[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

                               __________


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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

                              ----------                              


                        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.
---------------------------------------------------------------------------
    \1\ John Westwood, Barney Parsons and Will Rowley, Douglas Westwood 
Associates, Canterbury, United Kingdom, Oceanography, vol. 14, no. 3/
2001.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \6\ Panel Study, note 3 supra, at 172.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \11\ Bernard H. Oxman, The 1994 Agreement and the Convention, 88 
AJIL 687 (1994) (appended to this statement).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \16\ Note 2, supra, at 496.
    \17\ See Senate Treaty Doc. 103-39, p. V, VII-VII (1994).
---------------------------------------------------------------------------
    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.
  

                                  
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