defined by the
nonconventional use of all tools available to a non-state or
state-sponsored terrorist or proxy warrior to create a weapon
of mass destruction. The very environment that we cherish and
that this committee seeks to protect and preserve is a likely
battleground in this new era. The presumptions that underlie
the environmental provisions of the Law of the Sea Treaty and
other key elements of the document are woefully inadequate to
handle the post-9/11 threats.
We have ample evidence of terrorists targeting maritime
commerce as a means of waging their worldwide attacks. A
critical aspect of their planning is to cause as much
environmental degradation as is possible. The method of
fighting turns western war-fighting doctrine based upon
limiting collateral damage as much as possible on its head.
Terrorists and their State sponsors have high regard for the
environment, but unfortunately they see it as a force
multiplier, not as a treasure to be preserved.
You can recall very well the oil well fires in Kuwait set
by Saddam's retreating troops and the use of the environment as
a weapon; also the attack on the French tanker Limberg,
carrying 158,000 tons of crude oil where the object was to
create as large an oil spill as possible and cause as much
collateral damage as possible.
As Mr. Gaffney was describing earlier, using a supertanker,
an LNG tanker as an environmental weapon is not beyond the
pale. It is also something that is actively being considered by
counterterrorism officials, by the Department of Homeland
Security, by the Coast Guard and others. It is a reality. If a
supertanker, for instance, was scuttled along our coast,
possibly near a nuclear powerplant, the ability of the
powerplant to operate would be shut down or cause catastrophic
damage to the powerplant because its water intake, critical for
its cooling system, would be fouled and would probably be
fouled for decades. The plant would either have to be shut down
or suffer direct damage.
Senator Inhofe. OK, Mr. Leitner, your time has expired. Do
you want to wrap up here?
Mr. Leitner. Yes. I want to very quickly summarize that it
is absolutely critical for the Senate to focus all of its
oversight power on this treaty for very close scrutiny under
the various jurisdictions of the different committees. The
treaty has taxation; it has miliary; it has intelligence; it
has judicial and other impacts beyond simply foreign policy and
environmental issues. It is absolutely critical for the Senate
to take a good look at this in all of its respects and look at
the full flower of the treaty, and hopefully do what has not
been done, and that is do an overall assessment of the treaty
against all of these equities. At the present moment what we
have seen is a constellation of narrow interest groups, single
interest groups for the most part, advocating on behalf of the
treaty, without a collective judgment and overall impact
assessment, an overall cost and benefit assessment for the
United States really being done. That sorely needs to be done.
Thank you.
Senator Inhofe. Thank you, Mr. Leitner.
Mr. Oxman.
STATEMENT OF BERNARD H. OXMAN, PROFESSOR OF LAW; DIRECTOR,
OCEAN AND COASTAL LAW PROGRAM, UNIVERSITY OF MIAMI SCHOOL OF
LAW
Mr. Oxman. Thank you, Mr. Chairman.
Mr. Chairman, members of the committee, it is an honor to
appear before you today to urge you and your colleagues to
support the resolution of advice and consent. The unanimous
recommendation of the Foreign Relations Committee reflects the
fact that the Law of the Sea negotiations were a long-term,
successful, bipartisan effort to further American interests
that engaged successive Administrations and I might add
distinguished members of both houses of Congress, including the
distinguished Ranking Member of this committee.
Mr. Chairman, President Bush has emphasized that we cannot
wait for the terrorists and their weapons to reach us. We need
to reach the sources of the threats. For that, we need reliable
navigation and overflight freedoms throughout the world.
Mr. Chairman, in my opinion, we have ample sources of legal
and moral authority at our disposal to do what we need to do
when our forces reach their operational destinations, including
the boarding and inspection of foreign vessels. The crucial
contribution of the Convention is that it facilitates our
ability to deploy and move our forces around the world in the
first place.
It is all but impossible to carry out most operational
missions without traversing and using the 200-mile exclusive
economic zones of many other countries, but Coastal States are
tempted to think of their exclusive economic zones as belonging
only to them. We face a significant threat to our global
mobility and operations in the coming decades from the gradual
erosion of high seas freedoms of navigation and overflight and
related military uses of the exclusive economic zone.
To deal with that threat, we need the greatest possible
influence over the perception of foreign governments regarding
the source, legitimacy and content of their obligations to
respect high seas freedoms in their exclusive economic zones.
We achieve that best in my opinion with a widely ratified Law
of the Sea Convention to which the United States is party, and
with respect to which the voice and practice of the United
States are prominent authoritative evidence of what the
Convention means. The alternatives are likely to be less
effective and more costly.
Mr. Chairman, a significant part of my career has been
devoted to negotiating, drafting and writing on the Law of the
Sea. I had the privilege of representing the United States in
the Nixon, Ford, Carter and Reagan administrations in the Law
of the Sea negotiations. The criticisms that we have heard
today and have read recently are in my opinion misplaced and
many of them are out of date. They bear little resemblance to
the Law of the Sea Convention text as I understand it, as
modified by the 1994 agreement for the specific purpose of
resolving the problems identified by President Reagan. I should
note that the 1994 agreement is a binding agreement that
modifies the Convention. From the first day it met, the
International Seabed Authority has acted in accordance with and
under the 1994 agreement.
In the text with which I am familiar, Mr. Chairman, there
is unlikely to be much if any oil in the international seabed
area beyond the continental shelf. There is no all-powerful
supranational Seabed Authority and no transfer of sovereignty
or wealth to the Seabed Authority.
We will have control over the funds and other major
decisions of the Seabed Authority with our decisive vetoes on
both the Council of the Authority and in its Finance Committee.
The implementing agreement expressly discourages bureaucracy.
There is no mandatory transfer of technology. On top of that,
the Convention expressly states, ``No party to the Convention
is required to disclose information contrary to the essential
interests of its national security. There are no production
limitations.'' There is more, not less, environmental
protection in the sea and on the seabed.
The Convention gives us greater rights to board and inspect
foreign vessels off our coast than we have under the Law of the
Sea treaties to which we are party today.
President Reagan did not reject the entire Convention.
Quite to the contrary, he embraced all of it except for the
deep seabed mining provisions, instructed the U.S. Government
to act in accordance with it, and made it quite clear that he
was prepared to use force against foreign governments that did
not respect the Convention.
Today, every neighbor of the United States, every other
permanent member of the U.N. Security Council and every other
major industrial State in the world is among the 145 parties to
the Convention. The issue is no longer whether there will be a
Seabed Authority. That exists. The issue is whether the United
States should and will assume the privileged seat expressly
reserved for it in the text.
Mr. Chairman, I think this has three important
implications. No. 1, the system is regarded as workable by
other industrial states that share many of our interests as
consumers and potential seabed producers of hard minerals. No.
2, it is unlikely that major sources of private capital would
be particularly comfortable making substantial new investments
in deep seabed mining carried out in defiance of the
Convention. No. 3, we need to assume our guaranteed seat on the
Governing Council of the Seabed Authority and the Finance
Committee, and the decisive voting power that goes with it, as
soon as possible to ensure that the system evolves in ways
satisfactory to the United States. This includes protection of
our environmental and economic interests as a Coastal States
whose continental shelf abuts the international seabed area in
three oceans.
Mr. Chairman, my prepared remarks address some of the
matters to which you referred in your opening statement. I
would be happy to comment on some of the other questions that
you posed and any other questions that you and your colleagues
may have.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Oxman.
We have been joined by Senator Murkowski. Senator
Murkowski, would you have an opening statement you would like
to share?
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I appreciate
your scheduling this hearing this afternoon. I am sorry that I
was not able to attend for most of the testimony, but since
this is an issue that strikes so close to my home State, I
would like to take the opportunity this afternoon to enter my
comments into the record.
Some of my colleagues might not be aware, but over half of
the United States coastline is in Alaska. Likewise, the Arctic
Ocean covers only 3 percent of the area surface, yet it
accounts for over 25 percent of the world's continental shelf
area. So when we are considering a treaty that governs the
planet's oceans and the ocean floor, we in Alaska have a very
strong, a very keen interest.
There are some who do not see the point in joining the rest
of the world in ratifying the Convention on the Law of the Sea.
They say that the United States already enjoys the benefits of
the treaty, even though we are not a member. They suggest that
by not becoming a party to the treaty, we can pick and choose
which sections of the treaty we abide by, while not subjecting
our actions to international review.
I would point out that while the situation may be favorable
now, it may not always be the case. The treaty is open to
amendment later this year and the question is, ``Do we want a
seat at the table to ensure that our voice is heard, or do we
place our interests in the hands of other nations?''
There are several topics I would like to comment on
relating to the treaty and its potential impact on Alaska, the
first being claims over the continental shelf. In the 1958
Convention on the Continental Shelf, to which the United States
is a party, the issue of limitations on the continental shelf
was not resolved due to lack of information about the
continental shelf. With, technological advances and greater
knowledge, the Law of the Sea provides that a Coastal State's
continental shelf can extend for 200 nautical miles, with a
potential to extend that claim even further.
I understand that Russia submitted a claim in 2002 to the
Commission on the limits of the continental shelf that would
grant them 45 percent of the Arctic Ocean's bottom resources. I
also understand that the Commission has so far withheld its
approval of the Russian claims.
According to the U.S. Arctic Research Commission, if we
were to become a party to the treaty, the United States stands
to lay claim to an area in the Arctic of about 450,000 square
kilometers, approximately the size of California. But if we do
not become a party to the treaty, our opportunity to make this
claim and have the international community respect it
diminishes considerably, as does our ability to prevent claims
like Russia's from coming to fruition. Not only is this a
negligent forfeiture of valuable oil, gas and mineral deposits,
but also the ability to perform critical scientific research.
The Arctic Ocean is probably the most poorly understood
ocean on the planet. There are reports about the thinning of
the polar cap and open waters during the summer months. If the
polar cap is indeed changing, now is the time to be studying it
to determine its impact on the global climate, as well as our
fisheries.
Also in relation to the Arctic Ocean and the potential
thinning of the polar cap is the opening of the polar routes
for maritime commerce. There are predictions that the Arctic
Ocean will be ice-free for 90 days or more in the summer by the
year 2050, which in turn translates to greater access and
greater utilization. By utilizing a polar route, the distance
between Asia and Europe is 40 percent shorter than current
routes via the Suez or Panama Canals, and is in a much more
stable part of the world.
But with greater usage comes greater responsibility. A
number of nations have Arctic research programs. Alaska's
coastline on the Arctic Ocean is over 1,000 nautical miles. The
United States can either exercise sea control and protection in
this area of the world, or cede that role to whichever Nation
is willing to assume it. As a party to the Law of the Sea, the
United States' ability to enforce our territorial waters and
our EEZ in the Arctic Ocean is strengthened even further.
Mr. Chairman, the Convention on the Law of the Sea also
provides a basis for several international treaties with great
relevance to our Nation's most productive fisheries, which
occur off the coast of Alaska and are of significant value to
the economies of Alaska and the other Pacific Northwest states.
The Convention on Straddling and Highly Migratory Stocks
provides both access to and protections for fish stocks which
migrate through the high seas and the jurisdictions of other
countries. Among the stocks for which this agreement is of
paramount significance is the Bering Sea stock of Alaska
pollock, which is the basis for this country's largest single
fishery.
The Convention on Fisheries in the Central Bering Sea is
another critical piece, which allows us an unprecedented degree
of control over the activities of other fishing nations in the
central portion of the Bering Sea beyond both the United States
and the Russian exclusive economic zones. Without the influence
of the Law of the Sea, neither of these important fishing
agreements would likely have come into being.
I would also like to note the importance and the somewhat
fragile status of our maritime boundary agreement with Russia.
As you may know, this agreement delineates a specific boundary
between our two countries. It is necessary because the
agreement under which the United States acquired what is now
the State of Alaska was interpreted differently by the two
parties. Both the boundary agreement and the fisheries
enforcement mechanisms that stem from it are critical to the
conduct of fisheries policies in the United States and Russian
EEZs in the Bering Sea.
Although the United States ratified the Maritime Boundary
Agreement shortly after it was presented to the Senate, the
Russian government has yet to do so, under pressure both from
nationalist political interests and Russian Far-East economic
interests.
While observing the provisions of the boundary treaty, the
Russian government also has attempted to persuade the United
States to make a number of significant concessions regarding
Russian access to U.S. fishery resources, suggesting that such
concessions would improve the atmosphere for Russian
ratification. The terms of the boundary treaty are widely
regarded as highly favorable to the United States and are
themselves consistent with the Law of the Sea. However,
rejection of the latter by the United States could trigger
similar rejection by the Russian Duma of the boundary treaty.
Senator Inhofe. Senator Murkowski, could you try to wrap up
pretty quickly?
Senator Murkowski. I have one more paragraph, Mr. Chairman,
if you would allow me.
Senator Inhofe. All right, thank you.
Senator Murkowski. If that were to occur, it would be
extremely difficult to renegotiate the boundary treaty with
similar positive results for the United States. The United
States and Alaska have tremendous interests in the Arctic
Ocean. Our technological capabilities in calculating the extent
of the continental shelf are welcomed by other nations. As a
party to the Law of the Sea Treaty, we have the opportunity to
stake our claim to a significant chunk of real estate that has
the potential for impact on our economy and our national
security.
Mr. Chairman, I appreciate the opportunity to make these
comments, place them in the record, and again, as I mentioned
at the outset, Alaska has a keen interest in what goes on with
this treaty and I appreciate the opportunity to speak to the
gentlemen that are here today and to listen to their
perspectives.
Thank you.
Senator Inhofe. Thank you, Senator Murkowski. Senator
Stevens was here and made some similar comments.
First of all, let's do 5-minute rounds and see what happens
here.
Mr. Kelly, would you go into this thing. You had stated
something about that area between 200 nautical miles and 350
nautical miles, that this treaty could offer exploration or
some production in that area. Explain that to me, would you
please?
Mr. Kelly. Yes, sir. Under the treaty, a Nation has a right
to claim sub-sea territory beyond the traditional 200-mile
limit by making a case to the Continental Shelf Commission of
the United Nations that our continental shelf actually extends
beyond 200 miles. This is done by judging various elements of
physical oceanography. If the claim is approved by the
Continental Shelf Commission, the Coastal State, in this case
the United States, could actually hold a lease-sale beyond 200
miles. The quid pro quo when that was negotiated was that there
would be a royalty paid to the International Seabed Authority
by the Coastal State for any minerals produced.
Senator Inhofe. By the government?
Mr. Kelly. Yes, it would be paid by the government. It is a
royalty that only commences 5 years after initial production
and it begins at 1 percent.
Senator Inhofe. OK, but the question I had is, in the
absence of becoming a party to this treaty, how could you get
at that particular exploration? Can you do it now without this?
Mr. Kelly. Not really, without violating the Convention.
Senator Inhofe. No, forget about the Convention, if we are
not a party to it. Can you do it anyway?
Mr. Kelly. I do not believe so.
Senator Inhofe. So this would open up exploration, in your
opinion, in areas we cannot explore right now.
Mr. Kelly. That is correct. You can ask, well, are we there
yet in terms of technology?
Senator Inhofe. No, I do not care about that.
Mr. Kelly. I just wanted to tell you that there are wells
that have been drilled recently in the Gulf of Mexico that are
within 2.5 miles of the edge of the exclusive economic zone, so
technology has gotten us out to that distance. Whereas in 1994,
it was not, but today the technology is available to go beyond
200 miles. It has not happened yet, but we are just about there
in terms of the potential.
Senator Inhofe. All right.
Mr. Oxman, you heard me ask Mr. Turner when he was in here
the question in terms of being able to board vessels in our
national security's interest. Twice in your testimony, you
emphasized that you can do that under this treaty. I would like
to have you explain that because Mr. Turner was not aware of
that.
Mr. Oxman. Thank you, Mr. Chairman. I will do my best.
Senator Inhofe. After that, I am going to ask Mr. Leitner
and Mr. Gaffney if you agree with his explanation here.
Mr. Oxman. First, let me emphasize that we are already in
everybody's opinion bound by the rules of high seas law that
are in question. The Law of the Sea Convention copies virtually
verbatim the rules of high seas law that are contained in the
1958 Convention on the High Seas to which we are a party,
having received the advice and consent of the Senate.
So those rules are the same. They are also the rules that
President Reagan specifically announced that we would respect
and that we expected everybody else to respect, and every
subsequent Administration has applied President Reagan's
declaration of 1983.
Now, those rules lay out specific circumstances under which
a ship can be boarded on the high seas in general. Under the
Convention, we gain additional opportunities to board ships off
our own coast, not for security reasons, but for economic
reasons, but nevertheless those can relate to security
concerns. Thus for example, while Senator Murkowski and I would
agree, and would be interested in our power to board fishing
vessels off Alaska to inspect for fishing purposes,
nevertheless our right to do so will carry with it a right to
make sure that we have nobody on board who is interfering with
our security or might attack one of our fishing boats.
Similarly, we are going to have extensive boarding rights
for anti-pollution purposes. Once again, I am not suggesting
pretext here, but if we were to board a foreign vessel to make
sure and check under our pollution laws as to whether there has
been a violation, it would be a dereliction of duty for the
people on board not to notice that there might be someone there
who might be trying to commit an act of terrorism either on one
of our cities or the kind of ecoterrorism to which there has
been a reference.
In addition, we are party to other treaties that deal with
terrorism. Finally, most important, Mr. Chairman, this
Convention does not affect our right of self-defense. It does
not deal with the rules of international law regarding armed
conflict.
Senator Inhofe. All right. Thank you, Mr. Oxman.
Now, I would like to ask if there are any other members,
the other three here, that would like to express a position or
challenge anything that Mr. Oxman said.
Mr. Leitner. First of all, terrorism is not really directly
applicable to the rules of armed conflict. It is a totally
different way of fighting. It is a totally different creature.
It is also basically a peacetime engagement. What we normally
consider as peacetime is when terrorism actually flourishes.
You do not have states to blame. You do not have cities to
attack. You do not have areas to retaliate against.
The Proliferation Security Initiative is an attempt to go
off-shore to interdict what will otherwise be considered legal
movement on the high seas. Ships engaged in transit passage,
not stopping, not loitering, not polluting, would not be
subject to boarding under The Treaty if they are not engaged in
certain restricted activities that are enumerated in the Law of
the Sea Treaty; if they are not engaged in the slave trade and
if they are not engaged in broadcasting; if they are not flying
a false flag; if they fail to fly any flag.
The Chinese have already come out very forcefully and
asserted that the Proliferation Security Initiative is illegal
under the Law of the Sea Treaty. They cited the various
provisions and the various strictures that determine the
particular events and particular circumstances where boarding
or interdiction is allowed. So the Chinese are making it a
matter of State policy now to use the Law of the Sea Treaty to
try to nullify the Proliferation Security Initiative.
They are trying to also, sub-rosa, intimidate allies like
Singapore and some other countries, Thailand and others who are
part of PSI from supporting it as well.
Senator Inhofe. All right. Thank you very much.
Mr. Gaffney, did you want to make any comment concerning
that issue?
Mr. Gaffney. Mr. Chairman, I would just encourage the
committee to probe further on this, to investigate the treaty.
A number of things that are being said here today by some of
its supporters, I have not found in the treaty. Maybe it is
just a poor reading on my part, but I do not know where it says
we have a guaranteed place at the table, let alone a veto. That
point has been made here several times.
Senator Inhofe. OK. I am going to start with you.
Mr. Gaffney. I am trying to make sure that as promises are
made here, that we will be secure in whatever surrender of
sovereignty or whatever adjustments we are making, the kind
that Peter has talked about or otherwise, that the Senate is
dealing with the treaty as it stands, first and foremost, and
is very clear on the extent to which if at all it has been
formally modified with the consent of all of the parties
through an agreement negotiated and signed in 1994.
Senator Inhofe. All right. Mr. Gaffney, my time has
expired. We have been joined by Senator Warner. Would it be all
right if we deferred to Senator Warner?
Senator Jeffords. No problem whatsoever.
Senator Warner. Yes, in a moment.
Senator Inhofe. All right, that is fine.
Senator Jeffords, for your questions.
Senator Jeffords. To followup, Mr. Gaffney, in your opening
statement you said that you were ``troubled'' by the testimony
given by the Administration's witness. You also said that part
of the testimony was simply, ``not true.'' Are you insinuating
that Mr. Turner and Mr. Taft misled this committee?
Mr. Gaffney. I hope the committee will sort this out, Mr.
Chairman, because it is not consistent with the reading of the
treaty that I have done; the studying of the treaty that I have
done. It is not clear to me how you square the circle. I am not
suggesting that they are deliberately misleading the Senate. I
just want the Senate not to be misled. If I am wrong, I hope
that will be pointed out and corrected here and I am sure it
will, but I do not think I am.
If I am not, it raises the question as to whether the
treaty that you are being asked to ratify is really the 1982
treaty with I think acknowledged defects and warts, or whether
it is something different; and if it is something different,
Senator, whether it is something different in the eyes of all
of the parties to the treaty; or whether it is only different
in the eyes of the U.S. Government and you will be asked to
ratify it on that understanding and basis, and lo and behold it
turns out as the treaty is implemented by all those other
countries as well as ourselves, especially if I am right, that
we are not in fact guaranteed a seat at the table, let alone a
veto, but these understandings, these interpretations, this
expectation proves wrong.
If I may, specifically on this question, you have been told
repeatedly that this is going to work out OK because we will be
at the table. The problem with the 1982 agreement was it did
not work out OK because we were at the table and we were
consistently outvoted. Maybe it will work out better this time
because we are now the world's only superpower, or because we
will be more assertive or we will have better, smarter
negotiators than we did in 1982. I do not know.
But I submit to you, sir, this is one of those questions
that the Senate ought to weigh very carefully if you are being
asked to think about a permanent commitment here. This is not
something we will do for a couple of years and see how it works
out. This is forever and sets a model for I suggest not only
the Law of the Sea, but probably for space and perhaps, who
knows, for supranational agencies that will do other things.
It bears emphasis there will be no Security Council to
intervene if it turns out the votes go against us as they
typically do in places like the General Assembly, and I think
they would in the Seabed Authority.
Senator Jeffords. Mr. Oxman, could you explain the purpose
and function of the International Seabed Authority? If the
United States became a party to the Convention, what would be
the nature of our participation in ISA? Does ISA have
unconstrained enforcement potential as claimed by Dr. Leitner?
Mr. Oxman. Thank you, Senator. I will try.
First, let me say that most of the answer is dependent upon
the 1994 agreement. Were any Senator to assert that the
Convention can only be understood as modified by the 1994
agreement, that assertion would be completely consistent with
the declarations of the U.N. General Assembly, with the
practice of all other industrial states, and with the practice
of the Seabed Authority from the very first day it met. There
is no doubt whatsoever that the 1994 agreement has already
modified the Convention. If you felt, Senator, there was any
need to clarify this, there would be no quarrel with such an
assertion.
Under the implementing agreement, the United States is
automatically guaranteed a seat on the Executive Council. That
seat goes to a State which was identified as of the data of
entry into force of the Convention and everyone knows that is
the United States and can be only the United States.
Second, most important regulatory decisions, including how
you collect money, how you spend money, is made by regulations
of a limited Council of the Seabed Authority by consensus. We
cannot be outvoted. If we vote no, there is no regulation. That
power is reposed in the Council of the Authority.
On top of that, we will have a guaranteed seat on the
Finance Committee so long as the United States is making
contributions. That committee functions by consensus and once
again any budgetary decisions would have to be based on the
decisions of the Finance Committee.
Finally, I want to note that Senator Warner was among those
when he was in the executive branch that insisted on this
position, the Seabed Authority has a role only with respect to
mining; not with respect to military activities; not with
respect to scientific research; not with respect to fisheries.
It is a very, very limited role indeed. Once minerals are
extracted under a permit that is achieved under specified
conditions from the Seabed Authority, title to the minerals
passes to the miner.
Senator Jeffords. Mr. Chairman, I see my time is up. I have
another question prepared for later on.
Senator Inhofe. All right, that is fine.
Senator Jeffords. Mr. Oxman, are there any mandatory
technology transfer provisions in this treaty? How would you
respond to the claims that the treaty somehow provides cover
for hostile foreign powers to acquire sophisticated technology
that cannot otherwise be justified?
Mr. Oxman. There were, Senator, mandatory technology
transfer provisions in the Convention as adopted in 1982. That
was one of the reasons President Reagan objected to the deep
seabed mining provisions. They have been removed. The specific
language is in the implementing agreement that they shall not
apply. All that is left are very general statements that we
will cooperate in attempting to facilitate transfer of
technology. They do not affect any rights with respect to
intellectual property. We already cooperate in our foreign aid
and other cooperative efforts all over the world today.
Senator Jeffords. Thank you, Mr. Chairman.
Senator Inhofe. Senator Warner.
Mr. Gaffney. Senator, might I respond on that?
Senator Inhofe. Certainly.
Mr. Gaffney. Again, this goes to the heart of this question
of does the 1994 agreement eviscerate parts of the Law of the
Sea Treaty. You have heard testimony from Peter Leitner about
the application of the modified Law of the Sea Treaty in a
specific export control proceeding by the U.S. Government. The
interpretation or the practice, more to the point, was of
course, under the Law of the Sea Treaty either as modified by
the 1994 agreement or under its initial incarnation, it is our
duty to provide the Communist Chinese advanced technology of a
directly military character.
Some of this requires, I guess, reflection. Knowing that
this is the world's greatest deliberative body, my hope is that
it will in fact reflect not narrowly on what is on the paper in
front of you, though I think in some cases, as in this issue,
of did the 1994 agreement modify the treaty, the paper is not
all that clear itself. It should be. I would offer as a
constructive suggestion, if you wish to ensure there is no
problem, explicitly condition your resolution of ratification
if you choose to advise and consent to this treaty, on the
changes that that 1994 agreement makes to the underlying
document.
I would be willing to bet you will find there is more
opposition to that than you think or than you have been told,
partly because there are no rights of changing this treaty, no
reservations may be added to the resolutions of ratification of
its parties.
But more to the point, sir, I would again respectfully
suggest that the process that is being adopted here is one that
opens the door to new commitments, new responsibilities, that
we have had some hard experience with in the past. The
President of the United States just a couple of months ago
talked about the loophole in the nonproliferation treaty, which
as you know was called the Atoms for Peace provision whereby we
gave countries atomic technology if they promised not to make
bombs with it, only to discover in case after case after case,
they did.
The technologies that we will, even under the 1994
agreement, have an obligation to be as forthcoming with as
possible, I suspect will wind up being injurious to our
national interest; national security perhaps; perhaps
commercial; to say nothing of what happens if we wind up being
either dragooned or voluntarily going as we did in this
previous exercise down the road of feeling obliged to give
anybody anything they wanted. Because just as we have some very
eminent spokesmen here for certain interests, you can bet, you
know yourself, Senator, there are certain interests that will
want to sell any comer some of the site-scanning sonars or some
of the bathymetric technologies or some of the other deep-sea
sensors and mining and other equipment that may be used to our
detriment.
What I just hope you will do, as a body, is look past the
immediate assurance; apply some common sense to where the
inexorable logic of this treaty takes you, and on the balance,
as Peter said, on balance evaluate whether, yes, there are some
things that we like about this treaty, but it nets out in our
overall interest. I suggest to you it does not.
Senator Inhofe. Thank you.
Mr. Gaffney. Thank you, sir.
Senator Inhofe. Senator Warner.
Senator Warner. Mr. Chairman, thank you.
Mr. Oxman, I appreciate your reference to the fact that I
think we were associated together when I was the Under
Secretary and then Secretary of the Navy. I was that Navy
Secretary for 5 years, 4 months and 3 days. Secretary Laird
appointed me as his personal representative at the Law of the
Sea talks in Geneva. In my recollection, we were associated in
those days. I worked extensively with Mr. Stevenson, who was
then the Chief Counsel to the Secretary of State. So I think
you and I have a little bit of a track record in this, do we
not?
Mr. Oxman. Indeed, Senator, and it was a great honor to
work for you, sir.
Senator Warner. I don't know that you worked for me, but
anyway, we did work on it.
The years 1969 to 1974, where were you, Mr. Gaffney?
Mr. Gaffney. I was in knickers, Mr. Chairman.
Senator Warner. That is right. I think you were in knickers
when you wrote this statement in your opening paragraph to the
effect that after all, but for Senator Inhofe's initiative, the
Senate may well have taken no testimony at all from critics of
the Law of the Sea Treaty.
You know that I had scheduled a hearing of the Armed
Services Committee, do you not? You were invited to testify.
Mr. Gaffney. Mr. Chairman, in my prepared remarks, which
were submitted and are more fulsome----
Senator Warner. I am talking about this, which is here
before the members.
Mr. Gaffney. I believe in my prepared remarks, it makes
reference to the fact that you and your staff had contacted me
about a hearing.
Senator Warner. That is correct.
Mr. Gaffney. I think it is referred to there, sir.
Senator Warner. You were invited to attend.
Mr. Gaffney. I explained that I could not do so, sir.
Senator Warner. That is correct.
Mr. Gaffney. Yes, sir.
Senator Warner. It seems to me statements like this taint
your whole statement.
Mr. Gaffney. I beg your pardon, Senator, but I do not have
the prepared remarks in front of me, but my recollection is I
said your committee has undertaken to schedule a hearing, and I
commend you for that. I said, there are several other
committees that have not and my hope is that they will before
this is done. I regret that I will not be able to testify, but
I am delighted that you are going to hold a hearing.
Senator Warner. You have been associated a long time. You
just got to control sometimes the extremism of some of these
attacks.
Mr. Gaffney. Senator, with respect, I do not know what
extremism you are referring to.
Senator Warner. When you say here that only this
distinguished Member of my committee and Chairman of this
committee is the one holding hearings, that is a
misrepresentation.
Mr. Gaffney. I do not think that is the full paragraph,
Senator, if you will read the whole paragraph.
Senator Warner. After all, but for Senator Inhofe's
initiative, the Senate may well have taken no testimony from
critics of the Law of the Sea.
Mr. Gaffney. If you would continue reading, Senator, with
respect, I think the rest of it makes clear my point.
Senator Warner. Where do I continue to read?
Mr. Gaffney. I believe the rest of that testimony. Again,
you have the benefit of me. You have it in front of you. I do
not.
Senator Warner. Somebody just passed this down.
Mr. Gaffney. I would be happy to make the point. In the
submitted version of this, Senator, I said very clearly I
understood you were preparing to hold one; you have not held
one yet. That was my only point.
Senator Warner. It has been scheduled and you were invited
to testify.
Mr. Gaffney. I appreciate that, sir.
Senator Warner. We are having a panel on those who hold
views different than that of the Administration.
Mr. Leitner, there was some discussion about your being
included in that panel, but I understand you are an employee of
the Department of Defense. Is that correct?
Mr. Leitner. Yes, sir, I am.
Senator Warner. You are free to express your views, but we
have a policy in our committee that unless it is an
extraordinary circumstance, which I do not view this one as
being, the Administration, you are in the employ of the
Administration. I cannot understand in what capacity you are
here.
Mr. Leitner. I will clarify that. I am here as an author,
private citizen, and former observer to the delegation to the
Law of the Sea Conference; basically as an outside expert. I
have testified probably seven times before the House and Senate
over the last 6 or 7 years on various issues relating to export
controls, the COCOM export control regimes.
Senator Warner. I do not question your expertise or your
professionalism, it is just that it is unusual that you are
drawing a salary at taxpayer expense and the Department of
Defense and the Secretary of Defense is on record as supporting
this treaty. Am I not correct?
Mr. Leitner. Absolutely, sir. That is the beauty of this
country in that we still have freedom of speech even though you
are a government employee as long as we are not representing
the Department.
Senator Warner. Mr. Gaffney, when he offered you as a
substitute for himself, I felt that it was inappropriate at
that time.
So Mr. Chairman, I hope you will join in my hearings.
Mr. Gaffney. Mr. Chairman, may I have your indulgence just
to read the relevant section toward the end. You actually
highlighted it as well, Mr. Chairman.
While staff of the Senate Armed Services Committee have
indicated that Chairman Warner intends to hold a hearing on
this subject next week, the Intelligence, Commerce, Energy,
Governmental Affairs and Finance Committee have yet to evidence
any interest in following suit.
I want to make sure, Mr. Chairman, that you know of my
strong support for your having this hearing. I commend you for
it. I just wish that you would enable what I consider to be one
of the most knowledgeable experts on the subject to participate
in it, and I regret that I cannot do so myself due to family
business.
Senator Warner. I have no further comment.
Senator Inhofe. All right, thank you, Senator Warner.
Senator Warner. I would say, at that hearing, we will take
testimony from a series of witnesses who will address those
aspects of the relationship between the treaty and our national
security policy. These are individuals who, like myself, who
have had a long experience in this area.
Senator Inhofe. Senator Warner, I look forward to
participating in those hearings. I know they will concentrate
on the national security ramifications. This committee is
concerned about those, but also the environmental concerns that
I think are the purview of this committee and things that we
should be addressing. Prior to your coming, I did in my opening
statement mention that I had the opportunity to look at the
format of the two Foreign Relations hearings. There were no
witnesses at that time who were opposed to it. I thought this
would be a good balance to have, in this case a panel where two
are opposed and two are supporting.
Senator Murkowski, you are recognized for questions.
Senator Murkowski. Thank you, Mr. Chairman.
Mr. Gaffney, in your testimony you had suggested that the
International Seabed Authority could issue permits for deep sea
oil and gas exploration or exploitation without regard to our
environmental concerns. This is despite the fact that the
Council adoption of rules concerning seabed mining must be done
by consensus of the Council. Doesn't it make sense that if the
Council were to issue permits that the United States opposes
when we hold a seat on the Council, that they would even be
more likely to do so if we are not a party to the Convention?
Mr. Gaffney. That is a possibility, Senator. I want again
to raise a concern that if you buy into the treaty, things may
not turn out to be as they are being represented to be. There
is no question that if you are not in the treaty, there are
some downsides. What basically I think Dr. Leitner and I are
suggesting is, those need to be evaluated by members of this
body in their totality.
I think in this case, frankly Senator, one of my insights
from government service was finding that objecting to consensus
is often harder to do than it would seem; that there is a
certain desire, whether log-rolling is a term that I am sure
you are accustomed to and is used up here. But there is also a
certain sense that, well, it is better than the alternative;
indeed, that is pretty much the argument that you hear from
some less-than-enthusiastic proponents of this treaty, is that
it is better than the alternative.
I am just suggesting to you that it is not necessarily the
same thing as a veto. It does not necessarily work the same
way. It does not operate in terms of our own government
councils the same way. But even vetoes, look at our practice in
the United Nations where we actually do have a U.N. Security
Council veto. We are very reluctant to exercise it.
Senator Murkowski. Let me ask you one more. You express
concern that the United States would not be able to continue
its activities under the PSI to stop and search vessels
suspected of transporting illegal weapons. Yet many of the
United States's partners in this effort are already partners to
the Law of the Sea. How is it that these nations are not in
violation of the Convention then?
Mr. Gaffney. It is a very good question. You have heard, or
perhaps you did not hear because I think you may have been out
of the room when this was addressed a moment ago, there seem to
be some differences as to whether or not this will be an
impediment to these sorts of inspections. Dr. Leitner pointed
out, and this is something I hope the Chairman will focus on in
the Armed Services Committee hearing, the Communist Chinese
government is saying that PSI is impermissible under this
treaty. Some of those that are in its area of influence, if you
will, notably some whose interests in the South China Sea are
being affected by the citation of the Law of the Sea by the
Chinese government to extend its sway through the use of
artificial islands over more and more of its waters. Some of
these governments seem to be now uneasy, shall we say, about
participating in the Proliferation Security Initiative.
So again, you need the facts and hopefully they will be
expressed as well in the Armed Services Committee. There is
clearly a formal U.S. Government position that this is not a
problem. My concern is that in I think a number of these cases,
we are going to find out it is a problem. I would just assume
have the Senate know that it might be or even is before it
signs off on this treaty.
Senator Murkowski. Mr. Oxman, both Mr. Gaffney and Mr.
Leitner have suggested that the United States will not have
discretion in regards to certain articles. Can you give me your
view or your opinion on that?
Mr. Oxman. Senator, I am not entirely sure. I can comment
on a few of the things that may be relevant to the question.
Taking the last comment first, Senator, I am reading from the
text, artificial islands installations and structures do not
possess the status of islands. They have no territorial sea of
their own, and their presence does not affect the delimitation
of the territorial sea, the exclusive economic zone, or the
continental shelf. It is true that the Chinese are attempting
to extend their claims based on land territory. They claim
islands, but that is of course a different question.
In terms of the Proliferation Security Initiative, in my
view the success of that initiative is entirely dependent upon
our capacity to move our forces around the world without
interference by the states past whose coasts they move. Once we
get there, I think we have more than ample bases for legal
authority to board. Those would be a variety of different bases
depending on the particular circumstances. With Liberian ships,
we now have a new agreement pursuant to which we will be able
to board. I detailed some of these, Senator, a few minutes ago
when I believe you were busy with some other matters.
I hope that is responsive, Senator.
Senator Murkowski. I see that my time has expired, Mr.
Chairman. I appreciate that. I might have some other questions
if we have another round here.
Senator Inhofe. We will give you another round here in a
minute.
Senator Murkowski. OK, thank you.
Senator Inhofe. Senator Warner.
Senator Warner. Thank you, Mr. Chairman.
Senator Inhofe. All right. I would like to ask a question
of Mr. Oxman and then ask Mr. Leitner to respond to it also.
Do the environmental provisions of the Convention protect
or expose the high seas and the U.S. coastline to environmental
threats? Which way is it?
Mr. Oxman. I think that they increase the protection of the
environment.
Senator Inhofe. Of the environment.
Mr. Oxman. Of the environment in general and the U.S. coast
in particular. The question of ecoterrorism is of course a
completely separate question from the provisions on
environmental protection. I entirely agree that we have to deal
with it, and once again, I think that the Convention will
facilitate our capacity to deal with it. I want to make clear,
Mr. Chairman, that I share Mr. Leitner's concern, but we have
the capability to deal with it.
Senator Inhofe. Mr. Leitner?
Mr. Leitner. I disagree. I think we are more deeply exposed
than we would be otherwise than we would be outside the treaty
than we would be inside the treaty.
You have to think of the treaty in a number of ways. In
every article on the treaty, it is a double-edged sword. It all
depends upon interpretation. Our interpretation, and I think we
have seen a lot of that today and we certainly saw that in the
Senate Foreign Relations Committee, there is a great deal of
group-think that seems to be afflicting the United States team,
the technical team, the policy team, as it pertains to the Law
of the Sea Treaty. We are seeing it from one side as if there
is one vector that we are all going to walking on and it has
some inexorable momentum and everybody is going to agree with
us as we go down this path.
I think that is wrong. I think that there are 140-something
countries who are party to this, so you are going to get at
least 140 separate views on a particular issue at a particular
time in a particular place. This is not a treaty that is going
to solve all problems. The Chinese in the South China Sea, for
instance, are erecting, we call them artificial islands; the
Chinese do not consider them artificial. They consider them
real islands. They are using coral reefs; they are using semi-
submerged lands as footings in order to build islands above the
water line. At some times of the day, the islands are actually
above the water line, at least portions of them. They are
building military platforms. These are like little aircraft
carriers all throughout the South China Sea that are being
erected.
It is a very serious threat. There is a great potential for
a flashpoint in the South China Sea between the Philippines,
between Malaysia, Vietnam, Taiwan and China in terms of
potential conflicts. There is a tremendous amount of oil at
stake in the South China Sea, as well as the shipping routes
that are absolutely vital to the United States, as well as
Japan and some other allies.
So these are issues that are all there that have to be
dealt with. We cannot deal with these issues. We cannot
prognosticate. We cannot do a real overall assessment if we are
simply thinking the same way and wishful thinking that the way
we interpret the treaty is the way other people are going to
interpret it. It is not true.
In terms of Frank Gaffney's comment on consensus being a
very difficult thing to work with as opposed to an up and down
vote, I share that opinion very closely because I spent many
years in COCOM in Paris, back and forth as a COCOM negotiator
on behalf of DOD. That was a consensus-driven organization. It
was a consensus-driven organization and it was almost
impossible to get consensus on anything. You had individual
nations acting in the final account in their national interest,
as a matter of national discretion. That is what we will have
here. National power will trump the agreement, where it is in
the interest of the particular State party to trump the
agreement.
We have a very serious issue of the Freedom of Navigation
Program. That is a program where the United States maintains
constant challenges by the Navy and the Air Force to excessive
claims of Coastal States, whether a Coastal State is claiming a
particular body of water to be a historic bay, such as the Gulf
of Taranto or the Gulf of Sidra in Libya or Italy,
respectively, or whether a Coastal State is claiming straight
baselines in terms of measuring their territorial sea that do
not comport with the Law of the Sea Treaty, such as China. They
are trying to enclose huge areas of their coastal zone as
territorial sea.
What do we do with this? Well, we send ships in. A ship
will deviate from its path going from point A to point B in
order to enter that area and see whether it provokes a
challenge, or at least document that we do not accept that
claim.
The Chinese have also promulgated, even though they are a
party to the Law of the Sea Treaty, even though they are not
allowed to do this under the treaty, a demand for prior
notification by warships entering their territorial sea. That
is not allowed under the treaty, yet the Chinese are doing it
and so are other states, many other states.
When the treaty first began in 1973 in earnest in terms of
the Third U.N. Conference on the Law of the Sea, one of the
issues of the day, and I am sure Senator Warner will remember
this, was the seizure of U.S. tuna boats by Chile, Ecuador and
Peru. It was a constant problem. As we have an extensive
continental shelf, we claimed 200 miles under the Truman
Doctrine.
The countries on the west coast of Latin America claimed a
patrimonial sea going out to 200 miles, saying that they did
not have the resources, the continental shelf, because they
have a big trench off the west coast of Latin America, that
they were geographically disinherited from the shelf, therefore
they claimed that the region's anchovy and tuna fishing was
essential for their economies. So they were seizing our boats
because we did not recognize their 200-mile territorial sea.
Senator Inhofe. Did you have something to say, Mr. Kelly,
on this?
Mr. Kelly. Yes, a brief comment. With respect to, would we
be better off in terms of environmental conservation with this
treaty or without? I think it is well to think about the Law of
the Sea Treaty in a sense as a large umbrella instrument. It
encourages cooperation among nations on a world and on a
regional basis in environmental protection. As a result of
that, a number of agreements have been spawned. As Senator
Murkowski indicated, the Straddling Stocks Agreement is a good
example of the kinds of agreements with respect to fisheries
that have come out of the Law of the Sea Treaty.
Likewise, if you take issues like the question of invasive
species from ballast water; if you look at various other
agreements that have been reached under the umbrella of the Law
of the Sea Treaty, often through the International Maritime
Organization, IMO, in London, we have been able to achieve real
progress on a number of these issues.
There have been standards dealing with safety and
environmental protection on ships and mobile offshore drilling
rigs that have come out of this whole process that would not be
there today if it were not for the Law of the Sea Treaty.
So we have to look at it in a larger sense. The U.S. Coast
Guard has done an excellent job representing us at IMO and with
respect to other international meetings, but they told our
Commission that they certainly felt like their hand would be
considerably strengthened if we were a party to the treaty.
Senator Inhofe. All right. Thank you, Mr. Kelly.
Senator Warner. Could I make one note?
Senator Inhofe. Certainly.
Senator Warner. Thank you, Mr. Chairman.
I would like to say that Admiral James Watkins, former
Chief of Naval Operations, is the chairman of your group. He,
together with you and others have performed a very valuable
service for the country. I thank you.
Mr. Kelly. Thank you, Senator. I will pass that along to
the other Commissioners.
Senator Inhofe. Thank you.
Senator Murkowski?
Senator Murkowski. One final question, Mr. Chairman.
Mr. Leitner, this is directed to you. Your written
testimony suggests that the United States resume the practice
of authorizing private vessels to arm themselves and sail as
privateers. I am told that this has not been practiced since
the War of 1812. Are you suggesting that this would be a legal
and acceptable act if we are not a party to the Law of the Sea?
Mr. Leitner. I think it would be an acceptable act
regardless of whether we are a member of the Law of the Sea
Treaty or not. From the perspective of using the oceans and
using privateers as an instrument of foreign policy, I see them
being directly an instrument of the courts. One of the things
that I do as well, outside of my government employ, is that I
work on a great many terrorism lawsuits that have come up in
the course of the years, including the 9/11 case, Khobar
Towers, the USS Cole case, and a variety of other lawsuits
where American courts have awarded judgments to American
citizens because they were victimized by terrorist actions, and
very often state-sponsored terrorism. Usually, Iran is behind
it and legal court orders in the United States are awarded,
allowing a judgment to be collected, both compensatory and
punitive damages.
I see that it would be a great service to the families who
are victims of terrorism, as well as the victims of terrorism
themselves, if we would enable private collection activities to
take place on the high seas or elsewhere to satisfy judgments
and raise the costs of engaging in international terrorism
directly to the State party who sponsored the terrorist act.
So this is a novel form of collection, because right now
people are really inhibited from collecting. They have
judgments that cannot be enforced. They are meaningless
judgments and the State sponsors of terrorism pay nothing.
Senator Murkowski. Mr. Chairman, I have no further
questions. Thank you.
Senator Inhofe. Thank you, Senator Murkowski.
Mr. Gaffney. Mr. Chairman, if you are about to wrap up, I
just wanted to make one other point.
Senator Inhofe. I am not about to wrap up.
Mr. Gaffney. Excellent.
Senator Inhofe. I hear Senator Warner and Mr. Oxman and
others talk about having been exposed to this all the way back
to the Nixon administration. This is all new to me, so I may be
looking at this from a little different perspective than some
of the others are.
You all four heard me ask Mr. Turner about the
understanding I have that Article 212 of the Convention
requires states to adopt laws and regulations for pollution
from the atmosphere. Now, do any of you have in your mind now
any specific domestic policies that would need to be changed,
or domestic laws that we would have to change should we become
a party to this? Anyone? Yes, Mr. Leitner.
Mr. Leitner. I was surprised when the State Department
representative said ``no, there were none,'' because off-hand I
think of the Deep Seabed Hard Mineral Resources Act. That law
was enacted after the United States rejected the treaty so as
to enable ocean mining to take place with a reciprocal state's
regime. Basically it brings in other countries, like-minded
countries to recognize claims to deep ocean areas so we would
not have claim-jumping and any sort of conflict at sea in the
absence of a treaty.
That is a law that I would think would have to change, at a
minimum that will have to change or it would be disbanded if we
become a party to the treaty. That is a pretty major effort.
Senator Inhofe. One of the things I had in mind, and I
think I may not have specifically said it, but we have been
going around this CO2 thing for a long time. Is
there any way that this could be used to force the United
States to regulate CO2? Any comments on that? Yes,
Mr. Oxman.
Mr. Oxman. Mr. Chairman, no. All it does is require that we
have air pollution regulations in effect with respect to our
territory and with respect to our vessels and aircraft. It does
not specify what those measures must be. That is quite
important. It simply requires that we do things. There is
legislation, I would like to do a little research on how much,
but clearly the Clean Air Act and other legislation that we
have satisfies this obligation.
Similarly, the Deep Seabed Hard Minerals Act which was
enacted by Congress while we were negotiating the Convention,
in an attempt to induce a dose of realism in the negotiators,
specifically contemplated the possibility that we would become
party to a treaty.
Thank you, sir.
Senator Inhofe. Yes.
Mr. Gaffney. Mr. Chairman?
Senator Inhofe. Yes?
Mr. Gaffney. I just again want to encourage some second-
order thinking about this. When Mr. Oxman says we are
undertaking to do certain things, but they are not specified,
that plays into what I consider to be one of the really
worrying things about this treaty, when it is pointed out that
the International Seabed Authority has very circumscribed
responsibilities at the moment. For the purposes of discussion,
let's just say that is true.
The second-order problem is, these things take on a life of
their own. Now, I think Peter would agree with me, there is a
certain, call it cynical belief on my part, at least, that
people have behaved with greater circumspection and constraints
on what they ultimately would like to see this supranational
agency do, so as to not to queer the deal on getting the Senate
to go along with the ratification of this treaty.
I submit to you, if this treaty is ratified, I hope you
will have us back in 5 years time to reevaluate this, but I
would be willing to wager that what will happen will be vastly
greater duties and responsibilities imputed to this
institution; greater authority exercised in its own right and
through its tribunal, and the promised veto not protecting our
equities the way we thought they would.
Senator Inhofe. OK. That is something I would like to ask
all four of you about, because I am not familiar with that.
Let's say that we were to become a part of this and we
would be the 146th country to do it. Do we have one vote? How
is it set up in terms of our participation as a country?
Mr. Gaffney. At best, we have one vote.
Mr. Oxman. Senator, we have one vote, but the power in the
Seabed Authority is held by the Council of the Seabed
Authority. The Council of the Seabed Authority and its
regulatory decisions must function by consensus. Our one vote
therefore constitutes a veto, as does the one vote of every
other member of the Council. On certain other kinds of
decisions, consensus is not required, but there is a complex
chamber system pursuant to which any three industrial States
could block a decision. Again, we have only one vote, but if we
are joined by two of our friends, the decision is blocked.
Furthermore, Mr. Gaffney is correct that consensus
decisionmaking processes, as I am sure any Senator is aware,
involve not only negative power, but affirmative power.
President Reagan demanded both. I am quite confident that the
United States would use its veto on the Council in order to
further our own affirmative agenda, for example with respect to
the environment.
In effect, our vote is the same as any other country's, but
its effect is quite different.
Senator Inhofe. Mr. Leitner?
Mr. Leitner. I would just like to add, there is a certain
element of wishful thinking that is embodied in what our
assumptions are in terms of what the U.S. role is going to be;
what will it be if we accede; what will it be over time. The
United States is not called out anywhere, not anywhere does it
say the United States shall be a member of this body, period.
Instead, it is done by other terms; the country with the
highest and the greatest GNP at a certain date; the country
with the largest consuming of a certain type of mineral; that
sort of thing. So it is all measured indirectly and it is all
assumed that the United States will be that party. Under
current rules, perhaps it is, but there is no ``United States
shall have a seat on this particular body.'' It is not written
anywhere.
In addition, there are other things that are really quite
disturbing. In the Tribunal, for instance, of which Mr. Oxman,
by the way, was a visiting judge in the Tribunal at Hamburg; it
is a pretty distinguished position, the way the judgeships are
awarded in the Tribunal, which is the dispute settlement
mechanism in the treaty, Africa has five judges; Asia has five
judges; Eastern Europe, we still call it Eastern Europe, even
though it is post-cold war, three judges; Latin America and the
Caribbean, four judges; Western Europe and Others, four judges.
Basically, if we were to assume, if you just look at this,
I added up this morning the percentage of world GDP represented
by that small group called Western Europe and Others, the four
seats, and the percentage of GDP for the world is 50 percent of
the world's GDP is made up of this Western Europe and Others
group, but we only have four votes.
Basically, it gives the equivalent of 19 percent of the
votes. We represent 50 percent of the world's GDP, but we only
get 19 percent of the voting power in the Tribunal.
This same pattern is evident elsewhere in the International
Seabed Authority in terms of the economic interests of the
United States not really being adequately represented. Our
power in the world, the fact that the United States will
contribute according to the United Nations share of
contributions, that same formula, about 25 percent at least of
the operating budget, that is what we are obligated to pay as a
subscription.
It is totally disproportionate to our actual influence and
our status in the world. We have a negative disproportionate
share of the votes compared to our economic influence and the
importance of the United States in the world. The single
superpower on the planet does not anywhere in this treaty have
a direct called-out seat on any body, on any of the judicial or
administrative bodies in this treaty. It is just not there. It
is all indirect.
Senator Inhofe. Mr. Kelly.
Mr. Kelly. Mr. Chairman, while we are discussing all the
possible things that could go wrong, let me add a little more
optimistic note to this whole scenario. During the past 2
years, I have attended at least two meetings where there were
officials from the Seabed Authority, United Nations
representatives and representatives of other countries who were
gathered together to talk about these issues and about U.S.
participation in the treaty. This is all outside of my Ocean
Commission responsibilities.
I want to tell you that we are being asked for help. In the
developing nations of the world, they need food sources from
fish. They want to protect their environment. They want energy
resources and they want to learn how to do it right; to do it
with good stewardship practices and good environmental
sensitivity. As an American attending these meetings, the
communications I get through these meetings has been, please
get on board; join the Law of the Sea Treaty. We know you have
50 universities who specialize in ocean science. We want them
over here teaching us how to do it right.
So I would close my comments with the note that we have a
wonderful opportunity to establish some leadership here in all
these fields and we are being asked to do it.
Senator Inhofe. Thank you, Mr. Kelly. I think that is an
excellent statement.
Let me just share with you my concern that I have when
these things come along. I am not likening this to other
treaties, but if you take the Kyoto Treaty, the train is going
so fast and everyone is saying, yes, all these good things are
going to happen, only to find out from the Wharton Econometrics
that ratification would end up costing us 1.4 million jobs. It
would cost us a doubling the cost of energy. It would add 65
cents to a gallon of fuel. Each family of four would have to
pay $2,710 more. Then we find out that since 1999, the science
has been on the other side. In fact, anthropogenic gases are
not causing climate change.
So I see this treaty coming up and I am thinking this is
pretty far-reaching. I just want to be sure within the purview
of the committee that I chair that there are not problems that
we are going to have to adhere with. I have been deeply
concerned about the sovereignty of this Nation. I know that
sounds perhaps a little prosaic, but I really believe when we
get into these multinational things that we need to be first
and foremost looking out after the interests of our country and
making sure that any treaty in which we engage does the same
thing.
Let me just ask any of you to take whatever time you want,
because this is a very significant thing, a very important
thing. This is covered by a lot of media and I do not want
anyone to walk out of here feeling that they did not have ample
opportunity to thoroughly express their concerns and their
interest in this treaty.
Let's go ahead and start with you, Mr. Oxman.
Mr. Oxman. Thank you, Senator.
Lawyers, as you know, Senator, are paid to worry about what
happens if things go wrong. That explains a lot of the verbiage
in legal documents.
Senator Inhofe. They normally hope they will go wrong.
[Laughter.]
Mr. Oxman. Things could go wrong, Senator. I cannot
preclude that. We foresaw that. Unlike the 1958 Conventions on
the Law of the Sea to which we are already a party; we are
party to all four; this convention contains a denunciation
clause. It contains a denunciation clause because we insisted
on it. It was my job to negotiate it. My colleagues were not
happy about it, but we got it. If we find that something goes
wrong and seriously, adversely affects our interests, we have a
legal right to pull out.
Moreover, the resolution of advice and consent rightly in
my view, worrying about that possibility, contains some
provisions regarding review that are designed to protect the
United States and protect the prerogatives of the Senate.
My second point is a positive note, and I will end on that
one, which I addressed in my prepared remarks. It is directly
related to some of the concerns you have expressed, Senator.
For many years in the Law of the Sea negotiations and in other
negotiations, the United States has tried to make clear that
environmental treaties must be carefully framed to produce a
reasonable accommodation of diverse interests. Some people have
characterized this as opposition to environmental protection.
Some of the extreme rhetoric used abroad has been particularly
damaging to our reputation in important allied countries.
The Senate now has a signal opportunity to set the record
straight. Its approval of the Convention and the implementing
agreement together, would suggest that there is every reason to
ensure that the multilateral agenda is pursued carefully, and
that as long as it may take, at the end of the day relevant
interests are reasonably accommodated. It would announce to the
world that when that is done, America will be on board.
Thank you, Senator.
Senator Inhofe. Thank you, Mr. Oxman. You have been an
excellent witness.
Mr. Leitner.
Mr. Leitner. Thank you, sir.
I would like to begin by saying that there are tradeoffs
with a treaty like this. The assertion that we are going to
enhance our sovereignty by becoming part of the Law of the Sea
Treaty I think turns reality on its head. I think it is an
absurd statement and if anything we are going to be trading off
an awful lot of sovereignty, an awful lot of freedom of action,
an awful lot of discretion on the part of the United States to
act in its national interest by getting away from a traditional
system of traditional rights and freedoms, to a system of
statutory regulation.
One of the things we have seen time and time again is that
once you go to a statutory system, a rule-bound system, your
own lawyers, State Department lawyers, DOD lawyers and others,
are going to hamstring, are going to constrain, and are going
to strangle the ability of the United States to act in a
unilateral way. It simply their nature; it is the nature of the
game. It is something that gets repeated consistently.
The issue of creeping jurisdiction is one that really we
need to look at in great detail. What I mean by this is
allowing this international organization to get its nose under
the tent, so to speak, and further erode sovereignty by
intruding into areas that it really does not have direct
jurisdiction.
I found it interesting that there was a case before the Law
of the Sea Tribunal back in November of 2001 called the MOX
case, for mixed oxide fuels. It was a case where the British
were building a mixed oxide fuel plant to use in control rods
and nuclear reactors, radiological material. It was on their
national territory within Great Britain. Ireland objected to it
and Ireland was trying to stop it and trying to get
environmental impact statements and other things. They went to
the Law of the Sea Tribunal in order to try to bring a case to
enjoin the British from not operating this plant.
The British Government argued that the Tribunal does not
have any jurisdiction in this area. It is a terrestrial system.
It is not on the ocean. It is not on the high seas. It is not
adjoining any high seas. It is right in the land territory of
Britain. But the court ruled anyway; the Tribunal took the case
even though it had nothing to do with the high seas other than
possible incidental pollution from runoff.
Like Frank Gaffney has stated, we think that these bodies
are on their best behavior right now while trying to woo the
United States into joining the treaty, basically trying to
sucker us into the treaty, and then the real excesses will
start coming out later. Do we know this for a fact? No. There
is no way of knowing what the future is going to hold, but we
do see trends now. The creeping jurisdiction in the MOX case I
think is a good example of the type of power-grab that will be
later on. It will be even more intrusive and we will have to
live with it if we are part of it.
In terms of denunciation clauses, it is nice to have a
denunciation clause. A country can always act in its national
interest anyway. It can always walk out of a treaty whether
there is a denunciation clause or not. We all see the result of
North Korea trying to use its denunciation clause under the
Nonproliferation Treaty, where the whole world is jumping all
over their neck trying to keep them inside the treaty, even
though they have a right to walk away from that treaty, as any
Nation would. I am not saying they should. I am just saying
they can and we will be in a similar position.
Also, the comments about PSI, Proliferation Security
Initiative. Based upon my reading of the treaty, my
understanding of the naval policy, my understanding of the
Freedom of Navigation programs, my understanding of how the
Defense Department works, the Chinese are right. The PSI would
be illegal if we acceded to the Law of the Sea Treaty because
the motivations, the pretext, and the jurisdictional areas that
we would exercise our rights, or supposed rights, of
interdiction, interception and boarding simply do not apply in
the context of the Law of the Sea Treaty. It does not allow it.
In fact, the Law of the Sea Treaty specifically states that
traffic in weapons is a normal commercial activity engaged in
by states. So a country like North Korea shipping missile parts
to Venezuela, let's say, that might eventually be used against
us, or shipping them to Cuba, we would have no right to
interdict it on the high seas. There could be radiological
material. It could be CBW. It could be almost any sort of
weapon of mass destruction. We have no right under the treaty
to interdict it because it does not fall within any of those
categories that the treaty allows.
We can always do it as a matter of national power. That is
without question and that is what we would do. But what is the
point of acceding to a treaty that we know we are going to have
to violate on a regular basis in order to protect our citizens?
This treaty puts us in that position. We do not need to be put
in this position. I do not think it is beneficial at all.
I think many of the benefits that accrue from our potential
membership in the treaty fall into the ``nice to have''
category. They are nice to have, the environmental provisions,
some of the issues that Mr. Kelly raised, they are all nice to
have. Are they essential to this nation? No. Can we achieve
every one of those goals outside of the treaty? Yes.
But what do we have to tradeoff in order to get those
``nice to have'' things which are not essential? We have to
tradeoff sovereignty. We have to create this international
body, basically help provide the wherewithal for an
international body to be created that has taxation powers; that
has the ability to regulate seven-tenths of the earth's
surface; has all kinds of supranational implications of world
government, which even though we act in a very sophisticated
way, at root those are the issues that are still there; that
have been there from day one; that are still there today. We
called it something different. We added a lot of ambiguity with
the 1994 agreement, but we have not gotten away from these
basic facts.
I would really like to express my appreciation for being
invited to speak today. I think you have done a great service
by allowing some of these issues to be aired that were not
allowed to be aired in the Senate Foreign Relations Committee.
Thank you.
Senator Inhofe. I thank you, Mr. Leitner. You have been a
very excellent professional witness and I appreciate your time.
Mr. Kelly.
Mr. Kelly. Before closing, I would like to address one
comment that was made by one of my colleagues here at the table
that some of the interests that were characterized as
supporting the treaty were characterized as having a narrow
interest. I would like to make the point that when we talk
about adding a potential 450,000 square kilometers that Senator
Murkowski mentioned to our potential resource base, that that
is not a narrow interest, that is a national interest.
I do not have to tell you as an Oklahoman, that you never
know whether there is a resource there until you drill a well.
That is certainly the case here. No one knows what is out there
at those distances and depths, but we have been surprised
recently with a well being drilled in 10,000 feet of water in
the Gulf of Mexico. We have been surprised at the resources
that appear to be far off shore in the ultra-deep water, so we
shall see.
The other comment I wanted to make is that on April 20, the
U.S. Commission on Ocean Policy will issue its first draft
report; 2\1/2\ years in the making. Under the Oceans Act of
2000, we are required to deliver a draft to the Governors for
their comments before we deliver it to the President and
Congress. So we are about there. When we issue the Governors
draft on the 20th, it will be the first time that our complete
report is available to the public for reading.
Our responsibility was to look at the potential of the
ocean and coastal areas of the United States in terms of both
need for stewardship and economic development potential. We
will be addressing a lot of those issues; on the stewardship
side, the need for better watershed management in this country;
the need to look at watersheds in terms of ecosystems; the need
to look at non-point source pollution in the watersheds and
elsewhere; and a range of stewardship issues dealing with the
land, the water and living marine resources.
In addition, we will be pointing out how fast world
commerce on ships is growing and the pressure that puts on our
ports and waterways. That also makes the point that as we have
more and more ships plying the world waters, these issues of
freedom of navigation become more important.
Indeed, 45 percent of the total tonnage coming into the
United States is in the form of petroleum products. We know how
rapidly our imports are growing. We are going from the 50
percents up to the 60 percents very shortly. So we are somewhat
vulnerable there, and I think one of the reasons that the
downstream sector of the petroleum industry supports the treaty
is that they would like to have the security of freedom of
navigation on the high seas and through the straits and
archipelagos because the whole world is going to be getting
more dependent on the security of the shipment of energy. We
have liquefied natural gas ships coming on as well, which will
add another dimension to shipping.
Then there is all the new potential products that are being
developed from ocean resources; aquaculture, a very interesting
and rapidly growing industry that could serve to take some of
the pressure off of the fish stocks that are depleted. We have
interesting new pharmaceutical products including cancer cures
that are being discovered in marine organisms.
So we live in an extremely interesting time in terms of
ocean resources and our Commission hopes to issue a wake-up
call on all these issues. I would just like to say to you that
part of our mission is to bring knowledge on these issues and
show leadership with respect to them on a global basis.
In concluding, I would just say that we think we can do a
better job of that if the United States accedes to the treaty.
Senator Inhofe. Thank you very much, Mr. Kelly. I can
certainly identify with you in the concern about the energy
problem that we have in this country and the frustration that
I, from an oil State, feel in not having been able to partially
resolve it when there are some very obvious solutions to the
problem.
As you well know, we are quite a marginal well State, and
people do not realize the vast reserves that are there, the
potential that is there in some of the shallow production that
I worked on some 50 years ago. So hopefully, we will do a
better job. Thank you for your participation.
Mr. Gaffney?
Mr. Gaffney. Mr. Chairman, I particularly appreciate the
opportunity to summarize some of my thoughts at this point, as
I will not have a chance to speak to the Armed Services
Committee or perhaps other committees.
As I think Dr. Leitner said, I want to stipulate that
people want us in the treaty at the moment. I do not think
there is any disputing that, whether they want us in there for
the best of reasons or for some of the more sinister ones that
we can, I think, reasonably anticipate. This is not just a
question of could things go wrong, but like you, I think, Mr.
Chairman, I have been very concerned to see the growing
insistence, for example in Iraq, that the United Nations be the
organization that supplants the United States in trying to
bring about the liberation and consolidate it. That is not
something going wrong. That is sort of a trend that we have
seen, and lots of our allies, many of your colleagues for that
matter, want that to go forward.
Similarly, as I mentioned in my opening remarks, we have
seen in the Oil for Food scandal things going wrong, where the
U.N. bureaucracy, or at least parts of it, relatives in some
cases of senior officials apparently enriching themselves
through a process that has far smaller amounts, still
significant to be sure, but far smaller amounts at stake than
this treaty could possibly result in over time, particularly if
Mr. Kelly is right that we wind up seeing whole new industries
that are currently gleams in the eye or in their infancy
developing in the world's oceans.
As to this question of whether or not we will enjoy this
new sort of gold rush, if you will, bonanza off the coast of
Alaska, if I understood him right, and I think I did, that is
entirely possible if we get the permission of one of these
commissions associated with the treaty. Maybe we will. Maybe we
will get it under certain conditions and restrictions. Maybe we
will get a piece of it. Maybe they can have a piece of it.
Because again going back to something Dr. Leitner said at the
beginning based on his experience, which I gather is almost as
lengthy as Mr. Oxman's, the genesis of this treaty, at least in
the minds of many of its proponents decades ago, was how do we
distribute the wealth from the industrialized world to the not
industrialized world? Again, that is part of the concern that
goes to your question about multilateralism versus sovereignty.
On this matter, we keep touching on it, of the freedom of
the seas. I believe we are less likely to be assured of all of
the good things that are presented here, of free passage
transit through straits and so on, if we rely predominantly on
international law rather than the power and the credibility of
the United States Navy. Maybe Senator Warner would call that an
extreme remark. I do not know.
I happen to believe it, and I think given his history in
the United States Navy, maybe he would, too, but that is one of
those questions that the Senate ought to deliberate long and
hard about. I believe the two are incompatible here. It pains
me to say that because, of course, we have had a number of
admirals cited as supporters of this treaty, including the
current Chief of Naval Operations. In the committee, I gather
you will hear from him over on the Armed Services side.
I am concerned that what the Navy has bought into here is a
notion that on the face of it seems consistent with their
interests and will over time be counterproductive to those
interests. That is a sort of second-order problem, but I will
be interested to see several years down the road how this sorts
out.
In regard to that, Mr. Chairman, there are two provisions
that I think Peter and I both alluded to that this committee,
other committees, the Senate as a whole needs to address. Are
there impacts as a result of provisions of this treaty on the
collection of intelligence and submerged transit in territorial
waters? The proponents assure us rather blithely, I am afraid,
that there are no such problems. I think a straightforward
reading of it suggests that there will be problems.
Particularly, going back to something Peter said, since this
treaty was drafted, decades before 9/11, the Senate has an
obligation to evaluate it in light of a post-9/11 world. I
suggest to you that is a world in which we need as much
intelligence and we need to be operate submarines that among
other things do the collection of intelligence, as you know, in
territorial waters. We would not want there to be new
inhibitions, and by the way, some of those may be self-imposed
inhibitions, once there is a treaty to which we are party.
Finally, Mr. Chairman, if nothing else, I hope today's
hearing has illuminated that there are real questions. With all
due respect and I worked for Secretary Taft in his biggest
incarnation in the Defense Department. I do not know Mr.
Turner, but I find it troubling that when you asked the direct
question, what happens if we have to stop a ship, they do not
have a ready answer. They will have a ready answer I am sure in
due course, but this should not be something about which there
is any uncertainty at all. Neither should there be uncertainty
about the numerous other points that we have raised. Is the
1994 agreement something that supersedes in effect, because if
it is correct, it fundamentally alters this treaty. I do not
know, but I think you need to.
I think, Mr. Chairman, just going back to my opening point,
you deserve great credit for having convened this hearing. I
must tell you that I am not sure Senator Warner would have
convened this hearing but for the fact that you indicated that
you were going to. My initial feedback from his staff, who I
mentioned in this testimony, was that they did not think a
hearing was necessary in the Armed Services Committee. That
continues, as best I can tell, to be the case in the Commerce
Committee, in the Intelligence Committee, in the Finance
Committee, in the Governmental Affairs Committee, the Energy
Committee and the Judiciary Committee. Each of whom, I suggest
to you, have an interest or will have interests affected by
this treaty.
So again, I commend you, Mr. Chairman, for taking the time
to do this; for bringing it before your panel; for giving us
who are skeptical about the all this a chance to testify. Since
what is in my estimation at stake here is nothing less than the
sovereignty of the United States, this kind of attention is the
least that the American people can expect from their elected
representatives in this body.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Gaffney. That was an
excellent statement.
I thank all of you for your patience. I am not known for
long hearings. I prefer short hearings, but in this case I
thought it was necessary to get a real education and I think I
have accomplished that. Hopefully, others did, too.
Thank you very much for your time.
We are adjourned.
[Whereupon, at 4:45 p.m. the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Ted Stevens, U.S. Senator from the State of Alaska
Chairman Inhofe, thanks for inviting me to testify at this hearing
today on ratification of the U.N. Convention on the Law of the Sea. In
1969, my first full year in the Senate, Senator Warren Magnuson asked
me to monitor the Law of the Sea negotiations. As a freshman minority
member then, and assigned to attend all of those negotiations, I
learned a great deal from the discussions on the Law of the Sea that
took place all over the world. I gained valuable perspectives on the
need for international cooperation on the management of the world's
oceans at meetings held in Caracas, Paris, London, Geneva, and at the
United Nations in New York. I traveled with John (``Jack'') Stevenson
the Legal Adviser for the State Department from 1969 to 1973 to many of
these places and worked with former Senator Claiborne Pell during the
1990's on the Law of the Sea.
My objections to the Law of the Sea Treaty during those times
focused largely on fisheries concerns, and namely protecting U.S.
interests in living marine resources off our coastline.
It was these concerns that led to the work on the Magnuson-Stevens
Act and extending coastal State jurisdiction to 200 miles. Before
passage of the Magnuson-Stevens Act fisheries around the world,
including those off the coast of Alaska, were being overfished,
primarily by distant foreign fleets. These fleets engaged in ``pulse
fishing'' in U.S. waters. ``Pulse fishing'' exploits one fishery until
its collapse and then moves on to another fishery and decimates those
stocks. This practice was devastating for our fisheries, and until the
200mile exclusive economic zones were established there was very little
international cooperation to manage or to protect shared fisheries.
Now, many of the provisions in the Law of the Sea Convention are
consistent with the Magnuson-Stevens Act on living resource management,
conservation and exploitation. In addition, the current resolution of
advice and consent that Chairman Lugar of the Foreign Relations
Committee has developed for ratification includes understandings and
report language that further protect U.S. interests in abundant and
sustainable fisheries. This is critical for fisheries off the coast of
Alaska in the North Pacific where there are extremely conservative
harvest caps in place that have allowed for increased abundance of
fisheries resources.
These understandings provide the exclusive right for coastal States
to determine the allowable catch of the living resources in its
exclusive economic zone, whether it has the capacity to harvest the
entire allowable catch, whether any surplus exists for allocation to
other States, and to establish the terms and conditions under which
access may be granted--such determinations are not subject to binding
dispute resolution under the Convention.
Other protections for our Nation's fisheries have also been
included in the Convention on the Law of the Sea, some of particular
interest to me in my career in the Senate are:
1. The Moratorium on High Seas Drift Nets.--In 1987, the Driftnet
Impact Monitoring, Assessment, and Control Act directed the Secretary
of State to negotiate observer and enforcement agreements with nations
whose vessels used large-scale driftnets on the high seas. It also
began the process that eventually led to the U.S. recommendation that
the United Nations adopt our suggestion for a global moratorium on
large-scale driftnet fishing on the high seas.
2. The Agreement on Conservation and Management of Straddling Fish
Stocks and Highly Migratory Species.--The ``Convention on Conservation
and Management of Pollock Resources in the Central Bering Sea''
otherwise know as the ``Donut Hole,'' and the ``1995 U.N. Fish Stocks
Agreement'' attempted to better define the obligations and redress for
countries where highly migratory species and straddling fish stocks
originate.
The Donut Hole agreement was the model for the global treaty that
became the 1995 U.N. Fish Stocks Agreement. I carried the commitment to
ratify this agreement to the United Nations General Assembly, and the
United States did the right thing by ratifying it in August 1996. I
believe the ``Donut Hole'' and U.N. Fish Stocks Agreements cleared up
many concerns that had been voiced about the efficacy of enforcing
living marine resource laws internationally under the Convention. The
agreements have proven to be critical first steps toward cooperative
international management of transboundary stocks.
The Law of the Sea Convention incorporated the 200-mile exclusive
economic zones and placed substantive restrictions, such as the
moratorium on large-scale driftnets, on the freedom of fishing on the
high seas under Article 87. These are real protections that will allow
for conservation and management of the world's shared living marine
resources. They establish a precedent that, particularly on the high
seas outside the jurisdiction of any country, destructive fishing
practices will not be tolerated. These important provisions make the
Law of the Sea Convention a much better body of international law.
I am pleased with the declarations for U.S. accession to the treaty
that the Administration worked out with the Foreign Relations
Committee. Specifically, these declarations confirm the right and
sovereignty of the United States to manage our natural resources, both
living and nonliving, in our exclusive economic zone. The Law of the
Sea can provide us with the comprehensive legal framework we need to
maximize our use of the oceans' resources, while ensuring their
healthiness and productivity for generations to come. Thank you.
______
International Fisheries and The Law of the Sea Convention
ted stevens*
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*U.S. Senator, Alaska
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I am delighted to have an opportunity to be here with you and
extend my thanks to the University of Virginia School of Law and
particularly to Professor John Norton Moore, Director of the Center for
Oceans Law and Policy. If I have been successful, John, it is because I
have been blessed with a long string of able Alaskans, including Earl
Comstock of my staff who is here tonight.
This seminar serves as a tribute to John R. (``Jack'') Stevenson,
and I have a special spot in my heart for Jack. As you know, Jack was
the Legal Adviser for the State Department from 1969 to 1973, and I met
with him often in those days. That was my first real year in the
Senate, in 1969, and I remember so well when Senator Warren Magnuson,
with whom I had contact during the Eisenhower days, asked me whether I
would like to monitor the Law of the Sea negotiations. Of course I did,
so he assigned me as a freshman minority member to attend all of those
negotiations, and working with Jack Stevenson was one of the rewards of
that assignment. We met often in New York, Geneva, and Caracas. I hope
you will carry to him my best wishes. We do have great admiration and
fondness for Jack Stevenson in my office.
It may seem like an exaggeration to some people to describe to you
the Senate movement as ``towards'' consideration, much less
ratification, of the Law of the Sea Convention. I have talked to
Senator Helms, Chairman of the Senate Foreign Relations Committee,
about it. He has a pretty clear expression so far about his concerns
with the Convention. They are not new issues. I do not think they have
scheduled any hearings yet and I seriously doubt that we will get any
soon. I know that you know I have some reservations about some aspects
of the Convention and I appreciate your inviting me to be here. I do
want to tell you that in my judgment the Senate is not simply ignoring
the advantages of having the United States formally adopt the Law of
the Sea. We have listened to presentations by Ambassador David Colson
and others in support of ratification, and are reviewing the contents.
And Senator Claiborne Pell has had a series of meetings, as have
others, with those who are involved in negotiations to try to generate
more interest in moving the Convention in the Senate. Also, we are now
aware fully, of course, of the military's position in support of
ratification.
Tonight, I ask you to allow me to set aside the concerns that many
have concerning the deep seabed mining provisions, and address, the
area that is of great concern to me and important to my home state of
Alaska--the portion of the Convention that deals with fisheries. I know
that two people are here tonight who have done a great deal in this
area--Maggie Hayes of NOAA [National Oceanic and Atmospheric
Administration] and David Balton of the Department of State. These two
have worked with us on these international issues and they deserve a
great deal of credit for the success that I am going to speak to you
about. First, I will review briefly for you the history of the 200-mile
exclusive economic zone and then the recent international fishery
agreements, which I believe must be fully protected in the Convention
if we are to ratify the Convention. I worked with Howard Baker for 8
years as the assistant [Republican] leader when he was leader and he
used to say to me, ``Teddy, if you don't toot your own horn no one will
toot it for you.'' If I am tooting here, a little bit, I hope you
remember that there are many other people, including the two I just
mentioned, who did a lot of the work that I am talking about.
I have taken the time to mentally review things along with my
assistant, Earl Comstock, and I think this goes back literally to that
first year, 1969, when I first took the role that Senator Magnuson
asked me to take on. It was then that I was fortunate enough to meet
Jack Stevenson. Fisheries around the world, including the fisheries off
Alaska, were very much over-fished primarily by distant water fleets.
There was very little international cooperation to manage or to protect
those fisheries. We were a new state. We had only been a state for 10
years in 1969 and we knew we had to have more protection for our
fisheries. After all, fisheries then and now are the No. 1 area of
employment for Alaskans. I remember debating on the Senate floor in
1969 and in the early 1970's whether we should extend coastal State
jurisdiction to 200 miles. I was not certain that we could implement
that south enough to protect our fisheries.
It was not until 1971 that I introduced the first 200-mile bill, S.
46, although we had discussed it many times before. S-46 really was a
unilateral offer by the United States to extend jurisdiction to 200
miles. At that time my thoughts were very extreme. By 1975, I had
enlisted Senator Magnuson's help, and he sponsored the bill in that
Congress and said he would work with me to get it done. There were
others urging that we should not move forward to the 200-mile bill
until we had ratified the product of the Law of the Sea negotiations.
Those of us who supported passing that bill by then had named it the
Fishery Conservation and Management Act. Later I was the one who
offered the motion to name it in honor of Senator Warren Magnuson. I
believe now we were ahead of the game by at least 20 years.
The Magnuson Act passed in 1976, yet we are still in the position
where we have not ratified the Law of the Sea Convention for many other
reasons. In fairness I think we would all agree that we do abide by
most of the principles that have been the result of the negotiations we
have all watched over these years. In my judgment, the fisheries off
the United States received a significant increase in protection when we
did extend our national jurisdiction Fisheries in other parts of the
world also have received increased protection as they have extended
their jurisdiction similarly. And now, 90 percent of the fisheries that
are harvested off the United States are within the fishery conservation
zone, which we call the ``exclusive economic zone.''
We have tried now to move beyond that 200-mile limitation, as you
know, to stop fishing on the high seas. Ambassador Satya Nandan and I
were talking about that and his efforts as chairman the U.N. Conference
on Straddling Fish Stocks and Highly Migratory. Fish Stocks. As you
know the salmon fishery is very important to us. We fought hard to stop
the high seas interception salmon by the Japanese, Koreans, and
Taiwanese. At first we had an international agreement on high seas
fishing for salmon in North Pacific--an agreement entered into by the
United States, Japan, and Canada in 1954. In 1978 and 1985 it was
renegotiated and strengthened in an attempt to stop over-fishing.
In the early 1980's, a young fisherman from Alaska took an airplane
to Seattle and flew here to Washington, bringing with him a large box
which he put in the middle of my desk. I had met him just once before,
and that was my first introduction to a piece of a driftnet. He had
lost his complete propeller unit because he had run into a driftnet
that had been cut loose in our Alaska waters. After that we received
increasing information about the significant impact that the large-
scale driftnets were having on our fisheries.
I was Chairman, at that time, of the Ocean Subcommittee in the
Senate, and we had hearings on the high seas driftnets. We received
some opposition from the State Department spokesmen because they
thought that the actions that we sought to take would violate the
general rights of fishing vessels to fish on the high seas, embodied in
article 116 of the Convention. We did back up a little bit and then
passed another bill. I introduced the Driftnet Impact Monitoring,
Assessment, and Control Act in 1987. That Act directed the Secretary of
State to negotiate observer and enforcement agreements with nations
whose vessels used large scale driftnets on the high seas. At that time
I viewed the Driftnet Act as consistent with article 118 of the
Convention,' which says that ``States shall cooperate with each other
in the conservation and management of living resources'' on the high
seas. That action by the United States is still considered extreme by
many nations who continue to oppose any high seas fishing restrictions,
and they have often argued that the Convention did not allow any
restrictions on high seas fishing.
Once the Driftnet Act, was passed, we began to learn more about the
impact of driftnets, particularly on other sea life--sea birds and many
other species--and we enlisted the aid of many organizations. I went to
the United Nations to see if we could completely ban the use of
driftnets worldwide. Other nations were concerned, too, particularly
about the unrestricted use of such fishing gear, and they began to
support the ban. We have this fraternity of people who go to various
negotiations. They have made fast friendships with many people, as I
have with Tom Pickering, who is now in Moscow. In 1989, he was at the
United Nations as our Ambassador and he led a successful fight to stop
driftnets. Ten other Senators had joined with me in approaching
Ambassador Pickering to request such action by the United Nations. I
think that was a significant action--one for which Tom Pickering
deserves a lot of credit and so does Earl Comstock. He wrote the
resolution on which the United Nations took action.
In 1989, the U.N. General Assembly adopted a resolution to
establish a global moratorium on large-scale driftnet fishing on the
high seas. Since then they have adopted two more resolutions and have
made three decisions to strengthen that moratorium. The driftnet ban
and extension of the exclusive economic zone (EEZ) to 200 miles were
the two most important initiatives, in my opinion, in the past quarter-
century to conserve the fishery resources of the' world: the 200-mile
limit because it gives the adjacent nation, which has the most direct
stake, authority to conserve the fisheries close to its shore; and the
driftnet ban because it sets the precedent that, even on the high seas,
destructive fishing practices will not be tolerated by the world. . The
200-mile limit was explicitly adopted by the Convention; however, the
U.N. action imposed by the moratorium on driftnets could be challenged
sunder the Convention's mandatory dispute settlement procedures. As, I
understand it, under Part XV of the Convention, any dispute concerning
the interpretation or application of the invention is required, at the
request of any signatory, to be submitted to compulsory dispute
settlement proceedings. A dispute can be heard by an international
tribunal under Annex VI, a general arbitration panel under Annex VII,
or a special arbitration panel under Annex VIII. As most of you
probably know, the decisions made under the tribunal or two panels
cannot be appealed If challenges are made and dispute panels favor
unrestricted high seas fishing, precedents such as the U.N. resolutions
banning driftnets could be weakened or overturned by such challenges.
That kind of vulnerability is, what worries me and what brings me
before you tonight.
In the past 5 years, we have witnessed the development and maturity
of a new kind of regional high seas fishery agreement. These agreements
also may be vulnerable under the Convention. Regional internationals
agreements are to me the key to improved fishery conservation in the
next 25 years. Like the 200-mile limit, regional agreements provide
nearby nations, working together and driven by an immediate interest,
to form a forum in which to strive for sound conservation and
management measures. Some of you, as Ambassador Satya Nandan and I
discussed, are familiar with the treaty in the Central Bering Sea, the
Doughnut Hole as it is commonly known, which is the patch of
international waters between the 200-mile limit off the coast of Russia
and 200-limit off of our state of Alaska. Negotiations began in 1998
when the Senate adopted a resolution that I offered to call for a
moratorium on fishing in the international waters in the Central Bering
Sea. Foreign fishing vessels were using the Doughnut Hole as a staging
area for illegal fishing. These vessels would fish on the periphery of
the United States or Soviet 200-mile zone and when the enforcement
vessels were not looking would dart into our waters and use these large
trawl nets with staggering impact on the stocks of Aleutian Basin
pollock which were then collapsing. The Senate resolution did lead to
initiation of the negotiation between six nations that had' fished in
the Doughnut Hole: the United States, Russia, Japan, China, Korea, and
Poland.
In 1992, Congress went further, passing another bill that I crafted
that would deny U.S. port privileges to any foreign vessel that fished
in the Doughnut Hole unless the fishing was done under an agreement to
which both the United States and Russia were parties. This law, called
the Central Bering Sea Fisheries Enforcement Act, also prohibited U.S.
vessels from fishing in the Doughnut Hole in the absence of an
international regime. We closed it to everyone. That .was passage of a
tough law with enforceable sanctions and, like the passage of the
Driftnet Enforcement Act before it, it got the attention of fishing
nations. They agreed to a 2-year moratorium on fishing in the Doughnut
Hole, and during that time the parties entered intense negotiations.
Even then many observers did not believe an agreement between these
different nations was possible or that other nations would respect it.
At the end of the 2-year moratorium--in June 1994--the six nations
signed a new treaty to conserve and manage pollock within the Central
Bering Sea. The Doughnut Hole Treaty set the precedent of authorizing
the United States and Russia, as the coastal States nearest the Central
Bering Sea, to establish harvest levels for the area if harvest levels
could not be agreed to by all six countries. That treaty also set the
precedent of allowing officials from Russia and the United States to
board vessels suspected of violating the Doughnut Hole agreement.
Aleutian basin pollock stocks in the Doughnut Hole are now recovering,
and fishing is expected to commence again under a new regional
agreement in just a year or two. These stocks could not have recovered
without the type of cooperation or the potential sanction that was
involved in the action by the U.S. Congress.
We believe the Doughnut Hole Treaty is consistent with the
Convention, in particular article 63, dealing with fish stocks that
occur both within and beyond a nation's EEZ (which are known, as you
know, as ``straddling'' stocks). Article 63 says that the coastal State
and any State whose vessels fish for the straddling stock should seek,
either directly ``or through appropriate subregional or regional
organizations,'' to conserve the stock. However, the Doughnut Hole
Treaty provisions which allow the United States and Russia to set the
harvest levels and to board vessels are not specifically addressed by
the Convention. If weakened or overturned by the Law of the Sea dispute
panel, we would have no recourse for appeal. It would be a major, major
setback for the nations of the North Pacific if agreements such as the
U.N. driftnet moratorium and the Doughnut Hole Treaty were to be
overturned by procedures contained within the Law of the Sea
Convention.
Despite these concerns, which I hope you understand, I have always
been open to debate on whether the Senate should commence ratification
procedures for the Convention. Some argue the United States could be
more effective in protecting fishery agreements, which I have addressed
tonight, by adopting the Convention. I am willing to listen and willing
to be shown that it is true. I am also considering arguments made by
those who believe we would be better off by involving ourselves in the
initial administrative decisions under the Convention rather than being
outside of that process. They mention, for instance, selection of
judges for dispute settlement panels. As you know, having been around
for more than a quarter century, it does not seem to me that we should
ever base a judgment on a convention, treaty, or an act of Congress
that derives a temporary security from the participation of particular
individuals in the initial administrative decisions. Agreements like
the Convention must be clear enough to prevent misinterpretation by
succeeding officials. We cannot rely entirely on the decisions and
precedents set by the initial participants.
My personal feeling is that, notwithstanding continued
reservations, members of the Senate may be and, I believe are,
gradually warming up to the idea of ratifying the Convention. Though my
focus is on fisheries, the primary reason I think the United States has
not joined the Convention still lies in the same place it did in
President Carter's days--our concerns about the Convention's deep
seabed mining provisions. Proponents, including the present
Administration, tell us that the now agreement reached last year on
seabed mining addresses these past concerns; the key to Senate
ratification is simply to convince those who believe otherwise. The
United States was heavily involved in the development of many basic
concepts included in the Convention, and, for the most part, I think we
all support the Law of the Sea principles. As I said, we have not
interfered with the assumption that we should live under those
principles as a general agreement with the world.
As you know, there is a negotiation currently underway at the
United Nations in New York to address the straddling stock and the
highly migratory species issues. I understand that tomorrow morning's
panel will address that specifically. It is the position of the United
States, and of the Chairman's draft of the proposed treaty, that this
new agreement would be consistent with all of the provisions in the
Convention. I certainly hope that the final agreement clearly and
unequivocally states the position that statement reflects. If the
negotiation in New York on the straddling stocks issue is successful in
incorporating the advances that have been made through the U.N.
moratorium on driftnets and the Doughnut Hole Treaty in a new agreement
that is broadly supported, then I think the concerns I have tried to
articulate here will have been answered. And hopefully we will obtain
similar clarification with respect to the seabed mining issues, which
others continually raise as I have indicated. I have not raised, those
concerns, but I do believe we should get the clarification so that the
Senate of the United States should give its full consent to this
Convention that we have all lived with over these past almost 30 years.
It is nice to be with you and I appreciate your interest. Thank you
very much.
__________
Reference Letters to Senator Jeffords' Opening Statement
U.S. Commission on Ocean Policy,
Washington, DC, March 19, 2004.
Hon. James M. Jeffords, Ranking Member,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC.
Dear Senator Jeffords: Thank you for inviting Commissioner Paul L.
Kelly of the U.S. Commission on Ocean Policy to testify before your
Committee on the important subject of United States accession to the
Unite Nations Law of the Sea Convention.
On October 14, 2003, I appeared before the Senate Committee on
Foreign Relations concerning United States accession to the Law of the
Sea Convention. I am forwarding herewith a copy of my testimony on that
occasion together with associated documents I submitted for the record
as additional information which I hope will be helpful to your
Committee. Commissioner Kelly and I share the unanimous and strongly
held position of all 16 Presidentially appointed members of the U.S.
Commission on Ocean Policy in favor of United States accession to the
United Nations Law of the Sea Convention.
Thank you again for seeking the views of the U.S. Commission on
Ocean Policy on this important matter.
Sincerely,
James D. Watkins,
Admiral, U.S. Navy (Retired),
Chairman.
______
ATTACHMENT
Statement by Admiral James D. Watkins, USN (Retired), Chairman, U.S.
Commission on Ocean Policy, October 14, 2003
Mr. Chairman, thank you for inviting me to testify before your
Committee today on the important subject of United States accession to
the United Nations Law of the Sea (LOS) Convention.
The U.S. Commission on Ocean Policy has taken a strong interest in
the international implications of ocean policy since the inception of
our work. Our 16 Commissioners were appointed by the President--12 from
a list of nominees submitted by the leadership of Congress--and
represent a broad spectrum of ocean interests. The Oceans Act of 2000
(P.L. 106-256) specifically charged our Commission with developing
recommendations on a range of ocean issues, including recommendations
for a national ocean policy that ``. . . will preserve the role of the
United States as a leader in ocean and coastal activities.''
With this charge in mind, the Commission took up the issue of
accession to the LOS Convention at an early stage. At its second
meeting in November 2001, the Commissioners heard testimony from
Members of Congress, Federal agencies, trade associations, conservation
organizations, the scientific community and coastal states. We heard
compelling testimony from many diverse perspectives--all in support of
ratification of the LOS Convention. After reviewing these statements
and related information, our Commissioners unanimously passed a
resolution in support of United States accession to the LOS Convention.
The fact that this resolution was our Commission's first policy
pronouncement speaks to the real sense of urgency and importance
attached to this issue by my colleagues on the Commission.
The Commission's resolution was forwarded to the President, Members
of Congress, the Secretaries of State and Defense, and to other
interested parties. I have enclosed a copy of our resolution, and the
accompanying transmittal letters, for the record.
The responses we received have been very positive. Secretary of
State Colin Powell wrote that he ``shared our views on the importance
of the Convention,'' and Admiral Vern Clark, Chief of Naval Operations,
stated that he ``. . . strongly believe[d] that acceding to this
Convention will benefit the United States by advancing our national
security interests and ensuring our continued leadership in the
development and interpretation of the law of the sea.''
Ensuing hearings, and the additional information we have gathered,
have served to reinforce our conviction that ratification of the LOS
Convention is very much in our national interest. I would like to share
with you some of the reasons that our Commissioners have unanimously
adopted this view of the Convention.
The LOS Convention was described by those who appeared before the
Ocean Commission as the ``foundation of public order of the oceans''
and as the ``overarching framework governing rights and obligations in
the oceans.'' The United States was involved in all aspects of the
development of the Convention, including reshaping the seabed mining
provisions in the early 1990's. As a consequence, the Convention
contains many provisions favorable to U.S. interests.
However, the foundation that the LOS Convention provides is subject
to interpretation and will no doubt continue to evolve through time.
The United States needs to be an active leader in this process, working
to preserve the carefully crafted balance of interests that we were
instrumental in developing, and playing a leadership role in the
evolution of ocean law and policy. Acceding to the Convention will
allow us to fully and effectively fulfill that leadership role, and
will enhance United States economic, environmental and security
interests.
For example, there are a series of issues currently being
considered by parties to the Convention which could have tremendous
economic implications for the United States.
Of particular importance is the work of the Convention's Commission
on the Limits of the Continental Shelf, which is charged with reviewing
claims and making recommendations on the outer limits of the
Continental Shelf. This determination will in turn be used to establish
the extent of coastal state jurisdiction over Continental Shelf
resources. There are several reasons why direct U.S. participation in
this process would be beneficial, namely:
The LOS Convention sets up the ground rules by which
coastal nations may assert jurisdiction over exploration and
exploitation of natural resources beyond 200 miles to the outer edge of
the continental margin. This is particularly important to the United
States, which is one of only a few nations in the world with broad
continental margins.
The continental margins beyond the United States'
Exclusive Economic Zone (EEZ) are rich not only in oil and natural gas,
but also appear to contain large concentrations of gas hydrates, which
may represent an important potential energy source for the future.
The work of the Continental Shelf Commission in
establishing clear jurisdictional limits creates a degree of certainty
crucial to capital-intensive deepwater oil and natural gas development
projects. Industry representatives stressed to us the importance of
this certainty not only for potential investment in energy resource
development beyond our own EEZ, but in U.S. industry participation in
approved development projects undertaken on other nation's Continental
Shelves.
The work of the Continental Shelf Commission is now at a critical
stage. All current parties to the LOS Convention must submit their
Continental Shelf claims prior to 2009. The Commission's action on
these submissions will directly impact U.S. jurisdictional interests,
particularly in the Arctic. If we do not become a party to the LOS
Convention, we are in danger of having the world leave us behind on
issues of Continental Shelf delimitation because we will continue to be
ineligible to participate in the selection of members of the Commission
or nominate U.S. citizens for election to that body.
Acceding to the LOS Convention will also allow the United States to
play an active leadership role in a host of other issues of economic
importance. As a party to the Convention, the U.S. can participate
fully in International Seabed Authority efforts to develop rules and
practices that will govern future commercial activities on the deep
seabed. Currently, the U.S. is relegated to observer status.
As a party to the Convention, the United States will also be in a
much stronger position to ensure the preservation of the balance
between coastal state authority and freedom of navigation. The United
States, whose international trade and economic health relies so heavily
on maritime commerce, cannot afford to remain on the sidelines while
parties to the LOS Convention make decisions that directly impact
navigational rights and maritime commerce.
Further, the LOS Convention provides a comprehensive framework for
protection of the marine environment. The Convention includes articles
mandating global and regional cooperation, technical assistance,
monitoring and environmental assessment, and establishing a
comprehensive enforcement regime. The Convention specifically addresses
pollution from a variety of sources, including land-based pollution,
ocean dumping, vessel and atmospheric pollution, and pollution from
offshore activities. The principles, rights and obligations outlined in
this framework are the foundation on which more specific international
environmental agreements are based.
The United States is party to many international agreements--
including conventions pertaining to vessel safety, environmental
protection and fisheries management--which are based directly on the
LOS framework. Those United States representatives who participate in
the negotiation of these agreements are among the strongest advocates
for accession to the LOS Convention.
For example, the Coast Guard, which has played a lead role in
developing international agreements on maritime safety, security and
environmental protection at the International Maritime Organization
(IMO), and also participates in fisheries negotiations, told our
Commission that: ``[A] failure to accede to the Convention materially
detracts from United States credibility when we seek to advance our
various ocean interests based upon Convention principles. Also, as a
non-party, we risk losing our ability to influence international oceans
policy by leaving important questions of implementation and
interpretation to others who may not share our views.'' In testimony
before our Commission, then-Commandant Admiral James Loy, and more
recently the current Commandant, Admiral Thomas Collins, both strongly
supported United States accession to the LOS Convention.
From a security perspective, the LOS Convention provides a balance
of interests that protect freedom of navigation and overflight in
support of United States' national security objectives. The provisions
were carefully crafted during negotiation of the LOS Convention, and
reflect the substantial input that the United States had in their
development. In particular, the Convention provides core navigational
rights through foreign territorial seas, international straits and
archipelagic waters, and preserves critical high seas freedoms of
navigation and overflight seaward of the territorial sea, including in
the EEZ. The navigational freedoms guaranteed by the Convention allow
timely movement by sea of U.S. forces throughout the world, and provide
recognized navigational routes which can be used to expeditiously
transport U.S. military cargo--95 percent of which moves by ship.
The Convention's law enforcement provisions establish a regime that
has proven to be effective in furthering international efforts to
combat the flow of illegal drugs and aliens by vessel--efforts which
directly impact our nation's security. The Convention establishes the
rights and obligations of flag states, port states, and coastal states
with respect to oversight of vessel activities, and provides an
enforcement framework to expeditiously address emerging maritime
security threats.
However, there have been several instances of unilateral assertions
of jurisdiction which seem to disregard the Convention's clear meaning
and intent relative to freedom of navigation and overflight. The United
States has unilaterally challenged some of the more excessive coastal
state claims, relying on the navigational freedoms reflected in the
Convention. There are also emerging issues that address the balance of
interests between navigational freedoms and coastal state authority.
The United States has important interests both as a coastal state and
as a major maritime power. We will be in a much stronger and more
credible position to challenge excessive claims, and to shape the
future of issues and outcomes that impact our interests, if we are a
party to the Convention.
There are many other examples of benefits that would be derived
from U.S. accession to the LOS Convention. For example, the U.S.
research fleet frequently suffers costly delays in ship scheduling when
other nations fail to respond in a timely manner to our research
requests. Currently, we are not in a position to rely on articles in
the Convention that address this issue, such as the ``Implied Consent''
article (Article 252) that allows research to proceed within 6 months
if no reply to the request has been received, and other provisions that
outline acceptable reasons for refusal of a research request. Also, as
a party to the Convention, the U.S. could participate in the member
selection process, including nominating our own representatives, for
the International Law of the Sea Tribunal, as well as the Continental
Shelf Commission and the various organs of the International Seabed
Authority that I have previously mentioned. U.S. accession to the LOS
Convention has received bipartisan support from past and current
Administrations. On November 27, 2001, Ambassador Sichan Siv, U.S.
Representative on the United Nations Economic and Social Council, in
his statement in the General Assembly on Oceans and Law of the Sea,
said: ``Because the rules of the Convention meet U.S. national
security, economic, and environmental interests, I am pleased to inform
you that the Administration of President George W. Bush supports
accession of the United States to the [LOS] Convention.'' More recently
the G-8 Summit held in June, 2003, produced a G-8 Action Plan for
Marine Environment and Tanker Safety which stated: ``Specifically, we
commit to: [1.1] The ratification or acceding to and implementation of
the United Nations Convention on the Law of the Sea, which provides the
overall legal framework for oceans.''
Mr. Chairman, the input received by the U.S. Commission on Ocean
Policy reflects a broad consensus among many diverse groups in favor of
ratification of the LOS Convention. Over 140 nations are party to the
Convention. As I have described, there are many important decisions
being made right now within the framework of the Convention which will
impact the future of the public order of the oceans and directly impact
U.S. interests. Until we are a party to the Convention, we cannot
participate directly in the many bodies established under the
Convention that are making decisions critical to our interests.
While we remain outside the Convention, we lack the credibility and
position we need to influence the evolution of ocean law and policy.
That law and policy is evolving as the provisions of the Convention are
interpreted and implemented. It is interesting to note, in this regard,
that the Convention will be open for amendment for the first time
beginning in 2004. The Ocean Commission was directed by our enabling
legislation to make recommendations to preserve the role of the United
States as a leader in ocean activities. We cannot be a leader while
remaining outside of the process that provides the framework for the
future of ocean activities. For this reason, I renew our Commission's
unanimous call for United States accession to the United Nations Law of
the Sea Convention.
Thank you, Mr. Chairman. I stand ready to answer any questions that
the Committee may have.
______
Attachments to Statement by Admiral James D. Watkins, USN (Ret.),
October 14, 2003
Commission on Ocean Policy,
November 28, 2001.
The President,
The White House,
Washington, DC.
Dear Mr. President: On behalf of all 16 Members of the Commission
on Ocean Policy, I respectfully transmit a copy of the Commission's
recently adopted Resolution urging the accession of the United States
to the United Nations Law of the Sea Convention. Also enclosed is a
copy of a cover letter sent to the Chairman and Ranking Minority Member
of the Senate Committee on Foreign Relations providing the background
and reasons for the Commission's action.
As the letter makes clear, the Commission heard powerful testimony
in support of the Convention from a broad range of witnesses at 2 days
of hearings earlier this month. Additionally, a number of Members have
studied various provisions of this complex Convention prior to being
appointed to the Commission and have been convinced for some time that
there are compelling national security, jurisdictional, environmental,
and economic interests reasons for the U.S. to accede to this
international agreement. The enclosed letter also makes clear that time
is of the essence in such accession because of certain important
institutions established by the Convention in which U.S. participation
is critically important.
Mr. President, I urge your expeditious, special attention and
support for the Convention on the Law of the Sea and I have taken the
liberty of providing the Resolution and the letter to the Senate to the
Secretaries of Defense and State, with an identical request.
Respectfully,
James D. Watkins,
Admiral U.S. Navy (Retired),
Chairman.
______
Resolution of the Commission on Ocean Policy
The National Commission on Ocean Policy unanimously recommends that
the United States of America immediately accede to the United Nations
Law of the Sea Convention. Time is of the essence if the United States
is to maintain its leadership role in ocean and coastal activities.
Critical national interests are at stake and the United States can only
be a full participant in upcoming Convention activities if the country
proceeds with accession expeditiously.
Adopted by Voice Vote
November 14, 2001
Washington, DC.
______
Commission on Ocean Policy,
November 26, 2001.
Hon. Joseph R. Biden, Jr., Chairman,
Committee on Foreign Relations,
U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This is to bring to your attention a policy
resolution recently adopted by the Commission on Ocean Policy urging
ratification of the United Nations Law of the Sea (LOS) Convention. The
Commission is a 16-member congressionally established body that is
directed to submit to Congress and the President a report recommending
a coordinated and comprehensive national ocean policy to promote a
number of noteworthy objectives.
One of those objectives is ``the preservation of the role of the
United States as a leader in ocean and coastal activities, and, when it
is in the national interest, the cooperation by the United States with
other nations and international organizations in ocean and coastal
activities'' (Section 2(8), P.L. 106-256). In this regard, the
Commission strongly believes that immediate accession to the LOS
Convention is in the national interest of the U.S. and one of the most
important steps that we can take to demonstrate such leadership and
cooperation.
At the second meeting of the Commission in Washington, DC on
November 13-14, 2001, the Commissioners heard testimony on a broad
range of ocean and coastal issues from Members of Congress, Federal
agencies, trade associations, conservation organizations, the
scientific community, and coastal states. Some of the most powerful
presentations were made in support of ratification of the LOS
Convention, particularly from the American Bar Association and the
offshore oil and gas industry. The Department of State representative
addressed the effects of our current non-party status and the benefits
of the Convention to the United States.
A stable international legal framework for the determination of the
rights and responsibilities of nations with respect to adjacent oceans
and their resources is a necessary prerequisite for the Commission to
be able to assess the place of the United States in the community of
coastal states. The LOS Convention provides that framework for a whole
host of jurisdictional issues including the 12-mile territorial sea,
the 200-mile Exclusive Economic Zone, and the continental shelf through
its full prolongation including those areas where it extends beyond 200
miles.
Although there are many more matters addressed by the Convention
that are in the economic and environmental interest of the United
States, there are some issues of immediate concern that call for the
expeditious consideration of the Convention by your Committee.
Specifically, the Continental Shelf Commission established by the
Convention has the responsibility to review submissions from coastal
states that have continental shelves extending beyond 200 miles to
establish the outer limits of their shelves.
The U.S. has one of the broadest continental margins in the world
and our oil and gas industry operates not only on our shelf but on the
continental shelves of other nations. Thus, a place on the Commission
is critical to the protection of our jurisdictional, resource
management, and economic interests. Elections to the 21 member
Continental Shelf body are scheduled in April of next year. To be in a
position to nominate someone to the Continental Shelf Commission, we
must be a party to the Convention by February 2002.
This situation also applies to the primary dispute settlement
institution of the Commission, the Law of the Sea Tribunal. Seven of
the Tribunal's judges will be elected in April and the U.S. must be a
party to the Convention if we want to nominate a candidate.
For these and many other reasons stated by officials from all walks
of American life, the Commission on Ocean Policy unanimously passed the
enclosed resolution in support of ratification of the Law of the Sea
Convention. I would note that the 16 members of the Commission were
appointed by the President, 12 from a list of nominees submitted by the
leadership of Congress, and represent a broad spectrum of ocean
interests.
As the president of the American Bar Association stated in his
testimony before the Commission, the LOS Convention is the ``foundation
of public order for the oceans.'' The interests of the United States in
the world community of coastal states and the work of our Commission in
recommending a comprehensive ocean policy is dependent on the stability
of that foundation. We urge that, notwithstanding the short legislative
calendar that remains this year, the Committee on Foreign Relations
consider and report out favorably the Convention on the Law of the Sea
prior to adjournment.
A copy of this letter is being forwarded to the President of the
United States and the Secretaries of State and Defense, urging their
special attention and support.
Sincerely,
James D. Watkins,
Admiral, U.S. Navy (Retired),
Chairman.
______
Commission on Ocean Policy,
November 26, 2001.
Hon. Jesse Helm, Ranking Minority Member,
Committee on Foreign Relations,
U.S. Senate,
Washington, DC.
Dear Senator Helms: This is to bring to your attention a policy
resolution recently adopted by the Commission on Ocean Policy urging
ratification of the United Nations Law of the Sea (LOS) Convention. The
Commission is a 16-member congressionally established body that is
directed to submit to Congress and the President a report recommending
a coordinated and comprehensive national ocean policy to promote a
number of noteworthy objectives.
One of those objectives is ``the preservation of the role of the
United States as a leader in ocean and coastal activities, and, when it
is in the national interest, the cooperation by the United States with
other nations and international organizations in ocean and coastal
activities'' (Section 2(8), P.L. 106-256). In this regard, the
Commission strongly believes that immediate accession to the LOS
Convention is in the national interest of the U.S. and one of the most
important steps that we can take to demonstrate such leadership and
cooperation.
At the second meeting of the Commission in Washington, DC. on
November 13-14, 2001, the Commissioners heard testimony on a broad
range of ocean and coastal issues from Members of Congress, Federal
agencies, trade associations, conservation organizations, the
scientific community, and coastal states. Some of the most powerful
presentations were made in support of ratification of the LOS
Convention, particularly from the American Bar Association and the
offshore oil and gas industry. The Department of State representative
addressed the effects of our current non-party status and the benefits
of the Convention to the United States.
A stable international legal framework for the determination of the
rights and responsibilities of nations with respect to adjacent oceans
and their resources is a necessary prerequisite for the Commission to
be able to assess the place of the U.S. in the community of coastal
states. The LOS Convention provides that framework for a whole host of
jurisdictional issues including the 12 mile territorial sea, the 200
mile Exclusive Economic Zone, and the continental shelf through its
full prolongation including those areas where it extends beyond 200
miles.
Although there are many more matters addressed by the Convention
that are in the economic and environmental interest of the United
States, there are some issues of immediate concern that call for the
expeditious consideration of the Convention by your Committee.
Specifically, the Continental Shelf Commission established by the
Convention has the responsibility to review submissions from coastal
states that have continental shelves extending beyond 200 miles to
establish the outer limits of their shelves. The U.S. has one of the
broadest continental margins in the world and our oil and gas industry
operates not only on our shelf but on the continental shelves of other
nations. Thus, a place on the Commission is critical to the protection
of our jurisdictional, resource management, and economic interests.
Elections to the 21 member Continental Shelf body are scheduled in
April of next year. To be in a position to nominate someone to the
Continental Shelf Commission, we must be a party to the Convention by
February, 2002. This situation also applies to the primary dispute
settlement institution of the Commission, the Law of the Sea Tribunal.
Seven of the Tribunal's judges will be elected in April and the U.S.
must be a party to the Convention if we want to nominate a candidate.
For these and many other reasons stated by officials from all walks
of American life, the Commission on Ocean Policy unanimously passed the
enclosed resolution in support of ratification of the Law of the Sea
Convention. I would note that the 16 members of the Commission were
appointed by the President, 12 from a list of nominees submitted by the
leadership of Congress, and represent a broad spectrum of ocean
interests.
As the president of the American Bar Association stated in his
testimony before the Commission, the LOS Convention is the ``foundation
of public order for the oceans.'' The interests of the United States in
the world community of coastal states and the work of our Commission in
recommending a comprehensive ocean policy is dependent on the stability
of that foundation. We urge that, notwithstanding the short legislative
calendar that remains this year, the Committee on Foreign Relations
consider and report out favorably the Convention on the Law of the Sea
prior to adjournment.
A copy of this letter is being forwarded to the President of the
United States and the Secretaries of State and Defense, urging their
special attention and support.
Sincerely,
James D. Watkins,
Admiral, U.S. Navy (Retired),
Chairman.
______
The Secretary of State,
Washington, December 12, 2001.
Admiral James D. Watkins, USN (Retired), Chairman,
Commission on Ocean Policy,
Washington, DC.
Dear Admiral Watkins: Thank you for sending me a copy of the
unanimous resolution urging accession of the United States to the
United Nations Convention on the Law of the Sea, adopted by the
Commission on Ocean Policy at its second meeting November 13-14, 2001.
The Commission's distinguished members were charged with developing
a national ocean policy to promote objectives that include preserving
the United States' role as a leader in ocean and coastal activities.
The resolution conveys a real sense of urgency, both through its words
and through its timing, as the Commission's first policy pronouncement.
Deputy Assistant Secretary Mary Beth West testified before your
Commission on November 14, explaining the detrimental effects of our
non-party status. You may be aware that Ambassador Sichan Siv, 2 weeks
later, announced at the U.N. General Assembly that the Bush
Administration supports U.S. accession to the Convention.
I am aware of the elections scheduled for April 2002 for members of
the Commission on the Limits of the Continental Shelf and for judges of
the International Tribunal for the Law of the Sea, and the benefits the
United States could expect from representation on those bodies. Please
be assured that we share your views on the importance of this
Convention and are working actively on it.
I extend best wishes as you undertake leadership of this important
Commission, whose report in the spring of 2003 will help to shape
national ocean and coastal policy for the 21st century.
Sincerely,
Colin L. Powell.
______
Chief of Naval Operations,
December 5, 2001.
Admiral James D. Watkins, USN (Ret),
Commission on Ocean Policy,
Arlington, VA.
Dear Admiral Watkins: Thank you for your letter of November 29,
2001, advising that the Commission on Ocean Policy unanimously adopted
a resolution supporting United States accession to the United Nations
Law of the Sea Convention.
Like you, I strongly believe that acceding to this convention will
benefit the United States by advancing our national security interests
and ensuring our continued leadership in the development and
interpretation of the law of the sea.
I appreciate your continued strong support of this convention and
the Navy.
Sincerely,
Vern Clark,
Admiral, U.S. Navy.
______
Department of the Navy,
Washington, DC, March 18, 2004.
Hon. James M. Jeffords, Chairman,
U.S. Senate,
Washington, DC.
Dear Senator Jeffords: I write to express my strong support for
United States accession to the Law of the Sea Convention. It has been
the consistent, longstanding position of the Navy that accession to the
Convention will benefit the United States by advancing our national
security interests and ensuring continued U.S. leadership in the
development and interpretation of the law of the sea.
The Law of the Sea Convention helps assure access to the largest
maneuver space on the planet--the sea--under authority of widely
recognized and accepted law and not the threat of force. The Convention
protects military mobility by codifying favorable transit rights that
support our ability to operate around the globe, anytime, anywhere,
allowing the Navy to project power where and when needed. The
Convention also provides important safeguards for protecting the marine
environment while preserving operational freedoms.
Although the Convention was drafted over 20 years ago, the
Convention supports U.S. efforts in the war on terrorism by providing
important stability and codifying navigational and overflight freedoms,
while leaving unaffected intelligence collection activities. Future
threats will likely emerge in places and in ways that are not yet
known. For these and other as yet unknown operational challenges, we
must be able to take maximum advantage of the established navigational
rights codified in the Law of the Sea Convention to get us to the fight
rapidly. The diversity of challenges to our national security combined
with a more dynamic force structure makes strategic mobility more
important than ever. The oceans are fundamental to that maneuverability
and, by joining the Convention, we further ensure the freedom to get to
the fight, twenty-four hours a day and 7 days a week, without a
permission slip.
I appreciate your continued strong support of the Law of the Sea
Convention and the Navy.
Sincerely,
Vern Clark,
Admiral, U.S. Navy.
__________
Statement of John F. Turner, Assistant Secretary of State, Bureau of
Oceans and International Environmental and Scientific Affairs,
Department of State
Mr. Chairman and Members of the Committee: Thank you for the
opportunity to testify on the 1982 United Nations Convention on the Law
of the Sea (``the Convention''), which, with the 1994 Agreement
relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982 (``the 1994
Agreement''), was reported favorably by the Senate Foreign Relations
Committee on March 11, 2004.
overview
Last October five Administration witnesses testified before the
Senate Foreign Relations Committee in strong support of the Law of the
Sea Convention. I said then, and I reiterate: This Administration has
concluded that there are important reasons for the United States to
become a party to this Convention and we urge Senate action on it.
The achievement of a widely accepted and comprehensive law of the
sea convention to which the United States can become a party has been a
consistent objective of successive U.S. administrations for the last
thirty years. The United States is already a party to four 1958
conventions regarding various aspects of the law of the sea. While a
step forward at the time as a partial codification of the law of the
sea, those conventions left some unfinished business; for example, they
did not set forth the outer limit of the territorial sea, and they did
not contain a dispute settlement mechanism that the United States could
use to push back illegal maritime claims of other countries. The United
States played a prominent role in the negotiating sessions that
culminated in the 1982 Convention, which sets forth a comprehensive
framework governing uses of the oceans that is strongly in the U.S.
national security, economic, and environmental interest and is
supported by affected industries, associations, and environmental
groups.
When the Convention was adopted in 1982, the United States
recognized that its provisions were favorable to U.S. interests, except
for Part XI on deep seabed mining, which I will discuss later on. In
1983 President Reagan announced in his Oceans Policy Statement that the
United States accepted, and would act in accordance with, the
Convention's balance of interests relating to traditional uses of the
oceans. He instructed the Government to abide by all the provisions
other than those in Part XI.
Part XI has now been fixed, in a legally binding manner, to address
the concerns raised by President Reagan or successive Administrations.
We urge the Senate to give its advice and consent to this Convention,
to allow us to take full advantage of the many benefits it offers. As
noted in the March 1, 2004, letters from State Department Legal Adviser
William H. Taft IV to the Chairman and the Ranking Member of the Senate
Foreign Relations Committee:
U.S. law and practice are already generally compatible with
the Convention. Except [with respect to the enforcement of
certain deep seabed mining decisions, which would be necessary
at some point after U.S. accession], the United States does not
need to enact new legislation to supplement or modify existing
U.S. law, whether related to protection of the marine
environment, human health, safety, maritime security, the
conservation of natural resources, or other topics within the
scope of the Convention. The United States, as a party, would
be able to implement the Convention through existing laws,
regulations, and practices (including enforcement practices),
which are consistent with the Convention and which would not
need to change in order for the United States to meet its
Convention obligations .[t]he Convention would not create
private rights of action or other enforceable rights in U.S.
courts, apart from its provisions regarding privileges and
immunities to be accorded to the Convention's institutions.
jurisdiction and navigation
As the world's leading maritime power, with the longest coastline
and the largest exclusive economic zone in the world, the United States
will benefit more than any other Nation from the provisions of the
Convention, which establishes international consensus on the extent of
jurisdiction that States may exercise off their coasts and allocates
rights and duties among States in all marine areas. It provides for a
territorial sea of a maximum breadth of 12 nautical miles, within which
the coastal State may generally exercise plenary authority as a
function of its sovereignty. The Convention also establishes a
contiguous zone of up to 24 nautical miles from coastal baselines, in
which the coastal State may exercise limited control necessary to
prevent or punish infringements of its customs, fiscal, immigration,
and sanitary laws and regulations that occur within its territory or
territorial sea. It also gives the coastal State sovereign rights for
the purpose of exploring and exploiting, conserving and managing
natural resources, whether living (e.g., fisheries) or non-living
(e.g., oil and gas), in an exclusive economic zone (EEZ) that may
extend to 200 nautical miles from the coast. In addition, the
Convention accords the coastal State sovereign rights over the
continental shelf both within and beyond the EEZ, where the geological
margin so extends.
The Convention carefully balances the interests of States in
controlling activities off their own coasts with those of all States in
protecting the freedom to use ocean spaces without undue interference.
It specifically preserves and elaborates the rights of military and
commercial navigation and overflight in areas under coastal State
jurisdiction and on the high seas beyond. It protects the right of
passage for all ships and aircraft through, under, and over straits
used for international navigation and archipelagos. It protects the
high seas freedoms of navigation, overflight, and the laying and
maintenance of submarine cables and pipelines, as well as other
internationally lawful uses of the sea related to those freedoms,
consistent with the other provisions of the Convention. U.S. Armed
Forces rely on these navigation and overflight rights daily, and their
protection is of paramount importance to U.S. national security.
environmental interests
The United States' coastal waters and EEZ generate vital economic
activities fisheries, offshore mineral development, ports and
transportation facilities, and, increasingly, recreation and tourism.
The health and well-being of coastal populations and the majority of
Americans do live in coastal areas are intimately linked to the quality
of the coastal marine environment.
Part XII of the Convention establishes a legal framework for the
protection and preservation of the marine environment. It addresses
sources of marine pollution, such as pollution from vessels, seabed
activities, ocean dumping, and land-based sources, in a manner that
effectively balances interests of States in protecting the environment
and natural resources with their interests in freedom of navigation and
communication. The provisions contain a variety of obligations and
authorizations relating to coastal States, flag States, and/or all
States. As a party, the United States would be able to implement Part
XII through a variety of existing U.S. laws, regulations, and practices
(including enforcement practices) that are consistent with the
Convention and that would not need to change in order for the United
States to meet its Convention obligations. For example, because our
laws already provide for the protection of rare and fragile ecosystems
and the habitat of depleted, threatened, or endangered species, no
amendment to the Endangered Species Act or the Marine Mammal Act would
be required. Nor would the Convention impose any restrictions or
requirements on U.S. citizens in addition to what is already required
by statute.
With respect to protection of the U.S. coastal marine environment
in particular, I would note that the executive branch, through the
Department of Justice, the Department of Homeland Security, the Coast
Guard, and the Environmental Protection Agency, has pursued a vigorous,
successful enforcement initiative to detect and deter pollution from
ships. In line with the policy of successive Administrations since 1983
to act in accordance with the balance of interests reflected in the
Convention's provisions regarding traditional uses of the oceans, U.S.
marine pollution enforcement efforts have been undertaken in a manner
consistent with the Convention, including its allocation of enforcement
responsibilities among coastal States, flag States, and port States in
various situations.
In order to ensure that the relationship between U.S. law and the
Convention's enforcement provisions is a seamless one, the
Administration recommended, and the proposed resolution of advice and
consent contains, a number of understandings that, among other things,
harmonize certain domestic terminology with the Convention and confirm
the longstanding right of a State to impose and enforce conditions for
entry of foreign vessels into its ports. The Convention's support of a
State's ability to exercise its domestic authority to regulate the
introduction of invasive species into the marine environment and to
regulate marine pollution from industrial operations on board foreign
vessels is also highlighted.
living marine resources
As noted, a coastal State has sovereign rights over living marine
resources in its exclusive economic zone, i.e., out to 200 nautical
miles from shore. The Convention's provisions on fisheries are entirely
consistent with U.S. domestic fisheries laws as well as our
international fisheries agreements and understandings. In fact, the
most innovative international fisheries agreements developed in the
last decade have as their basis the Convention's statements of the
obligations of each party to conserve and manage living marine
resources in their own EEZs and on the high seas. The United Nations
Fish Stocks Agreement, the FAO Compliance Agreement, the new convention
on highly migratory species in the Western and Central Pacific, and
recent bilateral agreements we have negotiated are elaborations on
these obligations. Effective implementation of these forward-leaning
agreements can bring about an end to rampant overfishing in the years
to come. Becoming a party to the Convention will only strengthen our
hand in addressing this serious issue.
continental shelf
The Convention also recognizes the coastal State's sovereign rights
over the exploration and development of mineral resources, including
oil and gas, found in the seabed and subsoil of the continental shelf.
It lays down specific criteria and procedures for determining the outer
limit of the continental shelf. The Convention improves on the 1958
Continental Shelf Convention by giving all coastal States a continental
shelf out to 200 nautical miles, regardless of geology; by allowing for
extension of the shelf beyond 200 nautical miles if it meets certain
geological criteria; and by providing more precise standards (favorable
to the United States) to replace the 1958 ``exploitability'' standard.
By becoming party to the Convention, the United States would be
better able to protect its interests in several ways, including by
nominating a U.S. citizen to serve on the Commission on the Limits of
the Continental Shelf, and by submitting data on our very extensive
continental shelf beyond 200 miles to establish the outer limits as
final and binding in accordance with article 76(8).
The Convention also protects the freedom to lay submarine cables
and pipelines, of increasing importance to global communications,
whether military, commercial, or research. Its provisions are favorable
to U.S. security and economic interests. The United States would retain
the right under the Convention to set conditions for cables and
pipelines entering our territorial sea, as well as for those used in
connection with oil and gas activities on our continental shelf.
deep seabed mining
Notwithstanding the numerous beneficial provisions of the
Convention, the United States decided not to sign the Convention in
1982 because of flaws in the deep seabed mining regime. Informal
negotiations were launched in 1990 during the first Bush
Administration, under the auspices of the United Nations Secretary
General, and continued into 1994. The Agreement, signed by the United
States on July 28, 1994, contains legally binding changes to that part
of the Convention dealing with mining of the deep seabed beyond the
limits of national jurisdiction. It is to be applied and interpreted
together with the Convention as a single instrument.
The changes set forth in the 1994 Agreement meet our goal of
guaranteed access by U.S. industry to deep seabed minerals on the basis
of reasonable terms and conditions. The Agreement overhauls the
decisionmaking procedures of Part XI to accord the United States, and
others with major economic interests at stake, decisive influence over
future decisions on possible deep seabed mining. The United States is
guaranteed a seat on the critical decisionmaking body; no substantive
obligation can be imposed on the United States, and no amendment can be
adopted, without its consent.
The Agreement restructures the deep seabed mining regime along
free-market principles. It scales back the structure of the
organization to administer the mining regime and links the activation
and operation of institutions to the actual development of concrete
interest in seabed mining. The International Seabed Authority has no
regulatory role other than administering the mining regime, and no
ability to levy taxes.
A future decision, which the United States and other investors
could block, is required before the organization's potential operating
arm (the Enterprise) may be activated, and any activities on its part
are subject to the same Convention requirements as other commercial
enterprises. States have no obligation to finance the Enterprise, and
subsidies inconsistent with GATT/WTO are prohibited. Of particular
importance, the Agreement eliminates all requirements for mandatory
transfer of technology and production controls that were contained in
the original version of Part XI.
The Agreement provides for grandfathering the seabed mine site
claims established by companies holding U.S. licenses on the basis of
arrangements ``similar to and no less favorable than'' the best terms
granted to previous claimants. It also strengthens the provisions
requiring consideration of the potential environmental impacts of deep
seabed mining.
dispute settlement
The Convention establishes a dispute settlement system to promote
compliance with its provisions and the peaceful settlement of disputes.
These procedures are flexible, providing options as to the appropriate
means and forums for resolution of disputes. They are also
comprehensive, in subjecting the bulk of the Convention's provisions to
enforcement through mechanisms that are binding under international
law. Importantly, the system also provides Parties with means of
excluding matters of vital national concern from the dispute settlement
mechanisms (e.g., disputes concerning maritime boundaries, military
activities, and EEZ fisheries management). A State is able to choose,
by written declaration, one or more means for the settlement of
disputes under the Convention. The Administration is pleased that its
recommendation that the United States elect arbitration under Annex VII
and special arbitration under Annex VIII is included in the proposed
Resolution of Advice and Consent. I would note that, while the
Administration previously raised a concern regarding dispute
resolution, that concern has been satisfactorily addressed by the
proposed Resolution.
The Convention permits a State, through a declaration, to opt out
of dispute settlement procedures with respect to one or more enumerated
categories of disputes, namely disputes regarding maritime boundaries
between neighboring States, disputes concerning military activities and
certain law enforcement activities, and disputes in respect of which
the United Nations Security Council is exercising the functions
assigned to it by the Charter of the United Nations. The Administration
is similarly pleased that the proposed Resolution of Advice and Consent
follows its recommendation that the United States elect to exclude all
three of these categories of disputes from dispute settlement
mechanisms.
The ability of a party to exclude disputes concerning military
activities from dispute settlement has long been of importance to the
United States. The U.S. negotiators of the Convention sought and
achieved language that creates a very broad exception, successfully
defeating attempts by certain other countries to narrow its scope. The
United States has consistently viewed this exception as a key element
of the dispute settlement package, which carefully balances
comprehensiveness with protection of vital national interests.
The Administration recommended, and the proposed Resolution
includes, a statement that our consent to accession to the Convention
is conditioned on the understanding that each State Party has the
exclusive right to determine whether its activities are or were
``military activities,'' and that such determinations are not subject
to review. Disputes concerning military activities, including
intelligence activities, would not be subject to dispute settlement
under the Convention.
reason to join
As a non-party to the Convention, the United States has actively
sought to achieve global acceptance of, and adherence to, the
Convention's provisions, particularly in relation to freedom of
navigation. At home, President Reagan's 1983 Oceans Policy Statement
directed the United States to abide by the non-deep seabed provisions
of the Convention. Abroad, the United States has worked both
diplomatically and operationally to promote the Convention as
reflective of customary international law.
While we have been able to gain certain benefits of the Convention
from this approach, formal U.S. adherence to the Convention would have
many advantages:
The United States would be in a stronger position invoking
a treaty's provisions to which it is party, for instance in a bilateral
disagreement where the other country does not understand or accept
those provisions.
While we have been able to rely on diplomatic and
operational challenges to excessive maritime claims, it is desirable to
establish additional methods of resolving conflict.
The Convention is being implemented in various forums,
both those established by the Convention and certain others (such as
the International Maritime Organization). While the Convention's
institutions were not particularly active during the past decade since
the Convention entered into force, they are now entering an operational
phase and are elaborating and interpreting various provisions. The
United States would be in a stronger position to defend its military
interests and other interests in these forums if it were a party to the
Convention.
Becoming a party to the Convention would permit the United
States to nominate members for both the Law of the Sea Tribunal and the
Continental Shelf Commission. Having U.S. members on those bodies would
help ensure that the Convention is being interpreted and applied in a
manner consistent with U.S. interests.
As a party, the United States could get the legal
certainty with respect to its continental shelf claim beyond 200 miles
that will facilitate activities in those areas by the U.S. oil and gas
industry.
Becoming a party to the Convention would strengthen our
ability to deflect potential proposals that would be inconsistent with
U.S. interests, including freedom of navigation. It is worth noting
that the Convention will be open to amendments beginning next November.
Beyond those affirmative reasons for joining the Convention, there are
downside risks of not acceding to the Convention. U.S. mobility and
access have been preserved and enjoyed over the past 20 years largely
due to the Convention's stable, widely accepted legal framework. It
would be risky to assume that it is possible to preserve indefinitely
the stable situation that the United States currently enjoys. Customary
international law may be changed by the practice of States over time
and therefore does not offer the future stability that comes with being
a party to the Convention.
responses to arguments against
Certain arguments have recently been put forward suggesting that it
would not be in the U.S. interest to join the Convention. I would like
to address these arguments in turn.
President Reagan thought the treaty was irremediably defective
President Reagan expressed concerns only about Part XI's
deep seabed mining regime.
In fact, he believed that Part XI could be fixed and
specifically identified the elements in need of revision.
The regime has been fixed in a legally binding manner that
addresses each of the U.S. objections to the earlier regime.
The rest of the treaty was considered so favorable to U.S.
interests that, in his 1983 Ocean Policy Statement, President Reagan
ordered the Government to abide by the non-deep seabed provisions of
the Convention.
The 1994 Agreement doesn't even pretend to amend the Convention; it
merely establishes controlling interpretive provisions
The 1994 Agreement contains legally binding changes to the
Convention.
The Convention could only have been ``amended'' if it had
already entered into force.
It would not have been in our interest to wait until the
Convention entered into force before fixing it, as it would have been
more cumbersome to effectuate the changes that we sought.
The Agreement unambiguously changes Part XI in a legally
binding manner.
The problems identified by President Reagan in 1983 were not remedied
by the 1994 Agreement relating to deep seabed mining
Each objection has been addressed.
Among other things, the 1994 Agreement:
provides for access by U.S. industry to deep seabed
minerals on the basis of non-discriminatory and reasonable
terms and conditions;
overhauls the decisionmaking rules to accord the
United States critical influence, including veto power in some
cases, over future decisions;
restructures the regime to comport with free-market
principles, including the elimination of the earlier mandatory
technology transfer provisions and all production controls.
U.S. adherence to the Convention is not necessary because navigational
freedoms are not threatened (and the only guarantee of free
passage on the seas is the power of the U.S. Navy)
It is not true that our navigational freedoms are not
threatened. There are more than one hundred illegal, excessive claims
affecting vital navigational and overflight rights and freedoms.
The United States has utilized diplomatic and operational
challenges to resist the excessive maritime claims of other countries
that interfere with U.S. navigational rights under customary
international law as reflected in the Convention. But these operations
entail a certain amount of risk e.g., the Black Sea bumping incident
with the former Soviet Union.
Being a party to the Convention would significantly
enhance our efforts to roll back these claims by, among other things,
putting the United States in a far stronger position to assert our
rights and affording us additional methods of resolving conflict.
The Convention gives the U.N. its first opportunity to levy taxes
The Convention does not provide for or authorize taxation
of individuals or corporations. There are revenue sharing provisions
for oil/gas activities on the continental shelf beyond 200 miles and
administrative fees for deep seabed mining operations. The amounts
involved are modest in relation to the total economic benefits, and
none of the revenues would go to the United Nations or be subject to
its control. U.S. consent would be required for any expenditure of such
revenues.
The Convention mandates another tribunal to adjudicate disputes
The Convention established the International Tribunal for
the Law of the Sea. However, Parties are free to choose other methods
of dispute settlement. The United States would elect two forms of
arbitration rather than the Tribunal.
The United States would be subject to the Sea-bed Disputes
Chamber, should deep seabed mining take place under the regime
established by the Convention. The proposed Resolution of Advice and
Consent, however, makes clear that the Sea-bed Disputes Chamber's
decisions ``shall be enforceable in the territory of the United States
only in accordance with procedures established by implementing
legislation and that such procedures shall be subject to such legal and
factual review as is constitutionally required and without precedential
effect in any court of the United States.''
Other Parties will reject the U.S. ``military activities'' declaration
as a reservation
The U.S. declaration is consistent with the Convention and
is not a reservation.
U.S. adherence will entail history's biggest voluntary transfer of
wealth and surrender of sovereignty
Under the Convention as amended by the 1994 Agreement
there is no transfer of wealth and no surrender of sovereignty.
In fact, the Convention supports the sovereignty and
sovereign rights of the United States over extensive maritime territory
and natural resources off its coast, including a broad continental
shelf that in many areas extends well beyond the 200-nautical mile
limit.
The mandatory technology transfer provisions of the
original Convention, an element of the Convention that the United
States objected to, were eliminated in the 1994 Agreement.
The International Seabed Authority has the power to regulate seven-
tenths of the earth's surface, impose international taxes, etc.
The Convention addresses seven-tenths of the earth's
surface. However, the International Seabed Authority (ISA) does not.
The authority of the ISA is limited to administering
mining of minerals in areas of the deep seabed beyond national
jurisdiction, generally more than 200 miles from the shore of any
country. At present, and in the foreseeable future, such deep seabed
mining is economically unfeasible. The ISA has no other role and has no
general regulatory authority over the uses of the oceans, including
freedom of navigation and overflight.
The ISA has no authority or ability to levy taxes.
The Convention was drafted before and without regard to the war on
terror and what the United States must do to wage it
successfully
It is true that the Convention was drafted before the war
on terror. However, the Convention does not prevent the United States
from waging a successful war on terror.
On the contrary, maximum maritime naval and air mobility
that is currently assured by the Convention is essential for our
military forces to operate effectively. The Convention provides the
necessary stability and framework for our forces, weapons, and materiel
to get to the fight without hindrance and is the best guarantee that
our forces will not be hindered in the future.
Thus, the Convention supports our war on terrorism by
providing important stability for navigational freedoms and overflight.
It preserves the right of the U.S. military to use the world's oceans
to meet national security requirements. It is essential that key sea
and air lanes remain open as an international legal right and not be
contingent upon approval from nations along the routes. A stable legal
regime for the world's oceans will help guarantee global mobility for
our Armed Forces.
The Convention adversely affects activities to be undertaken pursuant
to the Proliferation Security Initiative
On the contrary, joining the Convention would strengthen
PSI efforts.
PSI's own rules require that PSI activities be consistent
with relevant international law and frameworks, which include the
Convention's navigation provisions.
The Statement of Interdiction Principles pursuant to which
the PSI operates explicitly specifies that interdiction activities
under PSI will be undertaken ``consistent with national legal
authorities and relevant international law and frameworks.'' The
relevant international law framework for PSI includes customary
international law that is codified in the Law of the Sea Convention.
The Convention provides solid legal bases for taking
enforcement action against vessels and aircraft suspected of engaging
in proliferation of WMD, e.g., exclusive port and coastal State
jurisdiction in internal waters and national airspace; coastal State
jurisdiction in the territorial sea and contiguous zone; exclusive flag
State jurisdiction over vessels on the high seas (which the flag State
may, by agreement, waive in favor of other States); and universal
jurisdiction over stateless vessels.
All of the United States' partners in the PSI are parties
to the Convention and accordingly observe its provisions.
As Admiral Michael Mullen, Vice Chief of Naval Operations,
testified before the Foreign Relations Committee, being party to the
Convention ``would greatly strengthen [the Navy's] ability to support
the objectives'' of PSI by reinforcing and codifying freedom of
navigation rights on which the Navy depends for operational mobility.
Obligatory technology transfers will equip actual or potential
adversaries with sensitive and militarily useful equipment and
know-how (such as anti-submarine warfare technology)
No technology transfers are required by the Convention.
Mandatory technology transfers were eliminated by Section 5 of the
Annex to the Agreement amending Part XI of the Convention.
Article 302 of the Convention provides that nothing in the
Convention requires a party to disclose information the disclosure of
which is contrary to the essential interests of its security.
The PRC asserts that the Convention entitles it to exclusive economic
control of the waters within a 200 nautical-mile radius of its
artificial islands--including waters transited by the vast
majority of Japanese and American oil tankers en route to and
from the Persian Gulf
We are not aware of any claims by China to a 200-mile
economic zone around its artificial islands.
Any claim that artificial islands generate a territorial
sea or EEZ has no basis in the Convention.
The Convention specifically provides that artificial
islands do not have the status of islands and have no territorial sea
or EEZ of their own. Sovereignty over certain Spratly Islands (which do
legitimately generate a territorial sea and EEZ) is disputed among
Brunei, China, Malaysia, the Philippines, and Vietnam. China has
consistently maintained that it respects the high seas freedoms of
navigation through the waters of the South China Sea.
The Convention, specifically articles 19 and 20, prohibit two functions
vital to American security: collecting intelligence in, and
submerged transit of, territorial waters
This assertion is not correct.
The Convention does not prohibit U.S. intelligence
activities, nor would it have any negative effect on those activities.
In the 1958 Convention, Article 14 provides that passage
is innocent ``so long as it is not prejudicial to the peace, good order
or security of the coastal State'' and that ``submarines are required
to navigate on the surface and to show their flag.''
The United States is already a party to the 1958
Territorial Sea Convention, which contains provisions very similar to
articles 19 and 20 of the 1982 Convention.
The 1982 Convention's specification of activities that are
considered to be ``prejudicial to the peace, good order, or security of
the coastal State'' are more favorable than the provisions of the 1958
Convention both because the list of activities is exhaustive and
because it generally uses objective, rather than subjective, criteria
in the listing of activities.
Since President Reagan's 1983 Oceans Policy Statement, the
United States has conducted its activities consistent with the non-deep
seabed provisions of the 1982 Convention.
U.S. accession to the Convention supports ongoing U.S.
military operations, including the continued prosecution of the war on
terrorism.
conclusion
As of today, 145 parties, including almost all of our major allies,
have joined the Convention. It is in the interest of the United States
to become a party to the Convention, because of the military, economic,
and environmental benefits to the United States; because U.S. adherence
will promote the stability of the legal regime for the oceans, which is
vital to U.S. national security; and because U.S. accession will
demonstrate to the international community that, when it modifies a
regime to address our concerns, we will join that regime. The
Administration recommends that the Senate give its advice and consent
to accession to the Convention and ratification of the Agreement, on
the basis of the proposed Resolution of Advice and Consent.
Thank you very much.
______
Responses by John F. Turner to Additional Questions from Senator Inhofe
Question 1a. Article 2(3) of the Treaty states ``the sovereignty
over the territorial sea is exercised subject to this Convention and to
other rules of international law.''
What is your interpretation of this provision?
Response. This provision, which is the same as article 1(2) of the
1958 Convention on the Territorial Sea and Contiguous Zone, to which
the United States is already a party, means that a coastal State's
sovereignty over the territorial sea is qualified in two ways: by other
provisions of the Convention and by other rules of international law.
Question 1b. Do you think all parties of this Treaty will interpret
this provision the same?
Response. We have no reason to believe that this interpretation
would not be shared by all Parties. The other provisions of the
Convention provide for rights of passage--innocent passage, transit
passage through straits, and archipelagic sea lanes passage--that are
critical to U.S. global mobility, national security, and economic
interests.
Question 1c. How could this Treaty interfere with the United
States' sovereign exercise of freedom of the seas and in what ways will
that have an adverse effect on national security and the environment?
Response. Article 2(3) would not have an adverse effect on national
security and the environment. On the contrary, the rights of passage to
which it refers advance the interests of the United States. And the
Convention advances U.S. military and commercial interests in freedom
of navigation and U.S. interests in protecting the marine environment
both off our own coastline and globally.
Question 2. Do you believe it is in the best interest of the United
States to vest control of seabed mining operations in countries which
lack the necessary technology and capital to conduct such operations
themselves?
Response. Part of the objection of President Reagan and subsequent
Administrations to the original Part XI of the Convention was in fact
to the decisionmaking structure. However, the Convention as modified by
the 1994 Agreement, which the United States would be joining,
fundamentally changes the decisionmaking structure to give the United
States and other industrialized countries influence commensurate with
their political and economic situations.
Question 3. Do you believe the Treaty's structure of decisionmaking
is in the best political and economical interests of the United States?
Please explain in detail.
Response. It is assumed that you are referring to the Convention's
deep seabed mining institutions, because decisionmaking is not a factor
regarding the bulk of the Convention's provisions. The decisionmaking
structure applicable to Part XI of the Convention has been
fundamentally overhauled by the legally binding 1994 Agreement to
accord the United States, and others with major economic interests at
stake, decisive influence over decisions regarding deep seabed mining.
The United States would be guaranteed a seat on the critical executive
body, so that any deep seabed mining regulations or amendment to the
regime would require U.S. agreement. The United States has a guaranteed
seat for the foreseeable future on the Finance Committee, in which a
consensus of major contributors is required for decisions with
financial or budgetary implications. Joining the Convention and
Agreement, far from hurting our deep seabed mining interests, will
facilitate them.
It is important to note that the alternative to the modified deep
seabed mining regime reflected in the Convention and Agreement is not
that U.S. companies can engage in deep seabed mining without going
through the Convention's institutions; rather, to get the legal
certainty they need, U.S. companies would have to go through the Seabed
Authority--but under the auspices of another country that is a party.
It is also important to note that, while some seem to be asserting that
the deep seabed mining institutions will somehow encroach on U.S.
sovereignty, the United States has never asserted sovereignty or
sovereign rights with respect to seabed areas beyond national
jurisdiction or to mineral activities thereon.
Question 4. Do you believe that by acceding to the Treaty the
United States would gain an adequately effective bargaining position to
protect its current and future national policies and interests relating
to national defense, seabed mining and environmental protection? Please
explain in detail.
Response. The United States would in fact maximize its ``bargaining
position'' in those areas by joining the Convention. Regarding national
defense, while we have been able to enjoy certain navigational benefits
of the Convention through customary international law, the United
States would be in a stronger position to promote and defend its
navigational rights by putting them on firm treaty footing and by
strengthening the authority of our views concerning the application and
interpretation of the Convention provisions reflecting the rights upon
which our mobility depends.
Regarding exploitation of resources of the continental shelf beyond
200 miles, the Convention would promote U.S. energy and other economic
interests by providing for coastal States to be able to establish an
outer limit that gives legal certainty to investors; as a party, we
would also be in a position to nominate an American expert for the
Commission that plays a significant role in that process.
Regarding deep seabed mining, the United States, as a party, would
certainly enhance its bargaining power through, among other things, a
permanent seat on the Council, the key decisionmaking body. Concerning
environmental protection, the United States has a strong interest in
maintaining the Convention's balance between effective environmental
protection and other uses of the oceans, including navigational
freedoms; as a party, we would be in a stronger position to promote and
maintain this balance.
Question 5. Despite the clear requirements in Articles 208 and 210
of the Treaty which specify that related national laws must be ``no
less effective'' than international rules, standards and recommended
practices and procedures, the Committee received testimony to the
effect that the United States would not be required to change any of
its environmental laws to be in compliance with the Treaty. Are you
certain that the Treaty could not be used to impose restrictions or
requirements on the United States to limit or expand current or future
U.S. laws and policies?
Response. There are currently no applicable international standards
regarding the subject matter covered by article 208, namely pollution
from sea-bed activities subject to national jurisdiction. With respect
to ocean dumping under article 210, the United States is a party to,
and implements, the 1972 London Convention, which reflects the long-
established global regime addressing pollution of the marine
environment by dumping. Internationally agreed rules in the case of
sea-bed activities or international acceptance of new global rules in
the case of ocean dumping would not be achievable without the
endorsement of the United States, the State with the largest EEZ and
the world's dominant maritime power.
Question 6. Article 212 of the Treaty requires States to adopt laws
and regulations for pollution from the atmosphere. How would the United
States' domestic policy need to be changed or altered to comply with
the international laws, regulations, and recommended practices to
address these concerns? And does this mean that other countries can use
this provision to force the United States to regulate C02?
Response. Article 212 does not require States to ``comply'' with
international laws, regulations, or recommended practices, does not
require any particular domestic standards, and would not require any
change in U.S. domestic law or policy concerning pollution from or
through the atmosphere, including with respect to carbon dioxide. There
would be no legal basis under the Convention to force the regulation of
carbon dioxide, including because the atmospheric pollution obligation
under article 212 is not subject to dispute settlement under article
297(1)(c) of the Convention.
Question 7a. In your written testimony submitted to the Committee,
you state that ``our laws already provide for the protection of rare
and fragile ecosystems and the habitat of depleted, threatened, or
endangered species.'' However, the protections of the Endangered
Species Act only affect those species listed as ``threatened'' or
``endangered'' and does not describe or include ``depleted'' species as
mentioned in the Treaty under Article 194. What U.S. environmental law
were you referring to in your written testimony that already protects
depleted species?
Response. The Marine Mammal Protection Act (MMPA) of 1972, 16
U.S.C. 1361 et seq., provides statutory authority for protecting
``depleted'' marine mammals. The terms ``depleted'' and ``depletion''
are defined in 16 U.S.C. 1362(1) to apply to species or populations
determined to be below their optimum sustainable population, or to
species listed as ``endangered'' or ``threatened'' under the Endangered
Species Act (ESA). Some depleted marine mammal species are listed under
the ESA; some are not. For those that are not, the relevant Federal
agency must prepare a conservation plan, under 16 U.S.C. 1383b(b), that
is modeled on recovery plans required under the ESA, 16 U.S.C. 1533(f).
The conservation plan may include measures to protect the habitat of
marine mammal species.
Question 7b. The Federal Government is already constantly involved
in the litigation-driven designation of critical habitat for species
listed under the Endangered Species Act. Does the inconsistency between
the Treaty and current U.S. law have any potential for mandating the
current or future expansion of U.S. species protection? If so, how are
we to know what species fall under this new, undefined category of
``depleted'' species?
Response. The MMPA also provides authority to implement
conservation or management measures to alleviate impacts on rookeries,
mating grounds, or other areas of similar ecological significance to
marine mammals. 16 U.S.C. 1382(e). There is no inconsistency between
the treaty and current U.S. law. Depleted species are listed at 50 CFR
216.15.
Question 8a. The Treaty would impede marine scientific research in
that a costal State could object to granting a ship access in its
territorial sea unless the ship is just passing through. For example,
as Mr. Gaffney pointed out in his testimony, Russia has denied access
to its territorial sea for ships conducing marine scientific research.
How would this Treaty ensure that research could be conducted if
there is a difference of interpretation or opinion by another Nation
and that Nation can object to a ship's access to its territorial sea?
Response. Coastal States have sovereignty over the territorial sea,
subject to certain qualifications (such as the rights of innocent
passage, transit passage, and archipelagic sea lanes passage). This
sovereignty includes the exclusive right to regulate, authorize, and
conduct marine scientific research, which is exercised by the United
States as a coastal State with respect to its territorial sea. While
the extent to which foreign flag vessels can conduct marine scientific
research in the territorial sea is up to the coastal State, coastal
States do not have the right to object to ``access'' per se, i.e.,
passage that comports with the requirements for innocent, transit, or
archipelagic sea lanes passage, as the case may be.
Question 8b. What are the implications for military and
intelligence research?
Response. Marine scientific research does not include military/
intelligence research, and the marine scientific research provisions of
the Convention do not apply. At the same time, if a foreign vessel
wanted to take advantage of the right of innocent passage, research or
survey activities would be considered activities prejudicial to the
peace, good order, or security of the coastal State under article 19.
______
Responses by John F. Turner to Additional Questions from
Senator Jeffords
Question 1. What is the meaning and legal effect of Article 2,
section 3 of the Convention, which states that ``[t]he sovereignty over
the territorial sea is exercised subject to this Convention and to
other rules of international law''? If the United States accedes to the
1982 Convention and ratified the 1994 Agreement, could this provision
be used in any way to limit the sovereignty of the United States?
Response. This provision, which is the same as article 1(2) of the
1958 Convention on the Territorial Sea and Contiguous Zone, to which
the United States is already a party, means that a coastal State's
sovereignty over the territorial sea is qualified in two ways: by other
provisions of the Convention and by other rules of international law.
The other provisions of the Convention provide for rights of passage--
innocent passage, transit passage through straits, and archipelagic sea
lanes passage--that are critical to U.S. global mobility, national
security, and economic interests. Article 2(3) of the Convention will
not limit the sovereignty of the United States if we join the
Convention; the United States is already bound by the provision under
the 1958 Convention, and it also reflects customary international law.
Question 2. If the United States accedes to the Convention and
ratifies the 1994 Agreement, what will be the legal effect of any
declarations and understandings contained within a Senate resolution of
advice and consent?
Response. The declaration under article 287 will establish the
means chosen by the United States (arbitration and special arbitration)
for the settlement of various disputes under the Convention. The
declaration under article 298 will establish that the United States
does not accept any of the procedures provided for in section 2 of Part
XV of the Convention with respect to specified categories of disputes
and will condition its consent to accession to the Convention upon the
understanding that, under article 298(1)(b), each State Party has the
exclusive right to determine whether its activities are or were
``military activities'' and that such determinations are not subject to
review.
With respect to the understandings and declarations under article
310, the understandings are designed to clarify, or harmonize U.S. law
with, certain provisions of the Convention; the declarations are
statements of purpose, policy, or position. Neither the understandings
nor the declarations purport to exclude or modify the legal effect of
the provisions of the Convention.
Question 3. Could you clarify the scope attending the imposition of
corporal punishment and imprisonment under Article 230, section 2? My
understanding is that this provision, as clarified by understanding 11
in section three of the resolution of advice and consent passed out of
the Senate Foreign Relations Committee, would require the United States
to show gross negligence and a ``serious'' act of pollution before
seeking imprisonment under the criminal penalties provisions of the
Clean Water Act for acts of pollution committed by an operator or crew
member of a foreign vessel in the U.S. territorial sea in cases where
the vessel is not traveling to a U.S. port. Is this consistent with
current U.S. enforcement practices under the Clean Water Act? Are there
any circumstances in which the provision could be used to restrict
statutory authority regarding the imposition of criminal penalties
under the Clean Water Act or any other relevant statute?
Response. The executive branch, through the Department of Justice,
the Coast Guard, and EPA, has pursued a vigorous, successful
enforcement initiative to detect and deter pollution from ships. In
line with the policy of successive Administrations since 1983 to act in
accordance with the balance of interests reflected in the Convention's
provisions regarding traditional uses of the oceans, U.S. marine
pollution enforcement efforts have been undertaken in a manner
consistent with the Convention as a matter of policy, including the
provision you refer to. The United States has been able to maintain an
effective marine pollution enforcement program consistent with the
Convention's provisions.
There are a variety of U.S. environmental statutes that regulate
pollution in the territorial sea. Not all of these statutes are
relevant to article 230, which applies only to pollution from foreign
flag vessels and not, for example, to other types of pollution, such as
by dumping. Most of these domestic statutes authorize a range of
penalties, sanctions, and other remedies, including administrative,
civil, and criminal. Consistent with the proposed understanding, we
interpret the references to ``monetary penalties only'' to exclude only
imprisonment [and corporal punishment] and not the range of other
administrative, civil, and criminal penalties, sanctions, and other
remedies available under domestic statutes. The ``wilful and serious''
standard in article 230(2) uses terminology different in two respects
from relevant U.S. environmental criminal laws:
most environmental statutes make it a crime to
``knowingly'' engage in the conduct; the Clean Water Act, as amended,
also criminalizes certain negligent violations of that statute; and
most environmental statutes do not impose a requirement
that an offense be ``serious,'' although some prohibit pollution that
is harmful or hazardous.
In essence, however, U.S. law is largely consistent with the
Convention; U.S. interpretations of key terms (as reflected in the
proposed understandings) will harmonize the terminology; and, as noted
above, U.S. enforcement practices have been consistent with the
Convention's provisions.
Question 4. You stated in your prepared statement that ``[a]s a
party, the United States would be able to implement Part XII through a
variety of existing U.S. laws, regulations, and practices (including
enforcement practices) that are consistent with the Convention and that
would not need to change in order for the United States to meet its
Convention obligations.'' This statement could be read to suggest that
if there are U.S. laws, regulations, and practices that are not
consistent with the Convention, such laws, regulations, or practices
might need to change. Could you clarify for the record whether any
existing U.S. laws, regulations, or practices would need to change in
order for the United States to meet its Convention obligations?
Response. The statement was intended to mean that the applicable
U.S. laws, regulations, and practices (including enforcement practices)
are consistent with the Convention. It was not intended to refer only
to a subset of such laws/regulations/practices that are consistent with
the Convention. As noted in the answer to Question 3, consistent with
policy since 1983 to apply the non-deep seabed provisions of the
Convention, U.S. practice has been to enforce U.S. marine pollution
laws against foreign flag vessels in a manner consistent with the
Convention's provisions.
______
Response by William H. Taft IV to an Additional Question from
Senator Inhofe
Question. As a non-party to the Convention, we are allowed to
search any ship that enters this 200-nautical mile area to determine if
it could harm the United States or pollute the marine environment.
Under the Convention, the U.S. Coast Guard or others would not be able
to search any ship until the U.N. is notified and approves the right to
search the ship. Is that accurate?
Response. Our answer to that question is that the description of
the Convention's provisions on this question is not correct. The basic
rules for boarding and searching foreign ships at sea contained in the
1958 Geneva Conventions on the Law of the Sea, to which the United
States is a party, are unchanged in the 1982 Convention on the Law of
the Sea. The law of the sea gives no role in the U.N. in deciding when
and where a foreign ship at sea may be boarded.
The 1982 Convention provides additional authority for a coastal
State to board a foreign ship in its exclusive economic zone if the
ship is suspected of violating its laws for the protection of the
marine environment.
As stated in the resolution of advice and consent now before the
Senate, nothing in the Convention impairs the inherent right of
individual or collective self-defense or rights during armed conflict.
__________
Statement of Frank Gaffney Jr., President and CEO, The Center for
Security Policy
Mr. Chairman, Members of the Committee: It is a commonplace for
witnesses to express their appreciation for the opportunity to testify
before this and other panels of the U.S. Congress. Rarely, I suspect,
has such an expression been more heartfelt than is mine today. After
all, but for Senator Inhofe's initiative, the Senate may well have
taken no testimony at all from critics of the Law of the Sea Treaty
(LOST) before this body was asked to debate its merits and consent to
its ratification.
Such a situation would be a travesty in terms of Senate procedure
and would effectively have precluded what has rightly been called ``the
World's greatest deliberative body'' from being able to deliberate on
this immensely significant accord in an informed way. As a former
legislative assistant for Senator Henry M. Jackson and professional
staff member for the Armed Services Committee during the chairmanship
of Senator John Tower, I have enormous respect for the Senate's
constitutional responsibility to provide a ``sanity-check'' on
international treaties. That role simply cannot be properly performed
if, as the Senate Foreign Relations Committee insisted, only official
and other supporters of the treaty are permitted to discuss its
attributes.
Therefore, Mr. Chairman, please accept my grateful appreciation for
your efforts to ensure that the record will reflect not only the
enthusiasm for this treaty expressed by its admirers, but also the
considered opinions of Americans who believe the Law of the Sea Treaty
to be fatally flawed and inconsistent with our national interest.
I am by training and experience a specialist in national security
matters, not the environment. As it happens, some of the concerns I
have about LOST's defects with respect to the former could also have
adverse repercussions of an environmental nature. In this brief
testimony, I will try to highlight the Treaty's deleterious
implications for the Nation's military, intelligence and self-defense
capabilities while focusing principally on what might be called its
negative ``environmental impacts.''
unwisely empowering the u.n.
The first such impact will flow from the mandate the Law of the Sea
Treaty provides for a supranational agency to regulate seven-tenths of
the world's surface. This agency, known as the International Seabed
Authority (ISA), has the exclusive right to regulate what is done, by
whom, when and under what circumstances in subsurface international
waters and on the sea-floor. In addition, it will have considerable say
over what goes on upon the oceans' surface, as well. As with all such
organizations, it will be staffed by unelected and unaccountable
international bureaucrats.
Unlike other, far less powerful U.N. entities, however, the
International Seabed Authority will operate without the benefit of what
amounts to ``adult supervision'' provided by the Security Council. The
United States will be, at best, one among many countries represented in
the ISA. Conceivably, due to membership rotation, there could be times
when it might not even have a vote to say nothing of a veto over
decisions taken by that body.
overriding u.s. environmental concerns and practices?
What might such decisions entail? Thanks to the regulatory powers
granted by the Law of the Sea Treaty, the ISA could decide, for
example, to issue permits for deep-sea oil or gas exploration and
exploitation just beyond our 200-mile Exclusive Economic Zone--without
regard for the views of members of this Committee, the Congress more
generally or the American people who may consider such activities to be
environmentally unsound.
Not only could those concerns be shunted aside as the United States
would be, at best, outvoted. An international tribunal created to
adjudicate and enforce ISA decisions could levy penalties for any
efforts to impede such activities once authorized by the International
Seabed Authority even if we had reason to be fearful that such
activities posed an environmental hazard to our coastal areas. Worse
yet, the ISA and its tribunal are authorized to ask member states to
enforce its judgments, possibly leading to conflict.
Environmental implications could be exacerbated by the ISA's
authority to apportion drilling and mining rights to other nations who
may be less scrupulous than American companies in complying with
environmental standards and practices this country holds dear. Such
apportioning could occur even in situations where this country's
companies provide the research, seed investment and fees the first a
U.N. agency has ever been allowed to levy associated with securing the
required ISA permits.
an invitation to world-class graft?
Worries about the sorts of decisions U.N. bureaucrats might make
that could harm American environmental and other equities have only
been heightened by recent press accounts. According to successive
investigative reports in the Wall Street Journal, there is evidence of
systemic corruption and malfeasance on the part of senior U.N.
personnel--and, in the case of the Secretary General, one of his
relatives--in connection with the Iraq Oil-for-Food programs. The House
International Relations Committee has announced its intention to
investigate this evidence. The Senate would be well-advised to conduct
its own inquiry.
At the very least, I would respectfully submit that Senators cannot
responsibly act on the Law of the Sea Treaty until they can satisfy
their constituents that turning over to a new U.N. bureaucracy the
authority to make decisions about and generate revenues from what could
be billions of dollars worth of ocean-related commerce will not
amount--literally--to a license to steal on an unprecedented scale.
eroding america's rule of law
Even if LOST could somehow be prevented from enabling a massive new
U.N. kleptocracy, it will likely have a corrupting effect on one of our
most cherished principles: the rule of law.
The rulings of the tribunal set up by the Law of the Sea in
Hamburg, Germany will, after all, have implications for more than our
sovereignty and environment. They could effectively supplant the
constitutional arrangements that govern this Nation.
Even without LOST, as Judge Robert Bork has recently noted, U.S.
courts have begun to inject the decisions of international judges and
judicial bodies into domestic legal proceedings. LOST and its tribunal
could accelerate this phenomena, corroding one of our Republic's more
fundamental principles namely, that American laws duly fashioned by
Congress and signed by the President form the ambit within which U.S.
jurisprudence predictably operates.
disarmed against enviro-terrorism?
Yet another ``environmental impact'' could arise from limitations
the treaty imposes on measures we might take to assure our national
security and homeland defense. If, for instance, foreign vessels
operating on the high seas do not fit into one of three categories
(i.e., they are engaged in piracy, flying no flag or transmitting radio
broadcasts), LOST would prohibit U.S. Navy or Coast Guard vessels from
intercepting, searching or seizing them.
As you know Mr. Chairman, such constraints would preclude President
Bush's most important recent counterproliferation measure--the
Proliferation Security Initiative (PSI). The same would be true,
however, if the crew of the foreign ship was engaged not in the sort of
activity the PSI is meant to interrupt (namely, the covert transfer of
weapons of mass destruction and/or related equipment), but in the
shipment of heavy crude oil or other toxic materials that could cause
an environmental disaster were the vessel to be blown up or scuttled in
or near our waters.
impeding research on global warming?
Finally, I understand that the Russian government is taking the
position that U.S. surface vessels may not engage in research
concerning global warming--a subject I know to be of considerable
interest to you, Mr. Chairman and other members of this Committee--
within the Arctic waters they have declared, pursuant to this treaty,
to be part of their territorial waters and Exclusive Economic Zone. I
am informed that such data collection could be vital to the President's
efforts and yours to understand the true nature, extent and
implications of global warming.
We could, of course, assign this collection task to submerged
submarines. The U.S. Navy (which officially supports this treaty) is
understandably reluctant to do this, however, given myriad, competing
demands on these vessels' time at sea. There is also the problem that
LOST deems submerged transit and collection of intelligence (an
activity for which the Russians might consider ``global warming
research'' to be but a cover) inside territorial waters to be
inconsistent with the Treaty's requirement that foreign vessels conduct
themselves in such waters only with ``peaceful intent.''
In short, our adherence to the Law of the Sea Treaty would
legitimate Russia's objections to our research in important areas of
the Arctic and complicate our ability to perform it there.
the bottom line
Unfortunately, considerations like those I have mentioned are only
part of what makes the Law of the Sea Treaty incompatible with U.S.
national interests. I would ask that I be permitted to provide for the
record several articles that I have recently written that amplify on my
concerns with respect to LOST's defects from a national security and
intelligence perspective.
Suffice it to say, Mr. Chairman, a number of other Senate
committees would be very well-advised to emulate your initiative in
examining the Law of the Sea Treaty's implications for their respective
oversight portfolios. While staff of the Senate Armed Services
Committee have indicated that Chairman Warner intends to hold a hearing
on this subject next week, the Intelligence, Commerce, Energy,
Governmental Affairs and Finance Committees have yet to evidence any
interest in following suit.
Given the stakes for the Nation's equities in the areas for which
these panels are responsible, a failure to examine the sorts of hard
questions I have raised with you today is tantamount to a dereliction
of duty. I very much hope, Mr. Chairman, that your leadership in
affording an opportunity for such questions to be posed before this
important Committee will encourage your counterparts and colleagues
also to subject the Law of the Sea Treaty to the critical examination
it so clearly requires.
Such reviews will, I am confident, serve further to underscore the
points I have made here today about the inadvisability of U.S.
ratification of the Law of the Sea Treaty. I recommend that the full
Senate not consider this accord until they are completed. I further
respectfully suggest that, once the necessary oversight has been
performed, Senators vote to reject this clearly defective treaty on
national security, sovereignty and economic, as well as environmental,
grounds.
Responses by Frank J. Gaffney, Jr. to Additional Questions from
Senator Inhofe
Question 1a. Article 2(3) of the Treaty states ``the sovereignty
over the territorial sea is exercised subject to this Convention and to
other rules of international law.'' What is your interpretation of this
provision?
Response. This particular provision seems likely to be interpreted
as subjecting even the limited area of supposedly sovereign territorial
sea (extending 12 nautical miles offshore) to interference by the Law
of the Sea regime. On its face, Article 2 (3) specifically incorporates
this area within the jurisdiction of the International Tribunal for the
Law of the Sea and its subsidiary arbitral tribunals.
Question 1b. Do you think all parties of this Treaty will interpret
this provision the same?
Response. Undoubtedly, states parties to the Treaty who wish to
constrain U.S. freedom of action will interpret this provision--among
many others--differently than will the United States in the hope of
achieving their objective. Non-state actors, moreover, will also likely
seek to interpret such provisions in a manner at odds with the U.S.
interpretation and inimical to the Nation's interests.
Question 1c. How could this Treaty interfere with the United
States' sovereign exercise of freedom of the seas and in what ways will
that have an adverse effect on national security and the environment?
Response. The Treaty could be interpreted to place all activities
on, under and over the world's oceans--and even those occurring
entirely on sovereign territory--under the jurisdiction of mandatory,
binding dispute settlement mechanisms (the Tribunal or arbitral
tribunals). Were the United States to become a party to this treaty, it
would allow sovereign control of such activities to be eroded, if not
effectively taken out of American hands altogether.
It is particularly worrisome that these tribunals are certain to be
politicized and will likely prove to have majorities hostile to U.S.
interests. They will, consequently, lend themselves to being used to
curtail activities vital to American security by, for example:
prohibiting certain intelligence collection activities in territorial
waters; impeding the interdiction of ships carrying WMD to rogue states
and terrorists; and compelling the transfer of sensitive, military
useful technologies and information. In addition, the Law of the Sea's
tribunals and arbitral panels will likely be used to impose long-sought
environmental regulations on the United States that could not be gained
through normal diplomatic processes.
Question 2. What are your thoughts about developing countries
having the capabilities to implement international laws relating to
issues of our national security as well as regulating the marine
environment?
Response. It is inconsistent with American traditional practice and
vital interests and most ill-advised for the United States to enter
into a multilateral agreement that could impinge upon its ability to
project power and otherwise to safeguard its equities on, under or
above the world's oceans. This Treaty, however, was designed by an
anti-American majority--one that repeatedly outvoted and outmaneuvered
the United States in the drafting of the document, to the detriment of
American sovereignty and security. The U.S. should not become party to
such an accord.
Question 3. What are the implications for the U.S. of acceding to
the Treaty and becoming a member of the International Seabed Authority?
Response. The International Seabed Authority (ISA) provides a
vehicle for forcing advanced industrialized states to obtain permission
from developing ones before extracting certain resources from seabeds
under international waters--resources that, in the absence of the
Treaty, industrialized states or their private companies could exploit
to the extent permitted by their technology, resources and ingenuity.
Put differently, American miners must have the permission of the ISA
before they exploit the seabed.
Taken to its logical conclusion, this represents an unprecedented
surrender of U.S. flexibility and inherent Executive authority to an
international organization. It is a firm break with the Nation's
entrepreneurial traditions. It also positions the ISA as the nascent
high seas sovereign.
The ISA would also indirectly tax Americans by removing profits
from the American business revenue stream for a governmental purpose--
namely, to pay its own expenses--and for distribution to developing
states. The underlying goal of the Treaty is, of course, to facilitate
the transfer of wealth from the industrialized to the developing world.
This objective is the antithesis of free enterprise.
Question 4. Can we predict with some degree of certainty whether
the International Seabed Authority and its related tribunal will, over
time, accrue any more powers than those currently provided to it in the
Treaty or which they have already exercised?
Response. This is a point on which supporters and opponents seem to
agree--that the Treaty will continue to evolve and assume greater
authority over time. As stated by Treaty proponent Admiral James D.
Watkins in testimony before the Senate Foreign Relations Committee on
14 October 2003:
``[T]he foundation that the [Treaty] provides is subject to
interpretation and will no doubt continue to evolve through time.''
This observation appears to animate proponents of speedy
ratification, who contend that the U.S. must assume a ``seat at the
table.'' At the very least, this appears to be an implicit admission
that the majority of states parties is intent on expanding the current
terms of the treaty to the detriment of America's interests.
Unfortunately, the same anti-American dynamic that was at work in the
negotiation of the treaty seems certain to eventuate as the Treaty
``evolves'' further since the United States would likely be no more
able to prevent unsatisfactory outcomes in the future than it was in
the past.
Question 5. Do the environmental provisions of the Treaty protect
or expose the high seas and U.S. coastline to environmental threats?
Response. While some of the Treaty's provisions are desirable for
protection of the marine environment, they are certain to be used to
expose America to problematic pressure from radical environmentalists.
As Clinton Secretary of State Warren Christopher acknowledged when
submitting the Treaty to the Senate in 1994:
``[T]he Convention is the strongest comprehensive environmental
treaty now in existence or likely to emerge for quite some time.''
That reality could enable foreign powers and non-governmental
organizations to impose on America environmental regulations that the
United States has otherwise rejected, including, for example, those
enshrined in the Kyoto Protocol. The Treaty's courts offer mechanisms
for interpreting and enforcing its provisions in ways that may prove
far more onerous and intrusive than anything contemplated by Kyoto.
Question 6. Would the Treaty constrain the U.S. from acting
unilaterally on the high seas in protecting its national interests?
Response. Were the United States to become a party to the Treaty,
it would agree to abide by a number of provisions that could constrain
the Nation's ability to act unilaterally on the high seas under
circumstances short of war. Exemptions claimed for ``military
activities'' may not be available in practice if, as seems likely, the
LOST Tribunal chooses to view such activities through the prism of
their environmental rather than military implications.
It is instructive that the Proliferation Security Initiative
(PSI)--a multilateral undertaking involving a large number of states
that are party to the Law of the Sea Treaty--is already being
constrained by this accord. Since LOST identifies only four
circumstances under which ships can be stopped on the high seas
(piracy, slave-trafficking, drug-trafficking, and unauthorized
broadcasting), a pretext must be found which allows PSI operations to
claim that one (or more) of those conditions applies. If such a pretext
cannot be cited, states party are not allowed to intercept and board
ships in international waters--even if there is strong reason to
believe they are involved in terror or the transfer of weapons of mass
destruction.
Question 7. From a national security perspective, are we better off
with or without the Treaty?
Response. From a national security perspective, we are undoubtedly
better off not being a party to the Law of the Sea Treaty. Our
experience over the past twenty-three years affirms that the United
States has been able to observe those of LOST's provisions as it finds
beneficial without having to submit to mandatory dispute resolution
arrangements and other Treaty institutions that would restrict
America's freedom of action or sovereignty.
The United States decision to remain outside LOST has, moreover,
seemingly contributed to date to Treaty organizations remaining
relatively modest in size and refraining from the sort of overreach at
our expense that its principal framers had in mind.
Question 8. Does the 1994 Agreement that President Clinton
negotiated fix the problems in the Treaty that caused President Reagan
to reject it?
Response. Great confusion surrounds President Clinton's much
ballyhooed 1994 effort to ``fix'' President Reagan's concerns about the
Treaty. The Clinton effort has been misrepresented as an ``amendment''
or ``renegotiation'' of the Treaty. Neither characterization is
correct: The Treaty's text is exactly the same as it was when President
Reagan rejected it. Under the Treaty's own terms, LOST could not be
amended until 10 years after it entered into force, i.e., November
2004.
In fact, what the Clinton Administration effort actually produced
in 1994 was a second complex treaty, separate and independent of the
Treaty, which purports to govern how signatories will implement the
seabed mining section of the Treaty. The 1994 Clinton agreement is very
narrowly focused. Even if it did modify the underlying treaty, its
``fixes'' such as they are would not address wider concerns about the
Treaty effects on our Navy, our sovereignty and related matters.
Another problem arises from the fact that nearly 20 percent of the
parties that ratified the Treaty have not ratified the 1994 Agreement.
There is no certainty, for example, as to how the Tribunal would
interpret a dispute that might arise between parties and non-parties to
the 1994 accord.
Question 9. Is there anything you would like to add?
Response. No.
______
Responses by Frank J. Gaffney, Jr. to Additional Questions from
Senator Murkowski
Question 1. 1Mr. Gaffney, you have indicated you don't believe the
1994 agreement is binding, while Mr. Turner says it is. Please explain
the legal basis for your opinion.
Response. Great confusion surrounds President Clinton's much
ballyhooed 1994 effort to ``fix'' President Reagan's concerns about the
Treaty. The Clinton effort has been misrepresented as an ``amendment''
or ``renegotiation'' of the Treaty. Neither characterization is
correct: The Treaty's text is exactly the same as it was when President
Reagan rejected it. Under the Treaty's own terms, LOST could not be
amended until 10 years after it entered into force, i.e., November
2004.
In fact, what the Clinton Administration effort actually produced
in 1994 was a second complex treaty, separate and independent of the
Treaty, which purports to govern how signatories will implement the
seabed mining section of the Treaty. The 1994 Clinton agreement is very
narrowly focused. Even if it did modify the underlying treaty, its
``fixes'' such as they are would not address wider concerns about the
Treaty effects on our Navy, our sovereignty and related matters.
Another problem arises from the fact that nearly 20 percent of the
parties that ratified the Treaty have not ratified the 1994 Agreement.
There is no certainty, for example, as to how the Tribunal would
interpret a dispute that might arise between parties and non-parties to
the 1994 accord.
Question 2. Mr. Gaffney, you expressed concern that the U.S. would
not be able to continue ts activities under the PSI--to stop and search
vessels suspected of transporting illegal weapons--if we become a party
to the treaty. Yet many of the United States' partners in this effort
are already parties to the LOS. How is it that they are not in
violation of the Convention? Are you saying they are operating
illegally?
Response. Insofar as the text is concerned, it is a simple fact
that the Treaty explicitly permits boarding of another vessel on the
high seas in only a handful of limited circumstances (piracy, slavery,
unlicensed broadcasting, no flag). Proliferation is not among them. In
fact, China recently opposed a United Nations Security Council
resolution that even mentioned counter-proliferation and shipping in
the same document.
Currently, states party to the Law of the Sea Treaty can only board
a suspect vessel for counter-proliferation or counter-terrorism
purposes if they can do so under the pretext of conducting a boarding
for one of the permitted purposes. For example, had the North Korean
vessel that delivered Scud missiles to Yemen been flying its flag and
declared on its manifest the true nature of its cargo, the Spanish Navy
would have been unable to stop it without violating the Convention.
Since the United States is not a party to LOST, it is not subject
to such limitations and the prospect that they might be enforced by the
Treaty's Tribunal. We should not want to deny ourselves the option to
interdict a vessel suspected of dangerous activities not covered by
LOST simply because our partners in PSI find themselves unable to do
so.
It is moreover entirely possible that PSI has not yet been
challenged under LOST because its adversaries hope to first draw the
United States into the Treaty.
I believe the following quotes from an article published in the
European Journal of International Law, Vol. 7 (1996) No. 3, by Bernard
Oxman validate my testimony. Professor Oxman was a U.S. negotiator of
the Law of the Sea Treaty and twice testified in support of its
ratification before Senate committees.
``[T]hose who wish to realize fully the contributions of the
Convention to the rule of law will need to exercise restraint and
wisdom in at least the immediate future lest they complicate the
ratification process in one or more states. Politically, this suggests
caution regarding the organization, composition and budgets of the new
institutions established by the Convention. Legally, this suggests
restraint in speculating on the meaning of the Convention or on
possible differences between the Convention and customary law.''
``From the perspective of strengthening the rule of law in
international affairs and the peaceful resolution of disputes, our
primary goal must be to promote compulsory arbitration or adjudication
wherever it appears plausible for states to accept it.''
``For those of us for whom strengthening the rule of law is the
goal, and global ratification of the Convention is the means, it is
essential to measure what we say in terms of its effect on the goal.
Experienced international lawyers know where many of the sensitive
nerve endings of governments are. Where possible, they should try to
avoid irritating them.''
``It is therefore ironic that while one of the most significant
contributions of the Law of the Sea Convention to the rule of law is
its requirement for adjudication or arbitration of disputes, the
prospects for global ratification of the Convention may be placed in
jeopardy by litigation in this delicate interim period, particularly
with or between nonparties, over maritime jurisdictional issues.''
``I do not dissent from the view that the development of
international law benefits from more cases and decisions by the Court.
My view is simply that, because of its compromissory clauses, a
globally ratified Convention promises many more cases in the future,
and that it would be unfortunate if one or two cases during this
delicate interim period, when so many governments are considering
ratification, had the effect of prejudicing that promise.'' (Emphasis
added throughout.)
Responses by Frank J. Gaffney, Jr. to Additional Questions from
Senator Jeffords
Question 1. You stated in your prepared testimony that ``[t]he
rulings of the tribunal set up by the Law of the Sea . . . . could
effectively supplant the constitutional arrangements that govern this
Nation.'' What is your basis for this assertion? Are you aware of any
rulings from other international tribunals that have supplanted the
United States Constitution?
Response. Increasingly, the rulings of international courts and
even documents issued by various international conclaves have begun to
influence American jurisprudence. Plenty of examples can be found in
recent Supreme Court rulings. In Atkins v. Virginia (2002), for
example, the Court reversed its earlier ruling partly out of concern
for ``the world community.'' Similarly, in Lawrence v. Texas (2003),
the court also reversed itself in part because it was concerned about
the European Court of Human Rights and the European Convention on Human
Rights. And in Roper v. Simmons (2005), the court reversed itself yet
again in part because of treaties the U.S. has never ratified--the U.N.
Convention on the Rights of the Child and the International Covenant on
Civil and Political Rights. Justice Anthony Kennedy, writing for the
majority, declared that [``the Court must take into account
international law in interpreting the [Constitution].''
The American military's domestic and foreign adversaries in
particular clearly recognize that such judicial activism can be used as
an instrument of asymmetric warfare against the generally vastly
superior U.S. armed forces. This technique has come to be known as
``lawfare.'' To the extent the United States subjects itself to
international agreements that contain mandatory dispute resolution
mechanisms and other court systems, it affords its foes new instruments
for waging lawfare against us.
I would also point you to testimony by treaty proponent and Legal
Advisor to the State Department, William H. Taft, before the Senate
Foreign Relations Committee on 21 October 2003, in which he
acknowledges that the Treaty might present constitutional
complications:
``[T]he Convention includes simplified procedures for the adoption
of entry into force of certain Convention amendments and implementation
and enforcement measures that raise potential constitutional issues.''
Question 2. You stated in your oral testimony that under the 1982
Convention, as modified by the 1994 agreement, ``it is our duty to
provide the Communist Chinese advanced technology of a directly
military character.'' You also asserted in a recent Washington Times
article (2/24/2004) that the Convention mandates the transfer of
sensitive technologies. What is your basis for these assertions? Are
you aware that the Provisions in the 1982 Convention requiring
industrialized nations to transfer deep seabed mining technology to
developing countries (Annex III, article 5) were eliminated by the 1994
Agreement restructuring the Convention's deep seabed mining regime?
Specifically, have you read Section 5 of the Annex to the 1994
Agreement, which states that ``[t]he provisions of Annex III, article
5, of the Convention shall not apply''?
Response. As noted in response to Senator Inhofe's Question 8, the
Law of the Sea Treaty could not be amended until November 2004.
Consequently, the 1994 Agreement represents a separate and parallel
accord that did not change the obligations parties would assume under
the original treaty.
Interestingly, even if the 1994 Agreement actually had amended some
provisions of the Treaty's seriously defective Part XI, it would have
left a number of other, troublesome commitments untouched. These
include, for example:
Article 266 mandates that states ``cooperate in accordance
with their capabilities to promote actively the development and
transfer of marine science and marine technology on fair and reasonable
terms and conditions'' and ``endeavor to foster favourable economic and
legal conditions for the transfer of marine technology.''
Article 268 requires states to ``promote the acquisition,
evaluation and dissemination of marine technological knowledge and
facilitate access to such information and data.''
Article 269 calls for states to ``establish programmes of
technical cooperation for the effective transfer of all kinds of marine
technology to States which may need and request technical assistance.''
Dispute settlement mechanisms, furthermore, make vulnerable
valuable technology and information. Article 6 of Annex VII requires
that parties to a dispute ``facilitate the work of the arbitral
tribunal and . . . provide it with all relevant documents, facilities
and information.'' It can thus be expected that states parties might be
tempted to bring the United States before an arbitral tribunal--even
without expectation of a favorable result--in order to obtain sensitive
information.
As noted in response to Senator Inhofe's Question 8, it is also of
concern that nearly 20 percent of the parties that ratified the Treaty
have not ratified the 1994 Agreement, and there is no way of knowing
how a tribunal would interpret a dispute between the two.
Question 3. Your testimony suggests that you believe it is against
U.S. interests to have an international regime for administering deep
seabed mining rights in areas beyond the national jurisdiction of any
state. Absent such an international regime, how could U.S. companies
that wish to conduct mining in such areas have any certainty that their
claims to mine sites will be respected by others?
Response. In ocean areas where there is no recognized sovereign,
the U.S. Government could effectively assert its protection over
pioneering American companies searching for mineral or other resources,
an assertion backed by a strong Navy.
Question 4. The International Seabed Authority has been in
existence for nearly a decade. What steps has it taken during this
period that you believe are contrary to U.S. interests?
Response. While the ISA has been relatively inactive during its
first decade of existence, U.S. funding and submission to its authority
would undoubtedly expand result in efforts greatly to expand its
organizational footprint, jurisdiction and powers in keeping with the
vision of LOST's principal framers, namely that it would serve as a
means of supplanting national authorities with self-funding
supranational agencies and, over time, garrote sovereignty.
Evidence that an ulterior motive has prompted the relative
quiescence of LOST-spawned organizations to date is supplied in
response to Question 6 below.
Question 5. You asserted in a recent National Review article (2/26/
2004) that the Convention would give the International Seabed Authority
the power to impose production quotas for deep seabed mining and oil
production. What is your basis for this assertion? Are you aware that
the power of the ISA to impose production controls was eliminated by
the 1994 Agreement restructuring the Convention's deep seabed mining
regime?
At the end of the day, it is the Tribunal which will have the last
word on what the Convention means. Whether the Tribunal will even
recognize the 1994 Clinton Agreement is an open question, and there is
no appeal from Tribunal decisions.
On the ``production controls'' point, it must be noted that the
mere existence of the International Seabed Authority (ISA), its
accompanying regulatory scheme, and a U.S. State Department assertion
that there can be no valid title to any deep seabed tract except
through the ISA are, in themselves, qualitative production controls
that will at least limit and possible create actual disincentives to
developing and exploiting seabed mining technologies.
Question 6. You asserted at the hearing ``that people have behaved
with greater circumspection and constraints on what they ultimately
would like to see this supranational agency do, so as not to queer the
deal on getting the Senate to go along with the ratification of this
treaty.'' Are you suggesting that certain proponents of full U.S.
participation in the Law of the Sea are engaged in an attempt to
mislead the U.S. Senate? Who are these ``people'' to whom you are
referring in your statement? What exactly is it that these ``people''
would like to see this supranational agency do? Please provide any
relevant documentation to support your answers.
Response. I believe the following quotes from an article published
in the European Journal of International Law, Vol. 7 (1996) No. 3, by
Bernard Oxman validate my testimony. Professor Oxman was a U.S.
negotiator of the Law of the Sea Treaty and twice testified in support
of its ratification before Senate committees.
``[T]hose who wish to realize fully the contributions of the
Convention to the rule of law will need to exercise restraint and
wisdom in at least the immediate future lest they complicate the
ratification process in one or more states. Politically, this suggests
caution regarding the organization, composition and budgets of the new
institutions established by the Convention. Legally, this suggests
restraint in speculating on the meaning of the Convention or on
possible differences between the Convention and customary law.''
``From the perspective of strengthening the rule of law in
international affairs and the peaceful resolution of disputes, our
primary goal must be to promote compulsory arbitration or adjudication
wherever it appears plausible for states to accept it.''
``For those of us for whom strengthening the rule of law is the
goal, and global ratification of the Convention is the means, it is
essential to measure what we say in terms of its effect on the goal.
Experienced international lawyers know where many of the sensitive
nerve endings of governments are. Where possible, they should try to
avoid irritating them.''
``It is therefore ironic that while one of the most significant
contributions of the Law of the Sea Convention to the rule of law is
its requirement for adjudication or arbitration of disputes, the
prospects for global ratification of the Convention may be placed in
jeopardy by litigation in this delicate interim period, particularly
with or between nonparties, over maritime jurisdictional issues.''
``I do not dissent from the view that the development of
international law benefits from more cases and decisions by the Court.
My view is simply that, because of its compromissory clauses, a
globally ratified Convention promises many more cases in the future,
and that it would be unfortunate if one or two cases during this
delicate interim period, when so many governments are considering
ratification, had the effect of prejudicing that promise.'' (Emphasis
added throughout.)
__________
Statement of Paul Kelly, Senior Vice President, Rowan Companies, Inc.,
Member, U.S. Commission on Ocean Policy
Mr. Chairman. Thank you for inviting me to testify before your
Committee today on the important subject of United States accession to
the United Nations Law of the Sea (LOS) Convention. I am here
representing the U.S. Commission on Ocean Policy.
The U.S. Commission on Ocean Policy has taken a strong interest in
the international implications of ocean policy since the inception of
our work. Our 16 Commissioners were appointed by the President--12 from
a list of nominees submitted by the leadership of Congress--and
represent a broad spectrum of ocean interests. The Oceans Act of 2000
(P.L. 106-256) specifically charged our Commission with developing
recommendations on a range of ocean issues, including recommendations
for a national ocean policy that ``will preserve the role of the United
States as a leader in ocean and coastal activities.''
With this charge in mind, the Commission took up the issue of
accession to the LOS Convention at an early stage. At its second
meeting in November, 2001, the Commissioners heard testimony from
Members of Congress, Federal agencies, trade associations, conservation
organizations, the scientific community and coastal states. We heard
compelling testimony from many diverse perspectives all in support of
ratification of the LOS Convention. After reviewing these statements
and related information, our Commissioners unanimously passed a
resolution in support of United States accession to the LOS Convention.
The fact that this resolution was our Commission's first policy
pronouncement speaks to the real sense of urgency and importance
attached to this issue by my colleagues on the Commission.
The Commission's resolution was forwarded to the President, Members
of Congress, the Secretaries of State and Defense, and to other
interested parties. I have attached a copy of our resolution for the
record. The responses we received have been very positive. Secretary of
State Colin Powell wrote that he ``shared our views on the importance
of the Convention,'' and Admiral Vern Clark, Chief of Naval Operations,
stated that he ``strongly believe[d] that acceding to this Convention
will benefit the United States by advancing our national security
interests and ensuring our continued leadership in the development and
interpretation of the law of the sea.''
Ensuing hearings, and the additional information we have gathered,
have served to reinforce our conviction that ratification of the LOS
Convention is very much in our national interest. I would like to share
with you some of the reasons that our Commissioners have unanimously
adopted this view of the Convention.
The LOS Convention was described by those who appeared
before the Ocean Commission as the ``foundation of public order of the
oceans'' and as the ``overarching framework governing rights and
obligations in the oceans.'' The United States was involved in all
aspects of the development of the Convention, including reshaping the
seabed mining provisions in the early 1990's. As a consequence, the
Convention contains many provisions favorable to U.S. interests. The
oceans provide vital food and energy supplies, facilitate waterborne
commerce, and create valuable recreational opportunities. It is in
America's interest to work with the international community to preserve
the productivity and health of the oceans and to secure cooperation
among nations everywhere in managing marine assets wisely.
The Convention is subject to interpretation and will no
doubt continue to evolve through time. The United States needs to be an
active leader in this process, working to preserve the carefully
crafted balance of interests that we were instrumental in developing,
and playing a leadership role in the evolution of ocean law and policy.
Acceding to the Convention will allow us to fully and effectively
fulfill that leadership role, and will enhance United States economic,
environmental and security interests.
There are a series of issues currently being considered by parties
to the Convention which could have tremendous economic implications for
the United States. Of particular interest is the work of the
Convention's Commission on the Limits of the Continental Shelf, which
is charged with reviewing claims and making recommendations on the
outer limits of the Continental Shelf. This determination will in turn
be used to establish the extent of coastal state jurisdiction over
Continental Shelf resources. There are several reasons why direct U.S.
participation in this process would be beneficial, namely:
The LOS Convention sets up the ground rules by which
coastal nations may assert jurisdiction over exploration and
exploitation of natural resources beyond 200 miles to the outer edge of
the continental margin. This is particularly important to the United
States, which is one of only a few nations in the world with broad
continental margins.
The continental margins beyond the United States'
Exclusive Economic Zone (EEZ) are rich not only in oil and natural gas,
but also appear to contain large concentrations of gas hydrates, which
may represent an important potential energy source for the future.
The work of the Continental Shelf Commission is now at a critical
stage. The Russians have submitted a claim in the Arctic and have
received comments on their claim from the Commission. Other States are
preparing their submissions, which are due in 2009 or within 10 years
of a State's becoming a party, whichever is later. Considering the
technical work to be done in order to delineate our own shelf, 10 years
is a short time horizon. The Continental Shelf Commission's action on
these submissions will directly impact U.S. jurisdictional interests,
particularly in the Arctic. If we do not become a party to the LOS
Convention, we are in danger of having the world leave us behind on
issues of continental shelf delimitation because we will continue to be
ineligible to participate in the selection of members of the Commission
or nominate U.S. citizens for election to that body.
We need to conduct extensive multi-beam sonar mapping of the U.S.
continental shelf, where substantial resources (including hydrocarbons,
minerals and sedentary species) could become available under the LOS
Convention provisions concerning extensions of the continental shelf.
If the United States accedes to the Convention, it would be able to
present evidence to the Continental Shelf Commission on the Limits of
the Continental Shelf in support of U.S. jurisdictional claims to its
continental shelf. The University of New Hampshire's Center for Coastal
and Ocean Mapping/Joint Hydrographic Center, in conjunction with NOAA
and USGS, has already identified regions in U.S. waters where the
continental shelf is likely to extend beyond 200 nautical miles and is
developing strategies for surveying these areas. Bathymetric and
seismic data will be required to establish and meet a range of other
environmental, geologic, engineering and resource needs.
Acceding to the LOS Convention will also allow the United
States to play an active leadership role in a host of other issues of
economic importance. As a party to the Convention, the U.S. can
participate fully in International Seabed Authority efforts to develop
rules and practices that will govern future commercial activities on
the deep seabed. Currently, the U.S. is relegated to observer status.
In 1994 an agreement was reached addressing U.S. concerns on
implementing the deep seabed mining provisions of the Convention, after
which the Administration sent the treaty to the Senate for advice and
consent. As a party to the Convention, the United States will be in a
much stronger position to ensure the preservation of the balance
between coastal state authority and freedom of navigation. The United
States, whose international trade and economic health relies so heavily
on maritime commerce, cannot afford to remain on the sidelines while
parties to the LOS Convention make decisions that directly impact
navigational rights and maritime commerce.
Further, the LOS Convention provides a comprehensive framework for
protection of the marine environment. The Convention includes articles
mandating global and regional cooperation, technical assistance,
monitoring and environmental assessment, and establishing a
comprehensive enforcement regime. The Convention specifically addresses
pollution from a variety of sources, including land-based pollution,
ocean dumping, vessel and atmospheric pollution, and pollution from
offshore activities. The principles, rights and obligations outlined in
this framework are the foundation on which more specific international
environmental agreements are based.
The United States is party to many international agreements
including conventions pertaining to vessel safety, environmental
protection and fisheries management which are based directly on the LOS
framework. Those United States representatives who participate in the
negotiation of these agreements, such as the U.S. Coast Guard, are
among the strongest advocates for accession to the LOS Convention. In
testimony before our Commission, then-Commandant Admiral James Loy, and
more recently the current Commandant, Admiral Thomas Collins, both
strongly supported United States accession to the LOS Convention.
The Coast Guard, which has played a lead role in developing
international agreements on maritime safety, security and environmental
protection at the International Maritime Organization (IMO), and also
participates in fisheries negotiations, told our Commission that: ``[A]
failure to accede to the Convention materially detracts from United
States credibility when we seek to advance our various ocean interests
based upon Convention principles. Also, as a non-party, we risk losing
our ability to influence international oceans policy by leaving
important questions of implementation and interpretation to others who
may not share our views.''
From a security perspective, the LOS Convention provides a balance
of interests that protect freedom of navigation and overflight in
support of United States' national security objectives. The provisions
were carefully crafted during negotiations of the LOS Convention, and
reflect the substantial input that the United States had in their
development. In particular, the Convention provides core navigational
rights through foreign territorial seas, international straits and
archipelagic waters, and preserves critical high seas freedoms of
navigation and overflight seaward of the territorial sea, including in
the EEZ. The navigational freedoms guaranteed by the Convention allow
timely movement by sea of U.S. forces throughout the world, and provide
recognized navigational routes which can be used to expeditiously
transport U.S. military cargo 95 percent of which moves by ship.
The Convention's law enforcement provisions establish a regime that
has proven to be effective in furthering international efforts to
combat the flow of illegal drugs and aliens by vessel--efforts which
directly impact our nation's security. The Convention establishes the
rights and obligations of flag states, port states, and coastal states
with respect to oversight of vessel activities, and provides an
enforcement framework to expeditiously address emerging maritime
security threats.
There are many other examples of benefits that would be derived
from U.S. accession to the LOS Convention. For example, the U.S.
research fleet frequently suffers costly delays in ship scheduling when
other nations fail to respond in a timely manner to our research
requests. Currently, we are not in a position to rely on articles in
the Convention that address this issue, such as the ``Implied Consent''
article (Article 252) that allows research to proceed within 6 months
if no reply to the request has been received, and other provisions that
outline acceptable reasons for refusal of a research request. Also, as
a party to the Convention, the U.S. could participate in the member
selection process, including nominating our own representatives, for
the International Law of the Sea Tribunal, as well as the Continental
Shelf Commission and the various organs of the International Seabed
Authority.
U.S. accession to the LOS Convention has received bipartisan
support from past and current Administrations. On November 27, 2001,
Ambassador Sichan Siv, U.S. representative on the United Nations
Economic and Social Council, in his statement in the General Assembly
on Oceans and Law of the Sea, said: ``Because the rules of the
Convention meet U.S. national security, economic and environmental
interests, I am pleased to inform you that the Administration of
President George W. Bush supports accession of the United States to the
[LOS] Convention.'' More recently the G-8 Summit held in June, 2003,
produced a G-8 Action Plan for Marine Environment and Tanker Safety
which stated: ``Specifically, we commit to: [1.1] The ratification or
acceding to and implementation of the United Nations Convention on the
Law of the Sea, which provides the overall legal framework for
oceans.''
The input received by the U.S. Commission on Ocean Policy reflects
a broad consensus among many diverse groups in favor of ratification of
the LOS Convention. 145 nations are now party to the Convention. There
are many important decisions being made right now within the framework
of the Convention which will impact the future of the public order of
the oceans and directly impact U.S. interests. Until we are a party to
the Convention, we cannot participate directly in the many bodies
established under the Convention that are making decisions critical to
our interests.
While we remain outside the Convention, we lack the credibility and
position we need to influence the evolution of ocean law and policy.
That law and policy is evolving as the provisions of the Convention are
interpreted and implemented. It is interesting to note, in this regard,
that the Convention will be open for amendment for the first time
beginning in 2004. The Ocean Commission was directed by our enabling
legislation to make recommendations to preserve the role of the United
States as a leader in ocean activities. We cannot be a leader while
remaining outside of the process that provides the framework for the
future of ocean activities. For this reason, I renew our Commission's
unanimous call for United States accession to the United Nations Law of
the Sea Convention.
Thank you, Mr. Chairman. I stand ready to answer any questions that
the Committee may have.
______
Responses by Paul Kelly to Additional Questions from Senator Inhofe
Question 1a. Article 2(3) of the Treaty states ``the sovereignty
over the territorial sea is exercised subject to this Convention and to
other rules of international law.'' What is your interpretation of this
provision?
Response. My interpretation of this provision is that a coastal
state, when exercising sovereignty over its territorial sea, must do so
consistent with other provisions of the Law of the Sea Convention and
with other rules of international law.
Question 1b. Do you think all parties of this Treaty will interpret
this provision the same?
Response. Article 2(3) reflects existing international law and
practice. Article 2(3) is very similar to article 1(2) of the 1958
Convention on the Territorial Sea and Contiguous Zone, which requires
parties to exercise sovereignty in their territorial sea ``subject to
the provisions of these articles and to other rules of international
law.'' The United States is already a party to the 1958 convention.
There is every reason to believe that parties to the Law of the Sea
Convention will share a common interpretation of the provision's
meaning.
Question 1c. How could this Treaty interfere with the United
States' sovereign exercise of freedom of the seas and in what ways will
that have an adverse effect on national security and the environment?
Response. The Law of the Sea Convention enhances the ability of the
United States to defend essential national security and environmental
interests. The Convention contains important provisions which were not
included in earlier conventions, including articles which enhance
freedom of navigation by providing rights of passage through straits
and archipelagoes. These rights are critical to our military mobility
and our national security interests. They facilitate maritime commerce,
including transport of oil, vital to United States economic interests
and energy security. The Convention also provides a framework for
regional and international cooperation in protecting and preserving the
marine environment. The Ocean Commission received input from a broad
range of interests, including the Chief of Naval Operations and leading
representatives from maritime transportation and offshore energy
industries, all of whom strongly supported accession to the Convention
as in the best interests of the United States.
Question 2. Do you believe it is in the best interest of the United
States to vest control of seabed mining operations in countries which
lack the necessary technology and capital to conduct such operations
themselves?
Response. In my view, changes made to the seabed mining provisions
have fully addressed earlier U.S. concerns, including concerns about
the process for developing and implementing the seabed mining regime.
In 1994, Part XI of the Convention dealing with deep seabed mining was
successfully modified, consistent with free-market principles, to
address all of the concerns previously identified by President Reagan
and Congress. As a result of these legally binding changes, the United
States is now guaranteed a permanent seat on the International Seabed
Authority Council, the executive body that has primary responsibility
for administering the deep seabed mining regime. The United States is
also guaranteed a seat for the foreseeable future on the new Finance
Committee, which has jurisdiction over financial and budgetary matters.
The revised decisionmaking process requires consensus and therefore
effectively gives the United States a veto over, among other things,
all amendments to the deep seabed mining regime, adoption of rules and
regulations, and budgetary and financial matters. Other substantive
decisions are made under a ``chambered'' voting arrangement that allows
the United States and just two other industrialized nations acting in
concert to block a decision.
In presentations before the Commission on Ocean Policy, U.S.
offshore industry representatives urged ``immediate'' Senate approval
of the Convention, citing concerns about our ability to protect U.S.
industry interests if we remain a non-party. The Ocean Commission
agrees that the United States should become a party immediately and
take advantage of the leadership opportunities, and the ability to
shape future policies, presented by the modifications to Part XI.
Question 3. Do you believe that by acceding to the Treaty the
United States would gain an adequately effective bargaining position to
protect its current and future national policies and interests relating
to national defense, seabed mining and environmental protection? Please
explain in detail.
Response. On 14 November, 2001, the U.S. Commission on Ocean Policy
unanimously adopted a resolution recommending that the United States
immediately accede to the Law of the Sea Convention. This
recommendation was based both on the powerful testimony in support of
the Convention from a broad range of witnesses, and on the conviction
that ``there are compelling national security, jurisdictional,
environmental, and economic interests'' for U.S. accession.
Regarding national defense, the Convention codifies and strengthens
freedoms of navigation and overflight essential to U.S. military
mobility. The Navy and Coast Guard have testified that joining the
Convention will strengthen our ability to defend these and other
important maritime rights, and enhance our national and homeland
security efforts.
Regarding seabed mining, the 1994 modifications to the deep seabed
mining regime give the United States powerful means to protect U.S.
interests, including a permanent seat on the ISA Council and veto power
over amendments to the regime. The Convention also provides mechanisms
to afford legal certainty for continental shelf claims, thereby
providing U.S. industries with the certainty and ``security of tenure''
needed for capital-intensive deep-water projects offshore of the United
States and around the world.
Regarding environmental protection, the Convention is carefully
crafted to balance U.S. interests in protecting and preserving our
marine environment with other important interests, such as freedom of
navigation.
The United States can most effectively enhance our bargaining
position and protect our current and future policies and interests by
joining the other 148 nations that are party to the Convention. We
cannot be as effective while we remain outside the convention that
provides the framework for the future of ocean activities.
Question 4. What are your thoughts about developing countries
having the capabilities to implement international laws relating to
issues of our national security as well as regulating the marine
environment?
Response. From my perspective as a member of the Ocean Commission
and a representative of the ocean industry, the United States can best
protect its interests through support for the rule of law on the
oceans. A legal framework for ocean activities provides enhanced
stability and certainty in support of U.S. national security interests,
economic investment, and cooperation on marine environmental issues. A
widely accepted legal framework also provides the best mechanism to
counter actions taken by developed or developing countries that are
inconsistent with that framework and detrimental to U.S. national
security or environmental interests.
The Law of the Sea Convention was described by those who appeared
before the Ocean Commission as the ``foundation of public order of the
oceans'' and as the ``overarching framework governing rights and
obligations in the oceans.'' All those who testified before our
Commission, including representatives from the Department of Defense,
industry and environmental groups, stated that we would be in a better
position to protect U.S. interests and rights under international law
by joining with the other 148 nations that are party to the Convention.
This would be the case whether we were dealing with issues that impact
our national security, such as excessive maritime claims that purport
to abridge our freedom of navigation, or with actions that threaten the
marine environment.
Question 5. Can we predict with some degree of certainty whether
the International Seabed Authority and its related tribunal will, over
time, accrue any more powers than those currently provided to it in the
Treaty or which they have already exercised?
Response. Under the terms of the Convention, the authority of the
ISA is limited to administering the exploration and exploitation of
minerals in areas of deep seabed beyond national jurisdiction,
generally 200 miles from shore. The ISA has no other role and no
general regulatory authority over other ocean uses, including freedom
of navigation. Under the 1994 modifications to Part XI of the
Convention, the United States is guaranteed a seat on the ISA Council
in perpetuity if it becomes a party to the Convention. Decisions on
approval of amendments to the Convention's seabed mining provisions
must be made by consensus, and are therefore in effect subject to a
U.S. veto. These provisions would apply to efforts to alter or enhance
ISA authority over time. The adoption of rules and regulations
implementing the seabed mining regime are also subject to consensus and
a U.S. veto. Other substantive decisions of the Council are made under
a voting arrangement that allows the United States and just two other
industrialized nations acting in concert to block a decision. However,
the United States can only take advantage of these provisions if it
becomes a party to the Convention.
Question 6. Despite the clear requirements in Articles 208 and 210
of the Treaty which specify that related national laws must be ``no
less effective'' than international rules, standards and recommended
practices and procedures, the Committee received testimony to the
effect that the United States would not be required to change any of
its environmental laws to be in compliance with the Treaty. Are you
certain that the Treaty could not be used to impose restrictions or
requirements on the United States to limit or expand current or future
U.S. laws and policies?
Response. Article 208 concerns pollution arising from seabed
activities under national jurisdiction. There are no applicable
international standards regarding these activities. The United States,
however, has a substantial body of domestic law in place to protect our
marine environment from possible pollution related to offshore
activities under U.S. national jurisdiction. Article 210 concerns
pollution from dumping. The United States is a party to the 1972 London
Dumping Convention, which contains requirements for ocean dumping.
As evidenced by the 1994 modifications to the deep seabed mining
regime, the international community is willing to make significant
accommodations to encourage U.S. participation in international
maritime regimes. The U.S. is already a recognized leader at the
International Maritime Organization in developing more effective
international measures to combat pollution from ships. Development of
new international marine pollution standards for seabed activities
within national jurisdiction or ocean dumping would be very unlikely to
be achieved without direct U.S. participation and approval.
Question 7. Article 212 of the Treaty requires States to adopt laws
and regulations for pollution from the atmosphere. How would the United
States domestic policy need to be changed or altered to comply with the
international laws, regulations, and recommended practices to address
these concerns? And does this mean that other countries can use this
provision to force the United States to regulate CO2?
Response. Article 212 does not require the United States to comply
with international laws, regulations, or standards. Article 212 only
requires states to adopt laws and regulations to prevent, reduce and
control pollution of the marine environment from or through the
atmosphere. The United States currently addresses these issues through
the Clean Air Act. Other countries could not use the provisions of the
Convention to force the United States to regulate carbon dioxide.
______
Response by Paul Kelly to Additional Question from Senator Murkowski
Question. Mr. Kelly, you heard me ask Mr. Leitner about his
suggestion that the U.S. authorize civilian vessels to sail as
privateers, and his response that he viewed that both as legal and as
an extension of the U.S. legal system, inasmuch as vessels seized by
privateers could be sold to benefit the victims of terrorism. I
recognize that you are here on behalf of the U.S. Oceans Commission,
but you have in the past spoken as an expert for such groups as the
American Petroleum Institute and the National Ocean Industries
Association. As an expert, can you identify any vulnerabilities that
might result to the U.S. international maritime industry from such an
approach?
Response. The maritime industry has long supported U.S. efforts to
develop the rule of law in ocean activities. A predictable legal regime
provides the stability and certainty needed for capital intensive
investments in offshore projects. Many of the provisions of the Law of
the Sea Convention, such as those that delineate Exclusive Economic
Zones and assist in delineation of Continental Shelf boundaries,
further industry interests by creating a more predictable investment
environment. The Convention creates a more attractive business climate
by providing means for peaceful dispute resolution. The maritime
industry also relies on the Convention's guarantees of navigational
freedom essential to global commerce and U.S. economic security.
The sanctioning of privateers would introduce uncertainties and
instability that run directly counter to ocean industry interests. This
practice would certainly create additional risk for those considering
investment in ocean industries, including a greatly increased potential
for violence and conflict on the oceans. If other countries were to
follow suit, the assets of U.S. ocean industries could potentially be
seized and detained by privateers for whatever reasons they or their
sponsors deemed appropriate, and freedoms of navigation jeopardized.
Authorizing privateers, aside from questions as to its legality,
would be extremely harmful to U.S. interests in furthering the rule of
law and the peaceful resolution of disputes around the globe. The use
of privateers is also directly contrary to U.S. ocean industry
interests. I would strongly recommend against further consideration of
this idea.
__________
Response by Paul Kelly to Additional Question from Senator Jeffords
Question. Critics of the Law of the Sea have argued that it is
against U.S. interests to have an international regime for
administering deep seabed mining rights in areas beyond the national
jurisdiction of any state. Absent such an international regime, how
could U.S. companies that wish to conduct mining in such areas have any
certainty that their claims to mine sites will be respected by others?
The International seabed Authority has been in existence for nearly
a decade. Do you know of any steps it has taken during this period that
are contrary to U.S. interests?
Would you state once more for the record why the oil and gas
industry supports full U.S. participation in the Law of the Sea? Does
such support extend across different segments of the industry?
Response. Absent an international regime, U.S. companies can not be
certain that their claims to mine sites beyond the jurisdiction of any
state will be respected by others. Working within the international
deep seabed regime provides the certainty needed to ensure the security
of tenure critical to capital-intensive, deep seabed mining.
I am not aware of actions taken by the ISA that are unfavorable to
U.S. interests. On the contrary, the 1994 amendments to the deep seabed
regime, in addition to giving the U.S. veto power over major decisions
within the ISA, also recognize the seabed mine claims established on
the basis of exploration already conducted by U.S. companies and
provides assured access for any future qualified U.S. miners. However,
the United States needs to become a party to the Convention to take
advantage of these provisions and exert its leadership in implementing
the deep seabed mining regime.
The offshore oil and gas industry supports the Convention for a
variety of reasons. The Convention secures each coastal nation's rights
to the living and non-living resources within the 200 mile EEZ, and
broadens the definition of continental shelf in a way that favors the
United States, one of the few nations with broad continental margins.
The Convention establishes objective criteria for delineating the outer
limits of the continental shelf, and provides a forum for dealing with
potential disputes and other issues. As in the case of deep seabed
mining, this provides additional certainty and security for investment
in costly deep-water oil and natural gas development projects. Given
the significant resource potential of the U.S. continental shelf, as
well as U.S. companies' exploration interests in waters subject to
foreign jurisdiction, the Convention clearly serves national energy
security interests. The Convention also protects navigational rights
and freedoms essential to the extraction and delivery of petroleum and
petroleum products.
Support for the Convention extends throughout all segments of the
offshore energy industry, ranging from production to drilling,
engineering to marine and air transport, offshore construction to
equipment manufacture and supply, and telecommunications to finance and
insurance.
__________
Statement of Peter Leitner, Author
Mr. Chairman, members of the Committee, I would like to thank you
for providing me the opportunity to testify before you today concerning
the dangerous momentum to ratify the United Nations Convention on the
Law of the Sea. This seriously flawed document was rightly rejected by
President Reagan as it embodies a wide range of precedents,
obligations, and restrictions that are deleterious to American national
and economic security interests. Indeed, the Treaty and its many
precedent setting provisions is a direct assault on the sovereignty of
the United States and the supremacy of the Nation State as the primary
actor in world affairs.
I am appearing before you today as a private citizen and author.
Although I am a Senior Strategic Trade Advisor in the Office of the
Secretary of Defense my views and statements are my own and do not
represent the views of the Department or the U.S. Government. I have
also submitted to the Committee additional supplementary material
regarding this complex and wide-ranging Treaty having been assured that
it will be published as part of the record of this hearing.
Before I begin I would like to explain my bona fides. I became
involved in Law of the Sea issues first as a student in 1973 and I have
pursued the topic ever since. My first master's thesis was entitled:
The Future of the Nation State (1975) an analysis of threats to
sovereignty posed by the direction the Treaty was beginning to take as
well as the rise of multinational corporations. The second thesis was
entitled: The Impact of Manganese Nodule Exploitation Upon Less
Developed Mineral Exporting Nations. This economic & engineering
analysis was well received as a scene-setter for the struggles that
were to come. The third thesis was a quantitative analysis entitled:
Determinants of National Claims to Territorial Seas. This collection of
analytical approaches to the Law of the Sea Treaty and its impacts
landed me a job with the U.S. General Accounting Office where I was
hired to be their expert on the treaty.
In 1976 GAO was requested by several Committee Chairmen to
independently report on the status of negotiations as they were deeply
distrustful of the official delegation reports authored by the State
Department. As a result, I attended many of the negotiating sessions in
New York and Geneva as an observer attached to the US delegation. I
joined the U.S. delegation in 1977 and reported regularly to Congress
on the state of negotiations through 1982. I was present in New York
when the Reagan Administration's good faith attempt to make the Treaty
acceptable was roundly rejected by a coalition of Developing and
Communist nations.
Since that time I have closely tracked the accession process and
the development of the International Seabed Authority. Having long
since left the General Accounting Office and transferred to the
Department of Defense I became deeply involved in the Export Licensing
process. In this capacity I was assigned a case whereby the People's
Republic of China was using their status as a so-called ``pioneer
investor'' in ocean mining to justify the acquisition of strategic/
export-controlled technology under the guise of prospecting for
manganese nodules in the mid-Pacific. Unfortunately, the level of
technology they were attempting to acquire greatly exceeded the level
of capability that either the United States or our industrialized
allied used in undertaking such work. The quality of the side-scanning
sonar, deep-ocean bathymetric equipment, cameras, lights, remotely
operated vehicles, and associated submersible technology provided them
the capability to locate, reach, and destroy, or salvage early warning
and intelligence sensors vital to our national security. Additionally,
such technology also imparted an offensive capability to our chief
potential military adversary by enabling them to map any portion of the
ocean or continental shelves to determine submarine routing schemes or
underwater bastions where missile-launching or intelligence gathering
submarines may operate undetected just off the U.S. coast.
The ultimate nightmare would be a close-in submarine launched
cruise missile attack upon the continental U.S. to which we are
completely vulnerable and defenseless. I fought a long and lonely
battle to prevent the Chinese from acquiring this technology but the
zealous advocates of the treaty in several government agencies saw to
it that the technology was provided to the PRC so as not to undermine
the ``spirit of the treaty.'' This experience prompted me to write the
book: Reforming the Law of the Sea Treaty: Opportunities Missed,
Precedents Set, and U.S. Sovereignty Threatened. This volume is an
analysis of the Treaty, the placebo 1994 Agreement, and the military,
political and technological implications arising from them. I followed
this publication with an article in World Affairs entitled: ``A Bad
Treaty Returns: The Case Against the Law of the Sea Treaty.''
The specific issue before this Committee today concerns the
environmental aspects of the Treaty and whether they are in the U.S.
national interest. While the Treaty represents an attempt to locate in
one place many pre-existing environmental agreements it is also an
attempt to codify traditional State practice. While the environmental
provisions were largely viewed as being among the less obnoxious
aspects of the Treaty it was largely because they do very little to
advance the environmental protections aside from setting a symbolic and
dangerous precedent by creating a supranational regulatory and taxing
organization with its own judicial process and unconstrained
enforcement potential. The creation of yet another International Court
where the United States or our citizens can be dragged before
politically motivated foreign jurists to adjudicate and set penalties
is not a pleasant prospect.
But even more importantly, the Treaty and its environmental
provisions and the context they were negotiated in are relics of an
earlier era--an era where environmental damage was presumed to be
accidental or incidental to economic activity. The current post-9/11
era, however, is defined by the non-conventional use of all tools
available to a non-state or state-sponsored terrorist, or proxy
warrior, to create a weapon of mass destruction. The very environment
we cherish and this Committee seeks to protect and preserve is a likely
battleground in this new era. The presumptions that underlie the
environmental provisions of the Law of the Sea Treaty and other key
elements of the document are woefully inadequate to meet the threats
facing the United States in this very dangerous unconventional post-9/
11 world.
We have ample evidence of terrorists targeting maritime commerce as
a means of waging their worldwide attacks. A critical aspect of their
planning is to cause as much environmental degradation as is possible.
For terrorists with limited means or desire to engage in, or sustain,
combat operations this is a lucrative area for them to attack the West.
This method of fighting turns traditional Western war fighting doctrine
based upon limiting collateral damage as much as humanly possible--on
its head. Terrorists and their State Sponsors have high regard for the
environment but, unfortunately, they see it as a ``force multiplier''
not as a treasure to be preserved. Recall the oil well fires in Kuwait
set by Saddam's retreating troops. Hideous environmental and health
effects resulted from intentionally using the natural resources as a
weapon. Recall the terrorist attack on the French oil tanker Limburg
(October 10, 2002) carrying 158,000 tons of crude oil where the goal
was to generate as large an oil spill as possible.
Imagine if you will, the scuttling of a Supertanker off our coast
and the intentional, again think of the word intentional, release of
millions of gallons of petroleum products into the water column. If
done on the Grand Banks it would destroy some of the world's most
productive fisheries for generations. If done near a coastal nuclear
power plant it can cause irreversible damage, or at a minimum, force it
to shut down for years as its coolant is dependent upon clean coastal
waters. Fears that a terrorist operation may use a ship to spread an
air-borne pathogen or toxin such as Anthrax along our densely populated
coastline are very real. So too is the possibility of utilizing an LNG
tanker as an enormous Fuel Air Explosive. The several instances of
Container Ships being used to mount terror attacks, such as the suicide
bombings in Israel last week is a great cause for alarm. Recalling the
extensive damage Texas City, Texas and Halifax, Nova Scotia were
subjected to as a result of vessel-borne accidents should never be far
from our minds.
The point of all this is that the environmental provisions of the
Law of the Sea Treaty are inadequate to address the most likely and
potentially most devastating, environmental threats facing the United
States today. Of course, the environmental provisions are also closely
coupled with the navigation and high seas articles found elsewhere in
the Treaty--they are, in fact, inseparable. These treaty provisions
afford a measure of immunity and freedom of access to our coastlines
that, in the current era, are inimical to our national interests and
the health and safety of the American public. While I am not advocating
a draconian reversal of hundreds of years of traditional state
practices I am stating that we are better off, as a Nation, relying on
the ambiguities of constantly evolving traditional practice than
binding ourselves to a formal treaty that will severely constrain our
ability to protect our population from devastating attack.
The United States should take the lead in developing new practices
on the oceans that will at once facilitate commerce and peacetime
deployment of warships but also protect our shores from the terrorist
scourge. The President's Proliferation Security Initiative is an
example of such modern and creative thinking. This US-led multinational
program of high seas interdiction and vessel boarding is barred by the
Law of the Sea Treaty yet it is our overriding national security
interest to execute. Ratification of the Treaty would effectively gut
our ability to intercept the vessels of terrorists or hostile foreign
governments even if they were transporting nuclear weapons. We must
ensure that we not binding the government of the United States to a
legal regime that makes us more vulnerable and trades the lives of our
innocent citizens for the sake of participating in yet another
unnecessary Treaty.
While some may offer hormone-driven arguments that the United
States will pursue its interests without regard for Treaty constraints
history and actual practice show us that our legal community will over
time strangle out unilateral actions in the interest of protecting our
decisionmakers from exposure to lawsuits or charges in an international
court.
Additionally, I would suggest that the U.S. may be well served by
resurrecting the historic use of Letters of Marque in both the war on
Terrorism and the protection of our coastal environment. It is obvious
that the Federal Government is facing many simultaneous missions that
take precedence over traditional offshore environmental protection
activities. This necessary overextension, arising from the war on
terror, results in shortages of vessels and crews required for
environmental patrols. Letters of Marque, last used during the War of
1812, effectively enabled privateers to destroy the Barbary Pirates and
is a concept whose time has come, again! American Fishermen and
merchant seamen idled by quotas, regulation, and predatory foreign
competition can be mobilized to patrol the marine environment. They can
also be authorized to seize terrorist assets and provide material
assistance to the families of Americans victimized by terrorism awarded
punitive damages by US courts. Such modern-day Privateers would be
legally deputized to act as agents of the US Courts, the President,
Congress, or State Governors to protect the environment or fight
terrorism by depriving terrorists of their economic assets.
Finally, I urge all Senators and Committee Chairmen to exercise
their inherent oversight rights and responsibilities and fully vet this
Treaty for its manifold impacts upon the United States. The Treaty
contains taxation, legal, borrowing, natural resource, military, and
intelligence issues that need to be explored in depth by the Finance,
Judiciary, Interior, Armed Services, and Intelligence Committees. In
addition, I would further a mandatory review by Homeland Security and
law enforcement interests.
The most vigorous supports of the Treaty are largely a
constellation of narrow single interest groups who are willing to
overlook Treaty shortcomings so long as their pet rock is included.
There is also an interesting psychological phenomenon I call the
``Unrequited Love Syndrome'' that characterizes some experts who after
30 or so years of involvement in the Treaty would rather accept a
defective Treaty than leave this world with an unfinished legacy. Only
vigorous and complete oversight by the Congress will provide the big-
picture assessment necessary to determine whether this Treaty is in our
collective national interest.
Again, I thank you for you indulgence and stand ready to answer any
questions.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Peter Leitner to Additional Questions from Senator Inhofe
Question 1a. Article 2(3) of the Treaty states ``the sovereignty
over the territorial sea is exercised subject to this Convention and to
other rules of international law.'' What is your interpretation of this
provision?
Response. The manner in which this article is constructed in effect
appears to ``grant'' sovereignty to the Coastal State as if sovereignty
didn't exist prior to the appearance of this Treaty. In fact,
traditional practice between States has long recognized the concept of
a Territorial Sea and the exercise of sovereign rights with this area.
The historic debate has been over the breadth of this coastal zone not
over its fact or the fact of sovereignty. The arrogant tone of Article
2(3) is an example of an attempt to effectuate a reversal of the
traditional concept that only States are sovereign or can exercise
sovereign powers. A strict reading of this Article reveals an
underlying belief that an international organization is superior, or
above, the Nation State. This revisionist concept serves as the
ideological and philosophic basis behind imbuing the International
Seabed Authority and its Agencies with sovereign powers themselves,
i.e., taxation, judicial, military, etc. Its implications go even
further to imply that sovereignty is a privilege to be granted to a
Nation by this U.N. based organization rather than an inherent right of
a Nation State. This superior/inferior assertion is an attempt to undo
the continuous evolution of the Nation State that began in the 1400's
and replace it with an ideologically loaded and discredited belief in a
``global commons'' approach.
Question 1b. Do you think all parties of this Treaty will interpret
this provision the same?
Response. No. I believe the industrialized and seafaring nations
will refuse to recognize, that by acceding to this Treaty they have
agreed to relegate themselves to a subservient position vis-a-vis the
Third World and Anti-Western dominated International Seabed Authority.
On the other hand, those countries hostile to the existing World Order
will surely use this ``signing away'' of sovereignty to their
advantage. We should expect future cases and rulings in the Law of the
Sea Tribunals and elsewhere that will use this fact to weaken the
existing global political structure while seeking to impose
increasingly onerous redistributive policies and edicts. Such
developments will certainly be to the detriment of the United States.
Question 1c. How could this Treaty interfere with the United
States' sovereign exercise of freedom of the seas and in what ways will
that have an adverse effect on national security and the environment?
Response. There are a number of ways that US sovereign rights will
be adversely affected. For instance, in the interest of providing
differential treatment for developing countries the Treaty Organization
may simply decide to exempt so-called disadvantaged states from many of
the environmental, wildlife management, taxation, and burdensome
resource exploitation provisions. This possibility is clearly present
in the Kyoto Protocol that was rejected by the United States as a
patently unfair agreement that placed the bulk of the burdens and
sacrifices upon the industrialized nations while exempting Communist
China, and most of the Third World nations. By inviting the misuse of
environmental provisions of the treaty, they can be readily used
against the United States and our military forces around the world. For
instance, the Seabed Authority may tolerate, or encourage, Coastal
States to refuse transit or innocent passage for nuclear powered
warships. This is a phenomenon that has frequently happened in the past
and continues to this day. In fact, several Treaty signatories are
currently requiring prior permission for such vessels as well as
conventional warships. While the U.S. views such claims as not
permitted under the Treaty States are pressing such demands
nonetheless.
Question 2. What are your thoughts about developing countries
having the capabilities to implement international laws relating to
issues of our national security as well as regulating the marine
environment?
Response. This Treaty clearly gives developing countries a forum to
effectuate such policies. In fact, the ``one-nation, one-vote'' bedrock
principle running throughout the Treaty provides the ideological basis
for dominating this organization as well as its rulemaking and judicial
bodies. The historic animosity of a large percentage of the membership
of the U.N. General Assembly toward the United States has long been
part of the political machinations underlying the Law of the Sea Treaty
negotiations and has carried over into its creation, the International
Seabed Authority. Given the domination of this organization by such
hostile interests it should be expected that its actions, policies, and
rulings will favour redistributive ideologies and uneven application of
rules and regulations that will operate to the detriment of the United
States.
Question 3. What are the implications for the U.S. of acceding to
the Treaty and becoming a member of the International Seabed Authority?
Response. The implications are manifold and exceedingly dangerous.
On the macro level would be our endorsement of anti-nation state
provisions and philosophies that are directly inimical to the well
being of our citizens. Such provisions will have the following effects:
Erosion of U.S. Sovereignty
Ceding of sovereign powers to the ISA
Allow Direct & Indirect Taxation of U.S. citizens, entities,
and Government by an international organization.
Foster discriminatory resource exploitation policies and
practices that act to the detriment of the US economy and
citizenry.
Allow direct revenue generation by an international
organization so as to minimize its exposure to US political
pressure by freeing itself from their traditionally total
reliance upon doinations of capital and equipment from Nation
states.
U.S. persons will likely be subjected to discriminatory and
uneven Regulatory requirements intended to provide an unfair
advantage to others for ideological or political reasons.
U.S. persons will likely be subjected to discriminatory and
uneven Licensing requirements intended to provide an unfair
advantage to others for ideological or political reasons.
Self-enforcement of Decisions
The creeping jurisdiction of the law of the Sea Tribunal
reveals the potential for increasingly bold and confrontational
``legal'' rulings. As the International Seabed Authority can
determine its own jurisdiction the potential for interference
with US naval missions is increasingly likely.
In addition, nothing in the Treaty precludes the
International Seabed Authority from raising a Navy to enforce
its own rules & regulations.
Use of Force
The use of force on the high seas against another State is
clearly outlawed by Art. 88.
The Treaty does not ban the existence of Navy's, but
aggressive activities they may engage in are a Treaty
violation.
Art. 301--goes even further to announce that ``no use of
force is permitted to include: blockades, embargos, etc.,
barred. It should be noted that the Treaty does not define
``military activities'' or what constitutes ``force'' or
``aggressive'' thus providing the maximum degree of political
action for the Seabed Authority.
Question 4. Can we predict with some degree of certainty whether
the International Seabed Authority and its related tribunal will, over
time, accrue any more powers than those currently provided to it in the
Treaty or which they have already exercised?
Response. Yes, in fact a recent case heard by the Tribunal--called
the MOX Case--the tribunal asserted jurisdiction over activities taking
place on land with no direct contact with the oceans. In this case, the
Government of Ireland sought a ruling to prevent the British from
operating a Mixed Oxide nuclear fuel fabrication plant asserting that
its run off may adversely effect the environment of the Irish Sea.
Although the UK representative argued that the Tribunal had no
jurisdiction over land-based activities the Tribunal decided to take
the case anyway. As a treaty member the UK was bound by this assertion
of jurisdiction and was compelled to participate in the deliberations.
This case is an early warning of future abuses that we should expect to
materialize--particularly if the U.S. ratifies the Treaty.
There is considerable concern that these judicial entities may
become a back-door attempt to create an International Criminal Court--a
treaty that the U.S. strongly rejected. It is entirely possible that
the Tribunal may accept cases against US political leaders, soldiers,
sailors, airmen, or marines for participating in hostile actions that
are contrary to the statements of principle embodied in Treaty Articles
88 and 301. As with the MOX affair, any Nation can petition the
Tribunal to accept a case--nothing precludes criminal charges--as there
are no bounds set within the Treaty as to the jurisdiction of this body
it can decide to involve itself in any issues it chooses. As a result,
there is no limit upon the ability of the ISA to accrue powers far
beyond those it has chosen to exercise at this point in time. U.S.
ratification will bind the United States to a runaway train that is
ideologically opposed to most of the free market, human rights, and
sovereignty principles so dear to our national character.
Question 5. Do the environmental provisions of the Treaty protect
or expose the high seas and U.S. coastline to environmental threats?
Response. The Treaty both protects and exposes the United States to
environmental risks. While the Treaty recognizes a wide variety of
international conventions and agreements pertaining to fisheries,
marine mammals, and the environment that the US is a party to it also
exposes the US to serious environmental risks by making illegal such
self-defense measures as the Proliferation Security Initiative (PSI).
The PSI is the only multinational mechanism available to defend the US
Coastline, fisheries and offshore facilities against acts of terrorism.
Terrorists can readily target environmentally sensitive of our coastal
zones for attack as part of a campaign of economic warfare. The Treaty
does not include Terrorism and other potential threats among the
reasons it enumerates that justify interdicting and/or boarding vessels
on the high seas. Thus, the Treaty is outdated and irrelevant to the
contemporary threats we face compared with those envisioned in the
1970's when such portions of the Treaty were negotiated.
Question 6. Would the Treaty constrain the U.S. from acting
unilaterally on the high seas in protecting its national interests?
Response. Yes. The Treaty only allows interdiction and boarding of
suspicious or hostile vessels, for example, only under certain limited
conditions. The so-called ``Right of Visit'' in Article 110 only allows
interdiction and boarding on the High Seas if: (a) the ship is engaged
in piracy; (b) the ship is engaged in the slave trade; (c) the ship is
engaged in unauthorized broadcasting; (d) the ship is flying a false
foreign flag or refusing to show its flag.
Most of the contemporary national security problems the United
States is faced with and is likely to face in the future are not
covered by those factors. For instance, under the Treaty the US has no
right to interdict vessels suspected of facilitating terrorist
activities or the illegal proliferation of missiles, Weapons of Mass
Destruction (WMD), narcotics, etc. Given the deadly range of many types
of WMD it is imperative to intercept such cargos long before they enter
a State's coastal zones. The Treaty prevents the US from doing this and
may assess penalties or impose punitive measures for such actions. It
is even possible that the ISA may someday provide warships to escort
proliferators so that the principle of non-interdiction will be
maintained.
Australia has been roundly criticized by Treaty members for
suggesting that it is in its national interest to declare a 1,000 mile
security zone. The Australian concept is more of a maritime
identification area that recognizes the danger of seaborne terrorist
threats to its population and attempts to provide strategic depth for
self-defense purposes. Like the US-led Proliferation Security
Initiative the Australian identification zone was furiously criticized
and objected to by many Treaty members.
Question 7. From a national security perspective, are we better off
with or without the Treaty?
Response. We are clearly better off as a Nation without the Treaty
or remaining outside of the Treaty. Several of the hoped for national
security benefits that the Treaty was purported to offer have never
materialized. Many Treaty members still require prior notification of
warships entering their coastal zones. Many Treaty members still have
onerous restrictions on the movement of Nuclear Powered warships
entering their coastal zones. Many Treaty members still maintain
excessive claims to offshore areas. Many Treaty members are ignoring
Treaty requirements for measuring their coastal baselines. Many Treaty
members persist in making unacceptable ``historic waters'' claims in
attempts to place vast ocean territory off limits to all foreign
maritime, aviation, or naval activity.
These excessive claims fall into the following areas:
Breadth of Territorial Sea
Baselines From Which Claims are Measured
Security Zones
Prior Permission and Notification Regimes
Clearance Requirements on Sovereign Immune Aircraft Over
International Waters
Restrictions on Military Activities in the EEZ
Examples of such claims are:
Selected Excessive Maritime Claims
------------------------------------------------------------------------
------------------------------------------------------------------------
Cuba...................................... Require state aircraft to
comply with directions from
air traffic control within
flight information region
Albania................................... Prior permission for warship
to enter the territorial
sea
Australia................................. Straight Baselines, &
Historic Claims
Algeria................................... Prior permission for warship
to enter the territorial
sea
Bangladesh................................ Excessive straight
baselines; claimed security
zone
Foreign warships must obtain
permission prior to
transiting territorial sea
Straight baseline
Jurisdiction to enforce laws/
regulations in security
zone
Burma..................................... Excessive straight
baselines; claimed security
zone
Requires prior notice for
foreign warships to enter
Territorial Sea & Maritime
Zones
Security jurisdiction
claimed within contiguous
zone
Authority to subject freedom
of navigation and of
overflight w/in EEZ
Straight baselines
Canada.................................... Straight Baselines
Fishing jurisdiction beyond
200 nm
Cambodia.................................. Excessive straight
baselines; claimed security
zone
Foreign warships must obtain
permission prior to
transiting territorial sea.
Jurisdiction over Security
Zone.
Require foreign military
vessels permission
Straight Baselines
China..................................... Permission reqd to enter
Terr Sea or Contiguous Zone
Control in contiguous zone
Straight Baselines
Croatia................................... Prior permission for warship
to enter the territorial
sea
El Salvador............................... 200 nautical miles (nm)
territorial sea
India..................................... Foreign warships must
provide notice prior to
entering territorial sea.
Security powers in
contiguous zone
Straight Baselines &
Historic Claims
Permission reqd to conduct
exercises in EEZ
Indonesia................................. Foreign warships must obtain
permission prior to
transiting territorial sea
U.S. recognizes straight
baseline est 1999
Iran...................................... Excessive straight
baselines; prior permission
for warship to enter the
territorial sea
Kenya..................................... Excessive straight
baselines; historic bay
claim (Ungwana Bay)
Liberia................................... 200 nm territorial sea
Libya..................................... Claims all waters south of
32-30 north latitude Gulf
of Sidra closure line as
internal waters
Korea, North.............................. 50nm beyond territorial sea
off east coast and to
limits of EEZ off west
coast.
Navigation or overflight by
any vessel requires prior
permission
Straight Baselines
Korea, South.............................. Foreign warships must obtain
permission prior to
transiting territorial sea
Straight Baselines
Malaysia.................................. Permission reqd to conduct
exercises in EEZ
Prior authorization for
nuclear powered ships to
enter territorial seas.
Maldives.................................. Prior permission for warship
to enter the territorial
sea
Malta..................................... Prior permission for warship
to enter the territorial
sea
Mauritius................................. Prior notification for
warships to transit
territorial sea.
Permission required for
warships and subs to
transit EEZ.
Mexico.................................... Straight Baselines
Internal waters w/in Gulf of
California
Nicaragua................................. 200 nm territorial sea
Pakistan.................................. Claimed security zone;
excessive restrictions on
military activities in the
exclusive economic zone
Philippines............................... Excessive straight
baselines; claims
archipelagic waters as
internal waters
Russia.................................... Innocent passage of foreign
warships permitted along
specified routes w/in terr
sea
Foreign warships must obtain
authorization prior to
transiting territorial sea.
Straight Baselines
Saudi Arabia.............................. Excessive straight
baselines; claimed security
zone
Seychelles................................ Prior permission for warship
to enter the territorial
sea
Sierra Leone.............................. 200 nm territorial sea
Somalia................................... 200 nm territorial sea;
prior permission for
warship to enter the
territorial sea
Sri Lanka................................. Foreign warships must obtain
permission prior to
transiting territorial sea.
Historic waters in Palk
Strait and Palk Bay (intl
waters), and in Gulf of
Mannar (terr sea).
Contiguous zone including
claimed security
jurisdiction.
Sudan..................................... Prior permission for warship
to enter the territorial
sea; claimed security zone
Syria..................................... 35 nm territorial sea; prior
permission for warship to
enter the territorial sea
Taiwan.................................... Straight Baselines
UAE....................................... Prior permission for warship
to enter the territorial
sea; claimed security zone
Vietnam................................... Foreign warships must seek
permission to enter
contiguous zone/territorial
sea at least 30 days in
advance; no more than three
warships may be present in
territorial sea at one time
and submarines must
navigate on surface; prior
to entering territorial sea
or contiguous zone, ships
must place weapons in non-
operative positions.
Contiguous Zone claim
includes jurisdiction over
security matters. In
contiguous zone, submarines
required to navigate on the
surface and show flag; and
aircraft prohibited from
being launched from or
taken aboard ships.
Before entering territorial
sea or contiguous zone,
ships required to place
weapons in non-operative
positions.
Straight Baselines
Yemen..................................... Prior permission for warship
to enter the territorial
sea; claimed security zone
------------------------------------------------------------------------
The implications of these Excessive Claims by Treaty members is
important to note from several perspectives: First, they reveal an
underlying hypocrisy as States are simply choosing to use those parts
of the Treaty they like while ignoring the rest; Second, the US Navy's
hope that US accession to the Treaty will obviate their need to make
Freedom of Navigation challenges is proven to be a fundamental
miscalculation; Third, the financial and mobility costs to the US Navy
as Treaty members manipulate various interpretations of its provisions
will be very high. Finally, the Treaty can readily be used to inhibit
the United States from responding to a crisis in a timely way thus
influencing its outcome to our detriment.
The following chart illustrates the cost and delay effect of
preventing our nuclear powered warships from transiting a critical body
of water due to restrictions imposed by coastal states not party to the
future crisis. In this instance, our battle group would require an
additional 15 days to transit an additional 5,800 nm at a cost of at
least $7-$8 million. By the time they arrive the battle may have been
lost before we are able to influence events.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Question 8. Does the 1994 Agreement that President Clinton
negotiated fix the problems in the Treaty that caused President Reagan
to reject it?
Response. No. The legality of the 1994 Agreement that purports to
fundamentally alter the character and wording of the Treaty is highly
suspect. The Treaty was set in stone in 1982 when the Final Act was
signed and negotiations ended. Article 155, states that it cannot be
modified until Fifteen years from 1 January of the year in which the
earliest commercial production commences under an approved plan of work
has passed. No commercial plan of work has been approved to date. In
addition, many, about 20 percent, of those States that have ratified
the Treaty have not ratified the 1994 Agreement. In addition, many
states have made declarations upon ratification that have the effect of
nullifying broad portions of the Treaty. Since ``reservations'' are not
allowed under the terms of the Treaty States have been making
declarations instead. The effect is the same--States are picking and
choosing which aspects of the Treaty it will abide by and which it will
ignore.
Question 9. Is there anything you would like to add?
Response. Ratification of this Treaty will assist in the creation
of the first International Organization capable of raising revenue in a
direct manner--that being through direct taxation of States, imposition
of user fees upon individuals or corporations, imposition of production
quotas, etc. The International Seabed Authority is an extraordinarily
dangerous precedent in international relations and represents the
establishment of an uncontrollably independent entity with dominion
over 3/4's of the Earth's surface.
The following chart reveals that portion of the coast where
petroleum recovery, for instance, will be taxed at the rate of 7
percent by the International Seabed Authority. This ``royalty'' demand,
in effect, concedes ownership of the oceans and its resources by this
new organization--a precedent we as a Nation will live to regret.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Peter Leitner to Additional Questions from Senator
Jeffords
Question 1. You referred in your oral testimony to a case in which
the Chinese government was able to obtain sensitive technology by
virtue of ``their status as a pioneer investor under the Law of the Sea
Treaty.'' Did you learn of this example in your personal capacity or as
an employee of the United States Department of Defense? If you learned
of this example in the course of your employment with the Department of
Defense, did you go through the proper clearance procedures before
using the example in your testimony before the Environment & Public
Works Committee? Please provide any relevant documents substantiating
your claims with respect to this example and any documents regarding
appropriate clearance procedures. Specifically, please provide any
documents that will substantiate your implicit assertion that the
Chinese government would have been unable to obtain these technologies
from any Nation other than the United States and that the Chinese
government would have been unable to obtain these technologies but for
their participation in the Law of the Sea Treaty.
Response. Yes, the incident was encountered as a rep of the
Department of defense. In fact, the case became a major interagency
issue as I was denying the PRC access to this technology as part of the
export licensing process. Unfortunately, as with most national security
export cases that arose during the mid to late 1990's the technology
was eventually released to the PRC.
I have formally written about this incident with the explicit
approval of the Defense Department. In fact, the incident is described
in my book entitled: ``Reforming the Law of the Sea Treaty:
Opportunities Missed, Precedents Set, and U.S. Sovereignty
Threatened'', University Press of America, 1996. The book underwent the
full pre-publication security review process within the Defense
Department and was approved for public release. I have included some of
the appropriate passages below. If you require the official security
review publication approval you are welcome to file a Freedom of
Information request with the Department of Defense.
Question 2. You stated in your oral testimony that the Convention
was ``rejected by President Reagan.'' Are you aware of President
Reagan's March 10, 1983 Statement of United States Oceans Policy, in
which he stated that the ``United States is prepared to accept and act
in accordance with the balance of interests [in the Convention]
relating to traditional uses of the oceans''?
Response. I am well aware of each of these matters. President
Reagan's strategy, upon rejection of good-faith U.S. attempts to
negotiate modifications to the Treaty, was to pick and choose those
aspects of the Treaty that represent traditional international law and
State practice and reject the rest. The White House was convinced that
the Treaty offered nothing new regarding naval mobility or navigation
issues and the US was able to achieve all of its essential interests
while rejecting and remaining outside of the Treaty.
Question 3. Are you aware that in the same statement, President
Reagan stated that the ``United States will continue to work with other
countries to develop a regime, free of unnecessary political and
economic restraints, for mining deep seabed minerals beyond national
jurisdiction''? In light of these statements, would you now concede
that President Reagan rejected only the deep seabed mining provisions
of the Convention contained in Part XI and that, in doing so, he did
not abandon the U.S. interest in working with other countries to
develop a deep seabed mining regime that would satisfy U.S. interests?
If you will not concede these points, please provide documentation
supporting your statement.
Response. No, I would make no such concession as the nature of the
little syllogism you have constructed is wrong, based upon a
misinformed reading of history, and displays a lack of understanding of
not only Reagan administration intent but a lack of awareness of their
intensive efforts and initiatives to create an alternative to the
Treaty by engaging ``like-minded'' states in the pursuit of a
``Reciprocating States Regime''. I would suggest that your Staff
acquire copies of the Deep Seabed Hard Minerals Resources Act--passed
by both the House and Senate and signed into law by President Reagan to
become familiar with attempts to work with other States to create a
regime that will facilitate access to these valuable natural resources.
Question 4. You stated in your written testimony that ``[t]he
presumptions that underlie the environmental provisions of the Law of
the Sea Treaty and other key elements of the document are woefully
inadequate to meet the threats facing the United States in this very
dangerous unconventional post-9/11 world.'' Are you suggesting that
environmental laws and practices (national or international) rather
than specific anti-terrorism laws and practices are appropriate
vehicles for dealing with terrorist threats, including those threats
that seek to utilize environmental destruction as what you refer to as
a ``force multiplier''? Are your aware of any specific provisions in
the 1982 Convention or the 1994 Agreement that would prohibit States
from enacting new laws and regulations to deal with acts of
environmental terrorism?
Response. The Law of the Sea Treaty prohibits participants from
engaging in high seas interdictions, vessel boarding, or seizures
unless they are conducted for one of four very narrow reasons. The
conducting of such interceptions and inspections is vital for the U.S.
to protect its coastlines from being approached by vessels engaged in
Terrorist activities or vessels transporting weapons of mass
destruction among rogue states and proliferators. Unfortunately WMD
and/or Terrorism are not among the ``legal'' reasons for interception
allowed under the Treaty. As far as the Treaty is concerned, vital U.S.
Anti-terrorist measures such as the Proliferation Security Initiative
would be deemed illegal activities. Several LOS ratifiers have already
announced that PSI is illegal and not allowed by the Treaty. If these
members decided to bring the issue before the LOS Tribunal in Hamburg
they would likely win a ruling stating that the PSI is a form of
international Piracy. Of course while we believe PSI to be a legitimate
act of collective self-defense and counter-terrorist policy it is
likely that the 3rd World dominated Tribunal will not rule in our
favor.
In addition, it is likely that the environmental provisions of the
Treaty will be used against the United States in some novel areas such
as: defining SONAR, so crucial to our military capabilities, as causing
harm to whales and other marine mammals and barring its use in all
ocean areas under its jurisdiction.
Question 5. You stated in your written testimony that
``[r]atification of the treaty would effectively gut our ability to
intercept the vessels of terrorists or hostile foreign governments even
if they were transporting nuclear weapons.'' What is your basis for
this assertion? Can you point to any specific provisions of the
Convention that give the United Nations a role in deciding when and
where a foreign ship at sea may be boarded? Are you aware that the
basic rules for boarding and searching foreign ships at sea, which are
contained in the 1958 Geneva Conventions on the Law of the Sea and to
which the United States is already a party, are unchanged in the 1982
Convention on the Law of the Sea? Moreover, are you aware that the 1982
Convention provides additional authority for a coastal State to board a
foreign ship in its exclusive economic zone if the ship is suspected of
violating its laws for the protection of the marine environment?
Finally, are you aware that the resolution of advice and consent now
before the Senate states that ``nothing in the Convention, including
any provisions referring to `peaceful uses' or `peaceful purposes,'
impairs the inherent right of individual or collective self-defense or
rights during armed conflict''?
Response. My answer to this portion is largely answered in my
response to the previous question. As for the Senate's Resolution
regarding self-defense during periods of armed conflict--I am
distressed that you do not appear to comprehend that the language you
quoted is meaningless in the current War on Terrorism. As the United
States has not declared War--legally we are not in a state of war. The
``powers'' you believe the Treaty bestows upon coastal states during
peacetime are piteously weak in preventing a terrorist or terrorist WMD
attack upon the United States.
Question 6. You stated in your oral testimony that ``the Law of the
Sea Treaty specifically states that the traffic in weapons is a normal
commercial activity engaged in by states'' and that, as a result, the
United States would ``have no right under the treaty to interdict [a
ship carrying weapons].'' What specific provision of the Treaty are you
referring to and what does it say?
Response. It is a long-established principle that Arms Sales are a
normal feature of international commerce. Individual States choose to
regulate such commerce according to their unique legal traditions but
it is normal and legitimate nonetheless. As I replied earlier, there
are only four reasons when interdiction or interception is legitimate--
the transport of arms on the High Seas to other States or private
customers is not among them. Since the Treaty explicitly allows
interdiction only under certain very limited instances any other
motivations during the peacetime application of the Treaty are not
allowed.
Question 7. You stated in your oral testimony that the Law of the
Sea creates an ``international body'' that ``has the ability to
regulate seven-tenths of the earth's surface.'' Are you referring to
the International Seabed Authority? If you are referring to the
International Seabed Authority, what is your basis for the assertion
that this body ``has the ability to regulate seven-tenths of the
earth's surface''? Please provide specific textual references from the
relevant parts of the Convention and the 1994 implementing agreement.
Are you aware that the regulatory authority of the International Seabed
Authority is limited to regulation of deep seabed mining? Are you aware
that the International Seabed Authority has no role with respect to any
other activity on the oceans? Are you aware that the Convention
provides specific protection for rights of navigation and overflight
and for the conduct of marine scientific research?
Response. Are you aware that the Law of the Sea Tribunal in
Hamburg--one of the specialized Agencies created by the Treaty--has
unlimited and self-defining jurisdiction? The Tribunal has already
asserted jurisdiction over non-ocean activities that occur on land
under the theory that what happens there may eventually affect the
oceans. The jurisdiction of this organization is not limited to the
Seabed. In fact, its self-defining charter is unconstrained by the
Treaty. The jurisdiction International Seabed Authority is likewise not
limited to the deep seabed. It has authority over the vast areas
Continental Shelf that lie beyond the 200 nm zone as well.
__________
Statement of Bernard H. Oxman, \1\ Professor of Law, University of
Miami
---------------------------------------------------------------------------
\1\ Professor of Law and Director of the Ocean and Coastal Law
Program, University of Miami School of Law. Formerly United States
Representative and Vice-Chairman of the U.S. Delegation to the Third
U.N. Conference on the Law of the Sea, and Chairman of the English
Language Group of the Conference Drafting Committee. Served in 2003 as
Judge ad hoc of the International Tribunal for the Law of the Sea.
---------------------------------------------------------------------------
Mr. Chairman and Members of the Committee, it is an honor to appear
before you today to testify on the United Nations Convention on the Law
of the Sea and the Implementing Agreement Regarding Part XI of the
Convention.
It was my privilege to submit testimony on this matter before the
Senate Committee on Foreign Relations on October 14, 2003. While that
testimony is included in the Report of that Committee, I thought it
would be useful to include much of it in this statement for the benefit
of this Committee, but to add additional comments that may be of
particular interest to this Committee.
Whatever the utility of my remarks, I hope the Committee will bear
in mind the authority, insight and conviction with which the case for
the Convention would have been presented by two extraordinary
individuals with whom it was my great honor to work most closely, the
late Ambassador John R. Stevenson and the late Ambassador Elliot L.
Richardson. Both served at critical formative periods as Special
Representative of the President for the Law of the Sea and are
unquestionably regarded throughout the world as among the small handful
of individuals singularly responsible for the ultimate shape of the
Convention.
I hope the Committee will also bear in mind that the Law of the Sea
negotiations were a long-term bipartisan effort to further American
interests that engaged high level attention in successive
Administrations and distinguished members of both Houses of Congress.
President Nixon had the vision to launch the negotiations and establish
our basic long-term strategy and objectives. President Ford solidified
important trends in the negotiations by endorsing fisheries legislation
modeled on the emerging texts of the Convention. President Carter
attempted to induce the developing countries to take a more realistic
approach to deep seabed mining by endorsing unilateral legislation on
the subject. President Reagan determined both to insist that our
problems with the deep seabed mining regime be resolved and to embrace
the provisions of the Convention regarding traditional uses of the
oceans as the basis of U.S. policy. President George H.W. Bush seized
the right moment to launch informal negotiations designed to resolve
the problems identified by President Reagan. President Clinton's
Administration carried that effort through to a successful conclusion.
And now the Administration of President George W. Bush has expressed
its support for Senate approval of the Convention and the 1994
Implementing Agreement.
Mr. Chairman, I agree with the Administration. I urge the Senate to
accept the recommendation of the Committee on Foreign Relations,
adopted by a vote of 19-0, and approve the Resolution of Advice and
Consent contained in its Report. They have taken the right action at
the right time. It is in the interests of the United States to become
party to the Convention and the Implementing Agreement as soon as
possible.
We are, and have been since the founding of the Republic, a
seafaring Nation that relies on the right to move off distant shores.
The challenges may change, but our basic interests in using the sea to
meet those challenges have never been more important. Our security is
dependent upon the unimpeded global mobility of our armed forces to
respond to any threat, whatever its nature, emanating from any part of
the world; our prosperity is dependent upon the unimpeded global
movement of goods and persons to and from our shores; and our future
well-being may increasingly depend on the uninterrupted global carriage
of telecommunications by submarine cable.
From the perspective of international security, the basic
question is whether forces may be moved from one place to
another without the consent or interference of states past
whose coasts they proceed. Global mobility is important not
only to naval powers but to other states that rely on those
powers to maintain stability and deter aggression, directly or
through the United Nations. As the size of major navies is
reduced after the cold war, the adverse impact on their ability
to perform their primary missions will increase if they must
divert scarce resources to challenging coastal state claims
that prejudice global lines of communication or set adverse
precedents. Enhancing the legal security of navigation and
defense activities at sea maximizes the efficient use of
defense resources.
From the perspective of trade and communications, the basic
question is whether two states may communicate with each other
by sea without interference by a third state past whose coast
they proceed. Restrictions imposed by a coastal state along the
route may well result in increased costs for industries
dependent upon trade and communications and for countries whose
exports or imports are affected.\2\
---------------------------------------------------------------------------
\2\ John R. Stevenson and Bernard H. Oxman, The Future of the
United Nations Convention on the Law of the Sea, 88 AJIL 488, 493
(1994) (appended to this statement).
---------------------------------------------------------------------------
historical setting
The historic tension in the law of the sea has been a struggle
between the freedom of the seas and coastal state sovereignty over the
seas. The two are, in their purest forms, directly contradictory. The
duty of all states to respect the freedoms of the seas is in principle
equal. If one coastal state can impose a limitation, all can.
Thus, when in 1945 President Truman claimed the natural resources
of the continental shelf beyond the territorial sea of the United
States, we willingly ceded the same exclusive control to other coastal
states that we claimed for ourselves. The difficulty is that we were
unable to control the process. We were emulated, so to speak, beyond
our wildest expectations. It was plausibly argued that since, as the
uncontested global maritime power at the time, we had the greatest
interest in preventing coastal state incursions on freedom of the seas,
any claims of exclusive coastal state control that we made were the
minimum, not the maximum, that might be regarded as reasonable. Where
we limited our claim to the seabeds, others claimed the waters and even
the airspace over vast areas as well. Where we limited our claim to
natural resources, others claimed sovereignty and with it control over
all activities, including navigation and overflight.
There was an accelerating collapse of any semblance of consensus on
the fundamental question: Where is there freedom and where is there
sovereignty? Our official position that coastal state sovereignty ended
at the three-mile limit, and therefore that the free high seas began at
that limit, became increasingly untenable. What was emerging was a
sense that any coastal state could claim what it wished and might well
get away with it.
The United States was faced with ``three expensive choices when
confronted with a foreign state's claim of control over our navigation
or military activities off its coast in a manner inconsistent with our
view of the law:
1. resistance, with the potential for prejudice to other U.S.
interests in that coastal state, for confrontation or violence,
or for domestic discord;
2. acquiescence, leading inevitably to a weakening of our
position of principle with respect to other coastal states
(verbal protests to the contrary notwithstanding) and domestic
pressures to emulate the contested claims; or
3. bilateral negotiation, in which we would be expected to
offer a political, economic or military quid pro quo in
proportion to our interest in navigation and military
activities that, under the Convention's rules, can be conducted
free of such bilateral concessions.''\3\
---------------------------------------------------------------------------
\3\ Panel on the Law of Ocean Uses, United States Interests in the
Law of the Sea Convention, 88 AJIL 167, 171 (1994) (hereinafter Panel
Study). The panel was chaired by Louis Henkin and included James M.
Broadus, Jonathan I. Charney, Thomas A. Clingan, Jr., John L. Hargrove,
Jon L. Jacobson, Terry L. Leitzell, Edward L. Miles, J. Daniel Nyhart,
Bernard H. Oxman, Giulio Pontecorvo, Horace B. Robertson, Jr., Louis B.
Sohn and James Storer. Other contributions of the Panel include U.S.
Interests and the United Nations Convention on the Law of the Sea, 21
Ocean Dev. & Int'l L. 373 (1990); Deep Seabed Mining and the 1982
Convention on the Law of the Sea, 82 AJIL 363 (1988); U.S. Policy on
the Settlement of Disputes in the Law of the Sea, 81 AJIL 438 (1987);
and Exchange Between Expert Panel and Reagan Administration Officials
on NonSeabed Mining Provisions of LOS Treaty, 79 AJIL 151 (1985).
This is the setting in which President Nixon made his historic
decision in 1970 to launch a new oceans policy. The challenge was to
devise a political strategy for stabilizing and enhancing our ability
to influence the perceptions of foreign coastal states as to their
rights and duties, and hence their perceptions as to our rights and
duties off their coasts. The key to that policy was a new multilateral
elaboration of the law of the sea. The object was a widely ratified
convention of highly legitimate pedigree that, by balancing the
conflicting interests not only between but within states, stabilized
the law of the sea over the long term and protected our fundamental
interests in global mobility. This in turn would provide us with a
common platform of principle to influence foreign perceptions of their
rights and duties as well as our rights to operate off foreign coasts
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and to regulate activities off our own coast.
Ambassador Richardson put the objective in the following way:
A Law of the Sea treaty creating a widely accepted system
of international law for the oceans would--if the rules it
contains adequately meet U.S. needs--be the most effective
means of creating a legal environment in which our own
perception of our rights is essentially unchallenged. We would
then, for the first time since the Grotian system began to
disintegrate, be assured rights of navigation and overflight
free of foreign control, free of substantial military risk, and
free of economic or political cost.\4\
---------------------------------------------------------------------------
\4\ Elliot L. Richardson, Power, Mobility and the Law of the Sea,
58 Foreign Affairs 902 (1980).
It took another 13 years of hard, continuous negotiations among the
nations of the world before President Reagan was finally able to
declare the underlying substantive effort launched by President Nixon a
success: President Reagan concluded that the provisions of the
Convention with respect to traditional uses of the sea ``fairly balance
the interests of all states'' and expressly stated that ``the United
States will recognize the rights of other states in the waters off
their coasts, as reflected in the Convention, so long as the rights and
freedoms of the United States and others under international law are
recognized by such coastal states.''\5\
---------------------------------------------------------------------------
\5\ Statement by the President, United States Oceans Policy, Mar.
10, 1983, 19 Weekly Comp. Pres. Docs. 383 (1983).
---------------------------------------------------------------------------
President Reagan expressly recognized that the rules set forth in
the Convention constitute the platform of principle on which we
operate. The policy declared by President Reagan aligns our position
regarding customary international law with the substantive provisions
of the Convention dealing with all the traditional uses of the sea.
There is indeed no plausible alternative for the foreseeable future.
What then are the advantages of becoming a party?
The interpretation and application of these rules, like all rules,
is a dynamic process that evolves with time. It is going on in
countless venues even as we speak. As a practical matter, our rights
and duties will be affected by that process whether or not we are
party. What we gain by becoming party is increased influence over that
process.
In particular we gain:
the ability to speak authoritatively as a party to
the Convention in setting forth our views regarding its
interpretation and application;
the enhancement of our credibility and effectiveness
when we invoke the provisions of the Convention as binding
treaty obligations and insist that other states respect our
rights and freedoms under those provisions; as the world's
principal maritime power, we are already the most active in
noting and protesting foreign legislation and other measures
that we believe may not be fully consistent with the
Convention;
the right to participate in the organs established by
the Convention and the meetings of states parties; one example
is the review by the Commission on the Limits of the
Continental Shelf of Russian continental shelf claims that
immediately abut our own and implicate our own interests in the
Arctic; another is the permanent seat on the Council of the
Seabed Authority accorded the United States by the 1994
Implementing Agreement.
With respect to the underlying objective of promoting stability in
the law of the sea, four main advantages of widespread, including U.S.,
ratification have been identified:
1. Treaties are perceived as binding. Legislators,
administrators, and judges are more likely to feel bound to
respect treaty obligations. Even nonparties are more likely to
be cautious about acting a manner contrary to a widely ratified
Convention; if they do, they are more likely to be isolated
when their claims are challenged.
2. Treaty rules are written. Treaty rules are easier
to identify and are often more determinate than customary law
rules. Even if one argues that a customary law rule is
identical to a treaty rule, that argument in and of itself is
elusive and hard to prove. Even a nonlawyer reading the text of
a binding treaty knows he or she is reading a binding legal
rule, and can often form some appreciation of what the rule may
require.
3. Compulsory arbitration. Parties to the Law of the
Sea Convention are bound to arbitrate or adjudicate most types
of unresolved disputes regarding the interpretation or
application of the Convention. This can help forestall
questionable claims in the first place. Perhaps more
importantly, it provides an option for responding to unilateral
claims that may well be less costly than either acquiescence or
confrontation. Because states are not bound to arbitrate or
adjudicate disputes absent express agreement to do so, this
benefit of the Convention . . . is dependent upon ratification.
4. Long-term stability. Experience in [the twentieth]
century has shown that the rules of the customary law of the
sea are too easily undermined and changed by unilateral claims
of coastal states. Treaty rules are hard to change
unilaterally. At the same time, the Law of the Sea Convention
establishes international mechanisms for ordered change that
promote rather than threaten the long-term stability of the
system as a whole.\6\
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\6\ Panel Study, note 3 supra, at 172.
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To these I might add that other coastal states that have yet to
become party to the Convention and its implementing agreements are more
likely to follow suit once we are party to all of them. Canada ratified
the Convention within weeks after the Bush Administration testified in
support of the Convention last fall. Several weeks after that, the
European Union and its 15 member states became party to the 1995
Agreement on the Implementation of the Provisions of the Law of the Sea
Convention regarding Straddling Fish Stocks and Highly Migratory Fish
Stocks, to which the United States is already party but which is not as
widely ratified as the Convention. With both Europe and North America
firmly aligned on the essential elements of the superstructure of the
modern law of the sea, it is more likely that others can be encouraged
to come along soon.
Mr. Chairman, Ambassador Stevenson's and my published observations
on the specific benefits to the United States of ratification of the
Convention are appended to this statement.\7\ These observations were
prepared at a time when the future of the Convention was still very
much in doubt and new arrangements were beginning to emerge that
ultimately became the 1994 Implementing Agreement regarding Part XI of
the Convention. Let me therefore elaborate a bit more.
---------------------------------------------------------------------------
\7\Note 2, supra.
---------------------------------------------------------------------------
part xi and the 1994 implementing agreement
I once heard an informed observer say that the problem with the Law
of the Sea Convention is that in life you get only one chance to make a
first impression. This was doubtless a reference to the problem of deep
seabed mining that bedeviled the law of the sea negotiations in the
1970's and early 1980's. Much has changed since then.
The question concerns the mining of the deep seabeds beyond the
limits of the continental shelf. The Law of the Sea Convention
substantially expands the definition of the continental shelf to
include the entire continental margin (which embraces the geographic
continental shelf, continental slope, and continental rise) as well as
all areas within 200 miles of the coast even if they lie beyond the
continental margin. Because the existence of oil and gas deposits is
closely associated with the geology of the continental margin, the
purpose and effect of this definition of the continental shelf is to
place seabed oil and gas deposits under coastal state control.
What remains are the hard minerals of the deep seabeds beyond the
continental shelf as defined in the Convention, including manganese
nodules found at or near the surface of deep seabeds. Even at the time
the Convention was first negotiated, some promising hard mineral
deposits had been identified, but to this day commercial production of
deep seabed hard minerals has yet to begin. In my view, this fact
contributed to an important anomaly in the law of the sea negotiations.
The Conference was able to deal with the significant established
interests of states in national defense and international security, oil
and gas, navigation and overflight, fisheries, protection of the
environment, smuggling, and virtually all other matters without serious
intrusion of underlying philosophical differences and without so-called
North-South confrontations.
The exception was deep seabed mining. The early draft texts issued
by the chairman of the committee responsible for the deep seabed mining
negotiations tended, in one degree or another, to reflect attitudes
fashionable among developing countries at the time. These texts were
not well received in the United States and other Western countries.
Even the Soviets complained.
While painstaking progress was made in narrowing differences over
the years, at the time President Reagan took office there were three
basic choices: (1) continue to attempt to whittle away at the details,
(2) withdraw from the Conference, or (3) identify and confront the most
significant flaws frontally and seek basic changes. President Reagan
chose the last of these. He identified certain key objectives with
respect to the deep seabed mining regime, and stated: ``The United
States remains committed to the multilateral treaty process for
reaching agreement on Law of the Sea. If working together at the
Conference we can find ways to fulfill these key objectives, my
administration will support ratification.''\8\
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\8\ Statement by the President, U.S. Policy and the Law of the Sea,
Jan. 29, 1982, 18 Weekly Comp. Pres. Docs. 94 (1982).
---------------------------------------------------------------------------
Some further progress was made in the negotiations, but
unfortunately there was insufficient will to rethink certain
provisions, and the text adopted in 1982 did not adequately accommodate
the points made by President Reagan.
On March 10, 1983 President Reagan made a major statement on United
States Oceans Policy. He said:\9\
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\9\ Note 5, supra.
The United States will not sign the Convention
``because several major problems in the Convention's deep
seabed mining provisions are contrary to the interests and
principles of industrialized nations and would not help attain
the aspirations of developing countries.''
The Convention's provisions with respect to
traditional uses of the oceans ``fairly balance the interests
of all states.''
The ``United States is prepared to accept and act in
accordance with the balance of interests relating to
traditional uses of the oceans such as navigation and
overflight. In this respect, the United States will recognize
the rights of other states in the waters off their coasts, as
reflected in the Convention, so long as the rights and freedoms
of the United States and others under international law are
recognized by such coastal states.''
The ``United States will exercise and assert its
navigation and overflight rights and freedoms on a worldwide
basis in a manner that is consistent with the balance of
interests reflected in the convention'' and ``will 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.''
``I am proclaiming today an Exclusive Economic
Zone.''\10\
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\10\ See Proclamation 5030, Mar. 10, 1983, 19 Weekly Comp. Pres.
Docs. 384 (1983) (footnote added). This Proclamation implements the
rights of the United States as a coastal state as set forth in some of
the most important provisions of the Law of the Sea Convention.
---------------------------------------------------------------------------
The ``United States will continue to work with other
countries to develop a regime, free of unnecessary political
and economic restraints, for mining deep seabed minerals beyond
national jurisdiction.''
The text of the Statement itself rebuts the misleading
characterizations that have been revived in recent weeks. It is evident
that President Reagan rejected the deep seabed mining provisions, not
the remainder of the Convention. Indeed, he made clear our
determination to implement, abide by and ensure respect for the
important rights and freedoms the Convention elaborates. It is also
evident that even in rejecting the deep seabed mining provisions of the
Convention, he did not abandon our interest in working with other
countries to develop a satisfactory regime.
The truth, Mr. Chairman, is that just as President Nixon determined
the basic and ultimately successful strategy for achieving an
acceptable convention with respect to most issues, so President Reagan
determined the basic and ultimately successful strategy for producing a
widely ratified Convention by resolving the deep seabed mining issue:
identify the flaws, refuse to accept a text that does not reasonably
address those problems, and leave the door open.
It took some time before the developing countries were ready to
talk again. In the interim, communism collapsed, more market-oriented
economic policies took hold throughout the world, and it became evident
that a universal convention could not be achieved without resolving the
deep seabed mining problem. The Administration of President George H.W.
Bush determined that these developments created an opportunity to
resolve the problem, and undertook to explore the possibilities with a
representative group of interested countries assembled by the U.N.
Secretary General. The result is the 1994 Implementing Agreement, which
makes major changes in the deep seabed mining regime.
Mr. Chairman, the 1994 Implementing Agreement reasonably resolves
the problems identified by President Reagan. Appended to this statement
is a copy of my detailed analysis of the ways in which the 1994
Agreement accommodates the points raised by President Reagan.\11\
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\11\ Bernard H. Oxman, The 1994 Agreement and the Convention, 88
AJIL 687 (1994) (appended to this statement).
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Many of the critical comments made about the effect of the deep
seabed mining provisions are influenced primarily by decades-old
impressions, not by the 1994 Implementing Agreement, which expressly
provides that it prevails over any conflicting provisions in the
Convention. It is claimed, for example, that the Seabed Authority can
impose productions quotas and mandate transfer of technology. That is
not so. The 1994 Implementing Agreement removed the offensive
provisions on those subjects.
Many other claims are simply misplaced. There is no transfer of
sovereignty or wealth to the International Seabed Authority.
We have never claimed sovereignty over the seabeds beyond the
continental shelf, and have consistently taken the position that any
such claim would be unlawful. This is made abundantly clear by our own
Deep Seabed Hard Minerals Act. We neither have nor assert jurisdiction
over the activities of foreign states and their nationals on the deep
seabeds.
Nothing that could rationally be called sovereignty was conferred
on the Seabed Authority. The powers of the Seabed Authority are very
carefully defined and circumscribed, and are controlled by a Council on
which we will have a permanent seat and a veto over regulations.
Private companies have the right to apply for and receive long-term
exclusive rights to mine sites on a first-come, first-served basis and
have legal title to the minerals they extract. All parties to the
Convention are obliged to respect those mining rights and recognize
that legal title.
It was we, over the opposition of many developing countries, who
successfully sought judicial review to make sure that the Seabed
Authority respects the limits on its powers and the rights of miners,
and who in addition successfully sought commercial arbitration to
protect miners' contract rights.
It was President Nixon who proposed that miners should pay a
reasonable sum in respect of the minerals they remove from the deep
seabeds, as they now do on land and in offshore areas subject to
coastal state jurisdiction. No American administration, and to my
knowledge no mining company, ever objected to that idea. The question
is the formula. We were successful in the Implementing Agreement in
removing the complex details of the Convention on this matter, so that
the Council is in a position to adopt reasonable regulations regarding
the payment formula that do not impede investment or distort the
market. We also ensured that these sums would go first to defray the
administrative costs of the Seabed Authority, and that the distribution
of any surplus is subject to regulations approved by the Council.
Regulations regarding both the payment formula and the distribution of
these funds will be subject to an American veto on the Council, whether
or not American companies are the source of the funds.
Mr. Chairman, no major industrial state ratified the Law of the Sea
Convention prior to the adoption of the 1994 Agreement. Following its
adoption their governments initiated the steps necessary to become
party. Today every neighbor of the United States, every other permanent
member of the U.N. Security Council, and every other major industrial
state in the world is among the 145 parties to the Convention. The
issue is no longer whether there will be a Seabed Authority in which
the overwhelming majority of countries from all regions are members.
That exists. The issue is whether the United States will assume the
privileged seat expressly reserved for it.
This has three important implications.
The system is regarded as workable by other
industrial states that share many of our interests as consumers
and potential seabed producers of hard minerals.
We need to assume our guaranteed seat on the
governing Council of the Seabed Authority, and the decisive
voting power that goes with it, as soon as possible to ensure
that the system evolves in ways satisfactory to the United
States. This includes the use of our voting power and our
special rights under Article 142 to protect our environmental
and economic interests as a coastal state whose continental
shelf abuts the international seabed area in three oceans.
It is unlikely that major sources of private capital
with interests in many different parts of the world would be
particularly comfortable making substantial new investments in
deep seabed mining carried out in defiance of the Convention. A
variety of factors may influence any business judgment in this
regard; one is that Article 137 prohibits the parties to the
Convention from recognizing any rights to deep seabed minerals
not in accordance with Convention and the 1994 Implementing
Agreement.
In other words, the critics are largely either addressing texts
that no longer exist or assuming a political, economic and legal
context that no longer exits. That said, I should note that I do agree
with their claim that the Law of the Sea Convention entails history's
biggest voluntary transfer of wealth. But not in the sense that the
critics mean. That transfer of wealth is to coastal states, and the
United States is first among them. When the Law of the Sea negotiations
began, we had a 3-mile territorial sea, a 12-mile fishing zone, and a
continental shelf of uncertain extent beyond the point where the waters
reach a depth of 200-meters. By the time those negotiations ended, the
Convention accorded us:
a territorial sea of up to 12 miles,
the largest 200-mile exclusive economic zone in the world
in which we control all living and nonliving resources and have
important rights to control pollution,
an oil-rich continental shelf extending at least to 200-
miles and beyond that to the outer edge of the continental margin,
a ban on high seas fishing for salmon of American origin,
and much more.
Few coastal states in the world enjoy rights as rich and extensive
as we acquire just off the coast of Alaska.
navigation and national security
One of the major achievements of the Law of the Sea Convention is
that many of its provisions regarding navigation are copied from the
1958 Convention on the Territorial Sea and the Contiguous Zone and the
1958 Convention on the High Seas. The United States ratified the 1958
conventions many years ago, although many other states did not.
For example, the following rules in the Law of the Sea Convention
are all copied from the 1958 Territorial Sea Convention: the
sovereignty of the coastal state extends to the territorial sea; there
is a right of innocent passage in the territorial sea; passage is
innocent so long as it is not prejudicial to the peace, good order or
security of the coastal state; submarines are required to navigate on
the surface in order to enjoy the right of innocent passage.\12\
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\12\ Articles 2, 17, 19(1), and 20 of the Law of the Sea Convention
correspond respectively to Articles 1, 14(1), 14(4), and 14(6) of the
Territorial Sea Convention.
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For many years, there was a serious difference of opinion as to
what ``innocence'' meant under the 1958 formulation. This cast a shadow
over our ability to rely on the right of innocent passage in foreign
territorial seas. Paragraph 2 of Article 19 specifically responds to
our concerns about this ambiguity by making clear that the question of
innocence relates only to the exhaustive list of acts set forth in that
paragraph and only if those acts are committed while the ship is in the
territorial sea. The list benefits us by providing clarity and
eliminating broader interpretations of what is not innocent. It strains
credulity for critics to imply that an ``act aimed at collecting
information to the prejudice of the defence or security of the coastal
State'' or any other act listed in paragraph 2 of Article 19 would be
regarded as innocent by coastal states in the absence of such a list.
President Reagan twice declared that the United States respects the
rules regarding innocent passage contained in the Law of the Sea
Convention, once in his 1983 oceans policy statement,\13\ again in 1988
when he implemented the right set forth in the Convention to extend the
territorial sea to 12 miles.\14\ All of President Reagan's successors
have respected these declarations.
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\13\ See Note 5, supra, and accompanying text.
\14\ President Reagan declared that ``the ships of all countries
enjoy the right of innocent passage'' in the U.S. territorial sea
``[i]n accordance with international law, as reflected in the
applicable provisions of the 1982 United Nations Convention on the Law
of the Sea.'' Proclamation on the Territorial Sea of the United States,
Dec. 27, 1988, 24 Weekly Comp Pres. Docs. 1661 (1988). The Proclamation
also specifically recognizes the right of transit passage in straits.
Id.
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Critics seem to overlook the fact that Articles 17 to 32 of the
Convention address only the right of innocent passage.\15\ The preamble
makes clear what would be true in any event: ``matters not regulated by
this Convention continue to be governed by the rules and principles of
general international law.'' Suffice it to say that the matters not
regulated by the Convention include the right of self-defense, the
international law of armed conflict, and the complex (and for
understandable reasons, rarely discussed) questions regarding the
practice of states with regard to covert intelligence activities in
each others' territory.
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\15\ Those articles do not, for example, affect the more liberal
rights of transit passage of straits and archipelagic sea lanes passage
under Parts III & IV. Unlike innocent passage, transit passage of
straits and archipelagic sea lanes passage include both overflight and
submerged navigation.
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Mr. Chairman, becoming party to the Convention will facilitate the
prosecution of the war on terrorism in general, and the implementation
of the President's proliferation security initiative in particular.
President Bush has emphasized that we cannot wait for the terrorists
and their weapons to reach us. What is, or should be, clear from this
is that we must exercise our global navigation and overflight rights
and freedoms at sea anywhere in the world in order to reach our
operational destinations. Not every government of the numerous
countries past whose coasts our forces must travel to reach their
destinations would necessarily wish to associate itself with every one
of our operations. When we become party to the Convention, those
governments will have an easier time explaining their acquiescence in
our activities to domestic or foreign critics on the grounds of their
treaty obligations to the United States, and we will have an easier
time persuading them to do so without the need to expend our political
or economic capital.
Those who have expressed concerns in this respect seem to overlook
the fact that the rules of high seas law set forth in the Law of the
Sea Convention are copied from the 1958 High Seas Convention.
Similarly, they overlook the fact that the rules of the Law of the Sea
Convention regarding navigation and overflight and other high seas
freedoms were expressly embraced by President Reagan in his 1983
statement on oceans policy, and constitute the bedrock of the legal
foundation for our operations at sea around the world. The
Administration has made it clear that it is able to and intends to
carry out the proliferation security initiative in a manner consistent
with high seas law as set forth in the Law of the Sea Convention, and
that doing so is in our interests.
Mr. Chairman, the 200-mile limit of the exclusive economic zone
embraces virtually all of the semi-enclosed seas of the world,
including the Caribbean Sea, the Mediterranean Sea, the Red Sea, the
Persian Gulf, the South China Sea, and the East China Sea. It is
evident that our high seas navigation and other rights in those seas
are critical if our forces are to be able to reach their destinations
and perform their missions. Perhaps most importantly for the successful
prosecution of the war on terrorism and implementation of the
proliferation security initiative, the Law of the Sea Convention
provides that high seas law and high seas freedoms with respect to
navigation, overflight, and related military activities apply within
the 200-mile exclusive economic zone.
A crucial point that some critics miss is that coastal states are
tempted to think of their exclusive economic zones as belonging to
them. It is unrealistic to assume that the application of high seas law
and high seas freedoms within the 200-mile exclusive economic zone, in
the hard-won terms set forth in the Law of the Sea Convention, would
commend itself to coastal states around the world outside the context
of a comprehensive and universal Law of the Sea Convention designed to
include the Unites States.
One of our most important objectives in seeking a universally
ratified Law of the Sea Convention is to put a stop to the erosion of
high seas freedoms in coastal areas that characterized the development
of customary international law in the twentieth century. There is no
reason to believe this erosion will not continue in the absence of a
treaty restraint. In my opinion, the most plausible way to block the
gradual erosion of high seas freedoms in the exclusive economic zone,
and its eventual transformation into something much more like a
territorial sea, is a widely ratified Law of the Sea Convention to
which the United States is party, and with respect to which the voice
and practice of the United States are prominent authoritative evidence
of what the Convention means.
For operational planners, the essential question is not what we
think our rights are, but what foreign governments think. We need the
greatest possible influence over the perception of foreign governments
regarding the source, legitimacy, and content of their obligations to
respect our high seas freedoms, especially in their exclusive economic
zones. We achieve that best by becoming party to the Convention. The
alternatives are likely to be both less effective and more costly.
protection and preservation of the marine environment
Mr. Chairman, I must reiterate before this Committee in particular:
``The Convention is the strongest comprehensive environmental treaty
now in existence or likely to emerge for quite some time.''\16\ Former
Secretary of State Warren Christopher made the same appraisal in his
Letter of Submittal of the Convention.\17\ I would only add that the
statement remains true today.
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\16\ Note 2, supra, at 496.
\17\ See Senate Treaty Doc. 103-39, p. V, VII-VII (1994).
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The protection and preservation of the marine environment is of
fundamental importance to the American people and to people throughout
the world. No one country can achieve this on its own. Both
environmental and economic objectives point in the same direction,
namely international standards that states have the right and duty to
implement, supplemented by measures taken by states individually and
jointly to control access to their own ports and to regulate seabed
activities, offshore installations, and similar matters. One of the
greatest contributions made by the Convention is to be found in its
extensive provisions mandating this approach.
Thanks in no small measure to the work of this Committee, our
environmental laws are among the strongest in the world. They are fully
consistent with our rights and obligations under the Convention. The
Legal Adviser of the Department of State, William H. Taft, IV, in a
letter of March 1, 2004 to the Chairman of the Senate Foreign Relations
Committee, expressly stated that ``the United States does not need to
enact new legislation to supplement or modify existing U.S. law . . .
related to protection of the marine environment . . . . The United
States, as a party, would be able to implement the Convention through
existing laws, regulations, and practices (including enforcement
practices), which are consistent with the Convention and which would
not need to change in order for the United States to meet its
Convention obligations.''
It has nevertheless been suggested that the Convention may require
a revision of the Endangered Species Act. That is not so. Article 194
of the Convention requires the parties to take measures to control
pollution of the marine environment. We have done so. Paragraph 5 of
Article 194 is a statement of the obvious: it specifies that among the
objects of such pollution control measures is the protection and
preservation of rare or fragile ecosystems as well as the habitat of
depleted, threatened or endangered species and other forms of marine
life. Our existing laws satisfy this obligation. I need only add that
Article 194 does not specify any particular pollution control
standards.
Mr. Chairman, you and your colleagues on the Committee are well
aware of the complexities involved in arriving at an effective,
efficient and balanced approach to environmental protection that
reasonably accommodates and furthers both our environmental and other
interests. When it comes to the oceans, these complexities are
multiplied many times because they implicate the interests and
priorities of many different countries. Permit me to cite an example.
The Law of the Sea Convention accords every coastal country,
including the United States, exclusive sovereign rights with respect to
the exploration and exploitation of the continental shelf in an area
vastly expanded beyond the limits specified in the 1958 Convention on
the Continental Shelf, to which the United States is party. The Law of
the Sea Convention specifies that the rights of the coastal state with
respect to the continental shelf include the power to set environmental
conditions for oil and gas development, for oil rigs and all other
economic installations and structures, for pipelines, and for dumping.
While these powers give us a great deal of control over our
interests in both environmental protection and the productive use of
our continental shelf, in themselves they are insufficient to protect
the full range of either our environmental interests or our energy and
other interests. To protect those interests, we need to influence the
laws and practices of foreign countries. It is for this reason that the
Convention establishes a floor of generally accepted international
standards that every coastal state must apply. Among the American
interests that this protects are the following:
Our neighbors have the same exclusive rights over the
continental shelf off their coasts as we have off ours. Pollution from
their activities can easily affect our waters, our resources, and our
shores. This became abundantly clear a number of years ago when a
pollution incident on the Mexican continental shelf gave rise to
extensive public concerns in Texas and other Gulf states that our
waters and coastline would be polluted. As a party to the Convention,
we will have increased credibility and leverage to protect ourselves
from such incidents in a way that avoids any appearance that we are
bullying our neighbors.
While every coastal state has the right to impose higher
standards on its continental shelf activities, and ours are among the
strongest in the world, the oil and gas industry is a global enterprise
that can achieve economic efficiencies from uniform global standards
regarding equipment and operations. Those efficiencies can of course
help to keep down the cost of energy and free up additional capital for
investment. As a party to the Convention, we will have increased
credibility and leverage to promote stronger and more efficient
international standards and their general acceptance.
We live in an era of instant global news. A serious
pollution catastrophe on the continental shelf anywhere in the world is
likely to be reported, and its consequences televised, throughout the
globe. This can stimulate public demands in many countries for new
restrictions on continental shelf development. To the extent that this
means that we all continue to learn from each others' mistakes, this is
of course a good thing. But to the extent that public excitement can
lead to hasty and ill-considered actions either in the United States or
in other countries, the economic consequences can be adverse, and the
result may be an unnecessary increase in the price of energy. As a
party to the Convention, we will have increased credibility and
leverage to ensure the emergence and enforcement of international
standards that reduce the likelihood of such events.
Our interest in the health of the oceans throughout the
world is no mere abstraction. They comprise over two-thirds of our
world, and are essential to our well-being and the overall ecological
balance of the planet. Marine living resources from the far reaches of
the globe supply us and the rest of the world with food, with sources
of recreation, with valuable scientific knowledge, and with the promise
of new and more effective medicines. We have neither an environmental
nor an economic interest in a race to the bottom in pollution
regulation in other parts of the world that destroys marine life. As a
party to the Convention, we will have increased credibility and
leverage to exercise the kind of balanced global leadership in
protecting the oceans that is incumbent upon the leading maritime power
in the world and that the American people expect.
This is but one example of the benefits of the approach taken by
the Convention to environmental protection. There are many others. The
provisions that successfully accommodate the interests of states with
respect to freedoms and rights of navigation and their interests with
respect to prevention of pollution are obviously of great importance.
The maintenance over time of a reasonable balance responsive to both
navigation and environmental interests would unquestionably be advanced
by U.S. participation in the Convention.
Mr. Chairman, the Law of the Sea Convention is a powerful and
successful environmental treaty precisely because it seeks to achieve a
reasonable balance between environmental and other interests. For many
years, in the law of the sea negotiations and in other fora, the United
States has tried to make clear that environmental treaties must be
carefully framed to produce a reasonable accommodation of diverse
interests. Some people have characterized this as opposition to
environmental protection. Some of the extreme rhetoric used abroad has
been particularly damaging to our reputation in important allied
countries. The Senate now has a signal opportunity to set the record
straight. Its approval of the Convention and the Implementing Agreement
would suggest that there is every reason to ensure that the
multilateral agenda is pursued carefully and that, as long as it may
take, at the end of the day relevant interests are reasonably
accommodated. It would announce that when that is done, America will
stand second to none in joining to strengthen multilateralism, to
strengthen the rule of law in international affairs, and to strengthen
international protection of the environment.
conclusion
Mr. Chairman, it is of particular importance that many of the 145
parties to the Convention worked painstakingly with us over many years
to produce a Convention that we, as well as they, could ratify. From
the perspective of much of the rest of the world, a great deal of the
negotiation of the Law of the Sea Convention revolved around
accommodating the interests and views of the United States regarding:
the 12-mile maximum limit for the breadth of the
territorial sea;
the retention of many provisions drawn from the 1958
Conventions on the Territorial Sea and the Contiguous Zone, the
Continental Shelf and the High Seas, to which the United States is
party;
the more detailed and objective provisions on innocent
passage; the extension of the contiguous zone to 24 miles from the
coastal baselines in order to strengthen enforcement of smuggling and
immigration laws;
the new regime of transit passage through, over and under
straits;
the new regime of archipelagic waters and archipelagic sea
lanes passage;
the detailed and careful balance of the provisions
regarding the regime of the 200-mile exclusive economic zone and its
status, including express enumeration of the rights of the coastal
state and express preservation of the freedoms of navigation,
overflight, laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms;
the immunities of and exemptions for warships and military
aircraft;
the precision of the texts on artificial islands,
installations and structures;
the extension of the limit of the continental shelf to the
outer edge of the continental margin;
the inclusion, in additional to coastal state control over
fisheries in the 200-mile exclusive economic zone, of a ban on salmon
fishing beyond the zone, a reference to regional regulation of tuna
fisheries, and a special provision protecting marine mammals;
the avoidance of a separate legal regime for enclosed and
semi-enclosed seas;
the limitations on coastal state authority with respect to
marine scientific research;
the elaborate detail on environmental rights and
obligations; the inclusion of compulsory arbitration or
adjudication with important exceptions (e.g. for military activities);
the limitation of the regulatory functions of the Seabed
Authority to mining activities; and
most dramatically, the extensive modification of Part XI
of the Convention in the 1994 Implementing Agreement to accommodate the
objectives articulated by President Reagan.
These and many more provisions are widely regarded as having been
designed to respond positively to U.S. requirements and interests.
Mr. Chairman, I respectfully recommend that the United States take
``yes'' for an answer and assume its rightful place as a party to the
Convention and the Implementing Agreement.
Thank you.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Bernard H. Oxman to Additional Questions from
Senator Inhofe
Question 1a. Article 2(3) of the Treaty states ``the sovereignty
over the territorial sea is exercised subject to this Convention and to
other rules of international law.'' What is your interpretation of this
provision?
Response. This provision is copied from Article 1, paragraph 2, of
the 1958 Convention on the Territorial Sea and the Contiguous Zone, to
which the United States has long been party. The provision serves
mainly as a clarifying reminder; as a legal matter it adds nothing to
what trained lawyers would conclude in its absence. It has the same
meaning in both Conventions: the sovereignty of the coastal state is
qualified in two respects, first as set forth in the text, and second
pursuant to other rules of international law. The first qualification
relates to rights of passage in foreign territorial seas critical to
the global mobility and security and economic interests of the United
States; these include innocent passage, transit passage of straits, and
archipelagic sea lanes passage. The second qualification relates to
rules of customary international law that would apply in any event.
Question 1b. Do you think all parties of this Treaty will interpret
this provision the same?
Response. I believe this interpretation of Article 2(3) would be
shared by all parties.
Question 1c. How could this Treaty interfere with the United
States' sovereign exercise of freedom of the seas and in what ways will
that have an adverse effect on national security and the environment?
Response. Article 2(3) does not interfere with the United States'
sovereign exercise of freedom of the seas and has no adverse effect on
national security and the environment. Quite to the contrary, the
provisions to which it refers significantly advance the national
security and environmental interests of the United States.
More broadly, the Convention as a whole secures and advances the
United States' national security and economic interests in the exercise
of the freedom of the seas as well as its interests in protection and
preservation of the marine environment off its own shores and around
the world. The greatest threat to the long-term security, economic and
environmental interests of the United States in the oceans is the
misplaced and ill-informed advice of a voluble few who oppose
consolidating the rights, influence and leverage of the United States
on these matters by becoming party to the Convention.
Question 2. Do you believe it is in the best interest of the United
States to vest control of seabed mining operations in countries which
lack the necessary technology and capital to conduct such operations
themselves?
Response. No, and the Convention as modified by the 1994
Implementing Agreement does no such thing. Quite to the contrary, the
regulatory system is controlled by the Council of the Seabed Authority,
the Council can adopt regulations only by consensus, and the text
guarantees a significant number of seats on the Council for major
industrial states, including a permanent seat for the United States.
Article 2 of the 1994 Implementing Agreement states that in the
event of any inconsistency between that Agreement and the deep seabed
mining provisions of the Convention (Part XI and related Annexes), the
provisions of the Agreement shall prevail. As in the case of other
industrial states, this rule is unquestionably a condition for our
becoming party to the Convention. That is well understood by
governments and informed observers around the world. This rule has been
respected and applied by the parties to the Convention and the Seabed
Authority since the Convention entered into force in November 1994.
That consistent practice has not been questioned by the few members of
the Authority that have yet to formally ratify the 1994 Agreement.
Question 3. Do you believe that by acceding to the Treaty the
United States would gain an adequately effective bargaining position to
protect its current and future national policies and interests relating
to national defense, seabed mining and environmental protection? Please
explain in detail.
Response. Yes. In fact only by acceding to the Convention could the
United States secure an adequately effective bargaining position to
protect its current and future national policies and interests relating
to national defense, seabed mining and environmental protection.
National Defense.--The particular missions and objectives of our
armed forces change in response to different challenges and threats.
What does not change is the United States interest in global mobility,
that is in the capacity, on a routine daily basis, to move its naval,
air, and land forces past foreign coasts without the need to expend
political, economic or military capital to secure the acquiescence of
states along the route. This depends on the perceptions of other states
regarding the rights of foreign ships and aircraft, including American
ships and aircraft, off their coasts.
The Convention will shape those perceptions whether or not we are
party. The question is influence over the application of the Convention
and the future of the Convention. Becoming party to the Convention
enhances our ability to influence foreign perceptions of our rights by
solidifying them as treaty obligations and strengthening the
credibility and authority of our views regarding the interpretation and
application of the Convention provisions on which our rights depend in
practice whether or not we are party. It also puts us in a much
stronger position to avoid a destructive amendment conference that
could delegitimate the Convention and the provisions important to our
national security, and thus weaken, rather than strengthen, the
perception of other coastal states regarding the rights and freedoms we
and all states enjoy off foreign coasts. Calling such a conference
becomes legally possible this year. If the United States unwisely
delays becoming a party and if this delay contributes to a decision by
the parties to convene a destructive amendment conference over which
the United States voluntarily denied itself adequate control, the
burden of the ensuing collapse of the current consensus will be borne
by the American taxpayers who will be compelled to buy the foreign
acquiescence we can get for free under the Convention, and by the
members of our armed forces who will face not only the risks posed by
their operational destination, but new risks along the route to that
destination.
Seabed Mining.--United States seabed mining interests involve two
different areas. The first, and in present economic terms by far the
most important, concerns the continental shelf where all offshore oil
and gas are likely to be found. The United States has an important
energy interest in promoting investment in the continental shelf off
our coast as well as foreign coasts. The Convention promotes that
interest by according the coastal state control over the continental
margin, including a special procedure by which a party to the
Convention, if it wishes, can reassure investors by establishing a
seaward limit of its continental margin that is final and binding on
all parties to the Convention. As a party to the Convention, we would
also acquire the right, which we now lack, to nominate an American
expert for membership on the Commission on the Limits of the
Continental Shelf that has an important role in that process.
The second interest is in an activity that has yet to begin, namely
deep seabed mining beyond the limits of the continental shelf for hard
minerals that can also be found within the limits of the continental
shelf. It is difficult to imagine the United States having a less
effective bargaining position to protect its current and future
national policies and interests relating to deep seabed mining than it
does at present. By contrast, once a party to the Convention, the
United States will have a permanent seat on the Council of the Seabed
Authority, and thus will wield a permanent veto over the adoption of
all regulations. Until the Authority becomes self-supporting (which is
unlikely to occur in the foreseeable future), the United States will
also wield a veto over budgetary decisions by virtue of its guaranteed
seat on the Finance Committee.
Environmental Protection.--By becoming party to the Convention, the
United States will in two respects acquire a more effective bargaining
position to protect its current and future national policies and
interests relating to environmental protection.
The first of these relates to fisheries, and in particular our
interest in ensuring adequate conservation of living resources beyond
our own exclusive economic zone. The Convention gives us important
tools, including the right to invoke compulsory dispute settlement
procedures, that will significantly enhance our bargaining leverage in
dealing with foreign fishing beyond the exclusive economic zone.
Moreover, becoming party to the Convention will enhance our ability to
persuade other countries to join us in becoming party to the 1995
Agreement Implementing the Convention with respect to certain fish
stocks, which in turn will increase our negotiating and enforcement
leverage over foreign fishing.
The second of these relates to pollution. The key here is the
maintenance of a reasonable balance that promotes effective
environmental protection as well as interests in the economic, military
and other uses of the oceans. As a party to the Convention, the United
States will be in a far stronger position to promote a reasonable
balance of environmental and economic interests in the interpretations
and actions of foreign states, and to insist on continuing respect in
future agreements and foreign laws for the Convention's exclusion of
warships from international and foreign pollution regulations. Approval
of the provisions of the draft resolution of advice and consent
recommended by the Committee on Foreign Relations would be an important
step in enhancing our influence in this regard.
Question 4. What are your thoughts about developing countries
having the capabilities to implement international laws relating to
issues of our national security as well as regulating the marine
environment?
Response. National Security.--Most coastal states are developing
countries. Whether or not we are party to the Convention, our naval
ships and military aircraft, and oil tankers and other ships carrying
vital goods to and from our shores, will need to navigate off their
coasts in order to reach their destinations. Critical
telecommunications cables will need to be laid and maintained off their
coasts. The reality therefore is that the claims and perceptions of
these developing coastal states with respect to control of areas off
their coast can and do have a practical impact on our national security
interests in global mobility and communications. One of the most
important, and successful, goals of the Law of the Sea Convention was
to create a legal foundation for our global mobility and communications
whose legitimacy was accepted by these countries.
Developing country leaders are not stupid. They know that the
United States has political, military or economic interests that would
be jeopardized by a confrontation with virtually any developing
country. They also know that when we need their consent (for example
for overflight rights over land or basing rights) we are usually
prepared to pay handsomely for that consent, directly or indirectly.
The question is whether we wish every naval mission (most of which do
not occur in a crisis) to comprise one mission with one price--the
operational goal--or two missions with two prices--the operational goal
and the cost of acquiring the acquiescence of the developing coastal
states along the way. My experience suggests that whatever the
perceived costs of becoming party to the Convention, they are far
outweighed by the benefits, and indeed would pale in comparison with
the true continuing cost of buying or forcing acquiescence from just
one key developing coastal state along one indispensable route.
The absence of any other global maritime power at the present time,
coupled with a perception fashionable in some industrial states that
trimming the sails of the United States should be a priority foreign
policy goal, means that the risk of individual or regional challenges
to U.S. global mobility is likely to increase, and that developing
coastal states are likely to be goaded to move in this direction. Were
the United States, after publicly launching and advancing the
Constitutional process for becoming party to the Convention, to fail to
follow through, that would further fuel this process.
Becoming party to the Convention is not a guarantee against such
developments. But it strengthens our hand in insisting on our treaty
rights, and it strengthens our capacity to mobilize public opinion at
home and abroad in support of our vigorous routine assertion and
exercise of those rights.
Environment.--We have four types of interests in adequate
implementation of environmental measures by developing countries.
First, adequate protection of the health of the world's oceans requires
concerted action by all coastal and maritime states. Second, adequate
control by developing coastal states or flag states of activities under
their jurisdiction is necessary to prevent pollution of our coasts and
waters. Third, lax environmental regulation by developing countries
might damage our competitive economic interests and attract jobs away
from the United States, or force us to lower our own environmental
thresholds. Fourth, an environmental disaster in a foreign country
could spur urgent public demands for restrictive legislation in the
United States and elsewhere whose economic effects are not fully
foreseen.
The Convention's powerful and carefully balanced environmental
provisions strengthen our ability to encourage developing countries to
take adequate measures to protect the marine environment. One of its
most notable and attractive features is that, unlike some other
environmental instruments, the Convention applies the same
international environmental rules and standards to all countries,
developed and developing. It also contains provisions that penalize a
flag state that has repeatedly disregarded its obligations to
effectively enforce applicable international rules and standards.
Question 5. Can we predict with some degree of certainty whether
the International Seabed Authority and its related tribunal will, over
time, accrue any more powers than those currently provided to it in the
Treaty or which they have already exercised?
Response. Yes, we can. There is no evidence of an accretion of
powers beyond those expressly granted or that such a development is
likely. The powers of the International Seabed Authority and its
related tribunal are highly circumscribed by the Convention and the
1994 Implementing Agreement. A grant of additional powers would require
an amendment to the relevant treaty provisions; this could not occur
over the opposition of the United States (once it is a party) or other
major industrial states. The implementation of existing powers of the
Seabed Authority is subject to effective control by the Council and the
Finance Committee of the Authority, whose mandatory industrial state
members (including the United States once a party) have the power to
block undesirable decisions.
Question 6. Despite the clear requirements in Articles 208 and 210
of the Treaty which specify that related national laws must be ``no
less effective'' than international rules, standards and recommended
practices and procedures, the Committee received testimony to the
effect that the United States would not be required to change any of
its environmental laws to be in compliance with the Treaty. Are you
certain that the Treaty could not be used to impose restrictions or
requirements on the United States to limit or expand current or future
U.S. laws and policies?
Response. The United States has among the strongest environmental
laws in the world. That is likely to remain true. The probability that
international rules and standards accepted by the overwhelming majority
of coastal and maritime states, including most developing countries,
would contain stricter requirements in respect of Articles 208 and 210
than those acceptable to the United States and provided for in our laws
ranges from exceedingly unlikely to zero. The further probability that
a foreign government would find it in its interests to seek to impose
such a requirement on the leading global maritime power with the
largest exclusive economic zone in the world (the United States),
undertake to establish that our own regulations are less effective, and
succeed, itself ranges from exceedingly unlikely to zero. The United
States has been party to the Convention on the High Seas for many
years, and has never encountered any difficulty with a similar
provision set forth in Article 10 of that Convention.
Question 7. Article 212 of the Treaty requires States to adopt laws
and regulations for pollution from the atmosphere. How would the United
States domestic policy need to be changed or altered to comply with the
international laws, regulations, and recommended practices to address
these concerns? And does this mean that other countries can use this
provision to force the United States to regulate C02?
Response. Article 212 identifies the subject matter for national
measures. Its implementation depends entirely on domestic law. It does
not require any particular measures, does not require compliance with
international rules and standards, and does not require any change in
our domestic law and policy with respect to atmospheric pollution in
general or CO2 in particular. I have difficulty imagining
how any country with existing air pollution regulations, let alone the
United States, could find itself in violation of this essentially
hortatory text.
__________
Responses by Bernard H. Oxman to Additional Questions from
Senator Jeffords
Question 1. Critics of the Law of the Sea have claimed that there
is no guarantee in the text of the Convention or in the 1994 Agreement
that the United States would, should it become a party, enjoy permanent
membership and a veto on the governing body of the International Seabed
Authority. You stated in your testimony that under the 1994
implementing agreement, ``the United States is automatically guaranteed
a seat on the Executive Council'' and that because that body takes its
decisions by consensus, the United States would enjoy veto power. Would
you clarify where in the text of the 1994 Agreement the United States
does in fact enjoy a guaranteed seat on the governing council of the
ISA and a veto over any decisions with which it disagrees?
Response. Annex, Section 3, paragraph 15(a), of the 1994 Agreement
specifies that the Council of the Seabed Authority ``shall include . .
. the State, on the date of entry into force of the Convention, having
the largest economy in terms of gross domestic product.'' The
Convention entered into force on November 16, 1994. There is no doubt
that on that date the United States had the largest economy in terms of
gross domestic product. There is also no doubt that the purpose of this
provision is to accord the United States a permanent seat on the
Council.
Annex, Section 3, paragraph 5, of the 1994 Agreement expressly
preserves the provisions of the Convention requiring consensus in the
Council. Article 161, paragraph 8(d), of the Convention requires
consensus for Council decisions on amendments to Part XI and related
Annexes, and for Council decisions under Article 162, paragraph 2(o),
namely all Council decisions on rules, regulations and procedures of
the Authority. Article 161, paragraph 8(e), defines ``consensus'' as
``the absence of any formal objection.'' Accordingly, by objecting the
United States could block any decision for which consensus is required,
namely the adoption of any amendments or the adoption of any rules,
regulations, or procedures of the Authority.
In addition, Annex, Section 3, paragraph 7, of the 1994 Agreement
provides that all decisions of the Authority having financial or
budgetary implications ``shall be based on the recommendations of the
Finance Committee.'' Annex, Section 9, paragraph 3, provides that so
long as the Authority requires assessed contributions to meet its
administrative expenses, ``the membership of the Committee shall
include representatives of the five largest financial contributors to
the administrative budget of the Authority.'' That of course includes
the United States. Annex, Section 9, paragraph 8, requires consensus
for substantive decisions of the Committee. Thus the United States
could block any budgetary or financial decision.
Question 2. One of the other witnesses at the hearing referred to a
November 2001 opinion from the Law of the Sea Tribunal on mixed oxide
fuels as an example of ``creeping jurisdiction.'' Do you agree with
this assertion? Would you explain the nature of the case, the court's
decision, and the reasons why the Tribunal saw fit to exercise its
jurisdiction and hear the case?
Response. I do not agree with the assertion. Far from ``creeping
jurisdiction,'' the provisional measures order of December 3, 2001 in
the MOX Plant Case (Ireland v. United Kingdom) reveals the considerable
circumspection of the Tribunal even with respect to temporary
provisional measures that can be changed or revoked at a later stage of
the case and in any event expire with the litigation.
The case arose from Ireland's concerns about pollution risks from
shipping radioactive materials in the Irish Sea and other activities at
a mixed oxide plant in Sellafield, England. Ireland requested the
Tribunal to prescribe provisional measures pending the constitution of
an arbitral tribunal to hear the case under Annex VII of the Law of the
Sea Convention.
Presumably for tactical reasons related to the particular facts and
circumstances of these proceedings, the United Kingdom did not invoke
before the Tribunal the jurisdictional limitations set forth in Section
3 of Part XV, including paragraph 1 of article 297, which significantly
limits jurisdiction over coastal states in environmental and other
cases. The United Kingdom's challenge to jurisdiction raised a limited
and technical issue under Article 282, namely whether the case should
be heard by an arbitral tribunal under Annex VII of the Law of the Sea
Convention, or instead by a different arbitral tribunal under the
compulsory arbitration provisions of a European treaty concerning
environmental protection in the Northeast Atlantic pursuant to which
Ireland was also suing the United Kingdom, or possibly by the European
Court of Justice under the relevant European Community treaties. The
Tribunal made no determination of jurisdiction to try the merits of the
case under the Law of the Sea Convention, leaving that issue to the
arbitral tribunal to be constituted under Annex VII of the Convention,
and limiting itself to deciding only that Ireland had established a
prima facie case of jurisdiction for the Annex VII arbitral tribunal.
The Tribunal refused to prescribe any of the provisional measures
requested by Ireland, and limited itself to mandating consultations
between the parties. Its order was unanimous, including the British
judge on the Tribunal. With that order, the Tribunal's involvement
ended.
Subsequent to that order, the case went to arbitration under Annex
VII of the Law of the Sea Convention. The arbitral tribunal, exhibiting
similar caution, refused to order additional provisional measures, and
has now suspended proceedings indefinitely pending a decision of the
European Court of Justice on whether the dispute will be handled in
that Court under European Community law. Meanwhile Ireland lost its
case against the United Kingdom in the arbitration under the European
treaty concerning environmental protection in the Northeast Atlantic.
Question 3. One of the other witnesses asserted that the
environmental provisions of the Convention are inadequate to deal with
acts of environmental terrorism. Are your aware of any specific
provisions in the 1982 Convention or the 1994 Agreement that would
prohibit States from enacting new laws and regulations to deal with
acts of environmental terrorism?
Response. There are no provisions in the 1982 Convention or the
1994 Agreement that would prohibit States from enacting new laws and
regulations to deal with acts of environmental terrorism. Quite to the
contrary, Article 221 expressly declares that nothing in the
environmental provisions of the Convention prejudices the right of
states to act in the face of a maritime casualty, including an imminent
threat of material damage to a vessel or cargo. It should also be noted
that environmental terrorism at sea might well be carried out in a way
that constitutes piracy, which would result in very broad authority
under the Convention to respond anywhere on the high seas. Such acts
might also be covered by various anti-terrorism treaties that are
entirely compatible with the Law of the Sea Convention. Moreover, to
the extent that the response to such terrorism is regarded as coming
within the right of self-defense under the U.N. Charter and
international law, the matter would fall entirely outside the
Convention.
______
Benton and Associates,
Juneau, Alaska, March 19, 2004.
Senator Lisa Murkowski,
U.S. Senate,
Washington, DC.
Dear Senator Murkowski: I am writing you today to urge support for
ratification of the U.N. Convention on the Law of the Sea (UNCLOS).
Ratification is supported by the Bush Administration, as did the
Clinton Administration before it. Recently, the Foreign Relations
Committee unanimously approved ratification as well. My experience with
international fisheries and oceans governance has convinced me that it
is in the best interests of the United States to become a party to
UNCLOS as soon as possible.
For roughly 14 years I was the State of Alaska's chief negotiator
and representative at numerous international negotiations and
conferences having to do with oceans policy, governance, and fisheries.
Among other duties I was a senior advisor to the U.S. Mission to the
U.N. during negotiations leading up to the global ban on high seas
driftnets. I was Alaska's lead negotiator for the United States/Soviet
and later United States/Russian Intergovernmental Coordinative
Committee on oceans and fisheries. I was the senior Alaska negotiator
for the successful negotiations leading up to adoption of the North
Pacific Anadromous Fish Convention and the Central Bering Sea Pollock
Convention to the U. S. Mission to the U.N. during negotiations leading
up to the Convention of Highly Migratory Fish Stocks and Straddling
Stocks of Fish, a key component for implementation of UNCLOS fisheries
regimes. I was also appointed by President Clinton to the U.S. Canada
Pacific Salmon Commission and worked hard to secure the 10-year
agreement which ended the ``salmon wars'' between Canada and the United
States.
I retired from my position with State government in 2000, and was
appointed to the North Pacific Fishery Management Council where I
served as Chair until I left the Council in 2003. During my tenure on
the Council I continued to be active in international fishery affairs,
and advised the Department of State on a number of international issues
including the discussions with the Russian Federation regarding the
maritime boundary between Alaska and Russia.
Throughout these various negotiations spanning almost 20 years it
was apparent that the interests of the United States were best served
under provisions of UNCLOS dealing with maritime delimitation,
navigation and transit, defense issues, fisheries management, and
enforcement. It was through the use of the terms and condition is of
UNCLOS that we were able to secure many of the international agreements
cited above, agreements which have protected Alaska's interests to the
tune of hundreds of millions of dollars to our fishing industry and
coastal communities. Ratification will only strengthen the ability of
the United States, and Alaska, to defend these interests into the
future.
One issue of particular concern, and a very compelling reason to
become a Party to the convention, is the prospect of losing some off
the important wins which have been made for navigation, the rights of
free passage, and maritime delimitation. The UNCLOS comes open for
amendment for the first time later this year. If the United States is
not a party, then the United States cannot participate in this process
and we stand to lose important rights and freedoms for transit, for EEZ
and continental shelf resources, and possibly boundary issues as well.
The United States has several outstanding maritime boundary
delimitations that have not been solved, including boundaries with
Canada and Russia that are of the greatest importance to Alaska. For
these reasons alone, I would ask you to strongly support ratification
of the UNCLOS treaty.
Thank you for your kind attention to this issue. If I can be of any
further service, or provide additional information, please feel. free
to contact me.
Sincerely,
David Benton.
Chamber of Shipping of America,
March 19, 2004.
Hon. James M. Inhofe, Chairman,
Senate Environment and Public Works Committee,
U.S. Senate,
Washington, DC.
Hon. James M. Jeffords, Ranking Member,
Senate Environment and Public Works Committee,
U.S. Senate,
Washington, DC.
Dear Mr. Chairman and Ranking Member: Thank you for holding a
hearing on the U.N. Law of the Sea Treaty. The purpose of this letter
is to advise that the Chamber of Shipping of America very strongly
supports ratification of the United Nations Law of the Sea Convention
(UNCLOS) as it is in the best interests of the United States to do so.
The Chamber of Shipping of America represents 22 American companies
that own, operate or charter ships used in the domestic and
international trades of the United States. We represent all types of
ships including container ships, tankers, ocean-going tug/barges
vessels, roll-on roll-off ships and bulk ships. We were founded in 1917
to coordinate U.S. shipowner positions at the initial deliberations
leading to the Safety of Life at Sea Convention. Today, we represent
our members on safety, environmental and security issues addressed
domestically and at the international fora including the International
Maritime Organization and the International Labor Organization.
UNCLOS is the codification of the traditional law of the sea and
protects, inter alia, our rights of innocent passage and freedom of
navigation. We are concerned that our status as a non-ratifying party
places us in a dangerous position when the treaty comes open for
amendment in October of this year. It is simply in our sovereign
interest to ensure that we are at the international negotiating table
in the strongest possible position. The U.S. should not ignore the
potential for treaty amendments that could have large negative impacts
on our interests and we have no vote.
I enclose here a copy of testimony I gave before the Senate Foreign
Relations Committee on October 21, 2003 wherein I explain some of the
potential problem areas where amendments may limit our navigation
freedoms. I request that my letter and enclosure be made part of this
hearing record. If you or your staff has any questions, please feel
free to contact me.
Sincerely,
Joseph J. Cox,
President.
______
Statement of Joseph J. Cox, President & CEO, Chamber of Shipping of
America, Given Before the Senate Committee on Foreign Relations on the
U.N. Convention on the Law of the Sea, October 21, 2003
Thank you Mr. Chairman and committee members. The Chamber of
Shipping of America is very pleased to testify before your committee
today concerning U.S. ratification of the U.N. Convention on the Law of
the Sea. We realize that you have heard testimony in support of
ratification. We are very pleased to add the Chamber of Shipping of
America (CSA) to the support column.
The Chamber of Shipping of America represents 22 American owners
and operators of ocean-going vessels. Our members operate both U.S. and
foreign-flag ships in the domestic and international trades. While we
have undergone a number of name changes over the years, CSA proudly
traces its founding to 1914 when the British Government invited a small
group of countries to develop the first international treaty regarding
safety at sea. The American ship owners were involved in that first
maritime treaty. It was prompted by a legendary incident--the sinking
of the steamship `TITANIC'. While that treaty failed due to World War
I, it plotted the course of future maritime treaties. Today, the
safety, security and protection of the environment are all subjects of
maritime treaties. World War I blocked the first try at a safety treaty
although it led directly to development of treaties covering maritime
labor conditions which are developed at the International Labor
Organization (ILO). The ILO exists today under the U.N. umbrella
although it was founded in 1919 as part of the League of Nations which
was the brain-child of our President Woodrow Wilson.
Mr. Chairman and members, today we consider the Law of the Sea
Treaty. It has been referred to as the fundamental framework governing
obligations and rights of states; flag states, coastal states, and port
states. Viewing it in conjunction with the many other maritime
conventions shows the detailed interest the world has in the maritime
industry. An import aspect of that interest is that shown by the United
States. From 1914 through today, we do not know of any maritime
treaties developed in any fora that did not have the active involvement
of the United States. Indeed, many of the conventions, particularly
those addressing environmental concerns, were undertaken at the urging
of and subsequent leadership of the United States. Because the Law of
the Sea Convention provides the framework for the protection of the
environment, we feel comfortable in identifying another treaty that has
been forwarded to your committee by the Administration, i.e., Annex VI
of the Convention to Prevent Pollution from Ships. Annex VI of this
convention covers the issue of air pollution from ships. It will soon
be ratified by the requisite number of states to bring it into force.
As with the Law of the Sea further development of Annex VI requires
ratification. The U.S. led the effort on development of Annex VI. All
of us recognize, and by all, we mean private sector and government,
that Annex VI is not perfect although, if we wait for the perfect, we
can be waiting a long time. We look forward to your positive
consideration of Annex VI and the U.S. involvement in the continuing
strengthening of this very important environmental measure.
The Law of the Sea, Annex VI of the pollution treaty and the newly
adopted amendments to the safety of life at sea treaty dealing with
security involve vital U.S. interests. The world looks to our
leadership in these matters. We must respond, and respond vigorously
and positively, to that expectation. The credibility of the U.S. in
international fora where these agreements are made depends on it.
There are reasons why the U.S. benefits from a ratification of this
treaty. It provides the framework for the essential concepts of freedom
of navigation. The origination of the process leading to the treaty was
occasioned by states exercising sovereignty in waters where the legal
basis of that sovereignty was questionable to put it kindly. In recent
months, we in the maritime industry saw states take action to forcibly
remove a ship from their exclusive economic zone. It was reliably
reported that the ship ``PRESTIGE'', listing and in imminent danger,
was forced to go further out to sea under extremely dangerous
conditions. We considered this very important and wrote to Secretary of
State, Colin Powell expressing our grave concern. Nations can claim to
interpret the law of sea. Those claims, unless challenged can stand.
The Law of the Sea Tribunal is the appropriate place to adjudicate
those claims and we want the U.S. to be able to participate and that
requires ratification.
Protection of the crew is also a vital component of the treaty. The
Master of the ``PRESTIGE'', after taking heroic steps to save his ship,
was imprisoned by coastal state authorities when the all-too-
predictable pollution occurred. After months of captivity, he was freed
on bail that the press reported at over three million dollars. Once
again, a step which CSA believes conflicts with provisions of the
treaty.
Mr. Chairman, and members of the committee, these are not
theoretical concepts or law school questions. These are topical
circumstances involving developed nations. We must rely on our Nation
to call these actions to account. The U.S. should place itself in a
position to be the effective force for adherence to treaty obligations
by all. The only way we, can do that is by ratifying the treaty. It is
certainly unfortunate that states have taken dramatic action to control
ships' off their coasts. It is also a measure of ``deja vu'' as similar
actions led to the initiative of the law of the sea to begin with!
We also have to be vigilant concerning recent actions which are
purported by their adherents to be in concert with the law of the sea.
Under the framework of the law of the sea, the International Maritime
Organization (IMO) developed the concept of ``particularly sensitive
sea areas'' or PSSAs. These are areas which a state can declare as
eligible for special protection. At the July meeting of the Marine
Environment Protection Committee, it was determined that the entire sea
area off Western Europe from the upper reaches of the English Channel
to the Straits of Gibraltar were a particularly sensitive sea area.
While the area was determined to be a PSSA, steps were not adopted to
protect the area. The steps will be discussed at an upcoming meeting of
the Marine Environment Protection Committee of IMO. We will be involved
in these deliberations and believe that any measure is inappropriate.
It is clear that states are beginning to feel comport in stretching the
interpretations of the law of the sea into unrecognizable forms. It is
time the U.S. decided that such antics are unacceptable.
Mr. Chairman, we appreciate the opportunity to testify and would be
pleased to respond to questions.
Western Pacific Regional Fishery Management Council,
Honolulu, HI, March 18, 2004.
Hon. Daniel K. Inouye,
U.S. Senate,
Washington, DC.
Dear Senator Inouye: I would like to express the support of Western
Pacific Fishery Management Council for the ratification of the United
Nations Convention on the Law of the Sea by the United States. This
Council, by virtue of its geography, is the most internationally
focused of the eight Regional Fishery, Management Councils in the USA,
and international fishery management is an integral part of our Pelagic
Fishery Management Plan. Thus, the provisions of UNCLOS as they apply
to the exploitation of natural resources are of key interest to the
Council, quite apart from the important security aspects and key rights
of navigation enshrined within the treaty.
Many of the provisions of UNCLOS, and international instruments
that have stemmed therefrom, have been incorporated into this Council's
management of highly migratory pelagic fish. In the 1980's, even
before, the U.N. ban, the Western Pacific Council was aware of the
controversy surrounding this gear and banned its use within the EEZ of
the US Flag Pacific Islands. This Council was also among those agencies
and individuals who supported you and your colleagues in having tuna
included within the Magnuson Act, an initiative which recognized the
rights of individual countries to manage pelagic fishery resources
within their EEZs as outlined within UNCLOS.
More recently, the Western Pacific Council has actively supported
the development of an international convention for managing tuna
fisheries in the Central and Western Pacific, hosting four out of the
seven seminal meetings through which this new management initiative was
crafted. This new fishery commission developed by the convention will
come into force some time in 2004. This is the first international
fishery management arrangement that fully incorporates UNCLOS
principles in the articles of the convention, and will assume
responsibility for the largest tuna fishery grounds on the globe. Such
a development is timely due to the need to limit unconstrained
expansion of fishing effort on these important shared economic
resources.
As pointed out by your colleagues Senator Lugar and Senator Stevens
in recent correspondence with Senate members, the failure to ratify
UNCLOS would mean that the U.S. would be unable to participate in the
amendment to the Convention and safeguard aspects of concern to this
country, including international fishery agreements such as the new
fishery commission in the Central and Western Pacific. Naturally this
is of paramount concern to this Council, embedded as it is within
Micronesia and Polynesia, and with economies reliant to a large degree
on ocean resources. The Council therefore hopes that the Senate will
recognize the importance of ratifying UNCLOS, both from a strategic and
security perspective, and also from our perspective in the US Pacific
Islands, where the US voice needs to be heard in the management of
shared fishery resources in the Pacific.
Sincerely,
Kitty M. Simonds,
Executive Director.