[Senate Hearing 108-796]
[From the U.S. Government Publishing Office]
S. Hrg. 108-796
MILITARY IMPLICATIONS OF THE UNITED
NATIONS CONVENTION ON THE LAW OF
THE SEA
=======================================================================
HEARING
before the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 8, 2004
__________
Printed for the use of the Committee on Armed Services
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COMMITTEE ON ARMED SERVICES
JOHN WARNER, Virginia, Chairman
JOHN McCAIN, Arizona CARL LEVIN, Michigan
JAMES M. INHOFE, Oklahoma EDWARD M. KENNEDY, Massachusetts
PAT ROBERTS, Kansas ROBERT C. BYRD, West Virginia
WAYNE ALLARD, Colorado JOSEPH I. LIEBERMAN, Connecticut
JEFF SESSIONS, Alabama JACK REED, Rhode Island
SUSAN M. COLLINS, Maine DANIEL K. AKAKA, Hawaii
JOHN ENSIGN, Nevada BILL NELSON, Florida
JAMES M. TALENT, Missouri E. BENJAMIN NELSON, Nebraska
SAXBY CHAMBLISS, Georgia MARK DAYTON, Minnesota
LINDSEY O. GRAHAM, South Carolina EVAN BAYH, Indiana
ELIZABETH DOLE, North Carolina HILLARY RODHAM CLINTON, New York
JOHN CORNYN, Texas MARK PRYOR, Arkansas
Judith A. Ansley, Staff Director
Richard D. DeBobes, Democratic Staff Director
(ii)
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
Military Implications of the United Nations Convention on the Law of
the Sea
april 8, 2004
Page
Clark, Adm. Vernon E., USN, Chief of Naval Operations............ 26
Taft, Hon. William H., IV, Legal Advisor, Department of State.... 31
Kirkpatrick, Hon. Jeane J., Senior Fellow and Director of Foreign
and Defense Policy Studies, American Enterprise Institute for
Public Policy Research......................................... 56
Middendorf, Hon. William J., II, Former Secretary of the Navy.... 69
Moore, Professor John Norton, University of Virginia School of
Law............................................................ 77
Schachte, Rear Adm. William L., Jr., USN (Ret.), Judge Advocate
General Corps.................................................. 104
(iii)
MILITARY IMPLICATIONS OF THE UNITED
NATIONS CONVENTION ON THE LAW OF
THE SEA
----------
THURSDAY, APRIL 8, 2004
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 11:19 a.m. in
room SD-106, Dirksen Senate Office Building, Senator John
Warner (chairman) presiding.
Committee members present: Senators Warner, Inhofe,
Roberts, Sessions, Ensign, and Levin.
Committee staff member present: Judith A. Ansley, staff
director.
Majority staff members present: Thomas L. MacKenzie,
professional staff member; Lynn F. Rusten, professional staff
member; and Scott W. Stucky, general counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; William G.P. Monahan, minority
counsel.
Staff assistants present: Sara R. Mareno, Bridget E. Ward,
and Nicholas W. West.
Committee members' assistants present: Arch Galloway II,
assistant to Senator Sessions; and D'Arcy Grisier, assistant to
Senator Ensign.
OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN
Chairman Warner. The Senate Armed Services Committee will
now resume its hearing with regard to the United Nations
Convention on the Law of the Sea (UNCLOS) treaty. We met in
closed session this morning, and just concluded that session to
come down and resume in open session.
We meet today to receive testimony on the military
implications of the UNCLOS. Admiral Vernon E. Clark, Chief of
Naval Operations (CNO), and the Honorable William H. Taft,
Legal Advisor, Department of State, will testify on behalf of
the administration on the first panel of this hearing.
I have had the privilege of working with Mr. Taft for many
years. He is a former Deputy Secretary of Defense and former
Ambassador to the North Atlantic Treaty Organization (NATO). So
you bring not only the portfolio of a State Department advisor,
but also one who spent many years in the full spectrum of
national defense issues.
The administration witnesses will be followed by Ambassador
Jeane J. Kirkpatrick, former U.S. Ambassador to the United
Nations and currently a Senior Fellow and Director of Foreign
and Defense Policy Studies at the American Enterprise
Institute. She will testify on the second panel. We welcome
that distinguished public servant.
Testifying on the third panel of outside witnesses, will be
Ambassador William Middendorf, former Secretary of the Navy. We
are privileged to have him here, a colleague and friend of many
years. Professor John Norton Moore, University of Virginia Law
School, another colleague of many years of service together;
and Rear Admiral William Schachte, Jr., retired. Thank you for
appearing on the third panel.
I note that two additional witnesses who were invited by
the committee to testify this morning, Mr. Frank Gaffney,
President of the Center for Security and Policy, and Doug
Bandow, Senior Fellow of the Cato Institute, were unavailable
for very good reasons. We are sorry they could not be here, but
if they would like to provide written statements for the
record, those statements will be admitted.
[The information referred to follows:]
Chairman Warner. In today's hearing we will examine the
national security implications of the UNCLOS. It is my hope and
expectation that this hearing will provide Members an
opportunity to explore in depth the concerns with this
convention relating to the national security that have been
raised by a number of colleagues, some of whom are on this
panel, and further, the committee will hear the responses to
those concerns from the convention's proponents, primarily in
the first panel.
I have a personal longstanding interest in the
international agreements that affect U.S. maritime interests,
including the paramount principle of freedom of navigation. As
Under Secretary and Secretary of the Navy for 5 years from 1969
to 1974, I participated in the early international conferences
on this subject representing at that time the Secretary of
Defense (SECDEF), three secretaries I served under, Secretary
Laird and two others. I am particularly interested in the
witnesses who will follow.
So I will, at this point, put the balance of my statement
in the record.
[The prepared statement of Senator Warner follows:]
Prepared Statement by Senator John Warner
The committee meets today to receive testimony on the military
implications of the UNCLOS. Admiral Vernon E. Clark, USN, Chief of
Naval Operations and the Honorable William H. Taft IV, Legal Adviser,
Department of State, will testify on behalf of the administration on
the first panel of this hearing.
Ambassador Jeane J. Kirkpatrick, former U.S. Ambassador to the
United Nations and currently a Senior Fellow and Director of Foreign
and Defense Policy Studies at the American Enterprise Institute, will
testify on the second panel.
Testifying on a third panel of outside witnesses will be Ambassador
William Middendorf II, former Secretary of the Navy; Professor John
Norton Moore, University of Virginia School of Law; and Rear Admiral
William L. Schachte, Jr., USN (Ret.). Thank you all for appearing
before us this morning.
I note that two additional witnesses who were invited by the
committee to testify this morning--Frank Gaffney, President of the
Center for Security Policy and Doug Bandow, Senior Fellow at the CATO
Institute--were unavailable. If they would like to submit written
testimony, those statements will be made a part of the record of this
hearing.
The Senate Armed Services Committee traditionally conducts
oversight hearings on the military implications of treaties that could
affect the national security. Today's hearing continues that tradition.
During these past few months when the Senate has been actively
considering the convention, a debate has arisen regarding whether
accession to the convention is in the U.S. national interest. This
convention has implications for U.S. interests across a wide spectrum
of issues--national security, commercial, economic, environmental--to
name a few.
In today's hearing, we will examine the national security
implications of the UNCLOS. It is my hope and expectation that this
hearing will provide Members an opportunity to explore in depth the
concerns with this convention related to national security that have
been raised by critics, and to hear the responses to those concerns
from the convention's proponents, first and foremost, the
administration's witnesses.
I have a strong and longstanding interest in international
agreements that affect U.S. maritime interests, including the paramount
principle of freedom of navigation. As Under Secretary and Secretary of
the Navy, I participated in the development of U.S. policy concerning
the negotiation of this convention, and served as the U.S. Negotiator
for the U.S.-Soviet Incidents at Sea Agreement of 1972. I will be
particularly interested in the views of our witnesses on the impact of
this convention on U.S. military--primarily Navy--operations, and on
how the convention might affect our ability to preserve our freedom of
navigation around the world.
Senior administration representatives have conveyed their strong
support for this convention. In a letter I received yesterday, Chairman
of the Joint Chiefs of Staff General Myers stated: ``The convention
remains a top national security priority. In today's fast changing
world, it ensures the ability of the U.S. Armed Forces to operate
freely across the vast expanse of the world's oceans under the
authority of widely recognized and accepted international law. It
supports efforts in the war on terrorism by providing much-needed
stability and operational maneuver space, codifying essential
navigational and overflight freedoms.'' According to General Myers,
``The rules under which U.S. forces have operated for over 40 years to
board and search ships or to conduct intelligence activities will not
be affected.'' I will place his letter in its entirety in the record of
this hearing.
The view that the UNCLOS will advance the interests of the United
States as a global maritime power and will preserve and advance the
right of the U.S. military to use the world's oceans to meet national
security requirements has been the view not only of the current
administration, but also of the preceding three administrations,
including the Reagan administration.
That said, I take seriously the concerns that have been raised by
those who do not support this convention. I think it important for
members to fully consider all views as the Senate proceeds with its
consideration of this treaty. That is why I look forward to a serious
examination, in this hearing, of the impact the convention would have
on military operations.
We have asked our witnesses to provide their testimony on a number
of key questions, including:
Will the convention advance the interests of the
United States as a global maritime power and preserve and
advance the right of the United States to use the world's
oceans to meet U.S. national security requirements?
Will the convention preserve freedom of navigation for
the U.S. Armed Forces?
Could the convention impede critical U.S. military or
military intelligence activities?
What are the convention's implications, if any, for
the Administration's Proliferation Security Initiative?
Will military and military intelligence activities be
excepted from the convention's dispute settlement mechanisms as
a matter of U.S. policy?
We had an opportunity earlier this morning to address some of these
issues in closed session. To the extent permissible, I would ask our
witnesses to discuss these matters in the open hearing as well, since
important questions have been raised as to whether the convention would
prohibit or adversely impact the conduct of certain activities critical
to the U.S. national security.
We welcome our witnesses this morning and look forward to their
testimony.
Senator Levin.
Chairman Warner. Senator Levin, do you have an opening
statement?
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. I do. Thank you very much, Mr. Chairman. I
first want to join you in welcoming Admiral Clark and Mr. Taft
here today. I look forward to hearing their views and the views
of our other witnesses on the security implications of the 1982
UNCLOS.
I want to first commend you, Mr. Chairman, for deciding to
hold this hearing so that the concerns about the implications
of the UNCLOS on our security can be addressed. I know that
Senator Warner has made every effort to ensure that the
national security views of both supporters and critics of the
convention are represented here this morning.
As far as the convention's central provisions are
concerned, those relating to freedom of navigation and
overflight and other traditional uses of the oceans, our
military forces have operated in accordance with these
provisions for over 21 years. President Reagan's 1983 Oceans
Policy Statement established the U.S. policy, which is still in
effect today, that the U.S. would accept and act consistent
with these central provisions of the convention.
Today our Armed Forces are being asked to meet operational
challenges that demand a higher level of mobility than at any
time in recent history. Operation Enduring Freedom (OEF) in
Afghanistan, Operation Iraqi Freedom (OIF), as well as other
deployments, create operational requirements from our shores.
In addition, the Department of Defense's global posture review
involving the restructuring of the deployment of U.S. forces
around the globe over the coming months and years is likely to
add to our military's need for mobility.
Admiral Clark, I look forward to receiving your assessment
of whether U.S. accession to this convention will advance the
ability of our Armed Forces to meet operational challenges,
including the war on terrorism, in the years ahead. I am also
interested in hearing today about any concerns that the Navy
might have should the United States become a party to the
convention.
Concerns have also been raised by some that accession by us
to the convention would have negative implications for another
front in the war on terrorism, the U.S.-led Proliferation
Security Initiative (PSI). That initiative seeks to build
international cooperation in interdicting the flow of weapons
of mass destruction, their delivery systems, and related
materials worldwide, whether by sea, in the air, or on land. I
expect that in the course of today's hearing our witnesses, in
particular Mr. Taft, will clarify what effect, if any, our
becoming party to the convention would have on the ability of
the United States and its PSI partners to conduct operations
consistent with the PSI Statement of Interdiction Principles
which was agreed to in September of last year.
I also understand that concerns have been raised that some
parties to the convention might seek to use the convention's
provisions on settlement of disputes between states parties to
limit or interfere with U.S. military activities. I invite our
witnesses to address these concerns, to explain what
protections are available to limit the jurisdiction of the
convention's dispute settlement mechanism, in particular the
ability of a party to opt out of those dispute settlement
procedures with regard to military activities and other
specified categories of disputes. Finally, I want to emphasize
how important I believe it is that the President seize this
opportunity to demonstrate leadership in the development of the
law of the sea. If we do not accede to this convention, which
is already in force for so many other nations, we are out in
the cold, voiceless in the implementation and possible
modification of the convention. Too often, I believe, in the
past the administration has missed opportunities to advance our
interests through multilateral cooperation. In supporting the
UNCLOS, the United States has the chance to advance U.S.
national security interests, to assume a prominent role in
implementing the convention commensurate with our status as the
world's largest maritime power, and to enhance our ability to
work with other states to influence the direction of maritime
law for the future.
I join you also, Mr. Chairman, in welcoming not just our
two witnesses on this panel, but the additional witnesses who
will appear on our subsequent panels. We appreciate very much
their willingness to come before us this morning.
Chairman Warner. Thank you very much, Senator Levin.
As I mentioned, within our own ranks here on the committee
there is a variance of viewpoints and I would like now to
recognize our distinguished colleague, Mr. Inhofe, for purposes
of making an opening statement.
Senator Inhofe. It will be very brief, Mr. Chairman.
We had a hearing before the committee that I chair, the
Environment and Public Works Committee, and we got into a lot
of these issues that really should be discussed before this
committee, and that is why I appreciate very much your having
this hearing. However, there are other issues and
ramifications, such as environmental ramifications, to this
proposed treaty that we were able to talk about.
I think, Mr. Chairman, you said that Doug Bandow's
statement is going to be a part of the record. I have just been
given that statement. He makes some excellent points and I
think it is a good idea to have that as a part of it.
I think this is very significant. I think there is a
diverse feeling as to what we are giving up, the fact that we
are giving up some of our sovereignty, that the treaty covers
between two-thirds and three-fourths of the entire Earth's
surface, that a multinational operation would be gaining these
powers, and for each power they gain in my opinion, my narrow
view perhaps, that is some degree of sovereignty that we are
giving up.
I am concerned about the open-ended compulsory arbitration
procedures. It is my understanding we had a choice of some
three, including international court or tribunals, and this is
the one that is being proposed by the administration. However,
I am concerned that we are dealing with 145 states or countries
and we do not know which ones they will choose.
The revenue and technology sharing is something that is a
deep concern to me and we want to proceed to talk about those.
Does the resolution declaration really protect us in the
treaty? Should we amend the text?
Then something that Senator Levin just said about the opt-
out idea, I have some thoughts on that and some questions I
wanted to ask our witnesses.
So I do have concerns and I am hoping that these three
panels will answer the concerns that I have as well as other
members of this committee. Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator. I think that under
your leadership of the Committee on Environment and Public
Works, of which I am privileged to be a member, that record was
of equal importance to what we will be compiling here today. So
we will have had three committees of the Senate thus far review
this matter, and I do not know whether the distinguished
chairman of the Intelligence Committee has under review a
possible additional hearing.
I recognize the chairman of the Intelligence Committee.
Senator Roberts. Mr. Chairman, thank you for holding this
hearing, and I thank my colleagues for their comments and I
thank the witnesses.
I am not sure as to whether or not we will have a hearing
in the Intelligence Committee, but I think after listening to
the closed testimony and the concern of some of my colleagues,
that that would be well in order. I do not mean to be
obstructionist by any means, and I think that that could be
done in an expedited fashion.
I know that there has been considerable commentary by the
witnesses and the supporters of the treaty that we are able to
basically eliminate military activities from the reach of the
treaty and that we define intelligence-gathering as military
activity and so our activities would not be hindered. As a
matter of fact, some of the witnesses said that they would be
helped by the treaty.
However, in taking a hard look at this--and I am not an
attorney and I am certainly not an international attorney--it
seems to me that the tribunal has very explicit rights in its
text and I worry about that, more especially with the way
things are in the world today and the global war against
terrorism.
The other thing that I am concerned about is whether it
serves the Senate's treaty-making interest. We do not even
create a single reporting requirement by the executive branch
to the appropriators or the authorizers, only a duty of
consultation with regard to the Senate Foreign Relations
Committee. I have eminent respect for that committee and the
leadership of that committee, but there is no other committee
involved, and I am not sure that the resolution would even be
binding on the President as drafted.
So there are some things that I am concerned about. I do
not know whether the administration would object to taking a
look at some of these concerns and possible edits to the
resolution as approved by the Senate Foreign Relations
Committee.
With that, Mr. Chairman, let me say thank you again for
holding the hearing, and I think that there will be a fourth
committee involvement. I am not sure we have any witnesses from
the Intelligence Community. Obviously, Admiral Clark does speak
with great authority in that respect and I understand that. But
it would be helpful to me more especially to have people in the
Intelligence Community in charge of special activities allay
any concerns that I might have, and I think that that view is
shared by at least some on the Intelligence Committee.
So I thank you for the opportunity to make these comments
and in the interest of time I will yield back.
Chairman Warner. Thank you very much, Senator. I would
only, as a member of your committee--I think you probably
should take a very close look at it, because this has
significant ramifications as it relates to our national
security. I am relying primarily on the assurances by the
Chairman of the Joint Chiefs, and I will put into the record at
this time his letter strongly endorsing the treaty.
[The information referred to follows:]
Chairman Warner. Also a letter signed by all--and I repeat,
all--State Department legal advisors, eight of them, going back
to the Reagan administration, representing unequivocal support
for this treaty.
[The information referred to follows:]
Chairman Warner. A letter from the Navy League in support
of the convention.
[The information referred to follows:]
Chairman Warner. Also, Mr. Taft, there is a letter that you
forwarded early on to the committee, which I am certain you
will cover in your testimony today, but I will put it in the
record in any event.
[The information referred to follows:]
Chairman Warner. Are there other members of the committee
who desire to make a brief opening statement?
Senator Sessions.
Senator Sessions. Just briefly, Mr. Chairman. Thank you for
having the hearing and I hope that Senator Roberts would
consider looking more at the intelligence side of this and the
implications of it.
The Wall Street Journal certainly is not a nativist
institution or organization. They believe in trade and commerce
and progress throughout the world. They strongly condemned this
treaty, said that it would subject our oceans to an ``U.N.
bureaucracy,'' I believe was the word. I know that the Navy has
said, contrary to the characterizations, that this is not a
highly politicized bureaucracy, nor would it be disposed to act
against United States interests. But when these things become
intense and there is an interest here, many of the nations that
appear on the panels that might be deciding these questions
have no interest whatsoever in the actual dispute, but they
will use that for leverage or other political reasons.
So I think we ought to take our time here a bit and look at
it carefully before we take a lot of our taxpayers' money and
send it off to a bureaucracy that I am not sure we can rely on.
Chairman Warner. Senator Ensign, you participated very
actively in the closed session and we thank you for your
continued presence, and I hope you press some of the same
questions that you did in the closed session because I think
there can be some responses in open that would be helpful.
Senator Ensign. Thank you, Mr. Chairman.
Just very briefly, the concerns that I want to hear from
the witnesses basically has to do with--I realize that we do
not have to approve any amendments, but as we have seen, just
like with our laws, you do not have to necessarily amend
something to change it. Rulings from tribunals, rulings from--
we see this within the United Nations. A lot of the rulings go
against us. Especially in today's world, those rulings seem to
be going against us more and more and more. Subjecting
ourselves to another international institution--I think that we
need to proceed cautiously and think of all of the
ramifications, not only from a military standpoint, which this
committee has jurisdiction on, but obviously from a diplomatic
standpoint and from an economic standpoint.
So I am looking forward to hearing and engaging in some
cross-examination of some of our witnesses. Thank you, Mr.
Chairman.
Chairman Warner. I thank you.
We will now proceed. I just indicate I think in fairness
that, having had some experience years back--at that time I was
not in favor of the treaty--today I am of an open mind. I
should say I am persuaded to support the treaty largely at the
moment as a consequence of the testimony of yourself, the
Chairman of the Joint Chiefs, and others, because I believe you
are going to be able to allay, to my satisfaction, any concerns
that I had some years ago.
So with that, I will open up now and invite the
distinguished Chief of Naval Operations to address these issues
before the committee. You are most welcome, Admiral.
STATEMENT OF ADM. VERNON E. CLARK, USN, CHIEF OF NAVAL
OPERATIONS
Admiral Clark. Thank you, Chairman Warner and Senator Levin
and other distinguished members of the committee.
Chairman Warner. Let me interrupt to say that your entire
statement will be admitted to the record, as well as the entire
statement of the other panel members.
Admiral Clark. Thank you very much. I have a much briefer
statement to make this morning.
I get to appear before this committee many times, but never
on a subject like this, usually talking about the condition and
state of the Navy. But every time I do come up here, I talk to
you about the fact that our Navy is built to take credible,
persistent, combat power to the far corners of the Earth, and
then I insert the phrase ``the sovereignty of the United States
of America, to provide options for our Commander in Chief
anywhere, any time, around the world, around the clock,'' and I
always like to add, ``without a permission slip.''
I just want to say this morning that our ability to operate
freely across this vast domain called the world's oceans--and
as was said by Senator Inhofe, we are talking about a major
piece of the Earth's surface here but to be able to operate
there in peace and war is very, very important to us. So I am
keenly interested in anything that could call into question our
ability to exploit this freedom, not just for our Navy but for
the Nation as well.
I am here, Mr. Chairman, to say that I fully support
ratification of the UNCLOS because in my mind it first defines
and then preserves our navigational freedoms, the freedoms to
use international straits and archipelagos, the exclusive
economic zones, and the high seas. It also provides the
operational maneuver space that I need for my Navy to conduct
peaceful operations at sea, but also combat operations. I also
believe it is very important because it puts the United States
of America where it should be, and that is in a position of
leadership to protect these vital freedoms and to shape the
future direction of the treaty.
Now, why else would ratification be important to me? Well,
the real issue for me is people. As the CNO, I have the
privilege and I am entrusted with the task and responsibility
to lead the sons and daughters of America who have chosen to
wear the cloth of the Nation. Twenty-four/seven, 365 days a
year, our sailors are operating at the tip of the spear. A
third of our fleet is forward deployed this morning. Sometimes
we must place them in harm's way to do our country's business,
and they go willingly.
For many years now, we have remained outside the
convention. We have asked our young men and women to conduct
freedom of navigation operations. Mr. Taft speaks to them in
his written testimony. He speaks to bumping operations in the
Black Sea. As a commanding officer, I have had unfortunately
the privilege of conducting those kind of operations at too
close of quarters.
What that means to me is that these kind of operations,
because these are what we are left with when we do not have
agreements with other Nations, sometimes put us at great risk
when challenging the excessive maritime claims other states may
make, to prevent those claims from becoming customary
international law.
Mr. Chairman, in my view we need a better venue. We do not
need to do that as much as we have had to do it in the past. As
the Chief of the Navy, I am looking for every possible
guarantee that I can find to ensure our sailors' safety and to
keep them from needlessly going into harm's way. That is why I
believe we need to join the UNCLOS, so that our people know
when they are operating in the defense of this Nation far from
our shores that they have the backing and the authority of
widely-recognized and accepted law to look to, rather than
depending only upon the threat or the use of force or customary
international law that can be too easily changed.
Finally, entry into the convention will support in my view
our necessary leadership role in maritime matters. We are an
island nation. This will position us to initiate and influence
future developments in the Law of the Sea. Ratification puts us
on the inside of the discussion, when it occurs, to ensure that
the Law of the Sea continues to protect our people and our
maritime interests, to prevent excessive claims that attempt to
restrict our access, and my ability to operate anywhere I need
to go operate, and to preserve the critical navigational
freedoms and freedom of the seas essential to the national
security.
That is right where I think we want to be, in a position of
leadership to preserve the key navigation provisions in the
convention and, if necessary, shape them for the future.
Now, Mr. Chairman, let me just add that the Navy has been
studying this convention for over 25 years. As you indicated,
you were part of it. There are those who oppose the convention
that suggest that maybe the Navy has not looked at this closely
enough. Well, I wonder if they say that in jest. The fact is
that every CNO since 1982 has had occasion to look at this very
carefully for the reasons that I said, because the stakes are
high for our people.
I just want to be on record saying that we would never
recommend a treaty that would require us to get a permission
slip from anyone to conduct operations or restrict our
intelligence activities around the world, because we know that
those kind of freedoms are essential to what we have to do to
be successful in our mission.
For these reasons, Mr. Chairman, I strongly support the
UNCLOS, as many of my predecessors have done, and I look
forward to your questions, sir.
[The prepared statement of Admiral Clark follows:]
Prepared Statement by Adm. Vernon E. Clark, USN
Chairman Warner, Senator Levin, members of the committee on Armed
Services, good morning. Thank you for the opportunity to testify today
in support of the UNCLOS.
I have been before this committee many times to talk to you about
your Navy. At nearly every one of these opportunities, I've said that
your Navy is built to take persistent, credible combat power to the far
corners of the Earth, extending the influence of the United States of
America as may be necessary, anywhere and at anytime we choose to do
so. It is our ability to operate freely across the vast expanse of the
world's oceans that makes this combat power possible.
In my view, the UNCLOS supports our ability to operate in this
manner under the authority of widely recognized and accepted law. For
that reason, I strongly support the UNCLOS as many of my predecessors
did.
I: PROJECTING DECISIVE JOINT POWER ACROSS THE GLOBE
Today's military operations--from OEF to OIF to the global war on
terrorism (GWOT)--place a premium on our strategic mobility and
operational maneuver. U.S. Forces are forward deployed worldwide to
deter threats to our national security and can surge to respond rapidly
to protect U.S. interests, either as part of a coalition or, if
necessary, acting independently.
In addition to OEF and OIF, our ships and aircraft have been and
are deployed overseas to interdict terrorists across the globe. They
have also been deployed to the Pacific and Indian Oceans to ensure
security in vital sea lines of communication in Southeast Asia, and are
conducting operations in the waters off Central and South America to
interdict the flow of illicit drug traffic from that region.
We are also laying the groundwork for further implementation of the
President's PSI. The international partners assembled as part of the
President's initiative are all parties to the UNCLOS. In fact, the PSI
is intended to be consistent with international law and frameworks.
This includes relevant provisions of the UNCLOS. I am convinced our
work with these partners will help disrupt the flow of weapons of mass
destruction, their delivery systems, and related materials throughout
the world.
As we look to the future, Sea Power 21 will provide sea basing from
which to project joint forces and joint fires. It will provide joint
logistics and project defensive power in an environment where access to
land bases is denied by foreign governments or put increasingly at risk
by asymmetric threats. These capabilities are important to us because
they will result in a leaner footprint for joint forces ashore and will
minimize the vulnerabilities tied to foreign bases and access rights.
The convention will help preserve our ability to provide these
capabilities wherever and whenever needed well into the future.
II: PRESERVING OUR FREEDOMS
The basic tenets of the UNCLOS are clear. It codifies the right to
transit through essential international straits and archipelagic
waters. It reaffirms the sovereign immunity of our warships and other
public vessels. It provides a framework to counter excessive claims of
states that seek illegally to expand their maritime jurisdiction and
restrict the movement of vessels of other States in international and
other waters. It preserves our right to conduct military activities and
operations in exclusive economic zones without the need for permission
or prior notice.
Most importantly, the entry into force of the UNCLOS for the United
States will support both the worldwide mobility of our forces and our
traditional leadership role in maritime matters. The customary
international law we've relied upon for our navigation freedoms is
under challenge, and in some respects so is the UNCLOS itself. Our
participation in the convention will better position us to initiate and
influence future developments in the law of sea.
I know this committee is concerned about whether the UNCLOS
prohibits our naval operations, including the boarding and search of
ships and our maritime intelligence activities. It does not. The
convention's rules in this regard do not change the rules the Navy has
operated under for over 40 years under the predecessor 1958 treaties to
which the United States is a party, governing the territorial sea and
high seas. We would not, for example, need permission from the United
Nations to board and search ships. Likewise, the convention does not
prohibit our intelligence collection activities.
Last year, before the Senate Foreign Relations Committee,
administration officials expressed their serious concerns about whether
the convention's dispute resolution process could possibly affect U.S.
military activities. A review was conducted within the executive branch
on whether a Law of the Sea tribunal could question whether U.S.
activities are indeed ``military'' for purposes of the convention's
military activities exception clause. Based on the administration's
internal review, it is clear that whether an activity is ``military''
is for each State party to determine for itself. The declaration
contained in the current Resolution of Ratification, stating the U.S.
understanding that each party has the exclusive right to determine
which of its activities are ``military activities'' and that such
determinations are not subject to review, has appropriately addressed
this issue.
Mr. Chairman, since 1983, the Navy has conducted its activities in
accordance with President Reagan's Oceans Policy statement to operate
consistent with the convention's provisions on navigational freedoms.
If the U.S. becomes a party to the UNCLOS, we would continue to operate
as we have since 1983, and would gain support for our leadership role
in law of the sea matters. I am convinced that joining the UNCLOS will
have no adverse effect on our operations or intelligence activities,
but rather, will support and enhance ongoing U.S. military operations,
including the continued prosecution of the GWOT.
III: CONCLUSION
Future threats will likely emerge in places and in ways that are
not yet fully clear. For these and other undefined future operational
challenges, we must be able to take maximum advantage of the
established and widely accepted navigational rights the UNCLOS codifies
to get us to the fight rapidly.
Strategic mobility is more important than ever. The oceans are
fundamental to that maneuverability; joining the convention supports
the freedom to get to the fight, 24 hours a day and 7 days a week,
without a permission slip.
The convention provides a stable and predictable legal regime
within which to conduct our operations today, and realize our vision
for the future. It will allow us to take a leading role in future
developments in the law to ensure they are compatible with our vision.
Again, I wish to thank the committee for offering me the
opportunity to appear before you here today. I support the UNCLOS. I am
happy to answer any questions that you may have.
Chairman Warner. Thank you. I think it would be
appropriate, if Mr. Taft will indulge me, at this point to read
a paragraph from the Chairman of the Joint Chiefs of Staff
which parallels in every respect the testimony of the Chief of
Naval Operations. ``The Convention remains''--I am reading from
General Richard B. Myers' letter dated April 7, 2004, and
addressed to me as chairman:
``The convention remains a top national security
policy. In today's fast-changing world, it ensures the
ability of the U.S. Armed Forces to operate freely
across the vast expanse of the world's oceans under the
authority of widely recognized and accepted
international law. It supports efforts in the war on
terrorism by providing much-needed stability and
operational maneuvering space, codifying essential
navigational and overflight freedoms.''
Mr. Taft.
STATEMENT OF HON. WILLIAM H. TAFT IV, LEGAL ADVISOR, DEPARTMENT
OF STATE
Ambassador Taft. Thank you, Mr. Chairman, and thank you for
inserting my prepared statement in the record. I have a short
summary for you.
It is a pleasure to be back testifying before this
committee. I enjoy testifying before the Senate Foreign
Relations Committee and I did so in connection with its
consideration of this treaty last fall, but this is a committee
I have testified before often and it is nice to be back.
I would like just to focus here on a very few key issues.
As the world's preeminent maritime power, the United States has
had a longstanding and consistent interest in achieving
international agreement on rules that protect freedom of
navigation. It has been the common objective of every
successive U.S. administration for the last 30 years to nail
down our navigational and other ocean rights through a widely
accepted and comprehensive Law of the Sea Treaty (LOST). The
convention before you achieves that goal and is strongly in the
U.S. national security interest.
When the convention was completed in 1982, the United
States embraced its provisions except for Part 11 on deep
seabed mining. In 1983, President Reagan announced that the
United States accepted and would act in accordance with the
convention's balance of interests relating to traditional uses
of oceans. He instructed the government to abide by or, as the
case may be, enjoy the rights accorded by the provisions of the
convention other than those in Part 11.
Part 11, happily, has now been fixed in a legally binding
manner and we urge the Senate to give its advice and consent to
this convention to allow us to take full advantage of the many
benefits that it offers.
Turning specifically to the convention's navigational
benefits: Joining the convention will advance the interests of
the U.S. military. It preserves and elaborates the rights of
the U.S. military to use the world's oceans to meet national
security requirements. It achieves this by stabilizing the
outer limit of the territorial sea at 12 nautical miles, by
setting forth the navigation regime for innocent passage for
all ships in the territorial sea of all states, by protecting
the right of passage for all ships and aircraft through, under,
and over straits used for international navigation as well as
archipelagos, and by reaffirming the traditional freedoms of
navigation and overflight in the exclusive economic zone and
the high seas beyond, including the laying and maintenance of
submarine cables and pipelines.
U.S. Armed Forces rely on these navigation and overflight
rights daily and their protection is of paramount importance to
U.S. national security. We have systematically promoted these
critical navigational provisions both diplomatically and
operationally as customary international law, and we have been
able to enjoy some of these benefits without becoming a party.
The question then naturally arises whether we are just as
well off from a national security point of view as a nonparty.
We are not. In fact, we run a very real risk as a nonparty of
allowing the hard-fought and favorable national security
provisions which are in the convention to be eroded. The choice
is therefore not one between on the one hand joining the
convention and on the other indefinitely preserving our ability
to take advantage of favorable customary international law.
Rather, it is whether, in the face of increasing coastal state
pressures to constrain freedom of navigation, the United States
is in a better position to protect its interests from inside
the treaty or outside it. The answer to that question is clear.
Now let me turn to the matter of dispute settlement. As
sought by the United States, 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 both as to the
appropriate means for resolution of disputes and as to subject
matter.
In terms of forum, a state is able to choose, by written
declaration, one or more means for the settlement of disputes
under the convention. Under the proposed resolution of advice
and consent from the Senate Foreign Relations Committee, the
United States will elect arbitration, not the International
Court of Justice and not the International Tribunal for the Law
of the Sea.
If I could respond to the question that Senator Inhofe
asked in his opening statement, our selection of arbitration
panels will control in a case where the other party to the
dispute might have selected another forum. We will not be in
that forum. The treaty provides that our forum that we have
selected would be the forum we would be in in that case.
In terms of subject matter, the system allows parties to
exclude matters of vital national concern from dispute
settlement. Specifically, the convention permits a state,
through a declaration, to opt out of dispute settlement
procedures with respect to one or more listed categories of
disputes, including disputes concerning military activities.
Under the proposed resolution of advice and consent, the United
States will elect to exclude all optional categories of
disputes from the dispute settlement under the convention.
I would note that a concern regarding resolution of
disputes concerning military activities has been satisfactorily
addressed by the proposed resolution. As I testified before the
Foreign Relations Committee, the ability of a party to exclude
disputes concerning military activities from dispute settlement
has long been a priority matter for the United States. The U.S.
negotiators of the convention sought and achieved language that
creates a very broad exception, which the United States has
consistently viewed as a key element of the package.
This administration reviewed whether the U.S. declaration
on dispute settlement should in some way particularly highlight
the military activities exception. As a result, the
administration recommended and the proposed resolution includes
a statement that each 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 therefore,
including intelligence activities, would not be subject to
dispute settlement under the convention as a matter of law and
as a matter of U.S. policy.
The question has also been raised whether the convention,
in particular its Articles 19 and 20, prohibits intelligence
activities or submerged transit in territorial sea of other
states. It does not. It would not have any negative effect on
such activities, and we would in no event recognize any attempt
to restrict such activities based on this convention.
The convention's provisions on innocent passage are very
similar to those in the 1958 convention to which we are already
a party. In fact, they are more favorable from a navigational
point of view. A ship does not of course enjoy the right of
innocent passage if, in the case of a submarine, it navigates
submerged or if, in the case of any ship, it engages in an act
in the territorial sea aimed at collecting information to the
prejudice of the defense or security of the coastal state.
However, such activities are not prohibited or regulated by
the convention, and in this respect the convention makes no
change in the situation that has existed for many years and
under which all states operate today.
I would also like to address the relationship between the
convention and the President's PSI, which Senator Levin
mentioned in his opening remarks. I think, as he stated, the
PSI is a priority activity involving the United States and
several other countries, all of which are parties to the
convention.
Joining the convention will not affect our efforts under
the PSI to interdict vessels suspected of engaging in the
proliferation of weapons of mass destruction. First, PSI
activities are carried out consistent with international law
today and they are intended to continue to be carried out in
that way. Specifically, the PSI requires participating
countries to act consistent with relevant international law and
frameworks, which includes the law that is reflected in the
convention.
Second, the Law of the Sea reflected in the convention is
no different from the law already applicable to the United
States. The convention's navigation provisions either derive
from the 1958 UNCLOS, to which we are a party, or they reflect
customary international law which has been accepted by the
United States since 1983. As such, joining the convention will
not affect the maritime law or policy already applicable to the
United States regarding interdiction of weapons of mass
destruction.
Third, the convention recognizes many legal bases for
taking enforcement action against vessels and aircraft
suspected of engaging in proliferation of weapons of mass
destruction. To give just some examples, there is exclusive
port and coastal state jurisdiction in internal waters and
national air space and coastal state jurisdiction in the
territorial sea and contiguous zone.
When a foreign vessel is operating on the high seas,
boarding and searching can take place with the consent of the
vessel's flag state. Such consent can be given in advance, such
as through an agreement, or in response to a specific request.
In this regard, and drawing on our extensive experience with
counter-narcotics boarding agreements, the United States has
developed PSI boarding agreements which we are negotiating with
key flag states and have already concluded with Liberia, which
is important in this respect as the second largest ship
registry nation in the world.
In certain circumstances boarding and searching of suspect
vessels can also take place without the flag state's consent.
Further, nothing in the convention impairs the inherent right
of individual or collective self-defense, a point that is
reaffirmed of course in the proposed resolution of advice and
consent.
In short, the rules authorizing PSI maritime interdiction
activities would not change as a result of joining the
convention, although, as I pointed out earlier, the
convention's provisions that enhance our mobility and
flexibility to move around the world's oceans will be helpful
in this regard.
I would like to turn very briefly, Mr. Chairman, to
criticisms of the convention.
Chairman Warner. I think, Mr. Taft, we have an awful lot of
material to go through today.
Ambassador Taft. I will conclude, Mr. Chairman, just very
briefly to say that I have been familiar with the convention
for more than 20 years, including as my tenure as General
Counsel of DOD in 1982, and since that time I have seen every
CNO support the treaty, every Chairman of the Joint Chiefs of
Staff; and I am at a loss to see where the danger to our
national security has been identified just recently that no
one--people have said is there, but no one has been able to
see.
So I would submit the rest of my remarks for the record and
say that I am glad to take any questions that the Senators may
have.
Chairman Warner. I thank you for that very distinguished
dissertation, Mr. Taft. The balance of your remarks will be
included in the record.
[The prepared statement of Ambassador Taft follows:]
Prepared Statement by Hon. William H. Taft IV
Mr. Chairman and members of the committee:
Thank you for the opportunity to testify on the 1982 UNCLOS (``the
Convention''), which, with the 1994 Agreement relating to the
Implementation of Part XI of the UNCLOS of 10 December 1982 (``the 1994
Agreement''), was reported favorably by the Senate Foreign Relations
Committee on March 11, 2004. In my testimony before that committee on
October 21, 2003, I discussed the national security, economic,
resource, and environmental aspects of the Convention and how they
advance U.S. interests. This testimony focuses on the national security
aspects of the Convention. It addresses the questions specifically
posed by this committee and responds to certain misunderstandings that
have arisen concerning the Convention.
BACKGROUND
The achievement of a widely accepted and comprehensive UNCLOS--to
which the United States can become a party--has been a consistent
objective of successive U.S. administrations for the last 30 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, an issue of critical importance to U.S.
freedom of navigation. The United States played a prominent role in the
negotiating session 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 interest.
When the text of the Convention was concluded in 1982, the United
States recognized that its provisions supported U.S. interests, except
for Part XI on deep seabed mining. In 1983, President Reagan announced
in his Ocean 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, or, as the case may be, enjoy the rights
accorded by, the provisions of the Convention 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 also worked closely with the Senate to ensure that the proposed
Resolution of Advice and Consent satisfies the concerns and issues
identified by the administration, including those relating to U.S.
military interests. 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.
NAVIGATIONAL ASPECTS
Joining the Convention will advance the interests of the U.S.
military. As the world's leading maritime power, the United States
benefits more than any other nation from the navigational provisions of
the Convention. Those provisions, which establish international
consensus on the extent of jurisdiction that States may exercise off
their coasts, preserve and elaborate the rights of the U.S. military to
use the world's oceans to meet national security requirements. They
achieve this, among other things, by stabilizing the outer limit of the
territorial sea at 12 nautical miles; by setting forth the navigation
regime of innocent passage for all ships in the territorial sea; by
protecting the right of passage for all ships and aircraft through,
under, and over straits used for international navigation, as well as
archipelagoes; by reaffirming the traditional freedoms of navigation
and overflight in the exclusive economic zone and the high seas beyond;
and by providing for the laying and maintenance of submarine cables and
pipelines. U.S. Armed Forces rely on these navigation and overflight
rights daily, and their protection is of paramount importance to U.S.
national security.
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 both as to the
appropriate means for resolution of disputes and as to subject matter.
In terms of forum, 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--rather than the International Court of Justice or the
International Tribunal for UNCLOS--is included in the proposed
Resolution of Advice and Consent.
In terms of subject matter, the system provides parties with means
of excluding matters of vital national concern from the dispute
settlement mechanisms. Specifically, 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, including
disputes concerning military activities and certain law enforcement
activities. The administration is similarly pleased that the proposed
Resolution of Advice and Consent follows its recommendation that the
United States elect to exclude all optional categories of disputes from
dispute settlement mechanisms.
A concern raised by administration witnesses last fall regarding
resolution of disputes concerning military activities has been
satisfactorily addressed by the proposed Resolution. As I testified
before the Foreign Relations Committee, 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.
This administration reviewed whether the U.S. declaration on
dispute settlement should in some way particularly highlight the
military activities exception, given both its importance and the
possibility, however remote, that another State Party might seek
dispute settlement concerning a U.S. military activity, notwithstanding
our declaration invoking the exception. As a result, 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 as a
matter of law and U.S. policy.
INTELLIGENCE ACTIVITIES
The question has been raised whether the Convention (in particular
articles 19 and 20) prohibits intelligence activities or submerged
transit in the territorial sea of other States. It does not. The
Convention's provisions on innocent passage are very similar to article
14 in the 1958 Convention on the Territorial Sea and the Contiguous
Zone, to which the United States is a party. (The 1982 Convention is in
fact more favorable than the 1958 Convention both because the list of
non-innocent activities is exhaustive and because it generally uses
objective, rather than subjective, criteria in the listing of
activities.) A ship does not, of course, enjoy the right of innocent
passage if, in the case of a submarine, it navigates submerged or if,
in the case of any ship, it engages in an act in the territorial sea
aimed at collecting information to the prejudice of the defense or
security of the coastal State, but such activities are not prohibited
by the Convention. In this respect, the Convention makes no change in
the situation that has existed for many years and under which we
operate today.
PROLIFERATION SECURITY INITIATIVE
I would also like to address the relationship between the
Convention and the President's PSI, an activity involving the United
States and several other countries (all of which are parties to the
Convention). The Convention will not affect our efforts under the PSI
to interdict vessels suspected of engaging in the proliferation of
weapons of mass destruction. The PSI requires participating countries
to act consistent with national legal authorities and ``relevant
international law and frameworks,'' which includes the law reflected in
the 1982 UNCLOS. The Convention's navigation provisions derive from the
1958 UNCLOS, to which the United States is a party, and also reflect
customary international law accepted by the United States. As such, the
Convention will not affect applicable maritime law or policy regarding
interdiction of weapons of mass destruction. Like the 1958 conventions,
the Convention recognizes numerous legal bases for taking enforcement
action against vessels and aircraft suspected of engaging in
proliferation of weapons of mass destruction, for example, 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, either by general agreement in
advance or approval in response to a specific request, waive in favor
of other States); and universal jurisdiction over stateless vessels.
Further, nothing in the Convention impairs the inherent right of
individual or collective self-defense (a point which is reaffirmed in
the proposed Resolution of Advice and Consent).
REASONS 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. As noted, President Reagan's 1983 Oceans Policy Statement
directed the United States to abide by, and enjoy the rights accorded
by, the non-deep seabed provisions of the Convention. Abroad, the
United States has worked both diplomatically and operationally to
promote the provisions of 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
further national security 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 them.
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 or IMO). While
the Convention's institutions were not particularly active
during the past decade since the Convention entered into force,
they are now entering a more active phase and are elaborating
and interpreting various provisions. The United States would be
in a stronger position to defend its national security 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. national security interests.
Becoming a party to the Convention would strengthen
our ability to deflect potential proposals that would be
inconsistent with U.S. national security interests, including
those affecting freedom of navigation.
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.
CLARIFICATIONS OF CERTAIN MISUNDERSTANDINGS
I would like to clarify certain misunderstandings that have arisen
recently regarding the Convention, including national security aspects.
I will address them 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 and
exercise the rights accorded by the non-deep seabed provisions
of the Convention.
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 100 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 in 1988.
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 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
GWOT. However, the Convention enhances, rather than undermines,
our ability to successfully wage the GWOT.
Maximum maritime naval and air mobility that is
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 ensures that our
forces will not be hindered in the future.
Thus, the Convention supports our GWOT 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 support global mobility for our Armed Forces.
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 explicitly 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.
As a nonparty, the U.S. is allowed to search any ship that enters
our exclusive economic zone (EEZ) to determine whether 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 United Nations is notified and approves the right to
search the ship.
Under the Convention, the U.N. has no role in deciding
when and where a foreign ship may be boarded.
Under applicable treaty law--the 1958 conventions on
the law of the sea--as well as customary international law, no
nation has the right to arbitrarily search any ship that enters
its EEZ to determine whether it could harm that national or
pollute its marine environment. Nor would we want countries to
have such a blanket ``right,'' because it would fundamentally
undermine the freedom of navigation that benefits the United
States more than any other nation.
Thus, the description of both the status quo and the
Convention's provisions is incorrect. The Convention makes no
change in our existing ability or authority to search ships
entering our EEZ with regard to security or protection of the
environment.
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.
The 1994 Agreement doesn't even pretend to amend the Convention; it
merely establishes controlling interpretive provisions.
The Convention could only have been formally
``amended'' if it had already entered into force. We negotiated
the 1994 Agreement as a separate agreement in order to ensure
that the Convention did not enter into force with Part XI in
its flawed state. The 1994 Agreement made explicit, legally
binding changes to the Convention and has the same legal effect
as if it were an amendment to the Convention itself.
It would not have been in our interest to wait until
the Convention entered into force before fixing Part XI
concerns, as it would have been more cumbersome to get the
changes that we sought.
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 over the most important future decisions that
would affect U.S. interests and, in other cases,
requires supermajorities that will enable us to protect
our interests by putting together small blocking
minorities;
restructures the regime to comport with free-
market principles, including the elimination of the
earlier mandatory technology transfer provisions and
all production controls.
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. It does include
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. With respect to deep seabed mining, because the
United States is a non-party, U.S. companies currently lack the
practical ability to engage in such mining under U.S.
authority. Becoming a Party will give our firms such ability
and will open up new revenue opportunities for them when deep
seabed mining becomes economically viable. The alternative is
no deep seabed mining for U.S. firms, except through other
nations under the Convention. These minimal costs are worth it.
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
choose two forms of arbitration rather than the Tribunal.
The United States would be subject to the Sea-bed
Disputes Chamber, should deep seabed mining ever take place
under the regime established by the Convention. The proposed
Resolution of Advice and Consent 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.'' The Chamber's
authority extends only to disputes involving the mining of
minerals from the deep seabed; no other activities, including
operations on the surface of the oceans, are subject to it.
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, and would give us additional
capacity to defend those claims against others.
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 United States might end up without a vote in the ISA.
The Council is the main decisionmaking body of the
ISA. The United States would have a permanent seat on the
Council, by virtue of its being the State with the largest
economy in terms of gross domestic product on the date of entry
into force of the Convention, November 16, 1994. (1994
Agreement, Annex Section 3.15(a)) This would give us a uniquely
influential role on the Council, the body that matters most.
The Peoples Republic of China (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.
CONCLUSION
Mr. Chairman, it is in the U.S. interest to join the Convention
because of the national security benefits to the United States, even
aside from the economic, resource, foreign policy, and environmental
benefits. Among other things, U.S. adherence would promote the
stability of the legal regime of the oceans, which is vital to U.S.
global mobility and national security. 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.
Chairman Warner. Colleagues, in view of the fact we have a
number of panels, I am going to recommend that we do a 5-minute
round very swiftly here and then proceed to our second panel.
My first question is to the CNO. Mr. Taft covered the PSI
agreement. I think it is very important that you likewise be on
the record on that subject, and to introduce the subject by way
of a question from myself, I am going to refer and quote from a
release by Frank Gaffney, March 18, 2004, to pose the question
to you. From page 2: ``The treaty, however, will also interfere
with America's sovereign exercise of freedom of the seas in
ways that will have an adverse effect on national security,
especially in the post-September 11 world. Incredibly, it would
preclude, for example, the President's important new
Proliferation Security Initiative. PSI is a multinational
arrangement whereby ships on the high seas that are suspected
of engaging in the transfer of weapons of mass destruction or
related equipment can be intercepted, searched, and, where
appropriate, seized. Its value was demonstrated in the recent
interception of the nuclear equipment headed to Libya.''
``Similarly, the treaty will define intelligence collection
in and submerged transit of territorial waters to be
incompatible with the treaty's requirements that foreign powers
conduct themselves in such seas only with `peaceful intent.'
The last thing we need is for some U.N. court or U.S. lawyers
to make it more difficult for us to conduct sensitive
counterterrorism operations in the world's littorals.'' End
quote of Mr. Gaffney.
So I pose that as a question because this statement by Mr.
Gaffney is a part of today's record and I think there should be
a response from the Department of Defense (DOD) and
particularly the CNO.
Admiral Clark. I think there are at least three questions
there. Let me just start by saying, with regard to PSI, his
claim that PSI will not be authorized if you are a party to the
UNCLOS is at odds with the fact that there are 14 partners in
PSI and all of them but us are parties to the convention. I
think it is based upon a misunderstanding of what PSI is about
and how it is executed. But very briefly, we may board a vessel
flying a flag that is from our state. We may board a vessel
that consents to our boarding. We may board vessels entering
our coastal waters, and we may board stateless vessels under
the PSI construct. There is nothing at all in the convention
that has anything to do with limiting that capability.
With regard to his discussion about conducting intelligence
operations while you are passing through straits, we are now
into technical definitions of particular activities. What this
particular convention does is it vastly broadens the
protections that we sought when this treaty was put together.
All we had before was something called ``innocent
passage.'' Innocent passage rules require submarines to transit
on the surface. We wanted provisions that would authorize
transits submerged through straits and that kind of activity.
We got it with something called ``transit passage'' that is
authorized in this convention. That was something that we in
the Navy sought because we did not want our submarines to have
to be exposed to conduct an innocent passage.
We have made the statement that we can exclude any kind of
military activity from compulsory arbitration. In this process
we have chosen and the resolution before the Senate says that
military activities will be excluded, and that dismisses the
other argument that he is making that puts him opposed to the
treaty.
Chairman Warner. In closed session, in response to I think
questions from the distinguished Senator from Nevada and myself
on the subject of naval activities, you gave a very graphic
example of transitting Gibraltar, one of the choke points. We
have other choke points: the Straits of Hormuz, and I could go
on.
Admiral Clark. Yes.
Chairman Warner. There are about five of them in the world
that are critical to naval operations. I thought you gave a
very graphic example and I wonder if you could share it here in
open session.
Admiral Clark. What I am saying is that the convention
gives us new protections that did not exist before, and they
are transit passage and rights in archipelagic waters. It also
gives us rights in exclusive economic zones, which are at issue
in today's world. Fundamentally, this treaty says that we are
authorized to be there.
What I was saying about passing through straits, under the
old rules before we had this convention, innocent passage was
the only thing prescribed in international law. That is the old
law. Transit passage now allows us to conduct our operations in
the normal mode and that is much better. That is where we want
to be.
Chairman Warner. I understand. Quickly for Mr. Taft, under
the terms of the convention, a state is permitted to opt out of
the dispute settlement procedures with respect to three
categories of disputes: disputes regarding maritime boundaries
between neighboring states; disputes concerning military
activities and certain law enforcement activities; and disputes
with respect to which the United Nations Security Council is
exercising the functions assigned to it by the Charter of the
United Nations.
Will military activities, including military intelligence
activities, be excepted from the convention's dispute
settlement mechanism as a matter of U.S. policy? Second, does
the administration take the view that each state party has the
right to determine whether its activities are military
activities and that such determination is not reviewable by
other parties to the convention? Third, how as a matter of U.S.
policy will U.S. intelligence activities be treated with
respect to the convention's dispute settlement mechanisms?
Please respond quickly on each and you can expand that for
the record, because I want to hold tightly on time.
Ambassador Taft. Thank you, Mr. Chairman. Yes, as a matter
of policy we have taken, opted out of the dispute resolution
system for all of the categories that you mentioned, including
specifically military activities.
Chairman Warner. Now, if you will expand on that for the
record.
[The information referred to follows:]
As set forth in declaration 2 in section 2 of the resolution of
advice and consent approved by the Senate Foreign Relations Committee,
the United States would opt out of dispute resolution with respect to
all three permitted categories in article 298(1) of the Convention,
namely disputes concerning maritime boundaries, disputes concerning
military activities, and disputes in respect of which the Security
Council is exercising the functions assigned to it by the U.N. Charter.
Ambassador Taft. Very good. As to the second question, as
to what is a military activity, who decides, the resolution of
advice and consent has a declaration in it establishing that
that is a self-judging determination, that we will decide that,
and that it will, in response to your second question, not be
subject to review.
As I testified earlier, the military activities exemption
includes intelligence activities. Perhaps I would expand a
little bit on both those answers.
Chairman Warner. We would appreciate that for the record,
and I thank you, Mr. Taft.
[The information referred to follows:]
Yes. One of the declarations in the proposed Resolution of Advice
and Consent states the U.S. 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.''
Disputes concerning military activities, including intelligence
activities, would not be subject to dispute settlement under the
Convention as a matter of law and U.S. policy.
Chairman Warner. Senator Levin.
Senator Levin. Just on that one issue, is there any doubt
in either of your minds that when we exclude military
activities from the arbitration provision that we are also,
because of our own declaration, excluding military intelligence
as well?
Admiral Clark. There is no doubt in my mind.
Ambassador Taft. We have no doubt, and I think it should be
clear certainly as a result of this testimony and other letters
that we have written. Thank you.
Senator Levin. On the matter of innocent passage, I would
like to clarify one issue there. In Mr. Gaffney's brief, I
believe, he says that Articles 19 and 20, the first one
relating to the meaning of ``innocent passage`` and the second
one, Article 20, relating to submarines and other underwater
vehicles, that, ``they attempt explicitly to regulate
intelligence activities.''
First of all, does anything in either of those articles
change the current situation relative to innocent passage? Are
intelligence activities under current customary----
Admiral Clark. We do not conduct intelligence activities
while we are conducting innocent passage, so it is not
applicable.
Senator Levin. So this does not change that in any way?
Admiral Clark. No.
Senator Levin. Okay.
Ambassador Taft. The only change, Senator, I think that
should be noted is that the list of activities that deprive a
state of the right of innocent passage in this convention is
exclusive and that is it. Those are the only things that
deprive you of those benefits. They are the same as what are in
there now, but in the existing 1958 Convention it is a little
bit vaguer.
One of our objectives was to nail it down so that only
those things that are specified deprive you of the right of
innocent passage. We got that in the convention.
Senator Levin. So that was a gain for us?
Ambassador Taft. That was a gain for us.
Senator Levin. That clarity amounts to a restriction on how
that term could be used or applied?
Ambassador Taft. That is right. We now know that only if
you are doing those things are you deprived of the benefit of
innocent passage, whereas it was a little vaguer in the 1958
Convention.
Senator Levin. Mr. Chairman, there was a statement
regarding drug interdiction activities that was made by Rear
Admiral John Crowley of the Coast Guard before the Foreign
Relations Committee. If that October 21, 2003, statement is not
already part of the record, I would ask that it be part of the
record, including the following statement: ``Becoming a party
to the convention will enhance our ability to conduct such
interdiction operations and refute excessive maritime claims.''
He also stated that: ``As the lead Federal agency for
maritime security, the Coast Guard believes that acceding to
the 1982 UNCLOS will benefit the Coast Guard in our efforts to
ensure maritime homeland security and ensure that our maritime
border is secure as well.''
Chairman Warner. Without objection, it will be submitted.
[The information referred to follows:]
Senator Levin. Admiral, you made reference to this, I
believe, both here and in our closed session, but I would like
you to be a little more specific: that there are trends that
are negative to us in terms of customary maritime law or that
might be negative to us, that we would like to try to stop. We
are interested in mobility and accessibility and there are some
trends which could restrict our goals in that regard and in
other regards.
Could you give us a little more explicit understanding of
what you mean by that?
Admiral Clark. I sure can. Without naming nations, I will
tell you, Senator, that we know that there are nations who want
to restrict our ability to operate in their exclusive economic
zones (EEZ). The convention gives us freedom to operate as a
military in the EEZ without restriction. Eighty percent of the
world's population happens to live within 200 miles of the
coastline in the world we live in today. As Senator Inhofe
said, two-thirds of the world constitutes my maneuver space,
the world's oceans.
If we had such restrictions near the coastal region, it
would very negatively impact our ability to conduct operations,
and we have had nations tell us that they want to restrict our
operations.
Senator Levin. My final question would be this: that I
understand that this November would be the first time since the
convention's entry into force that states parties will be able
to propose and adopt amendments. How important will U.S.
accession to the convention this year be to our ability to
influence the development of maritime law in that respect or
other respects?
Admiral Clark. It is my view, Senator, that our absence
hurts our ability to lead, and that if we are not there we
cannot lead. So it is my view that we need to be there so that
we can represent the principles and the values regarding the
free use of the sea that happen to be imperative for our
future.
Senator Levin. Is it true that amendments will be available
and possible this year?
Admiral Clark. That is my understanding, yes, sir.
Senator Levin. For the first time?
Admiral Clark. That is my understanding, yes, sir.
Ambassador Taft. That is correct, Senator.
Senator Levin. Thank you.
Chairman Warner. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman. We have talked a
lot, Mr. Chairman, about the military operations being excluded
and I know that this is done, I guess by declaration; was it
not?
Ambassador Taft. That is right.
Admiral Clark. Yes, sir.
Senator Inhofe. Let us just say that there is a dispute and
that the Chinese are claiming that a U.S. vessel that is in
some waters, it was mapping the coast for commercial purposes,
and we were to say no, we were doing it for military purposes.
How would they resolve this? Let us say they want to go to an
arbitrator on this. What if the arbitrator should decide that
the Chinese are right? What would happen? Or would it be
subject to arbitration?
Ambassador Taft. It would not be subject to arbitration. We
have opted out for military activities and our determination
that this involved military activities would be not subject to
review.
Senator Inhofe. Would it be your understanding then that
the Chinese would say, oh, you say it is not commercial,
therefore you might be right, and just not do anything? Is
there any other avenue that they could take in this particular
case that I pose?
Ambassador Taft. There are many avenues, and in fact the
convention and the Charter of the United Nations and just
normal diplomatic activity suggests that long before one went
into a dispute resolution mode, even if it were available, that
there should be diplomatic discussions, that there should be
all efforts to resolve the issue and talk about it and try to
fix it up.
Senator Inhofe. So the international community through
these would be drawn in to helping with interpretations at some
point?
Ambassador Taft. No, no, not the international community.
These would be bilateral discussions between us and the
Chinese. We would have discussions with them or other states to
try to resolve an issue, that is all.
Senator Inhofe. Okay. Ambassador Taft, Senator Warner
talked about the opting out of the treaty. Your answer I
believe was we could at any point opt out of the treaty? Or is
that not correct?
Ambassador Taft. We were discussing, I think, opting out of
the arbitration--sorry, the dispute settlement provisions. We
have, in the Senate resolution, said that we will opt out of
those.
Senator Inhofe. But could we not opt out of the treaty?
Ambassador Taft. It is always open to a party and in this
particular treaty it provides that there is an opportunity to
withdraw from the treaty. We are talking now, of course,
obviously about getting into it.
Senator Inhofe. No, I understand that. But during the
hearing that I held, one of the witnesses said: ``We could
always have the option of opting out of the treaty.'' I just
wanted to know, is that option always there?
Ambassador Taft. Yes, it is. It is provided for----
Senator Inhofe. Can you think of circumstances under which
that would happen, without taking any time?
Ambassador Taft. I think if we determined that the treaty
was not in our interest at some point--and we do have in our
resolutions of advice and consent and agreed, there will be
reviews of how the treaty is operating.
Senator Inhofe. So if it was determined the treaty was not
in our interest, we----
Ambassador Taft. It is open to us to withdraw from it.
Senator Inhofe. What would happen in such case if you had
someone who is--because you know, the oil and exploration
industry is supporting this treaty. They feel they can get into
this area outside the 200 nautical miles for that purpose. Now,
what would happen if they were able to be successfully
venturing, getting investors in and drilling and exploring, and
in the middle of that operation, and then all of a sudden we
opt out of treaty? Where would they be?
Ambassador Taft. I think that they would be sitting there
with whatever their contract rights would be, and if I were
they I would write my contract so that I would be able to
continue.
Senator Inhofe. Except that according to their testimony
they are only going to be there because of this treaty; they
cannot do it otherwise. They would--I would suggest that they
would be left out in the cold.
Ambassador Taft. No, I think that they would be there and
they would have their contract rights would survive that
situation. If I were the company, I would certainly write the
contract that way.
Senator Inhofe. We have been talking a lot about the sea
here. What about the air over the sea? Is this going to affect
some of our ability to do what we are doing currently in terms
of aircraft?
Admiral Clark. Senator, I am glad you asked the question.
Fundamentally, the provisions also do in fact apply to the air
and that freedom to operate in the EEZ is critical to us.
Senator Inhofe. Under Article 39 it says ``Duties of ships
and aircraft during transit passage.'' I think someone who is
looking at this with a concern for sovereignty, a concern--I
think it goes far beyond just the sea. I would have to ask
about space policy later on.
My time has expired, but I would like to have you answer
that question for the record, specifically how it affects the
air--we have been talking about the sea--the air or potential
space policies.
Ambassador Taft. We will provide that, Senator.
[The information referred to follows:]
The Convention does not apply to outer space, which is governed
principally by the U.N. Outer Space Treaty, to which the United States
is a party. With respect to airspace, the Convention reflects either
rules set forth in the 1958 UNCLOS, to which the United States is a
party, or customary international law accepted by the United States.
The Convention's provisions affirm that the sovereignty of a coastal
state extends to the airspace over its land territory, internal waters,
and territorial sea. International airspace begins at the outer limit
of the territorial sea. There is no right of innocent passage for
aircraft as there is for ships. However, all aircraft, including
military and other state aircraft, enjoy the right of transit passage
over straits used for international navigation and the right of
archipelagic sea lanes passage over certain archipelagic waters. Beyond
the territorial sea, all aircraft enjoy high seas freedoms of
overflight and other internationally lawful uses of the sea related to
that freedom, including those associated with the operation of
aircraft. Other treaties, including the 1944 Chicago Convention,
regulate aircraft operations.
Chairman Warner. Let us take the time to answer that for
the record briefly.
Senator Inhofe. All right, that is fine.
Chairman Warner. The question is before the panel.
Senator Inhofe. The chairman said you can go ahead and
answer.
Ambassador Taft. I think that the general answer is that
the air space in straits and territorial sea and the EEZ is in
the same basis as the surface.
Senator Inhofe. Thank you very much.
Admiral Clark. The other rights, the rights that we spoke
to in the EEZ and transit passage and innocent passage, apply.
Senator Inhofe. Thank you.
Admiral Clark. We need those rights.
Chairman Warner. Senator Ensign.
Senator Ensign. Thank you, Mr. Chairman. Just a quick
statement. One of the things that troubles me about this whole
treaty is that people that I respect a great deal have
virtually opposite opinions on the interpretation of this
treaty, and I think that is the way it is sometimes, a lot of
times, with legal matters, because we are not dealing with
absolute facts, we are dealing with interpretations, and
international law especially is such a highly complex issue,
that what may look one way to one person can look a completely
different way to another person, which leads me to grave
concerns. What does it mean down the line?
In other words, we may look at it now one way, but down the
line, and then we are party to it, and even though we can opt
out of things, the chances of doing that, as we know, are very
slim.
I realize that we have said that on military things we are
not subject, we have decided on the dispute resolution that
those matters would not be subject. The reason I ask that,
especially as chairman of the Readiness and Management Support
Subcommittee, I have this concern, Admiral Clark, on the low-
frequency sonar. The way that the international community is
going, maybe the international environmental movement can have
a tremendous influence sometimes on some of these international
bodies and decides that down the line that sonar is one of
those things that should be outlawed, that the low-frequency
sonar should be outlawed, which would be a great detriment to
defending our coastline.
The question really is, though, to Mr. Taft: Who decides
which of these disputes? Is it Department of State or DOD?
Ambassador Taft. Senator, on that we like to think that we
always reach agreement with our colleagues in the DOD.
Senator Ensign. We know that that does not happen all the
time. We all know that, and there is great disagreement between
Defense and Department of State many, many times. That is why I
want to know who has authority.
Ambassador Taft. The authority would be ultimately in the
President.
Senator Ensign. The President's hands, right.
Ambassador Taft. But the DOD would, I think, have the
dominant aspect, dominant place in giving him advice as to this
was a military activity, and they do military activities, they
know what they are.
Senator Ensign. Mr. Taft, Ireland brought a complaint
against Great Britain recently at the United Nations Tribunal
on the Law of the Sea involving a land-based nuclear power
plant in Britain. This case, I guess this was completely land-
based. As the case is going forward, I guess it raises some
points on how far does this, not just the open waterways, but
this was clearly not part of the sea.
How far could this treaty affect the United States? Are we
talking about the Mississippi River? Are we talking about the
Great Lakes? Are we talking about our seaports? How far? Or
waters that feed into the Mississippi? How far exactly could
one of these tribunals rule that the jurisdiction of the treaty
covers?
Ambassador Taft. I think the treaty covers basically the
three phases: the territorial sea and contiguous zone that is
outside the land for 12 and 24 when you take the contiguous
sea; then out to 200 miles for the exclusive economic zone; and
then there are the high seas. It also governs the deep seabed,
which of course no one has sovereignty to, but it regulates the
way in which the deep seabed can be taken advantage of and
provides means whereby companies can do mining there.
Those are the areas that the treaty covers, not internal
waters.
Senator Ensign. I know my time has expired, but I think
this is an important point because, why was this even then
taken up?
Ambassador Taft. As I understand it, the claim of Ireland
in that case was that the effluent from the proposed nuclear
power plant was affecting the fishing activities in the Irish
Sea, and that is their claim. The tribunal--to which,
incidentally, we would not be party to; we have not opted for
that particular forum, would not opt for that forum. But they
will decide that. The United Kingdom I should say takes a very
strong position that the Irish claim is without merit.
Senator Ensign. But I think it illustrates the point that
there are concerns that the creeping jurisdiction--I mean, we
are seeing that with all the international courts and the way
the international court is starting to work with this
organization even. That is where some of us have concerns, is
that it is the creeping jurisdiction.
I mean, this is clearly a land-based issue that they are
trying to go after based on the effluent, potential effluent to
the sea. But this is clearly land-based on Great Britain's
land.
Ambassador Taft. This is the position, I believe, that the
United Kingdom is taking. The tribunal is examining it. If it
is indeed land-based, having no effect in the sea, then they
will throw it out.
Chairman Warner. Gentlemen, I will have to ask any further
dialogue on this be provided for the record.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. Jurisdiction,
Mr. Taft, is a big deal. You have occasionally some rogue judge
in the United States invalidating wars and military decisions
and Congressional actions, but ultimately most judges
understand jurisdiction and if they try to exceed their
jurisdiction they fail.
But I am concerned that a court of this nature does not
have the heritage and the clarity of understanding of the
jurisdiction question as Senator Ensign just raised, and that
can cause trouble in the future. Do you dispute that?
Ambassador Taft. I do not think that we have heard from the
court at all on this subject.
Senator Sessions. They found they had jurisdiction, did
they not?
Ambassador Taft. They found they had jurisdiction to decide
the case, but they have not decided the case. They will decide
in the case whether this has something to do with the sea. That
is the claim of the Republic of Ireland.
Senator Sessions. Surely you understand that once they
assert they have jurisdiction they have the power to decide
either way they want to.
Ambassador Taft. No, sir. They have the power to decide
correctly.
Senator Sessions. But that is a dangerous concept, if we're
going to assume all courts decide correctly.
Ambassador Taft. I do not see that--they have a dispute,
the United Kingdom and Ireland. Both of them have agreed that
they will be subject to the jurisdiction of this court. That is
their agreement. We have not proposed that we would take that
approach and we will not take that approach if we become a
party.
But if they want to settle this matter as between
themselves in this court, I do not see why we should be
objecting. We are not going to go that route. We are going to
go to an arbitration panel. But I do not see that it really is
an objection to the treaty that two parties who are willing to
have their dispute settled by this tribunal are before that
tribunal. That is the way they have agreed to do it. We are not
going to do that.
Senator Sessions. How will the arbitration work? I think
that is a positive step, but tell me how it works?
Ambassador Taft. The way in which--what we have selected is
that if we are in a dispute that we would prefer to, and it is
provided for in the treaty, go before an arbitration panel,
which would be set up in the normal way of arbitration panels,
where we designate an arbitrator, they do, and there is a third
fellow.
Senator Sessions. Who selects the third?
Ambassador Taft. As a rule, that is designated, and I am
not sure. I have to provide that. Whether it is the parties----
Senator Sessions. Well, it would be the Law of the Sea----
Ambassador Taft. I am not sure whether it is the parties'
representatives or from a panel. I will have to check that for
you, Senator.
[The information referred to follows:]
Article 3 of Annex VII of the Convention governs the constitution
of Annex VII arbitral tribunals. It provides that, unless the parties
to the dispute agree otherwise, a tribunal will consist of five
members. The party instituting the proceedings appoints one member, who
may be its national. The other party appoints one member, who maybe its
national. The other three members are to be appointed by agreement
between the parties. They are to be nationals of third states, unless
the parties agree otherwise. If the parties to the dispute are unable
to reach agreement on the three members to be jointly appointed, they
may select a person or third state to make the appointments. As a last
resort, the President of the International Tribunal, in consultation
with the parties to the dispute, is to make the appointments from the
list of arbitrators nominated by the Parties to the Convention, all of
whom are required to be persons experienced in maritime affairs and
enjoying the highest reputation for fairness, competence, and
integrity.
Annex 3 of Annex VIII governs the constitution of Annex VIII
``special'' arbitral tribunals. (Such arbitration is referred to as
``special'' because of the particular expertise that panelists are to
have for the listed categories of disputes. The United States would
select special arbitration for the categories of disputes for which it
is available, e.g., marine scientific research.) The procedure for the
selection of arbitrators is slightly different from the procedure for
Annex VII arbitration. For these panels, each party to the dispute
appoints two members, one of whom may be its national. (The ability to
appoint two panelists instead of one was considered important for
highly technical disputes, where parties might wish to appoint one
legal and one technical expert.) The parties by agreement appoint a
fifth person to be President of the special arbitral tribunal. If they
are unable to agree on the fifth appointment, they may select a person
of third state to make the appointment. As a last resort, the Secretary
General of the United Nations, in consultation with the parties to the
dispute, is to make the appointment from the list of experts nominated
by the Parties to the Convention, all of whom are required to be
persons whose competence in the legal, scientific, or technical aspects
of their fields is generally recognized and who enjoy the highest
reputation for fairness and integrity.
Senator Sessions. That would be, of course, very important
because that would be--the third person decides the arbitration
normally.
Ambassador Taft. In my experience they do have a strong
vote, but I have also seen your own arbitrator can have a great
influence on it. We would have that arbitrator----
Senator Sessions. Will you get me in writing your
understanding of that? Would the arbitrators be bound by the
decisions of the Law of the Sea Court in making decisions on
these issues?
Ambassador Taft. They would be, I think, referring back to
the sources of law, whether it is the convention itself. That
would be the main one, and outside of that I suppose they would
look to the laws of the states involved, our law and other
states.
Senator Sessions. Would you not expect they would look to
the decisions of the Law of the Sea Court?
Ambassador Taft. They might look to those.
Senator Sessions. Can you say they would not see that as
the primary source of any interpretation of Law of the Sea
issues?
Ambassador Taft. I think that they would look at that, but
they also have their own mind.
Senator Sessions. Mr. Taft, is it not clear that they are
going to follow the Law of the Sea Court decisions most likely?
Ambassador Taft. I do not know in the particular case what
the situation would be, whether there are--but it could be.
That might very well be to our advantage. We might argue that
they should.
Senator Sessions. On the PSI, let us see if I can get it
correct on this. I appreciate your explanation of that and I
think I have it. The question when the President has sought
people to join against proliferation, join PSI with us, has not
been whether or not you are a member of the LOST; it is are you
willing to help us by agreeing to go beyond what you might
otherwise be willing to do to help us stop ships and interdict
that?
In effect, some people have been reluctant to sign onto
PSI. Only 14 have, I believe. Some nations have been reluctant,
citing it goes beyond the Law of the Sea; is that not true?
Admiral Clark. Frankly, I have not researched all of the
positions of other nations. My staff tells me there are a
number of organizations that want to become part of this. But I
think what has been misinterpreted is the potential linkages
between PSI and the Law of the Sea and the whole set of
authorities.
The point is that I outlined the authorities and this
convention does not have anything to do with what, in effect,
are agreements between nations that they are going to take on
this activity----
Senator Sessions. I agree with you on that.
Admiral Clark.--agreements to search a vessel, agreements
to board.
Senator Sessions. I agree with you, Admiral Clark, on that.
But I do think that as a practical matter we are hearing some
complaints that, we signed the Law of the Sea and you are
asking us to do more.
Admiral Clark. If you would, may I provide a response to
that for the record? I would be happy to.
Senator Sessions. Thank you.
[The information referred to follows:]
I am aware of no country taking the position that it cannot join
PSI because it conflicts with the UNCLOS. PSI is entirely consistent
with international law, including that contained in the UNCLOS. Some
countries have expressed concern that PSI may be inconsistent with the
UNCLOS. Those concerns reflect a misunderstanding of PSI and do not
take into account the fact that PSI's own rules require that PSI
activities be consistent with the Convention and international law.
Explanations have been provided to help them better understand that the
Convention does not prohibit any activities to be undertaken pursuant
to PSI.
Ambassador Taft. It would be one of the easier cases to
make to them that they do not have that problem and we would
get them on board promptly.
Senator Sessions. Thank you, Mr. Chairman.
Senator Ensign. Mr. Chairman?
Chairman Warner. Yes.
Senator Ensign. Could I just ask? It will be a very brief
question and they could even provide it for the record, and if
you want to comment just briefly. It is the follow-up to the
British case, the British and Ireland. Pose it this way. Let us
say that we had a President of the United States who was
against nuclear power, totally opposed to nuclear power. There
were power plants operating under a similar condition where,
say, Mexico or another country said the effluent from the
Mississippi River was going down, affecting their waterways,
affecting their fishing.
We had a President who was opposed to nuclear power, says
to his State Department: Go ahead and give jurisdiction. In
other words, we want to become party to this, because that
President wants to see that power plant closed.
Is it not in fact possible to do that, for a president to
do that?
Ambassador Taft. I am not sure I understand the basis of
the hypothetical, Senator. The President wants to close a power
plant?
Senator Ensign. Yes. Let us say, yes. He cannot do it any
other way.
Ambassador Taft. There would be easier ways for him to do
that.
Senator Ensign. I did not say there were not easier ways.
Is it possible for that to happen? I mean, Britain has agreed,
Britain has agreed to the tribunal. We could have a President
that agreed to that as well.
Ambassador Taft. We could have----
Senator Ensign. So it would affect territory within the
United States, is the point I am trying to make.
Ambassador Taft. But what you are suggesting is that the
President would direct the State Department to lose a case that
it could actually win? I do not anticipate that.
Senator Ensign. Because it may be something that is the
President's ideology.
Ambassador Taft. I would be very sorry to hear that. But we
do not----
Senator Ensign. Thank you, Mr. Chairman.
Ambassador Taft. We have many cases out there and the
President never directs us to lose them.
Chairman Warner. If you wish or desire, amplify the record.
We will now proceed to the next panel. I want to thank each
of our witnesses.
Admiral Clark. Thank you, Mr. Chairman.
Chairman Warner. I hope that you will have someone
remaining behind such that you can be fully informed as to the
subsequent testimony that this committee is about to receive.
Ambassador Taft. Thank you, Mr. Chairman.
Chairman Warner. We will now have the distinguished Jeane
J. Kirkpatrick, American Enterprise Institute for Public Policy
Research. Among many, many accomplishments, our distinguished
witness is former Ambassador to the United Nations and a member
of President Ronald Reagan's cabinet. So we welcome you, Madam
Ambassador. [Pause.]
Thank you very much for accepting the invitation to appear
before this committee. We will put your entire statement in the
record, but you can take such time as you desire to address not
only your statement, but such other issues you have heard this
morning on which you have another perspective.
STATEMENT OF HON. JEANE J. KIRKPATRICK, SENIOR FELLOW AND
DIRECTOR OF FOREIGN AND DEFENSE POLICY STUDIES, AMERICAN
ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH
Ambassador Kirkpatrick. Thank you, Senator Warner.
Is this functioning now? Can you hear me?
Chairman Warner. Very clearly. We thank you. There should
be a slight red dot appearing there.
Ambassador Kirkpatrick. There is not one. That is what
concerned me. But as long as you can hear me, that is what
matters.
I was pleased to accept your invitation and I appreciate
your extending it, and I am willing to testify today because I
think I have some experience that is relevant to the issue,
namely my experience as U.S. Permanent Representative----
Chairman Warner. Unquestionably, Madam Ambassador, you have
a distinguished record.
Ambassador Kirkpatrick. As Permanent Representative to the
United Nations. I would really like very much to require
everyone who develops a position on this issue and proposes it
seriously to the U.S. Congress and all of the Congressmen and
Senators who are going to act on it to spend a term in the
United Nations. That is my proposal for reform.
Chairman Warner. Then you just lost my vote. I am not going
to do that.
Ambassador Kirkpatrick. We have in fact a program which
makes a provision for Senators and Congressmen and other
influential Americans to spend a session at least in the United
Nations. It is a very interesting learning experience because
what it teaches you above all is that the United Nations is a
political body. It is as political a body as the U.S. Congress,
and it is political in all the same ways that the U.S. Congress
is political.
Its decisions are made generally speaking on a political
basis, which is not to say that the law does not matter. The
law matters a lot and many issues are argued on complex legal
grounds. But finally they are settled on political grounds.
I did not even know this when I went to the United Nations
actually. But I knew, I knew that it was political in the sense
that all the states in the world were represented in it, but I
did not know that they reached decisions and interacted so
regularly on a highly political basis.
I would like to say that I think I had the privilege of
serving with a President, Ronald Reagan, who was more
sophisticated about these issues than most people, and because
he was more sophisticated about them he arrived in the White
House and was inaugurated with some real questions about a
number of activities in which the U.S. was engaged with the
U.N. and in the U.N., including the LOST.
Let me just say that we were all in the Reagan
administration, I think we were all aware of the fact that the
U.S. Navy and the military and other branches of our government
considered that there were real benefits to be derived from
U.S. participation in the LOST and that there were undoubted
benefits. But the President also thought that we were enjoying
most of those benefits through bilateral and regional
agreements on a regular basis.
President Reagan stopped the process, which was already
very advanced in fact, of U.S. preparations for accession to
the treaty, and he did so because he wanted an investigation.
He ordered an investigation and he ordered it to begin
promptly, and he set some terms which he insisted be met if the
United States was going to participate.
These included that the treaty should not deter the
development of seabed mining. That was a very major issue at
that time, with very good reason, I might say. But that wasn't
the only concern. Someone said that the Reagan administration's
only concern was the seabed mining. That is not true. The
Reagan administration had other concerns. The President himself
had other concerns.
I realize that Davis Robinson, who was the State
Department's Legal Advisor during the Reagan years, has
provided what looks like a very interesting statement, which I
intend to read with care and profit I am sure after this
hearing, which was distributed this morning, suggesting that
all of the legal experts of the State Department, all of the
State Department legal advisors have supported some aspects of
the treaty. It is not as sweeping as it first implies. But in
any case, I do not doubt that.
But there were already many commitments the United States
had made concerning--not commitments; verbal commitments, more
or less, arguments maybe more than commitments, that the U.S.
had made concerning participation in the LOST before Ronald
Reagan was inaugurated.
When he was inaugurated, he immediately called a kind of
halt to progress on the treaty until there was an
investigation. His concerns were not just for seabed mining,
although those were important, but they were also with the
decision structure. I might say that my principal concerns on
this treaty are with the decision structure which is proposed
in the treaty.
The President, President Reagan, insisted that the
decisionmaking structure if we were to join it should reflect
and protect the economic interests and other interests of
contributing and participating states, it should reflect the
interests of the participating states, all of the interests of
all of the states, and not simply the least developed states,
which the treaty and the decisionmaking structure had been,
like most U.N. bodies in fact, heavily stacked in favor of,
biased in favor of, the least developed, less developed
countries.
He also was concerned that it should be, and Judge Clark
was concerned too, that it should be susceptible to
ratification by the U.S. Senate. They felt that there were
constitutional issues of some importance.
The President was concerned about whether the U.S.
accession to the treaty would encourage the proliferation of
Organization of the Petroleum Exporting Countries (OPEC). OPEC
was very important during this period, you may recall. It was
exercising a lot of power and seeking to extend its power. He
was afraid that the LOST would become an instrument for
encouraging and assisting in the development of just such
cartels to ensure high prices by controlling interests.
Now, as I understand it the revisions, the 1994 revisions,
have affected a number of the critical provisions of the LOST
involving the LOST mining, the seabed mining, and to just that
extent they may have eliminated the concerns with seabed
mining, although as I understand it also the status of those
1994 amendments is legally uncertain. I do not know whether
Will Taft or John Norton Moore can tell us what the legal
status is precisely of those amendments.
I have heard that the revisions actually have an uncertain
legal status, a different legal status than the treaty itself.
They are not fully incorporated into the treaty, as I
understand it. But that is for the lawyers to decide.
What is clearly the case is that the decisionmaking issues
in the treaty are still with us, not in quite as extreme a form
as they were in 1981. In 1981 it was the heyday of the Cold
War. We were either at the apex or the bottom of the Cold War,
depending on how you describe it. It was grim, and the power of
the Soviet Union in the United Nations was really incredible.
That was because they were so much more skillful than we were
in organizing supporters. So they had many aspects of U.N.
activity sort of wired and they could get decisions as they
chose them.
We have never been able to do that, I might say, in the
U.N., even when it was just founded. The United States--I will
return to that, but I mention now that the United States is not
very skillful at U.N. politics. It is all very well for people
who--that is why I would like all of you to go spend a session
at the U.N. and be given a responsibility to get a resolution
passed. The President of the United States and the Secretary of
State tried that about a year ago in the Security Council,
where they felt and I felt as I listened to them that they had
a very strong case on that second resolution for the Iraqi
violations of the ceasefire.
But we also heard France threatening its veto. That is part
of the politics of the U.N., too. We know what happened. We
know that we did not introduce, quite wisely, did not
introduce, did not propose, a second resolution.
The first resolution you will recall, which declared Iraq
to be in breach of the ceasefire, was unanimously passed. If
procedures had been developed reasonably, a second amendment or
resolution might have been reasonably, would have been expected
to be passed. But it was so clear, since France announced that
they would veto if it included a reference to provision for the
use of force, that we did not introduce the second resolution.
The Clinton administration, I might say, which was often
thought to be more skillful in the U.N. than the Reagan
administration or the Bush administration, did not seek a
resolution authorizing the use of force in Kosovo. Why? Because
it was understood by the critical people who had the powers of
decision that such a resolution would almost certainly be
vetoed. It would not be passed. It would be vetoed. So we
simply turned in Kosovo to the use of force without seeking
acquiescence of the Security Council, the resolution of the
Security Council.
That simply is an example of not only the fact that the
United States is not often as powerful as we wish we were or as
influential and effective as we wish we were in the U.N., but
that that is a condition that afflicts both parties and affects
very important decisions, like whether we are going to use
force in Kosovo, go to war in Kosovo.
I thought the Clinton administration was right, by the way,
in both the decision on Kosovo and the decision not to take the
resolution to the United Nations Security Council, because it
would have been vetoed there.
But I want to emphasize that this political body that the
United Nations is is not one in which we necessarily get our
way. More often than not, we do not get our way in the U.N.,
and more often than not we do not get our way because there
simply are not enough countries that feel that it is to their
advantage to vote with the United States in the United Nations.
That was most dramatically clear in the Cold War, of
course. There was a vote on the LOST and the Preparatory
Committee (PrepCom) issue, whether or not countries who
participated in the Law of the Sea PrepCom should be required
to pay the expenses for the PrepCom or the assessed expenses.
There was a resolution proposing that the expenses for the
PrepCom be incorporated in the United Nations' regular budget,
which is assessed to members and which it is generally agreed
there is a legal obligation to pay on the part of members. The
United States State Department has argued strongly through the
years that we have a legal obligation to pay assessed expenses.
That resolution, which was proposed at a time during the
Reagan administration, at a time that we were still considering
the LOST and accession to the LOST passed against us 132 to 4.
Now, think--the United States is not only not politically
influential in the U.N., we not only do not have power in the
U.N.; we do not have power in a big way. I do not think we are
getting many votes like 132 to 4. We got a lot of them during
the Cold War.
But today most of the countries are not as tightly
committed to bloc voting as they had been. But now bloc voting
is just like what happens again in Congress. It is voting by
party, and voting by party produces in the U.N. often very
lopsided kinds of outcomes.
President Reagan simply asserted that we should not accede
to the LOST until the decision structure reflected and
protected the interests of the participating states and until
we were satisfied that it was subject to ratification by the
Senate.
The concern about the constitutional issue, the
ratification by the Senate, of course dealt with the amendment
provisions of the LOST, which I understand are still yet to be
tested, have never actually been invoked, but may be soon.
Those provide that any amendment passes, automatically passes,
with a two-thirds majority. Now, that may sound like a whopping
majority, but the fact is the G-77, that is the organization of
the less developed states, itself constitutes a two-thirds
majority of the total membership of the Assembly.
So you do not need to be concerned about these issues until
you come face to face with them. We have not come face to face
with them because--not only because we have not been a member
of the LOST organization, but because they have not really been
functioning long enough or broadly enough for us to get a very
clear idea about how they would work.
The automatic two-thirds majority in an organization in
which St. Christopher's and Nevis, I usually say, has one vote
and the United States has one vote--you understand that all of
the votes in the authority are on the basis of one country, one
vote, and all of the votes in the LOST, relevant to it, will be
on the basis of one country, one vote.
My own position is that we should never join an
organization whose governing decisions will be operating on the
basis of one country one vote, because we are hopelessly,
overwhelmingly overcome even before there is the possibility of
a vote even. There is no possibility of our carrying in such a
context.
I think it is important that Congress and that this
committee investigate carefully what the current status of the
amendments procedure is, whether it is still the case that--it
may be that John Norton Moore knows the answer to this--a two-
thirds majority is adequate to pass any amendment to the LOST,
because that would make pretty shallow any kind of Senate
ratification. You can ratify one treaty and if it can be
revised and amended by a two-thirds majority, a U.N. majority--
General Assembly majority is what it comes down to--you will
have to start over again any number of times. What you ratify
may bear less and less resemblance to what exists.
Actually, President Reagan and Judge Clark had some
concerns about this. President Reagan simply announced that in
the Reagan administration he would not move on the treaty. He
was quite ready to commit the United States to continuing to
fulfill all those provisions of the treaty which we were
already fulfilling, such as, with respect to the free passage
in straits, international straits, and respect for maritime
animals and general respect for the law of the sea as it has
been traditionally understood and observed.
The President also felt that we should carefully establish
our legal obligations and rights before we acceded to the
treaty. He was concerned about buying a pig in a poke, if you
will, to use the language of my grandmother.
The end of the Cold War has helped, there is no doubt about
that. It has helped the U.N. The U.N. is not stacked in quite
the way that it was stacked during the Cold War, against the
democracies for example. But it is still a very highly
political body in which democratic states constitute a minority
and are likely to continue to constitute a minority. I served
last year as the head of the U.S. delegation to the Human
Rights Commission and that was a commission, you may recall, to
which the United States was--from which we were barred, we were
not elected, 2 years ago. We ran for election and were not
elected.
I may say that, of course, I did not mention but everyone
understands that the Seabed Authority will elect a council
which will function as a sort of executive of the Seabed
Authority, elect a 36-member sort of executive council. That
will be elected by that same body that voted against us 132 to
4 a few years back, but it will be elected by them.
As originally foreseen, the U.S. did not have a permanent
seat on that executive council, and many of the policymaking
functions are vested in the executive council, as I understand
it, effectively. We now are guaranteed a seat, but that will be
one of 36 seats as I understand it.
This has not been--since it has never been implemented, we
do not really know how it will work out, but that is the way it
is planned now to work out. It would be a lot better to be
guaranteed a seat on that 36-person body than not to be
guaranteed a seat, because otherwise we might lose our seat
every few years, as we lost our seat on the Human Rights
Commission.
By the way, at the same time that the United States was
losing its seat on the Human Rights Commission, Cuba, Burma,
Zimbabwe, and most of the world's worst human rights abusers
were winning seats on the Human Rights Commission. That is
another problem for another day, which is worth the
consideration of some serious committee of the Congress, let me
say, that the Human Rights Commission is today almost half made
up of the world's worst human rights abusers. There are members
of the Congress who are concerned about this and who have been
thinking hard about it. But we have not solved that problem any
more than we have solved the problem of how we can assure that
we will get elected to it and, let us say, Zimbabwe will not.
We only get elected if our politics are smarter and more
energetic than theirs are. But our politics are usually neither
smarter nor more energetic than, say, Cuba's. Cuba is always
elected to the Human Rights Commission and it is always treated
in a most respectful fashion. It can guarantee that it will be
treated respectfully much better than any democracy on the
commission.
Anyway, my point I think is rather clear, discouragingly
clear. My point is that as far as I understand it many of the
serious flaws in the LOST which were considered definitive for
President Reagan and a majority of his foreign policy team in
fact--not the whole administration, but the majority of the
foreign policy team--have been improved by the end of the Cold
War actually, but they have not been solved; and even those
that have been improved have not been improved definitively.
They commit us to positions and situations in which we are
likely to find ourselves outvoted, if not 132 to 4, then 36 to
7, as we were a couple of times in the Human Rights Commission
last year.
They do not--no one should make a decision concerning the
U.S. vesting of additional powers in a U.N. body without very
carefully studying the composition, the voting history, of that
body, and the plan for dealing with the politics of that body,
because that is what we will be doing. Whatever the law says,
if the law is the U.N. Charter, it will be susceptible to
interpretation and reinterpretation on the basis of the
political balance of the governing body. That would be the
Seabed Authority.
Now, you can say, well--somebody, I think the CNO said, I
think it is important for the United States to be present
because if we were not present in some important body then we
could not lead. The fact is the United States usually cannot
lead in U.N. bodies when we are present. From time to time we
get a good hearing. That is what the President and the
Secretary of State were trying to do when they took the Iraq
issue to the Security Council. Sometimes we do not get a good
hearing. Those decisions too are made on political grounds, and
our values are not necessarily important to most of the
political leaders making those decisions.
[The prepared statement of Ambassador Kirkpatrick follows:]
Prepared Statement by Hon. Jeane J. Kirkpatrick
Mr. Chairman, thank you for inviting me to testify today on this
important issue which I believe has broad and important implications.
Some of these implications--especially those concerning deep seabed
mining and technology transfer--have been the most widely discussed.
But I believe the Treaty also raises some constitutional and political
issues with broad ramifications and implications, and I continue to
think it raises security issues as well.
I hold no position in the United States government today and have
no responsibilities in relation to the Treaty. However, I had prolonged
and serious dealings with the LOST during my years as Ronald Reagan's
Permanent Representative to the United Nations and a member of his
Cabinet and National Security Council. I might add that I was also a
member of his Commission on Space.
I have been a professor of Government at Georgetown University for
most of my professional life. I am now a Senior Fellow at the American
Enterprise Institute. I have sought to remain abreast of developments
concerning the United Nations. Last year I served as head of the U.S.
delegation to the United Nations Human Rights Commission.
Those of us concerned with foreign affairs in the Reagan
administration became deeply involved in the LOST which had been under
discussion since 1958 and had nearly been completed by the time Ronald
Reagan was inaugurated in January 1981. It is accurate to say that the
Reagan administration believed that the issues raised by the Treaty
were basic and important and that both the political and economic
stakes were high. I will share some of our experiences and perspectives
because I believe they are also relevant today.
The Treaty begins from the assumption that the seabed and its
wealth are part of the ``common heritage of mankind'' and its benefits
should be shared by all, protected against exploitation by any country
or group, and administered by the United Nations. In 1968, Resolution
2467 was passed and vested jurisdiction over the Treaty in the
``Standing Committee on the Peaceful Uses of the Seabed and the Ocean
floor Beyond the Limits of National Jurisdiction.'' In 1970, the
General Assembly voted by an overwhelming majority to convene a
conference on the LOST. Negotiations took shape when all parties agreed
to the notion of a ``common heritage,'' although disagreements soon
emerged between developed and developing countries on technology,
sovereignty, and the extent and kind of regulation that should and
could be imposed on seabed mining.
Negotiations continued for more than a decade--during which the
Treaty came to be viewed as the cornerstone of the New International
Economic Order (NIEO) and of the associated efforts to use U.N.
regulatory power as an instrument for restructuring international
economic relations and redistributing wealth and power. The General
Assembly is the institution through which the NIEO operates. It
operates on the principle of one country, one vote.
During the decade that the LOST took shape, the basic assumptions
of the NIEO concerning the obligations of the ``north'' to the
``south'' gained wider acceptance and expanded their influence and
scope. The regulatory functions of the U.N. grew and the resistance of
the industrialized countries was eroded. Then Secretary of State Henry
Kissinger had laid out conditions for U.S. participation in the
proposed technology transfer--guaranteeing U.S. representation on its
governing body and limiting production controls--but these conditions
were ignored and eventually dropped by the American government itself.
By the time Ronald Reagan took office, the LOST was very nearly
completed and a final session was scheduled to begin on March 9, 1981,
to be completed by the end of the summer. These plans were interrupted
when the Reagan administration announced before the session opened that
it intended to conduct a full-fledged review of U.S. policy with regard
to the LOST and would not be ready to reach its final conclusions by
the scheduled time.
The announcement produced both relief and consternation. It should
have come as no surprise. The LOST was, and I believe, is
disadvantageous to American industry--especially in their participation
in seabed mining--and to American interests generally. It should have
been no surprise that a pro-business government interested in restoring
American power would oppose the Treaty.
Viewed from the perspective of U.S. interests and Reagan
administration principles, it was a bad bargain. However, the LOST
promised some things that Americans wanted very much: a commitment to
freedom of navigation, territorial limits set at 12 miles,
establishment of economic zones of 200 miles, and protection of
navigation rights of all through international straits. The U.S. also
regarded as positive the certain international agreements protecting
marine mammals and migratory species. These protections were especially
welcome at a time when a good many countries were arbitrarily extending
their territorial claims over straits and vital sea lanes. But the
Reagan administration believed that the cost was too high, especially
since most of these benefits had been or could be achieved through
bilateral agreements or through existing organizations such as the
Intergovernmental Marine Consultative Organization of the U.N.
Environment Program (UNEP).
The LOST establishes a sweeping claim of jurisdiction over the
seabed and all its mineral wealth. It creates an ISA in which it vests
control of two thirds of the Earth's surface. Under the LOST the power
of the Seabed Authority would be vested in an Assembly made up of all
participating states and an Executive Council of 36 members elected by
the Assembly to represent investors, consumers, exporters of affected
minerals, developing states, and all the geographical areas of the
world. The formula for representation guaranteed that the
industrialized ``producer'' countries would be a permanent minority.
They would have a majority of obligations. Most importantly, votes of
the Assembly would be on the basis of one vote/one country, with a two-
thirds majority binding on all parties.
A company desiring to get a contract for seabed exploration would
be required to identify two promising sites, one of which would be
claimed by the Authority to mine itself or to otherwise dispose of, the
other of which may be given to the company. The company would be
required to provide its technology to the Authority, which would also
be provided to members with the capital necessary for mining. Special
taxes would be imposed and special care would be taken to protect
existing producers of minerals against competition from minerals
available in sea. Worst of all, there was no guarantee that qualified
applicants ready to meet these requirements would be granted permission
for mining.
Certain consequences of the LOST seemed wholly predictable:
It vested control over seabed mining in countries that
do not possess the necessary technology.
Its governing structure guaranteed a permanent
majority to the less developed countries of the G-77.
It burdened companies who would be interested in
mining with unusual costs and obligations and provided various
permanent advantages to their competition. Private companies
would bear the expense of developing technology, of
prospecting, of paying taxes. The authority would bear none of
these. Moreover, the private company would be required to sell
its technology to buyers and at prices determined by the
authority. The duration and extent of the mining rights would
be determined by the authority.
These regulatory powers would protect markets and
prices from the competition of seabed mining.
From the Reagan administration's point of view, the most disturbing
aspect of the LOST was the structure of decision making. We felt the
U.S. role in decisions should reflect our political and economic
interests in the Treaty and our contributions to U.N. operations. The
G-77 was determined to treat all nations alike, and the U.S. as one
nation among 180. We were not guaranteed a seat on the 36 member
executive council. All questions could be decided by a two-thirds
majority vote in the Assembly. Any aspect of the Treaty adopted by
consensus could be amended by a simple two-thirds vote. Thus, the G-77
which constitutes two-thirds of the members could change any aspect of
a meticulously negotiated convention.
President Reagan outlined six concerns which needed to be addressed
to make the Treaty acceptable to the U.S.: the most important of these
were that the Treaty should not deter development of seabed mining;
that its decision making structure should reflect and protect economic
interests and contributions of participating states; and that it should
be susceptible to ratification by the U.S. Senate.
OPEC had stimulated a broad desire for cartelizing other needed
mineral products. The LOS Treaty would become an instrument for
assisting in the development of such cartels to insure high prices by
controlling supplies.
The G-77 was unwilling to accommodate basic American concerns.
Bangladesh's representative Imam UL-Hak spoke for the Group of 77 of
which he was chairman. He reproached the Reagan administration for
delaying proceedings asserting that ``the U.S. is overly preoccupied
with the extension of the Assembly's power.'' The G-77, he underscored,
``has consistently rejected the concept of veto, weighted voting, or
voting by chambers.'' He chided the U.S. for seeking unequal power. He
utterly ignored the unequal contribution the U.S. would make because of
its advanced technology. In short, Ul-Hak explicitly rejected each of
the Reagan administration's concerns. No concessions would be made.
Basically, the G-77's position was that the U.S. could take it or leave
it. There were a good many influential Americans who thought we should
take it.
But not at top levels of the Reagan administration. An Interagency
Senior Advisory Group on the LOST was convened in which most
departments were represented, including State, Defense, Commerce,
Transportation, Central Intelligence Agency (CIA), National Security
Council (NSC), Treasury, Energy, Office of Management and Budget (OMB),
Interior, and White House staff. Their conclusions were reported in a
memorandum of March 4, 1981:
1. The LOST was unacceptable;
2. Both the Treaty and the U.S. delegation must be closely
examined;
3. An immediate review must be undertaken;
4. The existing delegation must not preempt the administration's
options.
To this end the decision was made to issue written instructions to
the delegation, other nations were to be informed of the review, a new
Ambassador to LOST should be appointed, and to insure fidelity to the
administration's orientations, it was recommended that consideration be
given to replacing several high ranking members of the U.S. delegation.
The administration did not really want to ``dash the hopes of
mankind,'' which they were often accused of. But on the other hand, it
did not want to make it impossible for humans to utilize the minerals
of the ocean floor. It didn't want to discourage the development of
technology for seabed mining. It didn't want to encourage the
development of new cartels. It didn't want to agree to revolutionary
doctrines of property. The notion that the oceans or space are the
``common heritage of mankind'' was--and is--a dramatic departure from
traditional Western conceptions of private property. Most members at
upper levels of the Reagan administration were reluctant to put our
foot on that slippery slope. But there were a good many Republicans as
well as Democrats who thought it important for the U.S. to continue to
participate in negotiations.
An influential bipartisan group urged full support and constructive
participation in the LOST Conference. They argued that the Treaty would
serve U.S. foreign policy interests, promote the rule of law, friendly
relations among states, and the peaceful settlement of disputes. Today,
their heirs still believe the treaty will guarantee these benefits.
No American commentator denied that the provisions concerning
seabed mining were prejudicial to industrial nations, but they believed
we should go along anyway. Many of the strongest proponents of the LOST
believed that new global institutions were needed to deal with the
global interdependence which they thought characterized the
contemporary world. They would have preferred guaranteed U.S.
representation on LOST governing bodies and some sort of veto, such as
that possessed by the five permanent members of the Security Council or
a rule of consensus which gave all an effective veto power. But they
thought we should settle for the treaty as it was.
The Reagan administration also saw serious constitutional
questions. How could the constitutional requirement that treaties be
ratified by the Senate be met if the contents of the agreement could be
altered by a two-thirds vote of the members? This provision for easy
amendment by an Assembly majority made the Treaty an open ended
commitment. Henceforth, the United States would be bound by what two-
thirds of the Assembly said we should be bound by. That is, we would be
bound by decisions of the G-77, a prospect that could not but appall
anyone who had taken a good look at decisions and policies endorsed by
the G-77 in those years.
Decisions were made by consensus inside the G-77, but the G-77
rejected application of the same principle for decision making in the
LOS Assembly. The operation of the rule of consensus inside the G-77
guaranteed that the interests and needs of individual G-77 members
would be taken into account, but there would be no parallel
institutional arrangement to take account of the interests of developed
nations.
In the view of the Reagan administration, U.S. concerns rested on
experience and taxable interests. The Treaty proponents' case rested on
hopes--that the LOST would enhance international peace by advancing
international cooperation and a sense of obligation that we should do
what a majority of nations asked of us. Among Democrats, liberal
Republicans, and within the Department of State, these feelings were
strong enough to delay a U.S. decision on the LOST for nearly 2 years.
Then the U.S. decided not to participate in the PrepCom conference.
That decision not to participate in the PrepCom conference confronted
us with another decision of importance for U.S. policy vis-a-vis the
U.N. system. The General Assembly voted 132 to 4 on a resolution that
judged the costs of the LOST PrepCom as falling under the general U.N.
budget.
This confronted the U.S. with another, immediate decision.
To pay or not to pay the assessed share of the expenses of the
PrepCom conference in which the U.S. would not be participating? As
usual, the issue was more complex than it seemed. At the heart was the
question of U.S. financial obligations under the U.N. Charter and
international law. Is the U.S. required to pay all charges assessed by
the U.N.? Is failure to do so a violation of international law?
Some opinions outside and inside the State Department held that
failure to pay the assessed portion of the budget constituted a
violation of our obligations under the U.N. charter and therefore would
be illegal. A bipartisan majority of Congress, however, had passed a
law which the President had signed on authorizing withholding a U.S.
contribution to any expenditure whose principle purpose was to aid and
abet the Palestine Liberation Organization (PLO) and Southwest Africa
People's Organization (SWAPO), which regularly claimed the right to
pursue their political goals by force. Some believed we were legally
bound to do whatever a U.N. body decided. However that interpretation
was not the only one.
The International Court of Justice in the Certain Expenses Case,
however, had held that an assessed expense was not automatically valid.
To create collective obligation to pay, the expense must be legitimate.
Legitimate expenses were those necessary to the implementation of the
fundamental principles of the U.N. Charter. Only essential activities
tied to the U.N. Charter's fundamental purposes created an obligation.
The grounds cited by the State Department's legal advisor in 1982 for
withholding U.S. contributions to the PrepCom was the relation of the
LOST PrepCom to the U.N. Charter. The PrepCom was not created by the
General Assembly or the Security Council and was not answerable to the
U.N. It was ``established by a treaty regime separate from the U.N.
Charter.'' Therefore, he concluded, ``a good case can be made that the
LOST PrepCom expenses are expenses of a different entity, not lawful
expenses of the U.N. within the meaning of the Charter and thus not
properly assessable against non-consenting members. That was a relief.
The fact that the expenses of the LOST PrepCom were so readily
increased under the U.N. program budget--and by that vote of 132 to 4--
illustrated the realism of the U.S. concern about our relative
isolation in the U.N., and also about a new trend in the U.N. policy
toward defining extraordinary expenses into the U.N.'s core budget.
This redefinition is an easy solution to the problem of financing
activities for which it is difficult to secure voluntary contributions,
and as usually, entails little or no cost to the majority voting to add
on expenses.
The decision of the U.S. not to participate in the LOST seems to me
even better today than when it was made. There has been time to observe
the decline of OPEC and the benefits of that decline, time to
experience the cavalier fashion in which the G-77 is ready to impose
obligatory burdens on developed countries, and there has been an
opportunity to see that when the U.S. declines to go along with a
scheme that is incompatible with American interests but beloved by the
global establishment, the sky does not fall.
The LOST was the first of a number of issues in which the Reagan
administration's convictions and electoral commitments contradicted the
orientations of the liberal establishment that is dominant in much of
our society. It has proved more difficult to affect the objectives of
American policy than reported in standard descriptions of policy making
in a democracy.
Of course, important events affecting the Treaty have occurred in
the years following the Reagan administration and modifications of the
Treaty have taken place. But the modifications have not been major. The
Treaty is fundamentally the same. On October 7, 1999, President Clinton
transmitted to the U.S. Senate the 1982 UNCLOS and the 1994 Agreement
relating implementation of Part XI of the Convention. On November 16,
1994, the treaty entered into force but without accession by the United
States.
The most important modifications of the Treaty dealt with seabed
mining. They specifically assert that the provisions dealing with
mandatory technology transfer ``shall not apply.'' These mandatory
provisions are replaced by a set of general principles on technology
transfer. Modifications also eliminate some of the competitive
advantages of the Enterprise, and the terms on which it becomes
operative. These amendments are obviously desirable, but they do not
address the basic structure or consequences of the Treaty.
I have read much of the discussion of the Treaty and I regret to
say that I remain concerned that its ratification will diminish our
capacity for self government, including, ultimately, our capacity for
self defense.
Chairman Warner. I think that point is very clear.
Ambassador Kirkpatrick. I hope so.
Chairman Warner. Would you have the opportunity to take a
few questions?
Ambassador Kirkpatrick. I would be happy to.
Chairman Warner. Fine.
Would you like to lead off, Senator?
Senator Inhofe. First of all, Madam Ambassador, thank you
so much. You have been a hero of mine for a long, long time and
I appreciate it so much.
I think you have really come through loud and clear. I took
the opportunity to read your statement before you came in and
you have really covered a lot of things that I was not sure you
would be able to cover. I think the main thing is that the U.N.
is a political body and that is so important for people here to
understand. The interests that they have in the membership of
any of these sub-groups do not always coincide with our
interests.
Ambassador Kirkpatrick. To put it mildly.
Senator Inhofe. Let me just mention, it is my understanding
under the LOST the International Seabed Authority will require
high-resolution sonar images and graphics in order to stake a
claim on part of the continental shelf beyond the 200 nautical
miles. Now, we are talking about the oil industry is now behind
this because they feel they are going to be able to do
something they cannot do today, and you heard me say the
concern that I would have for them if they made this investment
and all of a sudden there is an opt-out.
Ambassador Kirkpatrick. Right.
Senator Inhofe. But these images that they take, in order
to stake a claim they have to do these things. This is not
optional. This is required. They contain critical information
about the coastline of the United States, such as potential
submarine routine schemes, and assist in locating potential
locations for underwater sensors used for the monitoring of the
movements of our commercial and military ships.
Any country that is a party to this has total access to all
that information. Does that concern you, that we would be
exposed to countries who would use that for their purposes and
yet we would be required to share that information with them? I
might add, it is not something government could stop because
this is the private sector doing it.
Ambassador Kirkpatrick. Right. Senator Inhofe, that
concerns me very much. It really concerns me very much, just
like there are aspects of proposals concerning space that
concern me a lot, too.
Senator Inhofe. Then that is the other thing I was going to
mention. You heard me ask the previous panel the question, and
I can read it right here: Ships and aircraft while exercising
the right of transit, and so forth. Yet no one is talking about
that. I think the response I had--and I do not say this
critically--by Mr. Taft was: It is an opportunity, it is
something that we can use. But to me it goes beyond just the
Law of the Sea. It is the law of space, it is the law of the
air.
Does that concern you, the ambiguity of this?
Ambassador Kirkpatrick. Absolutely, and it concerns me, I
was really quite surprised when I looked in more detail than I
had at the amendments and revisions that have been made to the
treaty. I was surprised that they were as few, as limited as
they are. I thought that the treaty had been more significantly
altered from its 1982 status.
Senator Inhofe. In the 1994 round?
Ambassador Kirkpatrick. Right, right, right. Before I
looked at the 1994 revisions. I realize that, while those
revisions I think are welcome and desirable, they are--most of
the treaty is just as it was. I can assure you that the treaty
may not be getting much attention as it passes, makes its way
through the Senate today. This committee and one other as I
understand it have held serious hearings on it. But the treaty
got a great deal of attention in the first Reagan
administration and the President and Caspar Weinberger, whom
you should perhaps try to call here in the committee, had deep
reservations about it. We all did, as a matter of fact, and
Judge Clark did, and we felt that there were commitments
involved in the treaty, in accession to the treaty, which would
be profoundly adverse to the United States's interests in fact,
profoundly so, because of our perpetually weak political
position in the U.N.
Senator Inhofe. Mr. Chairman, I really believe that
Ambassador Kirkpatrick has just been an excellent witness, and
I have no further questions.
Chairman Warner. I share those views. I would like to ask
one question. I think you made a point very strongly, and I go
back to the letter signed by all of the legal advisors of the
Department of State. You made reference to the Honorable Davis
R. Robinson.
Ambassador Kirkpatrick. I just barely scanned it. I just
got it while I was sitting here.
Chairman Warner. Well, that is all right. Then you note
that Abraham Sofaer--you remember him----
Ambassador Kirkpatrick. Right.
Chairman Warner. I was here all during that period and
dealt extensively with those two distinguished gentlemen. But I
think your point comes to the following sentence in this
letter: ``In addition, the United States will have a permanent
seat on the governing council of the ISA, where consensus is
required for the approval of all regulations, including those
dealing with financial matters.''
Now, that is one of the areas in which you feel that we
just will not have sufficient votes, I suppose?
Ambassador Kirkpatrick. That is probably the biggest single
revision, reform if you will, of the seabed mining provisions
as I understand it from the 1982 treaty. It is so sweeping that
I find it hard to believe that they mean it, frankly. But maybe
they do.
That is another aspect of U.N. operations. They use
language in a much more sweeping way. I testified against
several U.N. treaties before Senator Biden's committee and he
said to me one day on one occasion that he thought I really
just opposed U.N. treaties. The fact is I do tend to oppose
U.N. treaties, for very good reasons, one reason being that the
United States when we sign a treaty we take it seriously and we
seriously try to implement all the commitments that we make in
signing the treaty, but a very, very, very large portion of
countries signing U.N. treaties just do not view treaties that
way.
I always think of Iraq sitting on the governing body of the
International Atomic Energy Agency (IAEA) during the first Gulf
War as an example of the seriousness of U.N. treaties. That is
what I have to say.
Chairman Warner. I thank you, Madam Ambassador. I join my
distinguished colleague in expressing profound respect for your
many, many accomplishments and your contribution today on this
important issue. So we will proceed to our third panel at this
time, and I thank you very much.
Ambassador Kirkpatrick. Thank you.
Chairman Warner. We will have the Honorable J. William
Middendorf II, former Secretary of the United States Navy;
Professor John Norton Moore, University of Virginia Law School;
and Rear Admiral William J. Schachte, former Judge Advocate
Corps, United States Navy. [Pause.]
Secretary Middendorf, I have waited 26 years for this
moment. We were in the Navy secretariat together. We worked
together. You stepped up to become the Under Secretary and then
when I moved on to run for the Senate you stepped into the
Secretary's office, and you handled yourself with great
distinction, and I just cherish the long memories that we had
together in those tumultuous and difficult days of the closing
years of the war in Vietnam.
I thank you for your long and public distinguished career,
distinguished career in public office, and for your willingness
to appear here today.
I think I could say the same of you, John Norton Moore. We
have known each other about the same period of time. How many
years have you devoted yourself to the law regarding the
oceans?
Mr. Moore. About 3 decades, Senator.
Chairman Warner. About 3 decades.
Admiral, I expect we crossed paths somewhere, although you
were----
Admiral Schachte. Yes, sir, we have.
Chairman Warner.--wise to stay out of my path in those
days. [Laughter.]
Admiral Schachte. It was difficult, sir, yes. I have spent
about 20 years in international legal and LOST matters, sir.
Chairman Warner. Gentlemen, thank you for coming today and
thank you for exercising your patience while we have gone
through these two panels, important testimony from both panels.
Now we will open up, Mr. Secretary, with your views.
STATEMENT OF HON. WILLIAM J. MIDDENDORF II, FORMER SECRETARY OF
THE NAVY
Ambassador Middendorf. Thank you so much, Secretary--I call
you ``Secretary'' because I look back 30 years ago and you were
our most distinguished Secretary----
Chairman Warner. Oh, no, no, no.
Ambassador Middendorf.--and did a fantastic job. I think
you have been a little understated today because, as I recall,
you traveled to Moscow and negotiated with the Soviet Union at
a critical moment in the Cold War----
Chairman Warner. That is true.
Ambassador Middendorf.--the LOST.
Chairman Warner. The Incidents at Sea Agreement.
Ambassador Middendorf. You were one of our great
secretaries.
Chairman Warner. Thank you.
Ambassador Middendorf. It is a pleasure to be here.
Chairman Warner. You likewise, my good friend. We will put
all of your statements into the record.
Ambassador Middendorf. Put that one in, anyway.
Chairman Warner. In the hope you can summarize and leave
some time for some questions.
Ambassador Middendorf. Okay. I did submit a lengthy report
for the record. I am going to talk a little more about process.
Jeane was so great in talking about the political ramifications
of joining up with a political body like the United Nations,
where they have certain authority over us with teeth in it.
Mr. Chairman, it is an honor to have the opportunity to
testify before this distinguished committee on the matter of
Senate advice and consent. I emphasize the word ``advice''
because too often the Senate sometimes approves, consents to a
treaty, but I think that if there ever was a time when advice
was needed from the Senate this is it. It is an extremely
important power that the Senate has on the question of advice
and consent.
I look back for a moment that this treaty--Jeane
Kirkpatrick and I both 21 years ago, I think, both testified
against this treaty. So I just dusted off my 21-year-old paper,
changed the date, in a sense. No, that is not quite true. The
ISA rules have been changed and there have been some
strengthening advantages here, and the Cold War is over. The
U.N. actually is less socialistic, you might say almost semi-
communistic, than it was 21 years ago. But it still is full of
faults, as Jeane pointed out, and I have a lot of reservations
about grade creep and our opportunity from a military point of
view to opt out of some of these provisions, and I will cover
some of those.
At the moment we operate freely in the customary
international mechanisms of this treaty. It has been discussed
that there are certain trends among states to restrict our
maneuvering space and we should be inside the tent. That is
true. It is always an advantage to be inside the tent, I guess,
most of the time, but when you are inside the tent as one of 36
and we saw that even having veto power, as we had in the
Security Council, it did not necessarily mean that we could
have our way with the recent vote in the United Nations. We did
not win that. Our veto was not--when France decided to threaten
a veto against us on Iraq.
I have four problems with the convention. State sovereignty
is number one. The convention establishes open-ended procedures
for administering its myriad provisions that could lead to
negative outcomes for the U.S. and that are all but impossible
for us to predict by simply reading its text. It cedes power to
international authorities that are unaccountable and whose
behavior individual states cannot control or predict. If the
U.S. became a participant in the treaty, it may regret it in
the years to come.
Proponents of the treaty acknowledge the far-reaching
political and legal ramifications of adherence to the treaty.
One of the greatest juridical minds in America, John Norton
Moore who sits here with us today--I must say, I go back too so
many years in the State of Virginia with this great man. It is
just overwhelming what he has done for our country.
But he testified last October before the Senate Foreign
Relations Committee that--and this gives me pause and it might
give some of us pause. He said: ``This is one of the most
important law-defining international conventions of the 20th
century.'' Good God. That is quite an assertion.
While wrapped in language promoting the rule of law and
international relations, in reality it represents the
establishment of the rule of law over sovereign states more
than establishing a rule of law made by them.
There are tremendous advantages that have been given to the
Navy, the right of passage and what have you, in this program,
but there are also issues of sovereignty that we have to look
at.
The second issue concerns the convention's bias in favor of
redistributing global economic resources. Now, those terms were
written back in the 1970s when socialism was the thing, and let
us transfer all of our wealth to everybody else because we are
the guilty ones because we have cash money. I recognize that
things have changed substantially in the U.N. and in the body
politic. We have seen privatization and free enterprise
developing throughout Latin America. Sixty percent of all the
industrial production of the states down there back in the time
when I was Ambassador to the Organization of American States
(OAS) were owned by the government, resources owned by the
government. Now most of them have privatized and free market
principles, Hernando de Soto ideas, have spread throughout
Latin America.
We have seen that all over Europe too, although I still
feel labor rigidities and there are a whole lot of socialistic
programs there that are encumbering them. Africa--I just came
back from Kenya. They are making efforts, although small, to
privatize and have more freedom. It is a pretty sad situation
still. We have seen Asia expand and have free enterprise and a
lot more democracy and what have you, in even Vietnam.
So I have to admit that the changes are much more
beneficial to our concepts than they were. But specifically,
article 140 of the treaty, which I would ask this committee to
consider amending, states that ``All activities outside the
jurisdictional waters of individual states be carried out for
the benefit of mankind.'' That is still in there. That is a
horror story. I remember talking to President Reagan about
that. Just none of us could take that concept.
``Taking into particular consideration the interests and
needs of developing states.'' That is pure socialism.
It is unclear why the United States should accept a treaty
that is so explicitly biased against its interests when it
comes to access to resources.
Third, the third point I make, is the convention contains
an ill-advised revenue-sharing provision that is applied to
income derived from oil and gas outside the EEZ. The U.S. will
be forced to pay a contribution to the International Seabed
Authority (ISA) created by the treaty based on production, a
percent of production. By any reasonable definition, this
provision would allow a U.N.-affiliated international authority
to impose a tax directly on U.S. economic activity. To my mind
there is no other precedent in any treaty we have signed in the
world until now.
Proponents of the convention argue that this revenue-
sharing is well below royalties they pay elsewhere. I know some
of the mining companies say that. But I recall the debate in
1913 that, reading about the debate in 1913, that the income
tax--it was represented to the United States Senate, this body,
that the income tax would never exceed 1 percent.
Finally, the convention poses a significant risk to
national security, and I would like to get into the core of
this. Will Taft and Mark Esper both testified on behalf of the
administration before the Senate Foreign Relations Committee
last October that the mandatory dispute resolution mechanism
could be used by states unsympathetic to the United States to
interrupt its military operations, even though such operations
are supposed to be exempt from the mechanism.
They pointed this out as a flaw in the treaty. This is
because it is unclear by the terms of the treaty what
activities would be defined as ``military,'' as we heard today.
While the administration believes it would be up to each state
party to determine for itself what activities are military, it
is uncertain enough about the issue that it is recommending
that the United States submit a declaration reserving its right
to determine which activities are military--the whole question
as to the opt-out provision.
Unfortunately, it is not at all certain that a declaration
will suffice to protect vital U.S. national security interests.
The whole opt-out question is open to dispute. Other states may
choose to accept or ignore the declaration and take action to
interdict our ships or planes in the EEZ. We saw this from
China a couple years back.
In this context--and we heard Senator Sessions today ask a
question--a future administration may accept the jurisdiction
of a tribunal and be surprised if precedent-setting decisions
go against U.S. interests or, for example as in the Irish
dispute, England could accept jurisdiction of a tribunal
assuming its cause is very just, and of course it is just, and
then suddenly find out, as Jeane Kirkpatrick pointed out, that
the United Nations is a political body and they decide to do a
number on Britain, and there is a precedent-setting decision
made which could, like all court decisions, like the court
decision in Massachusetts recently banning--creating the
opportunity for civil marriages, I believe it was, or what have
you, becomes the law of the land or it becomes a precedent for
others.
John Norton Moore could explain better than I can or
perhaps rebut this. But it becomes a precedent under which we
might be bound in the future, even though we are not members--
even though as members of this body.
Furthermore, in the future--and this is another question on
the opting out business. In the future the Navy may recommend
that the U.S. reject a claim of jurisdiction for a tribunal,
but future civilian authorities trying to make a point on
nuclear power or what have you, as was pointed out, may
recommend that the U.S. reject a claim of jurisdiction for a
tribunal--but future authorities both inside and outside the
DOD may overrule the Navy.
In other words, it may be that someone may say, well, sure,
we have been arrested for, we have been caught for, stopped for
drunk driving, but we are not going to take a breathalyzer
test. Then someone might say, well, let us take a breathalyzer
test, our cause is so just, and they might be surprised if the
results go against them, for example, in the future.
It may be that if we think our cause is so just we will
take it to court, and we may be surprised at the results in the
court. If the court goes against us, and we know that they are
political bodies that are not amicable to our cause, in the
future it may well be that we will have a precedent there that
will bind us forever more.
The rules of the Senate codify the power to advise, not
just consent. So I have three recommendations: One, strike
article 140, which establishes the philosophical principle in
the convention in favor of redistributing resources from
developed countries to developing ones;
Two, strike article 82, which establishes the revenue-
sharing mechanism for the exploitation of resources in the
outer continental shelf;
Three, amend the provisions of part 15 to codify within the
treaty what the U.S. hopes to achieve regarding exclusions from
dispute settlement procedures through the adoption of a
declaration. That is that whole opt-out question that I had.
With revenue capabilities and mandatory dispute settlement
mechanisms, all bureaucracies and courts are subject to grade
creep. There has never been a case when they did not. The LOST,
like the seemingly innocent European Coal and Iron Community in
the 1950s, is a modest step towards the creation of an
international sovereign authority unchecked by the governed,
but it is a significant one. Given that modern states,
including the one envisaged as a united Europe under the
European Union, are a product of a combination of small steps,
the UNCLOS poses a similar danger to U.S. sovereignty.
I remember first of all the Iron and Steel Community
started as a small step, a few members of the staff, and they
said it would never grow. It was passed. Then Mansoldt, a
friend of mine, set up the Common Agricultural Policy, a
Dutchman, and the Common Agriculture Policy had teeth in it and
it meant a big subsidy for the French and it also had huge
subsidy powers, the carrot and the stick approach, and the
whole European Economic Union came out of that.
Then step by step--I remember Lord Cofield, sitting down
with Lord Cofield when he came down from--Margaret Thatcher
threw him out, more or less threw him out of the cabinet up in
Britain, and it was supposed to be an afterthought to give him
a job down at the European Union, European Economic Community
it was called in those days. I was his colleague. I was an
Ambassador there at the time, and I sat down with him and we
went over those 100 points that he was going to draw up, that
would have to be ratified by the various countries unanimously
and then that would lead one to the European Union. It gave
teeth to the European Union.
Jacques Delors and Lord Cofield pushed it through and made
it succeed, and the European Union emerged as an organization
with great teeth. France and Germany have become provinces of
that union. Now we see today a bureaucracy unparalleled on the
world scene.
If you go to the Berlemont today, you will find bureaucrats
coming out of your ears, making new regulations on whether you
can shoot blackbirds or shoot crows on your English property or
the color of labels on cans and what have you. The bureaucracy
works night and day.
The people of the United States are depending on the Senate
to protect the sovereignty of this state. I think the treaty
should be amended. We dodged the bullet on the International
Chamber of Commerce (ICC) recently. I do not see a whole lot of
difference here. That was a body that could have given us a
great deal of trouble--it had teeth in it. The Kyoto treaties,
which Admiral Lohr and Jane Dalton of the Navy were heroes
really in blocking and helping do the legal work on the ICC,
blocking that.
I think the treaty should be amended or rejected, and this
is I think a very significant thing that we should be doing.
Thank you, Senator.
[The prepared statement of Ambassador Middendorf follows:]
Prepared Statement by Hon. William J. Middendorf II
Mr. Chairman, it is an honor to have the opportunity to testify
before this distinguished committee on the matter of Senate advice and
consent to the ratification of the UNCLOS.
Those who founded our Nation recognized the power to make treaties
is an extremely important power. In their wisdom, they sought to ensure
that treaties would serve the national interest by dividing that power
between the executive branch and the Senate. Article II, Section 2, of
the Constitution states that the president ``shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties.'' Further,
Article II establishes a two-thirds voting requirement for the approval
of treaties by the Senate. Clearly, they intended to place the burden
on the proponents of a treaty to demonstrate its value to the United
States. The far-reaching provisions of the treaty that is the subject
of this hearing amply demonstrate why the Nation's founders divided the
treaty-making power. There are compelling reasons why the Senate should
take the time and care necessary to review this treaty and understand
all its implications.
In March 23 testimony before the Senate Environment and Public
Works Committee, Assistant Secretary of State for Oceans, International
Environment, and Scientific Affairs John F. Turner confirmed that the
administration supports Senate approval for the ratification of the
1982 UNCLOS (hereinafter referred to as the Convention). The
administration's position is puzzling to me because the United States
had considered and rejected the Convention during the Reagan
administration. I do not see a compelling reason to revisit the issue
today.
While proponents of the Convention argue that the Clinton
administration resolved the problems with the treaty that led to its
rejection in the 1980s, through renegotiation in 1994, the fact remains
that it represents a potential turning point for the U.S. in the
history of international relations. The Convention presents the U.S.
with a stark choice. On the one hand, the U.S. may enter into this
treaty and proceed on a path that cedes U.S. sovereignty to executive
and quasi-judicial international authority with compulsory powers or
reject the treaty and stick to the tried and true international system
where relations are established between and among sovereign states.
While the Convention contains a wide variety of questionable
provisions, its real danger stems from the fact that the treaty
represents more than the sum of its questionable provisions. It
establishes open-ended procedures for administering these provisions
that could lead to negative outcomes for the U.S. that are all but
impossible to predict by simply reading its text. If the U.S. becomes a
participant in this treaty, following a move by the Senate to approve
ratification, it may regret it in the years ahead.
MYRIAD PROBLEMS
The Convention has a variety of problems. This is not surprising
given that the treaty takes up more than 150 pages. What is surprising
is that even the proponents of the treaty both inside the
administration and outside it have publicly acknowledged a number of
the dangers associated with several specific provisions. Prior to any
vote by the Senate to consent to the ratification of the Convention,
all senators should fully understand the dangers posed by these
provisions. They should not, however, stop there. Senators need to take
the additional step of understanding each of these provisions in the
context of open-ended and in some instances compulsory dispute
settlement and other procedures, over which the U.S. will only have
limited control and that could produce adverse outcomes that are all
but impossible to predict. The following represents four general
shortcomings of the Convention:
Problem #1: Loss of Sovereignty
Traditionally, treaties, with only narrow exceptions, have been
defined as formal agreements between and among sovereign states that
help define their relations to each other as sovereign states. They are
inherently political agreements. The option to change such relations
and the concomitant power to discontinue adhering to the terms of a
treaty is solely the prerogative of the sovereign.
First and foremost, the Convention represents a departure from that
tradition. It establishes institutions with executive and judicial
powers that in some instances are compulsory. For example, Section 4 of
the Treaty establishes the ISA. The authority basically is given the
power to administer to the ``area'' under the jurisdiction of the
treaty, which includes all the world's oceans and seabed outside
national jurisdiction. This is a granting of executive powers to the
authority that supersedes the sovereign power of the participating
states. Of even greater concern, Part XV of the Convention establishes
dispute settlement procedures that are quasi-judicial and mandatory.
Once drawn into this dispute settlement process, it will be very
difficult for the U.S. to extricate itself from it.
Proponents of the Convention acknowledge the far-reaching political
and legal ramifications of U.S. adherence to the treaty. University of
Virginia School of Law Professor John Norton Moore, a supporter of the
Convention who testified before the Senate Foreign Relations Committee
on October 14, 2003, stated that he sees it as a means for fostering
the rule of law in international affairs. In fact, he states that
adherence to the Convention is ``one of the most important law-defining
international conventions of the 20th century.''
This is quite an assertion. In fact, it is the most troubling
aspect of the Convention because the conduct of international relations
for centuries has been a more a political than a legal process.
Unacknowledged in the language about fostering the rule of law in
international relations is the reality that in this particular case it
entails subordinating the powers of the participating states to the
dictates of an international authority. When it comes to the essential
powers for the conduct of international relations, the use of force,
and the exercise of diplomacy, they are not readily divisible but they
are readily transferable. The Convention is a vehicle for transferring
these essential powers from the participating states to the
international authority established by the treaty itself. It represents
the establishment of the rule of law over sovereign states more than it
is establishing a rule of law made by them.
Former Secretary of State George Shultz provides a succinct
rejoinder to those who envision the rise of the ``rule of law'' in
international relations in the way it is devised in this Convention.
Speaking at the Library of Congress on February 11, 2004, Secretary
Shultz stated:
First and foremost, we must shore up the state system. The
world has worked for three centuries with the sovereign state
as the basic operating entity, presumably accountable to its
citizens and responsible for their well-being. In this system,
states also interact with each other to accomplish ends that
transcend their borders. They create international
organizations to serve their ends, not govern them.
Problem #2: Unnecessary limitations on the exploitation of resources.
The Convention was drafted at time when the failed policies of
state control over resources to meet demands for the redistribution of
those resources were in vogue. Specifically, Article 140 of the
Convention states that all activities outside the jurisdictional waters
of individual states ``be carried out for the benefit of mankind''
while ``taking into particular consideration the interests and needs of
developing States.'' These international waters and the accompanying
seabed are defined as those outside the 200-nautical-mile EEZ the
treaty leaves within the jurisdictional control of participating
states.
It is unclear why the U.S. should accept a treaty that is so
explicitly biased against its interests when it comes to the access to
resources. This is particularly so when this bias reflects a policy
preference for the redistribution of resources that the world abandoned
over a decade ago. The world economy is now organized around the
requirements of the market. As elsewhere, the application of market
principles regarding the exploitation of sea-based resources will
ensure the effective and efficient use of those resources. U.S.
adherence to the Convention, therefore, would represent a step
backward.
Problem #3: A step in the direction of international taxing authority.
The Convention contains an ill-advised revenue-sharing provision
that is applied to income derived from oil and gas production outside
the EEZ. The general bias in the Convention, as I indicated earlier, is
in favor of the redistribution of seabed resources. This bias is
codified in the area of oil and gas revenues. The U.S. will be forced
to pay a contribution to the ISA created by the treaty based on a
percentage of its production in the applicable area beyond the 200-mile
limit.
While he asserted the argument against this revenue-sharing
provision was unconvincing, State Department Legal Advisor William H.
Taft IV acknowledged it was an argument that could be made in the
course of October 21, 2003 testimony before the Senate Foreign
Relations Committee. Mr. Taft understates the problem. By any
reasonable definition, this provision would for the first time allow a
U.N.-affiliated international authority to impose a tax directly on the
U.S. for economic activity. At least, I am unaware of any precedent for
this kind of international taxing authority.
Shoring up the state system, as recommended by former Secretary of
State Shultz, means that international institutions should be funded by
the voluntary contributions of their member states. The extent to which
these international institutions are allowed access to independent
streams of revenue is the extent to which they will seek to obtain
governing authority at the expense of the state system. While the
revenue-sharing provision related to oil and gas production in the
Convention is a relatively modest step in this direction, it is still a
step in the wrong direction.
Problem #4: Unnecessary Risks to National Security.
Proponents of the Convention argue that it promotes U.S. security
by codifying a variety of rights to navigate the world's oceans that
are valued by the Navy. While the Navy, quite appropriately, seeks the
codification of these rights, it should be pointed out that a
significant portion of these rights are already established by a series
of four 1958 ``Geneva Conventions on the Law of the Sea'' and customary
international practice.
On the other hand, the risks to national security posed by the
Convention are often understated. For example, Deputy Assistant
Secretary of Defense for Negotiations Policy Mark T. Esper, who
testified in favor of the Convention, told the Senate Foreign Relations
Committee in an October 21, 2003, hearing that the mandatory dispute
resolution mechanism could be used by states unsympathetic to the U.S.
to curtail its military operations even though such operations are
supposed to be exempt from the mechanism. This is because it is unclear
by the terms of the treaty what activities will be defined as military.
While the Bush administration believes that it will be up to each State
party to determine for itself what activities are military, it is
uncertain enough about the issue that it is recommending the U.S.
submit a declaration reserving its right to determine which activities
are military. Unfortunately, it is not at all certain that a
declaration will suffice to protect vital U.S. national security
interests. Other states may choose to accept or ignore the declaration,
or a future administration may accept the jurisdiction of a tribunal
and be surprised if precedent-setting decisions go against U.S.
interests. While in the future the Navy may recommend that the U.S.
reject a claim of jurisdiction for a tribunal, civilian authorities
both inside and outside the DOD may overrule the Navy. Amending the
text of the treaty may be the only certain way to protect U.S.
interests against overreaching by other states regarding the mandatory
dispute resolution mechanism. This is my view, in part, because I am
not aware of a precedent for such a mandatory dispute settlement
mechanism that could extend to such sensitive areas.
The Senate has the power to advise as well as consent. The four
general shortcomings with the Convention that I have described are
derived from a longer list of specific shortcomings in a variety of the
specific provisions it contains. There are more concerns that I have
not detailed here, not the least of which is a simplified treaty
amendment process that raises constitutional questions.
In recent years, the Senate has paid more attention to its role in
consenting to the ratification of treaties and less to its power to
advise the executive on their content. The rules of the Senate codify
this power, in part, by allowing Senators to offer substantive
amendments to the text of a treaty. If ever there were a case for the
Senate to reclaim the full measure of its power to advise, this is it.
I believe that senators who conclude there are shortcomings in the
substance of this treaty should not hesitate to propose amendments to
the text of the Convention if it comes before the full Senate. Clearly,
it is preferable to resolve these shortcomings now over letting the
Convention come into force for the U.S. and hope they do not prove
injurious to U.S. interests.
CONCLUSION
The UNCLOS is a modest step toward the creation of an international
sovereign authority unchecked by the governed. Nevertheless, it is a
significant one. Given that modern states, including the one envisioned
for a united Europe, are the product of a combination of just such
steps, it is one the United States should not be taking. Further, the
treaty contains a number of specific provisions in such areas as
regulation, energy, the environment, national security, and
constitutional law that are deeply troubling.
National leaders in Europe seem to aspire to relegating their
nations to the status of provinces inside a supranational European
authority. In this context, it is not surprising that some outside the
United State see this move in the direction of broader authority for
international entities, which Secretary Shultz has warned against, as
desirable.
As for America's leaders, they should firmly reject such
aspirations for their nation now. Insofar as the UNCLOS seeks to move
the United States in this direction and serves as an indicator of steps
yet to come, it poses a danger to the vision America's fathers had for
the Nation they founded in 1776.
Chairman Warner. Thank you very much, Mr. Secretary.
Professor Moore.
STATEMENT OF PROFESSOR JOHN NORTON MOORE, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW
Mr. Moore. Chairman Warner, my congratulations to you on
holding these important hearings. Like Ambassador Middendorf, I
go back long enough that I remember some of the wonderful
leadership you have provided for U.S. oceans interests. You
were head of the delegation that negotiated the Incidents at
Sea Agreement that was really a path-breaking one for many
countries, done in 1972; and your work as the special
representative of the SECDEF in the early negotiations on this
treaty that you now have before your committee.
I have felt that throughout your career you have understood
and fought for a preeminent United States Navy and American
leadership in the world's oceans second to none. So it is a
very special pleasure to be here today.
Chairman Warner. Thank you, Professor. It is very
thoughtful of you.
Mr. Moore. Since you have kindly put my prepared statement
in the record, if you do not mind, Mr. Chairman, I think it
might be more useful if I rather extemporaneously respond to a
number of the concerns that have been raised, things that I
regard as misunderstandings about the treaty. But first, before
I mention what those might be, let me just say very briefly
that I believe the core issue here is just how strongly
important this treaty is in the security interest of the United
States.
It is particularly fitting to have this hearing before this
committee because that is really the fundamental issue of
concern in the overall treaty. It is of great importance and
enduring importance. I had the great privilege of chairing the
18 member interagency and cabinet group that prepared United
States negotiating instructions under Presidents Nixon and
Ford. At that time, and it has come down all the way to today,
what is really at stake in the LOST is our naval mobility, and
this treaty is an extraordinary win for the United States in
protecting that naval mobility.
So I thought that the statement of Admiral Clark and the
statement of Will Taft were right on point and just superbly
done. But I will not go through those points again, Mr.
Chairman. I think you have heard that.
Instead, I would like to talk briefly about four
misperceptions. The first is the relationship between the 1982
Convention and the 1958 Geneva Conventions that we are already
bound by today, that were approved by the United States Senate
back in 1958 and are binding on us.
The second is a little about the ISA, which has been raised
on a number of occasions. The third is a little bit about
dispute settlement, which has come up. The fourth is a little
bit about the information-sharing issue that Senator Inhofe has
raised.
Let me, however, begin by saying that I have enormous
respect for many of those that have a different view.
Ambassador Kirkpatrick and Ambassador Middendorf are people
that I count among my personal friends and they are among my
heroes. They have made an enormous contribution. Jeane has
written the best piece on totalitarianism ever done by anyone.
Bill's work in relation to the European Community was of
enormous importance to the United States and the whole world.
So it is with sadness that I find myself in a very
different position and I think, unfortunately, it is because we
really are kind of stuck in much of this debate some 10 or 15
years ago in the Reagan administration, where we did have a
problem. I was one of those at that time, Mr. Chairman, who
wrote a letter to the President of the United States and
testified before the Republican National Committee platform
hearings that we must have a renegotiation of part 11 of the
Treaty.
Reagan courageously accepted that and he indicated a series
of things that had to be changed. It took us 12 years to get
those changed, but I am delighted to say that we have. Indeed,
I think this is perhaps one of the most important points I
would make, Mr. Chairman. For precisely the reasons that Bill
Middendorf and Jeane Kirkpatrick and indeed the very
distinguished members of this committee have raised: is concern
for good international agreements and institutions; it is
precisely for those reasons that all of us should be strongly
in support of this treaty.
Now, let me shift and go to the first of these, which is
simply I think something generally left out, and that is many
of those dealing with this treaty do not realize that the
United States is already bound by a series of four now outdated
1958 Geneva Conventions. Those Conventions are binding on the
United States today. The only way you do an assessment of the
1982 Convention is to assess it against those 1958 Conventions,
and there are a couple of very important points I think that
ought to be understood here.
One is that overwhelmingly we won in the security updates
and protecting the security interests, again as you heard from
the CNO today. The 1982 Convention is infinitely better in
serious security issues, protecting United States naval
interests and others in many, many different ways. So to keep
in force those that are old and are not very effective for our
security interests as opposed to the one that is strikes me as
not really in our interest.
Related to that, Mr. Chairman, the 1958 Conventions have no
provisions for the United States to be able to denounce the
conventions and leave at any point. We cannot do that under the
current 1958 Conventions that are outdated, with bad law
applying to the United States.
At one fell swoop, by accepting the 1982 Convention we deal
with both of those problems. Article 311 of the convention
makes it very clear that the 1982 Convention and all of the
security advantages will prevail immediately and set aside all
of the 1958 Conventions; and in article 317 we get the ability
to give a 1-year simple withdrawal clause. So we are far better
off in relation--even for those, unlike me, who are skeptical,
we are far better off in relation to the 1982 Convention than
we would be under the 1958 Conventions.
Now, Mr. Chairman, to turn to the ISA, I would like to make
a number of points, but let me just suggest that in one area
that I disagree with my good friend Ambassador Kirkpatrick, and
that is in her prepared testimony when she says basically the
changes in part 11 are not very great. President Reagan set
those changes. The Congress of the United States passed
legislation setting those changes. They were great indeed, and
I am happy to say we achieved every single one of those in the
ultimate renegotiation plus a number of others.
Now let us just go through a few points in relation to
that. Number one, there is nothing in the ISA or any other
element created by the LOST that is United Nations. There is no
unit of the United Nations created. The ISA has no employee of
the United Nations. It is not United Nations. It is an
independent agency like approximately a hundred that the United
States is already a member of.
Second, it has extremely narrow scope. It does not relate
to some kind of global mechanism for the control of 70 percent
of Planet Earth. It instead deals solely with the issue of the
minerals of the deep ocean floor. It does not deal with the
question of fisheries in any way. It does not deal with water
column issues. It does not deal with navigation. It does not
deal with global security. It is a very narrowly limited
functional authority.
Third, there is absolutely zero loss of United States
sovereignty. In fact, Mr. Chairman, the real risk to United
States sovereignty is our sovereign rights in navigational
freedom that are being eroded through time. This treaty is a
fundamental tool to fight that erosion of our sovereign rights
in navigational security around the world.
But the issue of mineral resources of the deep ocean floor
has absolutely nothing to do with United States sovereign
rights. That is never an area that we have claimed. It is never
an area that any nation in the world has suggested that anyone
is entitled to claim, and we have opposed any kind of sovereign
claims in relation to that area.
The fourth point here is the authority is not a great
bureaucracy, and I might add it has been in existence for 10
years and it has not grown in that period of time. We are
talking about 37 employees with a total budget of $5 million,
considerably less than the Great Lakes Fishery Commission that
we happily adhere to with Canada.
In addition to that, this is not the original status kind
of solution that, Jeane is absolutely right, was initially
negotiated prior to 1982 and appeared at that time before the
renegotiation. Rather, not only did it meet all the conditions
of Ronald Reagan, rather a free market President who I served
and am delighted to say that was his predilection, but it went
out of its way to adopt a variety of free market principles:
cost effectiveness, commercial terms and conditions, ending
notions of production limitations, et cetera. So what we have
really is a fundamental shift toward free market kinds of
principles.
In addition to that, if we look to decisionmaking, which I
think Jeane had rightly focused on as a very important set of
issues in any negotiation, I am delighted to say we won in an
extraordinary way that sets precedents for the United States in
international organizations that should be powerfully endorsed.
What are those? The United States is the only nation in the
world given a permanent guaranteed seat on the council. We
cannot be voted on by the assembly as to whether we are going
to be there or not. It is a permanent guaranteed seat on the
council. That gives us individually permanently a veto over the
adoption of all rules and regulations adopted by the authority,
over all distribution of revenues going anywhere to any country
in the world, over all amendments to be made to the convention.
In addition to that, as long as we are on the finance
committee, which will be as long as there is money from any
country flowing to the authority, the United States has a
complete veto over everything relating to the rules and
regulations concerning financial kinds of matters as well.
Now, in addition to that, there is a procedure in the
chamber in which we have been given a chamber voting procedure
that we have begged for for years in international
organizations, very much like the way we have voting in the
World Bank and the International Monetary Fund. We have a
chamber in which any three members of that chamber can veto
absolutely anything else relating to this. Who are the members
of the chamber in addition to the United States? They are the
nations that we coordinated with in this negotiation to win it,
the old group of five and other developed nations. It is the
United Kingdom; it is France; it includes Russia today, the
Soviet Union then, and a number of other developed nations;
Germany today; Italy today.
So this is not an authority in the hands of third world
countries. This is an organization setting exactly the kind of
precedent that Bill Middendorf and others and I would hope the
Senate would strongly endorse. This is the way to go in
international negotiation.
Now let us go on to a couple of other points about that.
One is in the negotiation we had a setting in which every
single demand of the United States of America to renegotiate
was met. I would suggest to you it is not useful for us in
those settings to then say we are not going to adhere to the
treaty when here is what we wanted, set by a number of
presidents of both parties, and now it is given to us. What
that will do is dramatically undermine our ability to
cooperatively deal with other nations, including the great
importance of cooperation in the fight against terrorism.
Now, in addition to all that, in relation to the revenue-
sharing points, by the way, again there can be not a penny of
revenue shared with any nation in the world that does not go
through the veto of the United States under this provision. So
basically it is something that gives us the opportunity to
participate in an aid program, as we already do through the
U.S. Agency for International Development (AID), that would go
through international institutions and be useful, but it will
only be made with a U.S. veto.
If we do not join, however, Mr. Chairman, we have a very
strange setting in which, if revenues are ever generated, we
will not be able to control where they go. If they want to
decide to have them go to the PLO, for example, they will go to
the PLO. So if this Senate wants to have the ability to block
funds going to terrorist organizations or the PLO that might be
voted in the future, it should join this treaty and exercise
and use the veto that we have.
Now, finally, in relation to this second point, let me just
indicate that one of the oversight functions of this committee
deals with security in relation to mineral resources. In my
judgment, and I think there is really virtually no indication
of any possibility to the contrary on this, the United States
mining industry will totally, permanently be put out of
business if we do not go forward with this treaty.
If the United States wants to have access to copper,
nickel, cobalt, and manganese from the deep seabed, we must go
forward with this treaty. We have already lost two of our mine
sites. We had five initially, the best technology in the world.
We are about ready to lose it all. Seven different countries
have already been given exploratory licenses. We are out
because we are not a member, and I regard that as a very
significant issue.
[The prepared statement of Professor Moore follows:]
Prepared Statement by Prof. John Norton Moore
Chairman Warner and honorable members of the Armed Services
Committee--Mr. Chairman, you have long been a leader in protecting
United States security interests in the oceans. Your service as Under
Secretary of the Navy, then as Secretary of the Navy, and currently as
chairman of this committee, sets a sterling record of achievement for
our Navy and our Nation. You led our country in negotiating the
important Incidents at Sea Agreement \1\ with the former Soviet Union,
signed with you by Admiral Sergei G. Gorshkov, the Commander in Chief
of the Soviet Navy. You were of great assistance to me, in my role as
an Ambassador and Deputy Special Representative of the President for
the LOST Negotiations, in ensuring that those negotiations served
United States security interests. Indeed, your earlier service as the
Representative of the SECDEF to the LOST Negotiations in Geneva
established the framework for the successful convention you now have
before this committee.
---------------------------------------------------------------------------
\1\ Agreement Between the Government of the United States of
America and the Government of the Union of Soviet Socialist Republics
on the Prevention of Incidents On and Over the High Seas, May 25, 1972.
---------------------------------------------------------------------------
Senate advice and consent to the 1982 LOST Convention is strongly
in the security interests of this great Nation. For that reason, since
the treaty was submitted to the Senate a decade ago, every Chairman of
the Joint Chiefs of Staff and every CNO since the treaty was submitted
to the Senate a decade ago has actively supported United States
adherence. Indeed, as the Chairman of the National Security Council
Interagency Task Force that developed United States instructions for
the negotiations of this treaty under both Presidents Nixon and Ford, I
find prompt United States adherence to this convention a compelling
security interest. In fact, Mr. Chairman, I believe I can speak for the
many superb civilian and military security experts with whom I have
worked on this convention in saying that to my knowledge each and every
one I have worked with on these issues in more than a quarter of a
century believes adherence to this convention serves the security
interests of the United States.
The genesis of United States interest in this convention was our
powerful interest in maintaining naval and commercial freedom of
navigation throughout the world's oceans. During the 1960s and 1970s a
growing number of coastal nations were beginning a race to grab ocean
space. The implications of this for United States naval and commercial
mobility were grave. Every study done by our Government has concluded
that protecting naval and commercial mobility is our most important
oceans security interest. Yet paradoxically, this was, and is, the
national interest most threatened by illegal claims. Accordingly, the
Navy and the DOD sought to work with our oceans allies in developing a
law of the sea that would constrain these illegal claims. In the
negotiation that ensued for more than a decade, the United States was
the central player. The result, which you see before you, achieved
every security objective of the United States. We obtained a legal
regime fully protecting navigational freedom throughout the world's
oceans, including transit passage of straits and navigational freedom
in the 200 mile exclusive economic zone. Along the way the United
States also solidified the largest area of resource jurisdiction in the
world with respect to the fishery and oil and gas resources off our
coasts. Following a successful renegotiation of Part XI on Deep Seabed
Mining, the United States in 1994 secured access to the mineral
resources of the deep seabed for our industry, meeting the conditions
set by Ronald Reagan, the United States secured access to the mineral
resources of the deep seabed for our industry.
My testimony will explore some general reasons why adherence to
this convention serves the security interests of America. I will then
look at our core security interest in navigational freedom, provide
specific examples of how adherence to this convention will serve our
security objectives, and finally will respond to some misperceptions
about the convention. But first, a few observations in framing
consideration of the convention.
I. FRAMING CONSIDERATIONS
The United States is currently a party to the four 1958 Geneva
Conventions on the LOST. Thus, consideration of security issues, like
other affected oceans issues, should provide comparison with those
existing treaties and oceans law currently binding on the United
States. The choice is not simply the convention or an absence of any
law binding on the United States. Moreover, United States adherence
will not affect whether the 1982 Convention, and its subsidiary
institutions, such as the ISA, become a reality or not. The convention
entered into force approximately 10 years ago and currently has 145
state parties. Every permanent member of the Security Council but the
United States is a party but the United States. Every member of NATO
but the United States and Denmark are parties. Every major maritime and
economic power is a party. This convention is today one of the most
widely adhered international conventions in the world, and it's annual
meetings of state's parties and other associated institutions have
become the centerpiece for negotiations concerning oceans issues. Most
assuredly, this central legal framework is not going away. The issue
then is not simply whether one agrees or disagrees with the
establishment of any part of the convention. Those who oppose the ISA,
for example, should understand that it is a fait accompli whatever the
United States' action. Indeed, the ISA has been operating for a decade
and has already issued seven licenses and developed a mining code.
The issues before the Senate are simply whether United States
adherence will serve our national interest, including our security
interests, and whether continued abdication of the oceans leadership
role of the United States, caused by our non-adherence to this
convention, is in our national interest. I believe that the answer to
the first question is a resounding yes with an equally resounding no to
the second. Remarkably, this is one of the few national security
decisions that really does not involve a trade off. All United States
security, foreign policy and oceans interests are either positively
affected, or not affected at all, by United States adherence. None is
harmed by adherence. The greatest beneficiary will be our security
interests; particularly our crucial interest in naval and commercial
mobility, our ability to move forward with oil and gas development
beyond 200 nautical miles, and a new opportunity for a U.S. seabed
mining industry to reengage American leadership in deep ocean minerals.
Make no mistake; our prolonged failure to adhere to the LOST
Convention is harming the security interests of the United States on an
ongoing basis. For example, the United States, without a seat on the
Commission on the Continental Shelf, is excluded from participating in
the important Russian submission concerning the limits of their
continental shelf claim in the Arctic Ocean, an issue of direct
interest to the United States, and especially the State of Alaska.
Uncle Sam has one arm tied behind his back in the continuing struggle
to ensure adherence to the navigational freedoms embodied in the
convention. Scofflaws simply argue, when we complain of their
transgressions, that as a non-party to the convention we have no rights
under it and no standing to raise the illegality of their actions in
violation of the convention. The world moved ahead without us with
exploration licenses for deep seabed mining being issued to companies
from China, France, India, Japan, Poland, South Korea, and Russia while
the United States industry, which once led in technology development,
is moribund from our non-adherence.\2\ Advice and consent to the
convention is not an issue for the next Senate; it is an issue for this
Senate.
---------------------------------------------------------------------------
\2\ The economics of deep seabed mining are a major factor in no
company, from any nation, having yet proceeded to mine. But U.S.
competitors from nations who are parties have at least begun to move
forward with exploration licenses, while our industry has abandoned
half of our sites and is truly moribund.
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Mr. Chairman, perhaps it is just personal, but I am also troubled
by the voices of some ``instant'' experts on the convention who don't
just disagree, but simply ignore, the considered opinion of the United
States Navy and the Joint Chiefs of Staff. Since the beginning of these
negotiations the Navy and the Chiefs have clearly told all who would
listen that the security stakes are high and real for the United States
in adhering to this convention. In our democracy of course we rightly
have civilian control of the military, and we rightly cherish free
speech, but it is puzzling why some critics simply ignore the
considered advice of our men and women in uniform. Engagement on the
merits of arguments: Yes. But simply to ignoring the real issues and
the deep expertise of those who work these issues on a daily basis: No.
Surely, particularly in considering security issues, we owe more to
professional military judgment than some of the critics seem willing to
acknowledge.
This ought not be a partisan issue. Partisanship ought to stop at
the water's edge, and members of our political parties ought to share a
commitment to both a coherent foreign policy and the long-term security
of this great Nation. That would be true even if this convention were
associated with only one administration. But this convention was
negotiated on a bipartisan basis under five Presidents of both parties.
Principal negotiations took place under the aegis of three Republican
Presidents:, Nixon, Ford, and Reagan, and one Democratic President:
Carter. Part XI on deep seabed mining was then renegotiated under the
aegis of President Clinton, a Democrat, who sought and achieved the
conditions for renegotiation laid down by Ronald Reagan. Now the
convention has been submitted to the Senate under yet another
Republican President, George W. Bush. It should be noted that the
principal security components of this convention, including those
critical provisions protecting navigational freedom, were negotiated
completely under Republican Presidents.
Finally, Mr. Chairman, you may be assured that I do not come before
you simply as a cheerleader for any LOST. When it became evident in
1982 that part XI of the convention, as then internationally adopted,
did not meet United States' interests in access to seabed minerals and
associated precedental issues in the institutional nature of the new
ISA, I wrote President Reagan urging that he not adhere until these
issues were renegotiated. Even earlier I had testified to that effect
in the platform hearings for the 1980 Republican Party Platform.
President Reagan stood firm, and while clearly supporting convention
provisions other than Part XI, including the substantial American
achievements in the security area now being attacked in his name, he
set tough conditions for renegotiation of Part XI. While that took 12
years to achieve, it was achieved. That considerable bi-partisan
success in American foreign policy is now before you.
II. GENERAL SECURITY CONSIDERATIONS
Some general security considerations include the following:
The greatest single threat to our oceans interests
throughout the history of the Nation has been threats to
navigational freedom. But navigational freedom is not protected
solely by a strong navy. The first line of defense is a strong
legal regime. This Nation achieved that in this convention and
it will be tragic if, through continued disengagement, we
permit that regime so favorable to our security interests to
erode. To an extent not remotely appreciated by those not on
the oceans firing line for the United States, this struggle for
law is an ongoing process in which we are severely handicapped
by not being a party to the convention. This has meant, not
just in speculation--but in reality, that the natural role of
the United States as the leader in oceans issues has been put
on hold. We cannot simply shoot our way in when we have
disagreements with our NATO allies; nor is such a response at
all realistic in the real-world challenge to navigational
freedom from a thousand pinpricks;
Given the price of gasoline today, surely there is
broad agreement that the United States needs to get on with the
task of developing the oil and gas of our continental margins
beyond 200 miles. Without adherence to the convention that is
unlikely to happen for years to come. The large investments
that must be made to drill in deep water simply will not be
made without legal certainty and security of tenure. Further,
the United States has a crucial interest in protecting
navigational freedom for the oil and gas brought to the United
States that is so crucial for our economy. About 44 percent of
U.S. maritime commerce concerns petroleum and its products. To
put this in further perspective, offshore oil and gas is now
the world's largest marine industry, with oil production alone
in the range of $300 billion per year. For these and other
reasons of relevance to our security interest in oil and gas,
and the interests of our oil and gas industry, Paul L. Kelly,
speaking on behalf of the American Petroleum Institute, the
International Association of Drilling Contractors, and the
National Ocean Industries Association, testified before the
Senate Foreign Relations Committee and the Senate Environment
and Public Works Committee that (the U.S. oil and natural gas
industry supports Senate ratification of the convention at the
earliest date possible;'' \3\
---------------------------------------------------------------------------
\3\ See 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. Testimony cited was given, before the
United States Senate Committee on Foreign Relations for a hearing on
the UNCLOS in, Washington, DC, October 21, 2003, at 7.
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The opportunity to attach important United States
understandings, as have been formulated for the Senate
Resolution of Advice and Consent, is a crucial opportunity for
the United States finally to get have its official
interpretations of the convention on the record. Many countries
intent on undermining the security interests of the United
States have already provided erroneous statements with no
response from the United States. Such a response, from the
Nation with the largest oceans interests in the world, is of
great importance and it is overdue;
The United States needs to reengage in deep seabed
mining. U.S. firms spent more than $200 million in leading the
world in the technology of deep seabed mining and in obtaining
four first-generation deep ocean mine sites. Continued United
States non-adherence to the convention has not served our
industry--rather it has effectively killed our industry. Only
one company now retains mine sites, the other companies are now
out of the business, and two of the U.S. mine sites simply lie
abandoned. This while seven licenses have been issued to
competitors from countries that are parties to the treaty. As
soon as the United States adheres to the convention, I would
urge the Secretary of Commerce to put together an industry
working group to see what might be done to remove any domestic
legal obstacles preventing our industry from resuming its
previous leadership in deep seabed mining. The access to the
copper, nickel, cobalt and manganese from these sites is of
considerable economic interest to the United States. But today
investment will not be made in deep seabed mining without a
license from the International Seabed Authority. Thus, it is
clear that continued United States non-adherence will be a
death knell for our industry;
For the United States to refuse to adhere to a
convention even after the rest of the world met every single
one of our demands for changes to the convention for United
States adherence will severely impact the ability of the United
States to negotiate international agreements. I believe this
will have a particularly serious effect on our security
interests, many of which depend on mobilizing our allies.
Certainly, as a sovereign nation, we have every right to
negotiate a treaty and then decide not to ratify, but in this
instance, where we specified the changes necessary for United
States support that were then agreed to by the rest of the
world, even some of our closest friends have difficulty
understanding our behavior in not moving forward to date. A
failure to ratify at this point will have adverse effects for
our foreign relations with even some of our closest allies. We
are the world's most powerful military power, but we still need
the understanding and support of our friends--and we need to
act with consistency and reliability in our foreign policy;
The United States has an important national interest
in a stable and efficient rule of law in the world's oceans. We
have achieved that in this convention and only risk losing it
by continued non-adherence. Power alone cannot replace law in
providing stable expectations and a check on irresponsible
unilateral actions; and
Isolationism is not a strategy for victory against
terrorism. The threat is global and our engagement must be
global. That inevitably means that we must enhance our ability
to influence other nations and to multiply United States
actions through cooperative actions worldwide. If our country
is viewed as simply turning inward and being unwilling to
participate internationally even through despite agreements in
which we have clearly served our interests, we will not
facilitate such needed assistance from others. United States
adherence to the UNCLOS will be carefully monitored by our
allies, all of whom have been urging us to move forward, and it
will have an impact on the climate in the war on terrorism, as
well as other security and foreign policy objectives of the
United States. The view that such ``soft'' considerations are
unimportant is profoundly unrealistic. The UNCLOS is low
hanging fruit that lets us send a clear message: America will
support good international agreements, but it will stand firm
against the bad ones. This differentiated message is crucial.
If we are viewed as simply opposing all international
agreements, no matter how favorable to the United States (as
this one truly is), we will have far less ability to multiply
our national interests through cooperative actions with others.
III. THE CORE SECURITY THREAT
The core oceans security threat to the United States is the
continuing challenge to navigational freedom. That has been true
throughout American history, from Jefferson's time until today. The
United States fought three wars, the War of 1812, World War I, and
World War II, in part because of the challenge to our freedom of the
seas. Today, that challenge continues--though the form of the principal
threat is that of serious and continuing claims by nations around the
world not to recognize our oceans freedoms. These include challenges
from NATO allies, and nuclear powers, in settings where we are not
about to simply ``shoot our way in.'' They include efforts to subject
our Navy to permission or advance notice for transit through the
territorial seas. They include efforts to prevent submerged transit of
our submarines and overflight of our aircraft through straits. They
include efforts to prevent transit of straits used for navigation
without the permission of the coastal state. They include efforts to
dictate how American ships will be constructed and operated. They
include efforts to turn the seas into internal waters with no transit
rights whatever. They include a range of incremental and subtle
challenges which will frequently fall under the radar screen of our
political leaders, or may even cause them to believe that the political
trade-off in good relations at that moment with the challenging nation
is worth more than the incremental loss in navigational freedom.
Examples of serious security incidents resulting from illegal
oceans claims include: the new law of the People's Republic of China
(PRC) providing that Chinese civil and military authorities must
approve all survey activities within the 200 mile economic zone; the
PRC harassment of the Navy's ocean survey ship the USNS Bowditch by
Chinese military patrol aircraft and ships when the Bowditch was 60
miles off the coast; the earlier EP-3 surveillance aircraft harassment;
Peruvian challenges to U.S. transport aircraft in the exclusive
economic zone, including U.S. crew casualties and a second incident in
which two U.S. C-130s had to alter their flight plan around a claimed
650 mile Peruvian ``flight information area;'' the North Korean 50 mile
``security zone'' claim; the Iranian excessive base line claims in the
Persian/Arabian Gulf; the Libyan ``line of death;'' and the Brazilian
claim to control warship navigation in the economic zone. Through time
the effect of this ``creeping coastal state jurisdiction'' is a
devastating reduction in naval mobility. As this committee knows so
well, that should be thought of in relation to the rollback of United
States land bases around the world. This challenge is all too real--
even if appreciated largely by our navy and our oil industry. Examples
of current illegal oceans claims include: \4\
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\4\ Data is approximate as of June 22, 2001.
Historic Bay (15) and Baselines (27+)
Territorial Sea Breadth--13
Contiguous Zones--19
Exclusive Economic Zones--32
Innocent Passage in Territorial Sea--41
International Straits--16
Overflight Restrictions--5
Archipelagic Sea Lanes Passage--4
The UNCLOS is a key weapon in this struggle for our oceans'
freedom. The United States won through the negotiations the core
elements of that freedom. To abandon that win is the legal equivalent
of unilateral disarmament for the United States in the struggle for
freedom of the seas. The price we will pay through time for any such
error in judgment will be high. In essence the critics who would have
us abandon a rule of law in the world's oceans may effectively be
asking American service men and women someday to pay with their lives
for the absence of such a rule of law. This is not mere hyperbole;
already disputes about the oceans regime have cost American lives.
Thus, an American aircraft in lawful overflight of the high seas was
forced down by Peru in asserting an illegal claim over an extended area
of the seas. More recently, harassment by Chinese fighters brought down
a United States aircraft engaged in lawful activities under the 1982
Convention. At minimum, the economic cost of new naval configurations
designed to get around a creeping loss of freedom--possibly with
required pay-offs to coastal states--could be considerable.
IV. A FEW SPECIFIC EXAMPLES OF SECURITY ISSUES SUPPORTING UNITED STATES
ADHERENCE
A few specific examples, among many, of provisions of the UNCLOS
serving United States security interests and supporting accession are:
For the first time in the history of oceans law, and
quite in contrast to the 1958 Conventions to which we are now a
party, the 1982 Convention provides full protection for
navigation and overflight through international straits. This
means that United States submarines can go through straits
submerged and without having to reveal their location, that our
aircraft can overfly, and that military and commercial vessels
can go through without fearing harassment from coastal states.
Maintaining the secrecy of our nuclear-powered ballistic
missile submarines, as this committee knows so well, is an
essential element in the effectiveness of our strategic
deterrent;
The maximum breadth of the territorial sea is
restricted to 12 nautical miles, thus blocking the more
expansive claims of nations which would interfere with our
military and commercial mobility by promulgating territorial
seas out to 200 miles;
The convention provides for full high seas
navigational freedom beyond the territorial sea. This includes
the EEZ of up to 200 nautical miles, areas of the continental
shelf under coastal state control beyond that, and all areas
seaward of national jurisdiction. The core trade-off in the
convention was a good one for us on both sides of the trade;
that is, an extension of coastal state jurisdiction over the
fish stocks and oil and gas resources off our coasts in return
for full navigational freedom in the areas of extended coastal
state resource and economic jurisdiction around the world;
There is a much improved regime of ``innocent
passage'' in the territorial sea even outside of international
straits. Among other important changes the vague regulatory
competence of the coastal state, reflected in article 17 of the
relevant 1958 Geneva Convention, has been clarified in article
21 of the convention in a balanced fashion accommodating both
coastal state concerns and navigational rights. There are now
new obligations not to ``[i]mpose requirements on foreign ships
which have the practical effect of denying or impairing the
right of innocent passage'' and not to ``[d]iscriminate in form
or in fact against the ships of any State or against ships
carrying cargoes to, from or on behalf of any State.'' As this
committee knows, in the past allies of the United States,
including Israel, have in the past found their shipping a
victim of discrimination, in turn triggering international
tensions and conflict;
The convention contains a new provision mandating
cooperation ``in the suppression of illicit traffic in narcotic
drugs. . .'';
The convention contains new provisions, significant in
reducing potential conflicts with other nations and in
protecting our citizens, that prohibit other nations from
inflicting corporal punishment on American fishermen and
merchant seamen, and prohibit or severely limit their
imprisonment;
Article 76 of the convention massively extends the
continental shelf resource jurisdiction of the United States to
include the oil and gas deposits of the continental margin and
provides a workable standard for delimiting United States
national jurisdiction, in contrast with the relevant 1958
Convention which does neither. This clear legal regime
permitting the United States to get on with development of its
oil and gas resources is a substantial security interest of the
United States;
Whenever deep seabed mining does occur, United States
adherence and taking its seat on the Council of the ISA will
give us the ability to exercise an effective veto over critical
issues. This would include the ability to veto the adoption of
inappropriate rules and regulations or revenue sharing with the
PLO, or similar organizations. Until we accede, the United
States will not have this effective veto power; and
When the United States accedes to the convention we
will be eligible to elect a member of the Commission on the
Limits of the Continental Shelf which is serving as a check on
expansive national continental shelf claims over the oceans in
violation of the convention. Already, Russia, taking advantage
of the continued absence of the United States in this
Commission, has made the first submission to the Commission, a
massive claim in the Arctic Ocean of direct interest to the
United States.
V. MISPERCEPTIONS
Misperceptions about the convention include the following:
Myth: The United States is giving up sovereignty to a
new international authority that will control the oceans.
Nothing could be further from the truth. The United States does
not give up an ounce of sovereignty in this convention. Rather,
the convention solidifies a truly massive increase in resource
and economic jurisdiction of the United States, not only to 200
nautical miles off our coasts, but to a broad continental
margin in many areas even beyond that. The new ISA created by
this convention, which, as noted, has existed for a decade and
will continue to exist regardless of United States actions,
deals solely with the mineral resources of the deep seabed
beyond national jurisdiction. That is an area in which we not
only have no sovereignty but also in which we and the entire
world have opposed extension of national sovereignty claims.
Moreover, to mine the deep seabed minerals requires security of
tenure for the billion dollar plus costs of such an operation.
Our industry has emphatically told us that they can not mine
under a ``fishing approach'' in which everyone simply goes out
to seize the minerals. The ISA was a necessary specialized
agency, of strictly limited jurisdiction, to deal with this
need for security of tenure. Quite contrary to the recent
testimony of one witness before the Senate Committee on
Environment and Public Works, the ISA would not have ``the
exclusive right to regulate what is done, by whom, when and
under what circumstances in subsurface international waters and
on the sea-floor.'' \5\ Rather, the ISA is a small, narrowly
mandated specialized international agency that, emphatically,
has no ability to control the water column and only has
functional authority over the mining of the minerals of the
deep seabed beyond national jurisdiction. Again, this is a
necessary requirement for seabed mining, in an area beyond
where any nation has sovereignty, to provide security of tenure
to mine sites, without which mining will not occur; \6\
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\5\ See ``The LOST: Bad for U.S. Sovereignty, the Environment and
Other Living Things,'' the testimony of Frank J. Gaffney, Jr.,
President, the Center for Security Policy, before the U.S. Senate
Committee on Environment and Public Works, 23 March 2004, at 2. Indeed,
Mr. Gaffney, who I have known as a friend and colleague in many
struggles to protect this country's national security, can be assured
that no LOS Representative of the Department of Defense or Joint Chiefs
who actively participated in the formulation of U.S. instructions and
the negotiation of the convention would have in the remotest accepted
such an absurdity--and, if they had, I would have resigned as the
Chairman of the NSC Interagency Task Force that developed the
instructions.
The testimony of Mr. Gaffney was further misleading in its
heading to this section which was titled: ``Unwisely Empowering the
U.N.'', id. at 2; and in its reference to ``a new U.N. bureaucracy,''
id. at 3. While the LOST was negotiated under U.N. auspices, it is not
the U.N., nor are any institutions created by it either agencies or
instrumentalities of the United Nations. Nor does a functional agency
which after 10 years of operation has only 37 employees (none of whom
work for the United Nations) qualify as much of a bureaucracy.
It is further noteworthy that Mr. Gaffney, in his reference to
``what could be billions of dollars worth of ocean-related commerce,''
id. at 3, is, at least by implication from his overall testimony, not
remotely placing seabed mining in relation to the economic and security
interests of the United States. Every careful review by the United
States government has placed our security interest in navigation as the
most important oceans interest of the United States. A close second is
the United States interest in oil and gas development, where, again
contrary to the implications of Mr. Gaffney's testimony, the oil and
gas sediments off the United States coast, within and beyond 200 miles,
are placed under exclusive United States resource jurisdiction. The
abundant fish stocks of the United States are a third critical
interest. Deep Seabed Mining with its access to copper, nickel, cobalt
and manganese, is important, or I would not have urged President Reagan
to require a renegotiation on this issue. But it is far down the list
of overall United States oceans interests. No such mining has yet taken
place and it is not known at what time any such mining may take place
in the future. Another critic, Mr. Doug Bandow, places seabed mining
better in context by noting in an article in The Weekly Standard of
March 15, 2004, that: ``There is no guarantee that seabed mining will
ever be commercially viable.'' Id. at 16. Most importantly, were Mr.
Gaffney's advice to be accepted it would mean the permanent death of
any United States deep seabed mining industry, whatever its ultimate
value.
I am especially surprised by the charge leveled by Mr. Gaffney
that adhering to this convention would (likely have a corrupting effect
on one of our most cherished principles: the rule of law,'' id, at 3;
and ``could effectively supplant the constitutional arrangements that
govern this Nation,'' id. at 3. It is hornbook constitutional law that
international agreements cannot alter the Constitution of the United
States. That any such provisions in this convention would have escaped
the careful review of the 18 agencies and departments on the National
Security Council Task Force I chaired on the convention seems unlikely,
but were there any such, the Constitution would prevail. Thus, in the
classic 1957 case of Reid v. Covert, 354 U.S. 1, 16-17 (1957), the
Court laid this issue to rest when it said: ``. . . no agreement with a
foreign nation can confer power on Congress, or on any other branch of
Government, which is free from the restraints of the Constitution.''
Id.
Perhaps, as Churchill said, we should ``not resent criticism,
even when, for the sake of emphasis, it parts for the time with
reality.'' Certainly, in other settings, particularly certain arms
control issues, I have found Mr. Gaffney to be an informed and able
spokesman for United States national interests, and I am pleased to
have been on the same side of a number of issues with him. In this
connection, I am particularly pleased to be in the same camp with Mr.
Gaffney in urging a vigorous, early, and effective Ballistic Missile
Defense for the United States. Mr. Gaffney is not, however, remotely an
expert on the Law of the Sea and I am saddened that on this issue he
has misperceived the national security interests of the Nation.
\6\ The United States does not own the mineral resources of the
deep seabed any more than it owns the mineral resources of Indonesia.
Part XI of the convention provides for a joint venture such as might be
the case in American production of minerals abroad--but it does so
providing assured access going beyond any right we would have in
producing the minerals of another nation.
No one accepts a loss of United States sovereignty. At the same
time, one of our most important sovereign rights is our legal ability
to enter into agreements--just as individual citizens in our own
country have a right to agree to contract with one another. In fact, it
is only children and the mentally incompetent who have no right to
contract--thus truly losing some of their ``sovereignty.'' Moreover, I
do not disagree with critics who observe that in recent years we have
sometimes signed treaties that were not in our interest. I attribute
that to a poor job of negotiating or bad judgment by our leaders. The
solution is to elect better leaders and demand that our negotiators do
a better job of looking out for our interests. It is not to give up our
sovereign right to make agreements and to distinguish good deals from
bad ones.
It should also be understood that under the foreign relations law
of the United States national sovereignty, meaning our national freedom
of action, can never be lost through an international agreement. It is
well accepted law of the United States that a subsequent act of
Congress can override a prior international agreement for purposes of
national law. See, e.g., Whitney v. Robertson, 124 U.S. 190 (1888);
Chae Chan Ping v. United States, 130 U.S. 581 (1889).
---------------------------------------------------------------------------
Myth: President Reagan would oppose moving forward
with this convention. Again, the actions of the Reagan
administration show this to be false. At my urging as a former
United States Ambassador to the negotiations, and that of
others, President Reagan wisely refused to accept the
provisions on deep seabed mining set out in Part XI of the
convention and he approved instructions for the United States
delegation to reengage in the negotiations to achieve a series
of critical access and institutional changes in Part XI. After
a full and careful interagency review of the then draft
convention President Reagan had no changes to suggest to the
remainder of the convention, including the most important
security provisions that had been sought by the United States.
The reason for this is simple; the United States had superbly
achieved its security objectives in the negotiations under
Presidents Nixon and Ford. Further, in 1983 President Reagan
issued instructions to the Executive Branch to act in
accordance with the substantive provisions of the convention,
other than Part XI, as though the United States were a party to
the convention. While the Reagan conditions for changes in Part
XI were not achieved in the negotiations under his tenure, when
subsequently negotiations were resumed in the Clinton
administration, President Clinton accepted the Reagan
conditions as the basis for United States adherence. The
Clinton administration negotiators were successful by 1994 in
achieving all of the Reagan conditions and then some. They also
achieved all of the conditions that had been earlier set out by
Congress as requirements for a deep seabed mining regime. Only
then did the United States indicate acceptance, and submit the
convention to the Senate for advice and consent;
Myth: The convention is harmful to the PSI. Again,
this is false. The PSI has already been negotiated explicitly
in conformance with the convention; and not surprisingly so,
since the Nations with which we are coordinating in that
initiative are parties to the convention. This charge
apparently rests on the false belief that if the United States
does not adhere to the convention it will be free from any
constraints in relation to oceans law. Again, a false
assumption; we are today a party to the 1958 Geneva Conventions
that are, if anything on this issue, more restrictive than the
1982 Convention now before the Senate. This charge is also
misguided in failing to understand the critically important
interest we have in protecting navigational freedom on the
world's oceans. The convention allows our vessels to get on
station which is essential before any issue even arises about
boarding. Moreover, we emphatically do not want a legal regime
that would permit any nation in the world to seize United
States commercial vessels anywhere in the world's oceans. The
Proliferation Security Initiative was carefully constructed
with parties to the 1982 Convention, using the flag state, port
state and other jurisdictional provisions of the 1982
Convention precisely to avoid this problem. Nor is this charge
at all realistic in failing to note that nothing in the UNCLOS
trumps our legal rights to individual and collective defense;
Myth: The convention would interfere with the
operations of our intelligence community. Having chaired the 18
agency National Security Council Interagency process that
drafted the United States negotiating instructions for the
convention, I found this charge so bizarre that I recently
checked with the Intelligence Community to see if I had missed
something. The answer that came back was that they, too, were
puzzled by this charge, and there was no truth to it. I am
confident that there is no provision in the UNCLOS which will,
or has, added constraints on the operations of our Intelligence
Community. Indeed, remember in this connection that the United
States is already bound by the 1958 Conventions and that since
1983, pursuant to President Reagan's order, we have been
operating under the provisions of the 1982 Convention, other
than for deep seabed mining in part XI. Since 1994 we have
accepted the revised Part XI;
Myth: Freedom of navigation is only challenged from
``[t]he Russian navy [that] is rusting in port [and] China has
yet to develop a blue water capability . . .'' \7\ The
implication here is that the principal challenge to
navigational freedom comes from major power war or conflict and
we do not really have any national concerns at this time about
preserving freedom of navigation. But the 1982 Convention deals
with the law of peace, not war. Thus this argument misses
altogether the serious and insidious challenge, which, again,
is what the LOST is designed to deal with; that is, repeated
efforts by coastal states to control navigation, many from
allies and trading partners of the United States, which through
time add up to death from a thousand pin-pricks. That is the
so-called problem of ``creeping jurisdiction'' that remains the
central struggle in preserving navigational freedom for a
global maritime power. After years of effort we have won the
legal regime to control this ``creeping jurisdiction'' in the
UNCLOS. To unilaterally disarm the United States from asserting
what we won in the convention against illegal claimants is
folly;
---------------------------------------------------------------------------
\7\ See Doug Bandow, ``Sink the LOST,'' The Weekly Standard (March
15, 2004), at 17.
---------------------------------------------------------------------------
Myth: The convention would mandate technology transfer
and contains other fundamentally non-free market provisions
with respect to deep seabed mining in Part XI. This charge
seems to stem from a failure to understand that a series of
flawed provisions in Part XI of the 1982 Convention, including
mandatory transfer of technology, were renegotiated at the
courageous insistence of President Reagan. Today, the
convention, as so modified, provides for first come rights to
mine the deep seabed under a joint venture arrangement
providing guaranteed access rights to deep seabed minerals. The
renegotiated Part XI even goes beyond the Reagan conditions in
adopting the important pro-free-market GATT principle against
subsidization of seabed miners. The mining regime adopted by
the ISA may well be even more flexible than what we have here
at home. But whatever imperfections there may be in the deep
seabed regime, it is a certainty that United States non-
adherence has to date, and will permanently, kill all hope of a
United States seabed mining industry. Bankers simply will not
loan the billion dollars plus required for a deep sea mining
operation without an unchallengeable legal title to the
resource;
Myth: We do not need to adhere to the convention
because it already represents customary international law
binding on the United States.\8\ This argument is that our
navigational interests are already protected. Curiously, those
who advance this argument fail to note that if the United
States is already bound to the convention as customary
international law it is also bound by provisions they may
object to in the convention. The critics cannot have it both
ways. More importantly, the argument misses the reality that
the United States is legally disenfranchised as a non-adherent
and will not fully receive the benefits of the convention
without acceding to it;
---------------------------------------------------------------------------
\8\ See, e.g., ``Bottom-of-the-Sea Treaty,'' The Wall Street
Journal, March 29, 2004.
---------------------------------------------------------------------------
Myth: ``[T]he Law of the Sea Convention was a grand
scheme to create `an oceanic Great Society'. . . .'' \9\ It is
true that one motivation of developing countries in the UNCLOS
negotiations more than three decades ago, played out in the
negotiation for Part XI, was an exaggerated hope of riches from
deep seabed mining. It is also true that the ``new
international economic order'' played a harmful role in the
negotiation of Part XI on deep seabed mining. The motivation of
the United States and other major powers, however, was to
protect navigational freedom, end the out-of-control coastal
state grab for the oceans, extend our jurisdiction fully to the
fish stocks and oil and gas off our coasts and achieve
international agreement on a mechanism providing security of
tenure for deep seabed mining in areas beyond national
jurisdiction. It was these other non-Part XI issues that were
the real core of the UNCLOS negotiations, as attested by the
fact that heads of delegation largely ignored Committee I,
where Part XI was being negotiated, and spent their efforts in
committees II and III, where more critical national security
issues were at stake. The United States and other major
developed nations coordinated closely together on these crucial
navigational and resource issues in the ``Group of Five.''
Moreover, the interest of certain land-based producers of
nickel and copper, including developed nations, in preventing
competition from deep seabed minerals, was probably a more
important factor in the negotiating difficulties in Part XI
than the ``new international economic order.'' The
renegotiation of Part XI pursuant to the Reagan conditions
solved this latter problem by abolishing the ``production
limitations'' that the land-based producers had written into
the original agreement;
---------------------------------------------------------------------------
\9\ See ``Bottom-of-the-Sea Treaty,'' The Wall Street Journal,
March 29, 2004.
---------------------------------------------------------------------------
Myth: The convention ``is designed to place fishing
rights, deep-sea mining, global pollution and more under the
control of a new global bureaucracy. . . .'' This is so in
error as to be humorous if it were not seriously advanced in a
respected national newspaper.\10\ The executive branch that led
U.S. negotiations on the convention and that is supporting
Senate Advice and Consent would have supported a Nobel Peace
prize for Osama bin Laden before agreeing to any such nonsense.
The ISA deals with mineral resources beyond national
jurisdiction, not with fishing, not with global pollution and
not with navigation--or even activities in the water column. It
is necessary in order to create stable rights to mine sites not
owned by any nation as required if United States mining firms
are ever to mine the deep seabed. The United States is already
party to hundreds of specialized international organizations.
The ISA would add an unremarkable one more. Indeed, one more
that even after 10 years of operation today still has a staff
of only 37 dealing with deep seabed exploration in 70 percent
of the Earth's surface.
---------------------------------------------------------------------------
\10\ See ``Bottom-of-the-Sea Treaty,'' The Wall Street Journal,
March 29, 2004.
---------------------------------------------------------------------------
Myth: United States military activities will be
subject to a world court. There was strong feeling in the
UNCLOS negotiations that military activities should be exempted
from dispute settlement. Accordingly, Article 298 of the
convention permits nations to opt out of the dispute settlement
provisions for military activities, and under the President's
submission, as embodied in the Senate draft resolution of
advice and consent, this option is unmistakably exercised for
the United States. Further, the scope of dispute settlement is
severely cabined in general. For example, none of the decisions
of the United States in relation to access by foreign fishermen
to our fish stocks are subject to dispute settlement. In
addition, under the President's submission, as embodied in the
Senate draft resolution, the United States will be accepting
``special arbitration'' as our preferred modality of dispute
settlement rather than the International Court of Justice (the
World Court). The United States is already a party to literally
hundreds \11\ of international agreements, including more than
85 submitting disputes to the International Court of Justice,
that provide for compulsory dispute resolution. As a result of
these agreements, remedies are often available when the rights
of the United States or its citizens are violated by other
countries. In this connection, compulsory dispute settlement is
particularly useful in controlling illegal interference with
navigation. Indeed, because of its importance in constraining
these illegal claims, even the former Soviet Union was
persuaded of the importance of compulsory dispute settlement in
the UNCLOS, despite its longstanding general opposition to
compulsory dispute settlement. The severely cabined dispute
settlement procedures in the UNCLOS are far more restrictive
than in most of the other dispute resolution provisions already
binding on the United States. Moreover, as noted above, in the
UNCLOS we have chosen special arbitration rather than the
International Court of Justice;
---------------------------------------------------------------------------
\11\ According to the Department of State, the United States is a
party to more than 85 agreements (most of them multilateral in nature)
that provide for the resolution of disputes by the International Court
of Justice. More than 200 treaties--including civil air transport
agreements and various types of investment treaties--provide for
mandatory arbitration at the request of a party. In addition, there are
a number of international organizations that include dispute resolution
mechanisms, including the U.S.-Iran Claims Tribunal, and the
International Civil Aviation Organization.
---------------------------------------------------------------------------
Myth: Adhering to the convention will come with
substantial financial obligations. U.S. financial obligations
under the convention will be modest. Had we been a full party
throughout 2001, our contribution to the ISA would have been
approximately $1.3 million computed at the 25 percent rate, and
this reduced to a 22 percent rate in 2002. Our contribution to
the International Tribunal is estimated to be approximately $2
million per year. This total level of contribution is less than
the United States pays each year for membership in the Great
Lakes Fish Commission.
Myth: There has been inadequate consideration of the
LOST and we need more time to study it. Nonsense! Those who
espouse this view fail to note that this is the second round of
Senate hearings on the convention. The first round was held in
1994 when the convention was initially submitted to the Senate.
The Senate, and the country, has had a decade to study the
convention, and for several decades, since 1983, we have lived
under the legal regime of everything but Part XI. I have an
especially hard time in finding any sympathy for this position
urging delay when it comes from spokesmen who were not heard
calling for more consideration of the convention for the full
decade while the treaty languished before the Senate Foreign
Relations Committee. Rarely has any convention come before the
Senate that is more fully understood in its impact and stakes
for our Nation, and that has been more fully studied and
debated--and, in real effect, lived under; and
Myth: President Bush is urging Senate advice and
consent to the convention for little better than ``go-along,
get-along multilateralism.'' Give me a break! Among Presidents
prepared to take the heat internationally for actions they
believe in, as Afghanistan and Iraq surely demonstrate, this
President is near the top. Is it too much to understand that
after lengthy and careful review this President has urged
Senate advice and consent because it is in the National
interest of the United States? Further, does anyone really
believe Ronald Reagan was a ``go-along, get-along'' President?
CONCLUSION
Mr. Chairman, and honorable members of the Armed Services
Committee----as the beginning quotation from President George
Washington attests, a strong Navy, indeed today a preeminent Navy, is
an essential national security interest of the United States. We must
not do in that Navy by failing to appreciate our critical national
security interests in a legal regime for the oceans which protects the
freedom of the seas and ensures global access.
Rarely has the Senate faced such an easy choice in consideration of
a major convention. No United States oceans, security, or foreign
policy interest is served by continued non-adherence, and our security
interests are powerfully served by adherence. Not only Senator Lugar,
as Chairman of the Senate Foreign Relations Committee, but also Senator
Stevens, as the senior Senator from the most affected state in the
United States, Alaska, have recently sent a letter to their Senate
colleagues urging prompt advice and consent to the convention. Every
industry and oceans interest group that has addressed the issue has
supported prompt advice and consent, including the one most affected
economically, the United States oil and gas industry. Who do the
critics speak for? The United States Navy and the Joint Chiefs have
never wavered in their support. Our allies have supported United States
adherence. Both Republican and Democratic Presidents have recommended
Senate advice and consent. Most recently, the congressionally
established United States Commission on Ocean Policy, broadly
representative of United States oceans interests and chaired by Admiral
Watkins, has unanimously recommended accession. I concur wholeheartedly
in the statement of the commission that:
The National Commission on Ocean Policy unanimously
recommends that the United States of America immediately accede
to the UNCLOS. 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. [Unanimous Resolution of the Commission,
November 14, 2001].
Chairman Warner. The oil and gas industry has taken a
similar position?
Mr. Moore. They have indeed, Mr. Chairman. Every single
element that I am aware of in the oil and gas industry--the
associations, the individual companies--have powerfully
supported this treaty. They know they have an interest in it
both in relation to the oil and gas from our continental margin
when we are able to go forward with it, but also bringing it in
through our tankers and navigational freedom.
Chairman Warner. The record of their contributions is
before the Foreign Relations Committee, am I not correct?
Mr. Moore. That is correct, and I believe Paul Kelly has
been very, very clear on that.
Chairman Warner. That is correct.
They were before your committee?
Senator Inhofe. Paul Kelly testified before the Committee
on Environment and Public Works.
[The information referred to follows:]
Mr. Moore. Mr. Chairman, I do think that is also a terribly
important point, because again we see the price of gas at the
pumps today. All of us are in favor of moving forward on the
continental shelf with oil and gas development, and not to go
forward with this treaty will in fact significantly inhibit our
ability to go forward in the areas beyond 200 nautical miles.
To give you a sense of what that is, it is about the size
of the State of California in relation to potential oil and gas
and going out there and looking at it.
Okay. Just very briefly in relation to dispute settlement,
again my point here is this is not like many of the others that
we have entered into. This is the way to do it right. We are
party already to about 200 treaties that have third party
dispute settlement. We are parties to 85 of those today that
have dispute settlement through the International Court of
Justice.
What have we done here that is a little different? One, it
has an extraordinarily clear provision exempting all military
activities because we insisted on it from the very beginning.
Second, we are not choosing the World Court and it did not
require you to choose the World Court. Instead, it let us go
for arbitration, which we have chosen. The third is even in
those terms it is severely cabined in relation to United States
interests. For example, the questions of our management of fish
stocks off our coast cannot go to the dispute settlement
provision in relation to that.
Finally, let me just also say, because I think sometimes
there is a misunderstanding on this, the determinations of
international courts are not stare decisis, as they are under
U.S. law. They are res judicata only. That is, they are binding
between the parties, but they are not stare decisis in relation
to binding other parties that were not before the court at that
point.
Finally, just to turn very briefly to this last point in
relation to information and data sharing, because I take very
seriously any question asked by the distinguished members of
this committee. The first thing I would be delighted to say
again, Senator Inhofe, since I think you were interested in
this: This is one in which we have done it right. It is not
like the other problems. We put a specific article in the
treaty, article 302, that says no data sharing will be required
if it requires you to share data that is inconsistent with the
national security interests of the United States. So that issue
is absolutely nailed in relation to the treaty.
But there are even a variety of other points I think that
you might find of interest on this. One is that any nation in
the world right now under the 1958 Conventions is free to go do
this research and to do the bottom topography with modern
multi-beam sonars and to get all the exact kind of information
that anyone might be worried about.
A third point is that we ourselves in the United States
intentionally decided in the 1980s not to classify any of that
material, so it is already completely out in the public domain.
They do not have to get it from the international authority in
any way, shape or form. It is all out there in the public
domain and has been for many years.
I would also add to that as well that the authority is
under an injunction of secrecy for everything that goes to the
Continental Shelf Commission. Finally, the real difference is
when we join this treaty and are on the commission we get that
data submitted by every other nation in the world. So in
reality we are not--by staying out we are not preventing any of
the data related to national security from not going in, but if
we go in we ourselves begin to get very important data, such as
what the Soviets, the Russians today, have submitted to the
Continental Shelf Commission in relation to a huge claim in the
Arctic Ocean today, and we do not have access to that data
because we are not a member of the commission and it affects us
very significantly.
Let me just end, Mr. Chairman, again by thanking you and to
naturally go back to a statement from another wonderful
Virginian, Thomas Jefferson, and to remind us that Thomas
Jefferson once wrote: ``The day is within my time as well as
yours when we may say by what laws other nations shall treat us
on the sea.''
Well, you and I know that Jefferson did not realize that
dream in his day, Mr. Chairman. But by giving advice and
consent to this treaty, this Senate can realize that dream.
Thank you.
Chairman Warner. A very interesting way in which to
conclude your testimony and touch the heart of the University
of Virginia graduate, this humble Senator.
Admiral, I looked over your distinguished biography here.
You have spent your life at sea. You served with distinction in
Vietnam. What were your assignments in that period?
STATEMENT OF REAR ADM. WILLIAM L. SCHACHTE, JR., USN (RET.),
JUDGE ADVOCATE GENERAL CORPS
Admiral Schachte. I was the officer in charge of a Navy
Swift boat.
Chairman Warner. Oh, down in the delta?
Admiral Schachte. No, sir, but some of the boats in our
division were sent there. I arrived in Vietnam in 1968, before
Tet.
Chairman Warner. Before Tet. Is that not interesting.
Admiral Schachte. I actually served on a mission with
Senator Kerry.
Chairman Warner. With the Senator?
Admiral Schachte. Yes, sir. Then I was the executive
officer and operations officer of Coastal Division 14 Cam Ranh
Bay. Like the rest of us in that line of work, I was a
volunteer.
Chairman Warner. I had the privilege as Secretary, Under
Secretary, to visit down with the delta forces and I came back
with a lifetime respect for the courageous missions which you
carried out on behalf of the cause of freedom. So I thank you.
Then you went on and you have spent much of your career in
the DOD and Judge Advocate General's office on international
law and particularly the oceans law.
Admiral Schachte. Yes, sir.
Chairman Warner. So you are eminently qualified to share
with us your views today, and I thank you for finding the time
to join us.
Admiral Schachte. Thank you very much, Mr. Chairman. It is
a real honor to be here and to be on such a distinguished
panel. Mr. Chairman, I know the hour is late and I am the last
speaker. I will truncate my remarks.
Chairman Warner. You take such time as you feel it merits
here.
Admiral Schachte. Thank you very much, sir.
I would like to echo what Professor Moore just indicated,
and that is it really is inaccurate to state that the
convention subjects United States military or economic
activities to the control of a United Nations bureaucracy. This
is not true with respect to either military or economic or
other activities. Under the convention all activities with the
exception of deep seabed mining are controlled by either the
flag state, i.e. the sponsoring nation, or the coastal nation.
If I could take a moment, I would like to quote from
President Reagan's Deputy Secretary of State, John Whitehead,
and this is from an op-ed piece that appeared in the Washington
Times in 1994. It may address some things that Ambassador
Kirkpatrick alluded to, and I quote:
``One cannot dispute the reminiscence that some of us in
the Reagan administration thought we had slain it for good, the
UNCLOS. But that was personal, not administration policy. The
fact is that the Reagan White House and State Department never
questioned the need for international law to codify a 12-mile
limit to coastal sovereignty, naval rights of passage,
prohibitions on maritime pollution, and protection of
fisheries. All of these advance interests important to
Americans. The administration objected very specifically and
strenuously to the section of the treaty establishing an
International Seabed Authority that would have subjected
American mining companies to onerous controls dictated by a
third world majority. It singled out those provisions as `not
acceptable,' but insisted that if they were satisfactorily
resolved,'' and here I quote, ``the administration will support
ratification.''
Mr. Whitehead concluded, and this is again in 1994 after
the amendments were taken place, effected: ``Immediately after
the U.N. General Assembly promulgates the new agreement this
week, all major industrialized countries will sign the
convention. It is vital for America's interests that we be
among them. We have no need to fear prudent use and protection
of the world's oceans and seas under the rule of law.''
Mr. Chairman, my statement then goes into some national
security concerns that we have heard testimony on. I would like
to focus, however, on some inaccuracies about the convention,
some of which were mentioned by Dr. Moore. I will address four
areas: the impact of accession on ongoing intelligence and
submarine operations; the impact of U.S. accession to ongoing
maritime intercept operations and the PSI; reliance on
customary international law to exercise our navigational
freedoms; and, fourth, the impact of mandatory dispute
resolution on U.S. sovereignty, in particular U.S. military
activities at sea.
Concerning intelligence and submarine navigation, you have
had testimony in closed session this morning and also the CNO
eloquently spoke to these matters today. I would simply
reemphasize the fact that, concerning submarine navigation and
intelligence activities, there will be absolutely no change
required by our accession to the convention. There will be no
change in the way we conduct any of these activities under the
convention, and I elaborate on that, the legal bases and
rationale for that in my paper.
Now I would like to talk about the impact of the convention
on Maritime Intercept Operations (MIO) and PSIs.
Chairman Warner. Could I interrupt that?
Admiral Schachte. Yes, sir.
Chairman Warner. Before you went to the retired status you
actually worked on previous drafts of this treaty?
Admiral Schachte. Oh, yes, sir. I was a member of the U.S.
delegation.
Chairman Warner. It clearly reflects it in your biography.
Admiral Schachte. Yes, sir.
Chairman Warner. Is it currently as it is before the Senate
pretty much in the shape that it was when you and others worked
on it?
Admiral Schachte. Absolutely, with the grand exception, as
Professor Moore mentioned, of the seabed mining amendments,
yes, sir, it really is.
When we started out in this evolution in the late 1950s,
early 1960s, the Soviets actually came to us out of concern for
the expansion of territorial seas. We were going to have a
three-article treaty to try to get the world to buy into it so
it would be greatly acknowledged. That fell flat. We wanted
transit rights through straits, and the result was the
formulation of the ground work for the convention. But our
negotiators delivered on archipelagic sea lanes passage,
transit passage, and other rights that were not existing, in
existence, prior to the convention.
Yes, sir, it is exactly as we negotiated it back then at
that time.
Mr. Chairman, as a former naval officer you are aware of
the fact that the Navy has been conducting MIO-type operations
since we first declared our independence.
Chairman Warner. I would have to--for the record, I was a
petty officer, not a commissioned officer.
Admiral Schachte. At the time of our independence--no,
okay.
Chairman Warner. I later became a commissioned officer in
the Marine Corps, but my military career is very modest. I am
always grateful for what was done for me.
Admiral Schachte. But these operations have been conducted
using a variety of legal bases, and I lay those out, but I will
sum up here. Some of these bases are codified in the UNCLOS.
Others, like the right of self-defense and belligerent rights,
exist outside and are unaffected by the convention.
In fact, the convention's preamble is quite clear in this
regard, and I will quote: ``Matters not regulated by the
convention continue to be governed by the rules and principles
of general international law.'' In other words, self-defense
and these other legal bases are outside the ambit of the
convention.
In short, nothing in the UNCLOS hampers, impedes, trumps,
or otherwise interferes with anything we have done in the past,
in the present, or will do in the future regarding military
intercept operations. I next lay out some examples of those
operations that we have conducted since President Reagan
announced that we would in essence be bound by the navigational
provisions.
I would now like to briefly address the PSI, as mentioned
by Senator Levin, and addressed by Mr. Taft and others. PSI is
a relatively new concept which was announced by President Bush
on the 31st of May 2003 in Krakow, Poland. This initiative was
developed in conjunction with ten countries--Australia, Japan,
France, Germany, Italy, The Netherlands, Poland, Portugal,
Spain, and the United Kingdom. Since then, three more
countries--Canada, Norway, and Singapore--have been added to
the partnership. As has been mentioned earlier, all of these
parties except us happen to be parties to UNCLOS.
The PSI is a global initiative designed to create a more
robust approach to preventing weapons of mass destruction,
their delivery systems and related materials flowing to and
from the states and non-state actors of proliferation concern.
In furtherance of this initiative, the PSI partners agreed to a
statement of interdiction principles in September 2003.
Some of the opponents to the convention have argued that
becoming a party to the convention will hinder our ability to
effectively interdict weapons of mass destruction at sea. This
argument, however, fails to recognize that one of the basic
tenets in the statement of principles is that PSI activities
will be undertaken consistent with national legal authorities
and relevant international law and frameworks, including the
navigational provisions of UNCLOS. Thus, the UNCLOS absolutely
does not provide for any role for the United Nations, much less
a role in deciding when and where ships at sea may be boarded.
Now, concerning the legal bases, and I lay them out
extensively in my prepared remarks, Mr. Chairman. But as in the
case of MIOs, PSI interdictions can also be justified as a
self-defense measure. Clearly, international law, including
UNCLOS, does not and would not prohibit the United States or
any nation from boarding a vessel carrying weapons of mass
destruction that posed an imminent threat to our national
security just because we did not have flag state or master
control or consent. If one thing is clear in international law,
it is that a nation is authorized to use armed force in self-
defense to protect its national interests against an imminent
threat of attack.
In my prepared statement, I next talk about customary
international law, Mr. Chairman, and because of the hour the
only thing I would mention in that is that reliance on that is
ill-conceived. We have seen in the 20th century that customary
international law, its evolution has resulted in erosion, not
preservation, of any rights, and I have some discussion on that
and my concerns that we would experience if we were not a
party.
The issue of loss of United States sovereignty. Senator
Inhofe has spoken eloquently on this. Senator Levin has also
mentioned this today. All I would like to say in that from my
own experience and what I elaborate more fully on in my paper
is one simple fact: No country, no country would subordinate
its national security activities to an international tribunal.
No country would subordinate its national security activities
to an international tribunal.
This was a point that everyone understood during the
negotiation of the convention and, as Professor Moore
mentioned, this was very much at the heart of a lot of our
activities in the convention. I would stress that this
exemption also encompasses military activities, such as MIOs or
PSIs or other types of activities that may be undertaken.
I would like, Mr. Chairman, if I could to conclude by
respectfully urging that we become a party to this convention.
Let me state this as best I can. This convention has nothing to
do with the U.N. and everything to do with the preservation of
our sovereignty, national security, and navigational rights.
If we choose to walk now, we will be leaving the fate of
our critical navigational freedoms in the hands of others, and
here I would submit probably the European Union would be at the
forefront of that, probably China leading the third world. It
would be a horrible fate, and I feel that it is time for the
United States to reassume our prominent and appropriate place
of leadership in these matters dealing with the global commons.
It has been an honor to be here today, sir, and I thank you
very much.
[The prepared statement of Admiral Schachte follows:]
Prepared Statement by Rear Adm. William L. Schachte, USN (Ret.)
Mr. Chairman and members of the committee, it is an honor for me to
be here today with you, and to present this testimony in support of
U.S. accession to the 1982 UNCLOS. Before I begin my testimony,
however, I would like to take a minute, Mr. Chairman, to recall your
extensive public service to this Nation and your significant
contributions to efforts to help ensure that U.S. military forces can
operate freely on the world's oceans. In addition to your insightful
leadership as chairman of this committee, your active-duty naval
service and your appointments as Under Secretary and later Secretary of
the Navy give you an invaluable perspective to assess the importance of
UNCLOS to our maritime and national security interests. I especially
recall and commend your work as the chief negotiator and U.S. signatory
of the Incidents at Sea Executive Agreement (INCSEA), between our
Nation and the former Soviet Union. As I am sure everyone here knows,
INCSEA remains in effect today, and has even been used by other
nations, including the United Kingdom, Germany, Canada, and France, as
their model for similar agreements regarding the operation of military
ships and aircraft at sea around the world.
Mr. Chairman, I have worked extensively with UNCLOS throughout most
of my military career as a Navy JAG, serving as a member of the U.S.
delegation to the negotiations during President Reagan's administration
and as the DOD Representative for Ocean Policy Affairs during the late
1980s and early 1990s. I also testified as a private citizen before the
Senate Foreign Relations Committee last October. That testimony is a
matter of public record, so I won't repeat myself here, Mr. Chairman.
What I would like to do today is concentrate my remarks primarily on
the national security benefits of the convention by responding to some
of the misleading and inaccurate statements being made by some of the
opponents to the convention. Of course, I am also prepared to address
other issues of concern that any of the members of this committee may
have regarding the national security benefits of the convention.
It is very important to carefully and comprehensively study UNCLOS
together with President Reagan's 1983 Ocean Policy Statement and the
1994 Agreement whose provisions prevail on Seabed Mining, ISA. I would
submit that the specific reasons put forth by those opposing the
convention have been corrected by the 1994 Agreement. For example, it
is totally inaccurate to state that the convention subjects U.S.
military or economic activities to the control of a U.N. bureaucracy.
That is not true with respect to either military or economic or any
other activities. Under the convention all activities at sea, with the
exception of deep seabed mining, are controlled by either the flag
state (or sponsoring nation) or the coastal nation. The most important
living and nonliving resources, including oil and gas, are under
exclusive coastal nation control. The ISA's role is very carefully
circumscribed and limited to coordinating the exploration and
exploitation of nonliving mineral resources of the seabed that are not
under exclusive coastal nation control. More importantly, by becoming a
party, the United States will acquire a seat on the governing council
in perpetuity. This seat gives us the power to veto important
substantive decisions of the Council such as those concerning revenue
sharing from deep seabed mining and decisions on amendments to the deep
seabed mining regime. Additionally, by becoming a party, the United
States will acquire a seat on the Finance Committee. Our seat on the
Finance Committee gives the United States a veto over all decisions of
the council and the assembly having financial or budgetary
implications.
To quote from President Reagan's Deputy Secretary of State, John
Whitehead, from his op/ed piece in the Washington Times of July 28,
1994: ``One cannot dispute the reminiscence that `some of us in the
Reagan administration thought we had slain it for good.' But that was
personal, not administration policy. The fact is that the Reagan White
House and State Department never questioned the need for international
law to codify a 12-mile limit to coastal sovereignty, naval rights of
passage, prohibitions on maritime pollution and protections of
fisheries. All of these advance interests important to Americans.''
``The administration objected, very specifically and strenuously,
to the section of the treaty establishing an international seabed
mining authority that would have subjected American mining companies to
onerous controls dictated by a Third World majority. It singled out
these provisions as `not acceptable,' but insisted that if they were
satisfactorily revised, `The administration will support ratification.'
''
Mr. Whitehead concluded: ``Immediately after the U.N. General
Assembly promulgates the new agreement this week, all the major
industrialized countries will sign the convention. It is vital for
America's interests that we be among them. We have no need to fear
prudent use and protection of the world's oceans and seas under rule of
law.''
NATIONAL SECURITY BENEFITS OF THE CONVENTION
Mr. Chairman, without question, accession to UNCLOS will enhance
U.S. national security and economic interests. Military planners have
long sought international respect for the freedoms of navigation and
over-flight that are set forth in UNCLOS. The convention guarantees our
ships the right of innocent passage through foreign territorial seas.
It guarantees our warships, military aircraft, and submarines the
right of transit passage through straits used for international
navigation, such as Gibraltar, Bab el Mandeb, Hormuz and Malacca. This
right of transit passage is critical to maintain the mobility and
flexibility of our armed forces. With the extension of the territorial
sea from 3 to 12 nautical miles, more than 100 international straits,
which previously had high seas corridors, became overlapped by
territorial seas. UNCLOS guarantees our Armed Forces a nonsuspendable
right of transit passage in, over and under these straits in the
``normal mode'' of operation. That means that our submarines can
transit submerged, military aircraft can overfly in combat formation
with normal equipment operation, and warships can transit in a manner
necessary for their security, including launching and recovering
aircraft, formation steaming and other force protection measures.
The same guaranteed, nonsuspendable rights apply to warships,
military aircraft and submarines transiting through archipelagoes, such
as Indonesia and the Philippines. UNCLOS recognizes the right of some
island nations to claim archipelagic status if they meet the
requirements of the convention. But it also guarantees our armed forces
the right of archipelagic sea lanes passage in the ``normal mode''
through all routes normally used for international navigation and
overflight, regardless of whether sea lanes have been designated by the
archipelagic nation.
The convention guarantees our right to exercise high seas freedoms
of navigation and overflight and all other internationally lawful uses
of the seas related to those freedoms within the EEZ of other nations.
This includes the right to engage in military activities, such as:
launching and recovery of aircraft, water-borne craft
and other military devices;
operating military devices;
intelligence collection;
surveillance and reconnaissance activities;
military exercises and operations;
conducting hydrographic surveys; and
conducting military surveys (military marine data
collection).
By codifying these important navigational rights and freedoms, the
convention provides international recognition of essential maritime
mobility rights used by our forces on a daily basis around the globe.
It establishes a legal framework for the behavior of its 145 parties
and provides the legal predicate that enables our Armed Forces to
respond to crises expeditiously and at minimal diplomatic and political
costs. Today, more than ever, it is essential that key sea and air
lanes remain open as an international legal right, and not be
contingent upon approval by nations along the route. Anything that
might inhibit these inherent freedoms is something we must avoid. The
stable legal regime for the world's oceans codified in UNCLOS will
guarantee the legal basis for the global mobility needed by our Armed
Forces. I might add that the navigational provisions of the convention
must continue to be exercised by our operational forces, particularly
in the maritime environment of the global commons, an environment that
has traditionally been one of claim and counterclaim.
I'm not here to discuss the economic benefits of the convention,
but I would like to mention that the U.S. EEZ is by far the largest and
richest of any in the world. We have some of the richest and most
abundant fisheries in the world--all of which are under our exclusive
control. Moreover, the pot of gold in the seabed is the oil and gas,
and that was also placed under coastal nation control. With all due
respect, the focus on deep seabed mining concerns an activity that has
no market and is economically not feasible at this time because many of
the same minerals are found on land or within the EEZ. In short, our
national security and economic interests will be advanced if we join
the convention.
INACCURACIES ABOUT THE CONVENTION
If I may, Mr. Chairman, I will now briefly address four areas where
inaccurate statements have been made regarding the convention: (1) the
impact of U.S. accession to ongoing intelligence gathering activities,
including submerged transits by submarines; (2) the impact of U.S.
accession to ongoing MIO and the PSI; (3) reliance on customary
international law to exercise our navigational freedoms; and (4) the
impact of mandatory dispute resolution on U.S. sovereignty, in
particular, U.S. military activities at sea.
IMPACT ON INTELLIGENCE GATHERING.
Nothing in the convention will affect the way we currently conduct
surveillance and intelligence activities at sea. Opponents to the
convention argue that the convention's provisions on innocent passage--
Articles 19 and 20--will prohibit or otherwise adversely affect U.S.
intelligence activities in foreign territorial seas at a time when such
activity is vital to our national security. I can say without
hesitation that nothing could be further from the truth.
While it is true that article 19 provides that intelligence
collection within the territorial sea is inconsistent with the innocent
passage regime and that article 20 provides that submarines must
navigate on the surface when engaged in innocent passage, it's a far
stretch to thus conclude that the convention prohibits intelligence
collection and requires submarines to navigate on the surface when
transiting the territorial sea. Nothing in article 19 prohibits a U.S.
vessel from engaging in intelligence activities in a foreign
territorial sea. If a vessel does engage in such activities, it simply
cannot claim that it is engaged in innocent passage. The same rule has
applied for the past seven decades. Similarly, Article 20 does not
prohibit submerged transits through the territorial sea, per se.
Article 20 merely repeats the rule from the 1958 Convention on the
Territorial Sea, a convention to which the United States is a party.
The rule concerning submerged transits from the 1958 Convention has
been the consistent position of nations, including the United States,
for more than 70 years and it has never been interpreted as prohibiting
or otherwise restricting intelligence collection activities or
submerged transits in the territorial sea. In short, if or when the
need arises to collect intelligence in a foreign territorial sea,
nothing in UNCLOS will prohibit that activity.
IMPACT ON MIO/PSI
As a former naval officer, Mr. Chairman, you know that the U.S.
Navy has been conducting MIOs or MIO-type operations since we first
declared our independence. These operations have been conducted using a
variety of legal bases, including: flag State or master's consent,
bilateral boarding agreements, conditions of port entry, customs
enforcement in waters contiguous to the territorial sea, universal
jurisdiction over stateless vessels and vessels engaged in piracy and
slave trade, belligerent right of visit and search under the law of
armed conflict, and the inherent right of self-defense, most recently
reflected in Article 51 of the U.N. Charter. Any of these bases can be
used individually or in combination to interdict suspect vessels on the
high seas as we continue to fight the GWOT. Some of these bases are
codified in the UNCLOS. Others, like the right of self-defense and
belligerent rights, exist outside and are unaffected by the Convention.
The Convention's preamble is quite clear in this regard--that is,
``matters not regulated by the Convention continue to be governed by
the rules and principles of general international law.'' Thus, matters
such as self-defense and belligerent rights are unaffected by the
Convention. In short, nothing in UNCLOS hampers, impedes, trumps, or
otherwise interferes with anything we have done in the past, present or
future regarding MIO. Where the provisions of the Convention like
Articles 92 and 110 apply, we will use them to our advantage. In
situations where other aspects of international law apply, such as our
right of self-defense, the Convention simply is not controlling. To
illustrate, since President Reagan's 1983 direction that the United
States would conform to the non-seabed mining provisions of the
Convention, the United States has relied on its inherent right of self-
defense to conduct MIO on the high seas on two occasions. On 16 August
1990, the United States, joined by Australia and the UK, announced
that, in the exercise of the inherent right of individual and
collective self-defense and at the request of Kuwait, it was commencing
a MIO to enforce U.N. Security Council Resolution (UNSCR) 661, which
imposed an embargo on goods entering Iraq and Kuwait. Nine days later,
on 25 August, the Security Council adopted UNSCR 665, which endorsed
the Arabian Gulf MIO. The right of self-defense has also been used as
one of the legal justifications for the current MIO in support of OEF
and OIF. I would note parenthetically that self-defense was also one of
the legal bases used to justify the interdiction of offensive weapons
and associated materials to Cuba during the 1962 Cuban Missile Crisis.
Mr. Chairman, if I can now briefly address the PSI. As you all
know, the PSI is a relatively new concept, which was announced by
President Bush on 31 May 2003 in Krakow, Poland. I'm certain that
members of the administration can better address the intricacies of the
PSI than I can, since I have not been directly involved in its
development. But, as I understand it, this initiative was developed in
conjunction with 10 other countries--Australia, Japan, France, Germany,
Italy, The Netherlands, Poland, Portugal, Spain, and the U.K. Since
then, 3 more countries--Canada, Norway, and Singapore--have been added
to the partnership. All of these countries are parties to UNCLOS.
PSI is a global initiative designed to create a more robust
approach to preventing weapons of mass destruction (WMD), their
delivery systems and related materials flowing to and from States and
non-state actors of proliferation concern. In furtherance of this
initiative, the PSI partners agreed to a SOP in September 2003. Some of
the opponents to the Convention have argued that becoming a party to
the Convention will hinder our ability to effectively interdict WMD at
sea. This argument, however, fails to recognize that one of the basic
tenets of the SOP is that PSI activities will be undertaken consistent
with national legal authorities and relevant international law and
frameworks, including the navigation-related provisions of the UNCLOS.
The UNCLOS absolutely does not provide any role for the U.N. relating
to PSI activities, much less a role in deciding when and where ships at
sea may be boarded. There already exists a large body of authority
under international law for PSI interdictions at sea, including:
Enforcement actions by coastal nations in their
internal waters, territorial sea and national airspace,
consistent with UNCLOS Articles 2 and 21. Coastal nation
sovereignty extends beyond its land territory and internal
waters to the adjacent territorial sea and the air space over
the territorial sea. Within the territorial sea, coastal
nations may adopt laws and regulations to prevent the
infringement of its customs, fiscal, immigration, or sanitary
laws. The coastal nation may also exercise the control
necessary within its 24 nautical mile contiguous zone to
prevent infringement of these laws and regulations.
Enforcement actions by a flag State over vessels
flying its flag, consistent with UNCLOS Articles 92 and 110. As
a general rule, the flag State has exclusive jurisdiction over
vessels flying its flag on the high seas, but there are
exceptions.
Boarding of foreign flag vessels on the high seas
based on the consent of the flag State or the master,
consistent with UNCLOS Article 92. Although the flag State has
exclusive jurisdiction over its vessels on the high seas, the
jurisdiction can be waived by the flag State or by the ship's
master, the flag State's representative on the vessel.
Boarding of a foreign flag vessel pursuant to a
bilateral or multilateral boarding agreement with the flag
State, as evidenced by the recently concluded U.S.-Liberia PSI
Boarding Agreement (11 February 2004). This agreement is
modeled after the counternarcotics cooperation agreements we
currently have with 24 nations.
Enforcement actions against stateless vessels and
vessels that have been assimilated to a ship without
nationality, consistent with UNCLOS Articles 92 and 110. Mr.
Chairman, all nations have jurisdiction over stateless vessels,
as well as vessels engaged in piracy and slave trade.
Last, but not least Mr. Chairman, as in the case of MIOs, PSI
interdictions can also be justified as a self-defense measure. Clearly,
international law, including UNCLOS, would not prohibit the United
States or any other nation from boarding a vessel carrying a WMD that
posed an imminent threat to our national security just because we
didn't have flag State or master consent. If one thing is clear in
international law, a nation is authorized to use armed force in self-
defense to protect its national interests against an imminent threat of
attack.
RELIANCE ON CUSTOMARY INTERNATIONAL LAW
Mr. Chairman, some have argued that joining the Convention is not
necessary because the navigational rights and freedoms codified in the
Convention already exist as customary international law and are
therefore binding on all nations. I believe that premise is flawed for
a number of reasons.
While it is true that many of the convention's provisions are
reflective of customary international law, others, such as the rights
of transit passage and archipelagic sea lanes passage that I previously
discussed, are creations of the convention. Additionally, if you
examine the evolution of customary international law in the 20th
century, you'll find that it evolved the erosion, not the preservation,
of navigational rights and freedoms. In the mid-1950s--it was concluded
by the major maritime powers that the best way to stop that erosion was
through the adoption of a universally recognized treaty that
established limits on coastal nation jurisdiction and preserved
traditional navigational rights and freedoms.
I think it is also important to note, Mr. Chairman, that not
everyone agreed with our ``customary international law'' interpretation
announced by President Reagan in his 1983 Ocean Policy Statement.
However, our ability to influence the development of customary law
changed dramatically in 1994 when the convention entered into force. As
a non-Party, we no longer had a voice at the table when important
decisions were being made on how to interpret and apply the provisions
of the convention. As a result, over the past 10 years, we have
witnessed a resurgence of creeping jurisdiction around the world.
Coastal States are increasingly exerting greater control over waters
off their coasts and a growing number of States have started to
challenge US military activities at sea, particularly in their 200
nautical mile (nm) EEZ.
For example, as I testified before the Senate Foreign Relations
Committee, Malaysia has closed the strategic Strait of Malacca, an
international strait, to ships carrying nuclear cargo. Chile and
Argentina have similarly ordered ships carrying nuclear cargo to stay
clear of their EEZs. These actions are inconsistent with the Convention
and customary law, but will other nations attempt to follow suit and
establish a new customary norm that prohibits the transport of nuclear
cargo? Will attempts be made to expand such a norm to include nuclear-
powered ships?
China, India, North Korea, Iran, Pakistan, Brazil, Malaysia, and
others, have directly challenged U.S. military operations in their EEZ
as being inconsistent with UNCLOS and customary international law.
Again, the actions by those countries are inconsistent with the
convention and customary law, but will other nations follow suit and
attempt to establish a new customary norm that prohibits military
activities in the EEZ without coastal State consent?
If we are going to successfully curtail this disturbing trend of
creeping jurisdiction, we must reassert our leadership role in the
development of maritime law and join the convention now. The urgency of
this issue is highlighted by the fact that under its terms, the
convention can be amended after this November. As a party, the US could
prevent any attempt to erode our crucial and hard won navigational
freedoms that are codified in the convention.
I also believe, Mr. Chairman, that it is short-sighted to argue
that, if the customary law system somehow breaks down, the United
States, as the world's pre-eminent naval power, wouldn't have any
trouble enforcing it. Clearly, our Navy could engage in such an effort.
However, enforcing our navigational rights against every coastal nation
in the event the convention and customary law systems collapse would be
very costly, both politically and economically. Moreover, it would
divert our forces from their primary missions, including the long-term
global war on terrorism. Excessive coastal nation claims are the
primary threat to our navigational freedoms. Those claims can spread
like a contagious virus, as they did in the 20th century. The added
legal security we get from a binding treaty permits us to use our
military forces and diminishing resources more efficiently and
effectively by concentrating on their primary missions.
LOSS OF U.S. SOVEREIGNTY
Concerns have been raised that it is not in the best interests of
the United States to have its maritime activities subject to the
control of an international tribunal, like the International Tribunal
for the Law of the Sea or the International Court of Justice (ICJ).
That concern is clearly misplaced. While the convention does establish
a Tribunal, parties are free to choose other methods of dispute
resolution. The United States has already indicated that if it becomes
a party it will elect two forms of arbitration rather than the Tribunal
or the ICJ.
More importantly, this concern fails to recognize that no country
would subordinate its national security activities to an international
tribunal. This is a point that everyone understood during the
negotiations of the convention, and that is why article 286 of the
convention makes clear that the application of the compulsory dispute
resolution procedures of section 2 of Part XV are subject to the
provisions of section 3 of Part XV, which includes a provision that
allows for military exemptions, which would encompass military
activities conducted pursuant to PSI.
Some may try to argue that Article 288 allows a court or tribunal
to make the final determination as to whether or not it has
jurisdiction over a matter where there is a dispute between the parties
as to the court's jurisdiction. They argue that Article 288 could be
read to authorize a court or tribunal to make a threshold
jurisdictional determination of whether an activity is a military
activity or not and, therefore, subject to the jurisdiction of the
court or tribunal. However, Article 288 is also found in section 2 of
Part XV and therefore does not apply to disputes involving what the
U.S. Government has declared to be a military activity under section 3
of Part XV. I submit this interpretation is supported by the
negotiating history of the convention, which reflects that certain
disputes, including military activities, are considered to be so
sensitive that they are best resolved diplomatically, rather than
judicially. This interpretation is also supported by a plain reading of
the convention.
It is very important, as recommended by the Senate Foreign
Relations Committee's report, that while depositing an instrument of
accession, the United States should reemphasize this point by making a
declaration or an understanding that clearly states that military
activities are exempt from the compulsory dispute resolution provisions
of the convention and that the decision regarding whether an activity
is military in nature is not subject to review by any court or
tribunal.
One final point on dispute settlement, Mr. Chairman. The convention
itself tends to take disputes out of a bilateral context, with both
parties directing their attention to the convention and not necessarily
at each other. As you will recall, that's how we resolved the 1988
Black Sea Bumping incident with the former Soviet Union, which resulted
in the 1989 Joint Statement by the U.S.S.R. and the United States
concerning a Uniform Interpretation of the Rules of Innocent Passage.
The convention's provisions on innocent passage provided the legal
basis for the uniform interpretation. We also successfully utilized the
convention in resolving many other difficult issues, such as the
Northwest Passage dispute with Canada.
RUSH JOB
Finally, Mr. Chairman, although I didn't mention this issue at the
beginning of my statement, I'd like to respond to the allegation that
the ratification process with regard to UNCLOS is moving too fast.
Few treaties in U.S. history have undergone the level of scrutiny
that UNCLOS has undergone. Every aspect of the convention was
painstakingly reviewed and analyzed during its 9-year negotiation.
Since 1982, it has been exhaustively considered, analyzed and
interpreted by every relevant agency in the U.S. Government. The Reagan
administration gave it a long, careful review and decided not to sign
it solely because of the flaws in Part XI concerning deep seabed
mining. The Convention was again closely scrutinized from 1990 to 1994
as Part XI was being renegotiated to fix the problems identified by the
Reagan administration. I would note, in this regard, that the efforts
to renegotiate Part XI commenced under the first Bush administration.
After the Part XI Agreement was successfully negotiated in 1994 to fix
the problems identified by President Reagan, the Convention was again
reviewed and analyzed when the Clinton administration sent the
Convention and the Part XI Implementing Agreement to the Senate for
advice and consent. The Convention was again extensively reviewed and
analyzed in 2001 after September 11, and again this year. Initial
hearings on the convention were held by the Senate Foreign Relations
Committee in 1994 and again in 2003, as well as these hearings and the
hearings before the Committee on Environment and Public Works. Finally,
Mr. Chairman, the Convention has been the topic of debate and
discussion at countless academic conferences hosted by numerous
prestigious institutions, including but not limited to: Georgetown
University, University of Virginia, Duke University, Center for Ocean
Law and Policy, Law of the Sea Institute, and National Academy of
Sciences. In short, Mr. Chairman, to conclude this has been a ``rush
job'' would insufficiently credit all of those thoughtful reviews.
Mr. Chairman, there is now almost universal adherence to UNCLOS,
with 145 parties, including all of our major allies and important non-
aligned nations. The convention establishes a stable and predictable
legal framework for uses of the oceans that will benefit our armed
forces. As a matter of substance, all of his successors have agreed
with President Reagan that the convention sets forth the appropriate
balance between the rights of coastal nations and the rights of
maritime nations. The United States is both and will benefit two-fold
by becoming a party. The convention is good for America--good for our
economy, good for our well-being and, most importantly, good for our
national security. It is time that we reassert our position as the pre-
eminent maritime nation of the world and take our rightful place as a
party to the convention.
That concludes my testimony, Mr. Chairman. It has been an honor for
me to be with you here today. Thank you.
Chairman Warner. We thank you. You draw on a vast
experience on this subject and your testimony reflects that
experience.
I wonder if the panel could indulge just quick questions as
we go around. I have questioned you on other aspects, so I will
just direct it first to my good friend the Secretary of the
Navy, Mr. Middendorf. There is one thing I know you love and
love dearly is the United States Navy. Am I not correct, the
tie you are wearing today is the same one you wore 30 years ago
when I was in there, am I not correct?
Ambassador Middendorf. That is the one you gave me, John.
Chairman Warner. Is it not an old destroyer tie?
Ambassador Middendorf. Destroyer cruiser, World War II.
Chairman Warner. That is what you served on in World War
II, is my recollection.
Ambassador Middendorf. Like yourself, you have promoted me.
I was commanding officer of a Landing Craft Support in the
Pacific.
Chairman Warner. You are modest as always.
I ask this because I know as you sat there and listened to
the CNO your reverence for all those who have served in that
position and the Navy, and indeed the submitted testimony by
the Chairman of the Joint Staff. You have worked with many
through the years. Do you have anything that you could say as
to how you came to such strong views in opposition to your
beloved chiefs?
Ambassador Middendorf. It broke my heart. Yesterday I had
the privilege of sitting down with, for several hours, the
Judge Advocate General Corps at the Navy Department and going
over these issues. They know where I am coming from. I said:
Look, my problem is not--the Navy benefits mightily for the
most part from this program. It is this question of sovereignty
that I worry about, and also I have some problems with the opt-
out provisions in this treaty.
I proposed today that we make an amendment to the treaty,
if possible, and the Senate so advise that we clarify that
whole question of a declaration and opt-out provisions. That is
my main problem, plus the sovereignty issue. Philosophically, I
desperately hope we will take out article 140, which talks
about redistributing the world's resources from the successful
countries to the poorer countries.
Chairman Warner. Thank you.
Professor Moore, you mentioned and I wrote down the erosion
of sovereign rights of this country as you have seen it through
the years. I think you were speaking in terms of navigation and
so forth. I was waiting to hear you use the words ``and this
treaty would restore some of those areas where there has been
erosion.'' I do not want to lead a witness, but can you say
that?
Mr. Moore. Mr. Chairman, yes, I can say certainly that in
relation to the overall negotiations, of our struggle over a
25-year period to get this, Mr. Chairman. We were facing 200-
mile economic territorial sea claims that would have cost the
sovereign rights of the United States on the high seas, a
fundamental principle of international law that every nation's
warships and their ships are not subject to the control of
other countries on the high seas.
We were facing a series of what were called creeping
jurisdiction claims of individual coastal states to make these
claims. So this negotiating process I have no doubt, Mr.
Chairman, was extraordinarily important in rolling those back
and protecting the sovereign rights of the United States of
America, and I have no doubt but that that is really the thing
at stake as we go forward: Are we going to continue to protect
the sovereign rights of the United States in naval mobility and
commercial mobility?
So I think that is the real sovereignty issue. I must say,
Mr. Chairman, for the life of me I cannot see or understand any
other sovereignty issue here. The deep seabed mining area has
no area relating to sovereignty and there is simply nothing
under U.S. national jurisdiction that is being placed under the
international authority, period.
Let me also just make a point on this article 140 to my
good friend Bill Middendorf, because that is a little
deceptive. You look at that article 140 and it looks like this
thing is still part of the new international economic order.
But then you look more closely at actually what was negotiated
and what the real functional authority is. It appears in
article 1, which is in definitions, and it appears in article
134, which is the actual functional authority to deal with
mineral resources, and activities in the area are defined
basically dealing with mineral resources.
So the article 140, Bill, has really been well-controlled.
We have gotten over that. We won that renegotiation, and every
single penny that would go anywhere around the world under this
notion of a new international economic order is subject to a
United States veto.
Chairman Warner. Professor, I want to allow my
distinguished colleague his opportunity.
I would simply say, Admiral, if I could draw your
attention, if you know of someone in the building in the DOD or
in the retired community that has views at variance with yours
and has the depth of experience that you have had, I would
appreciate if you would refer that individual to me and I will
avail them of an opportunity to provide something for the
record, because I value greatly the cadre of individuals in the
DOD who have worked on this for so many years dating back to
1969 when I was first exposed.
So I thank you very much, and this record will remain open
throughout the next week so that we can compile the record.
I thank you for your indulgence, Senator.
Senator Inhofe. I thank you. I have to say, Mr. Chairman, I
do not think I have ever had an experience of seeing so many
brilliant, articulate people with such diverse views. But I
have only been here 18 years. [Laughter.]
Chairman Warner. That is a slight dig at the old chairman.
Senator Inhofe. I appreciate it very much and I think you
have made good points. I think we can go back as we are making
notes on different things that have been said that perhaps we
could take some issue with. I think you are right when you say
this is not United Nations, but they are essentially the same
countries. It is still a type of a treaty where I believe, and
I have heard some brilliant people agree, that there are things
that we would have to do that might not be in our best
interests.
But that is for us to evaluate, and that is why this is
very, very significant that we are having this. It is my
understanding that there may now be a hearing before the
Intelligence Committee because I heard the chairman express
that desire.
So I think you all three were very articulate and very
thorough, and I cannot think of one thing that they did not
cover that I would have to ask a question on.
So, Mr. Chairman, I appreciate very much your holding this
hearing.
Chairman Warner. Thank you very much. I appreciate the work
that you have done and we will continue to work on it.
The hearing is adjourned and I thank all our participants.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Pat Roberts
UNITED STATES' VETO POWER
1. Senator Roberts. Mr. Taft, you and Admiral Clark have
represented to Senators and staff that the convention ensures the U.S.
a permanent seat on the ISA Council, and that the U.S. has ``veto''
power in that organization. The ``Gold Standard'' for a permanent U.S.
seat and an effective U.S. veto is the United Nations Charter. In
Article 25 of the Charter, the United States of America is explicitly
named in the text as a permanent member of the Security Council. In
Article 27 the Charter explicitly provides in the text that U.N.
Security Council decisions must have the concurring votes of all
permanent members. Where is the United States of America mentioned
explicitly by name in the text of the convention, its annexes, in the
Clinton Agreement, or in its annex?
Mr. Taft. The United States is denoted in Section 3, article 15(a),
of the 1994 Agreement as having a permanent seat on the Council. That
article provides, in pertinent part, that the Council is to include
``the state, on the date of entry into force of the convention, having
the largest economy in terms of gross domestic product. . . .'' On the
date of the entry into force of the convention, November 16, 1994, thc
United States had the largest economy in terms of gross domestic
product.
2. Senator Roberts. Mr. Taft, even assuming that the U.S. could
exercise some kind of veto power over ISA Council decisions based upon
the Clinton agreement, is the Clinton agreement amendable?
Mr. Taft. Amendments could be proposed to the deep seabed mining
provisions. Such an amendment could not be adopted over the objection
of the United States.
3. Senator Roberts. Mr. Taft, will economic conditions perpetually
``guarantee'' the U.S. a seat?
Mr. Taft. The U.S. guaranteed seat does not depend upon future
economic conditions. The seat depended upon economic conditions at a
particular point in time, which has now passed. The seat is now fixed.
4. Senator Roberts. Mr. Taft, assuming that the U.S. really will
exercise some kind of ``veto'' power in the ISA Council, will that
power also extend to decisions of the UNCLOS Tribunal?
Mr. Taft. The proposed resolution of advice and consent would have
the United States select arbitration under article 287(1) of the
convention rather than the ICJ or the International Tribunal for
UNCLOS. Nevertheless, the United States would be able to nominate up to
two persons for election to the Tribunal. Decisions of the Tribunal are
taken by majority vote of its 21 members.
5. Senator Roberts. Mr. Taft, would that power extend to decisions
of the World Court that rely on or interpret the convention?
Mr. Taft. Where two parties to the convention have elected to have
disputes concerning the convention addressed by the ICJ, the Court's
normal procedures would apply. The court, pursuant to its statute,
makes decisions by majority.
TRIBUNAL'S FIDELITY
6. Senator Roberts. Mr. Taft, the Department of State appears to
have full confidence in the Tribunal's enduring fidelity to rational
behavior. Does the Department of State or the DOD have written analyses
of Tribunal jurisprudence that might explain that confidence? If so,
may we have copies?
Mr. Taft. I would refer you to www.itlos.org for the dispute
settlement cases under the convention that have been brought to the
Tribunal. These cases relate primarily to the prompt release of vessels
(in most cases, related to fisheries). The other cases have been either
requests for provisional measures pending the establishment of an
arbitral tribunal under the convention or cases brought to the Tribunal
by mutual agreement of the parties to the dispute. Deep seabed mining
disputes are also subject to the jurisdiction of the Tribunal (the Sea-
bed Disputes Chamber in particular); however, there have not been any
such cases to date.
The specific cases that have been brought before the Tribunal to
date are:
Prompt Release:
the M/V ``SAIGA'' Case (Saint Vincent and the
Grenadines v. Guinea);
the ``Camouco'' Case (Panama v. France);
the ``Monte Confurco'' Case (Seychelles v. France);
the ``Grand Prince'' Case (Belize v. France);
the ``Chaisiri Reefer 2'' Case (Panama v. Yemen); and
the ``Volga'' Case (Russian Federation v. Australia).
Other:
the M/V ``SAIGA'' Case (No. 2) (Saint Vincent and the
Grenadines v. Guinea);
the Southern Bluefin Tuna Cases (New Zealand/Australia
v. Japan);
the case concerning the Conservation and Sustainable
Exploitation of Swordfish Stocks in the South-Eastern Pacific
Ocean (Chile v. European Community);
the MOX Plant Case (Ireland v. United Kingdom); and
the case concerning Land Reclamation by Singapore in
and around the Straits of Johor (Malaysia v. Singapore).
In terms of the prompt release cases, the Tribunal has declined
jurisdiction in appropriate cases, for example, in the Grand Prince
case where it was not clear that the vessel was in fact a Belize flag
vessel. As a substantive matter, the decisions have efficiently
implemented the convention's objective of providing for the prompt
release of vessels/crew upon the posting of a reasonable bond.
Concerning other cases, their procedural and factual circumstances
vary considerably. Some cases, such as the ``SAIGA'' No. 2 case and the
Swordfish case, were submitted to the Tribunal by agreement of the
parties to the dispute. On the merits, the Tribunal decided in
``SAIGA'' No, 2 that the arrest by Guinea of the vessel of Saint
Vincent and the Grenadines was contrary to the convention's hot pursuit
provisions, and compensation was awarded for the unlawful arrest and
detention. The parties to the Swordfish dispute agreed to suspend the
proceedings and work instead to negotiate a conservation agreement,
thereby obviating the need for any decision on the merits by the
Tribunal.
Jurisdictional issues were raised in both the Southern Bluefin Tuna
Case and the MOX case. Both cases involved a request for provisional
measures, and both cases involved the existence of another agreement
between the parties to the dispute on the same subject matter that
raised a jurisdictional issue under article 282 of the convention. In
Southern Bluefin Tuna, the Tribunal found jurisdiction and ordered
certain provisional measures, essentially those sought by Australia and
New Zealand; in MOX, the Tribunal also found jurisdiction but did not
order any of the provisional measures requested by Ireland. (It should
be noted that the U.K. did not raise certain jurisdictional defenses
that it could have raised.) The latter case also involved the special
situation that both the U.K. and Ireland are members of the European
Union; as such, the case is currently suspended pending further action
on the issue within the European Court of Justice.
In the Straits of Johor Case, another provisional measures case,
Singapore raised jurisdictional arguments concerning, inter alia, the
need to exhaust recourse to other means to settle the dispute before
proceeding to dispute settlement under the convention. Finding that it
had jurisdiction, the Tribunal did not award the provisional measures
sought by Malaysia but decided upon other measures of an interim
nature.
7. Senator Roberts. Mr. Taft, has any party to the convention ever
challenged the Tribunal's jurisdiction in a case filed with the
Tribunal? If so, please discuss the arguments and outcome when you
supply your written analysis of jurisprudence.
Mr. Taft. Yes. Jurisdictional/admissibility issues have been raised
in two prompt release cases, and jurisdictional issues have been raised
in several provisional measures cases.
In one prompt release case (the Grand Prince case), contradictory
and confusing evidence was presented about the registration status of
the vessel in question, creating doubt as to whether it was registered
as a Belize flag vessel at the time the application for prompt release
was made. The Tribunal found that it did not have jurisdiction, given
that article 292(2) requires that applications for release of vessels
may be made only by or on behalf of the flag state.
In another prompt release case (the M/V ``SAIGA'' case), Guinea
unsuccessfully argued: that there was no genuine link between Saint
Vincent and the Grenadines and the vessel in question; and that local
remedies had not been exhausted under article 295. The Tribunal found
that there was sufficient evidence that the SAIGA was the flag vessel
of Saint Vincent and the Grenadines for purposes of article 292 and
that the exhaustion of local remedies was not required by article 295
(which requires exhaustion of local remedies only where that is
required by international law).
In the Southern Bluefin Tuna provisional measures case, Japan
sought to invoke article 282 to defeat jurisdiction in light of the
1993 Convention for the Conservation of Southern Bluefin Tuna. Article
282 of the LOS Convention provides:
``If the States Parties which are parties to a dispute
concerning the interpretation or application of this convention
have agreed, through a general, regional, or bilateral
agreement or otherwise, that such dispute shall, at the request
of any party to the dispute, be submitted to a procedure that
entails a binding decision, that procedure shall apply in lieu
of the procedures provided for in this part, unless the parties
to the dispute otherwise agree'' (emphases added).
The Tribunal did not find article 282 to be applicable in that
case. It concluded that the agreement cited by Japan did not provide
for disputes concerning the UNCLOS to be submitted to a dispute
settlement procedure; further, it noted that the agreement cited did
not provide in any event for dispute settlement procedures entailing a
binding decision.
In the MOX provisional measures cases, the U.K. sought to invoke
article 282 to defeat jurisdiction, citing the OSPAR Convention (a
regional marine pollution treaty) to which both Ireland and the U.K.
are parties. The Tribunal found article 282 not applicable because the
cited regional treaty did not provide for disputes concerning the
UNCLOS to be submitted to a dispute settlement procedure under that
treaty. (It should be noted that the U.K. did not raise article 297 as
a defense to jurisdiction, which it could have.) The Tribunal thus
found jurisdiction. It did not, however, award the measures sought by
Ireland.
In the Straits of Johor provisional measures case, Singapore raised
jurisdictional arguments under articles 281 and 283 concerning, inter
alia, the need to have exhausted recourse to other means to settle the
dispute before proceeding to dispute settlement under the convention.
The Tribunal concluded that it had jurisdiction, finding that the
requirement for prior consultations had been satisfied through
exchanges of views and meetings between the parties and that it was
explicitly stated at the time that the consultations were without
prejudice to Malaysia's right to pursue dispute settlement under the
convention.
TRIBUNAL'S JURISDICTION
8. Senator Roberts. Mr. Taft, with regard to the jurisdiction of
the Tribunal, how far beyond the immediate shoreline can the Tribunal
reach to address activity affecting the sea?
Mr. Taft. The convention addresses land-based sources of marine
pollution, one of the major causes of marine pollution. However,
alleged marine pollution by coastal states from land-based sources are
not subject to dispute settlement jurisdiction under the convention,
whether by the Tribunal, arbitration, or otherwise.
Because of the sensitivities of coastal states concerning their
land-based (and certain other) activities, the convention sets forth
limitations on the obligations related to marine pollution that are to
be subject to dispute settlement jurisdiction. These limitations on
jurisdiction apply to all parties, unlike the optional exceptions to
dispute settlement, such as disputes concerning military activities,
which must be affirmatively declared by a party in advance.
Specifically, article 297(1)(c) provides that only certain coastal
state obligations related to marine pollution are subject to dispute
settlement. Among other things, there needs to be a ``specified''
international rule or standard ``applicable'' to the coastal state. The
convention does not obligate the coastal state to follow an
international rule or standard with respect to land-based sources, much
less a specified one. On the contrary, recognizing the sensitivity
surrounding land-based activities, coastal states are merely to ``take
into account'' internationally agreed rules, standards, etc.
Thus, alleged marine pollution from U.S. land-based activities
would not be subject to dispute settlement under the convention.
9. Senator Roberts. Mr. Taft, can the Tribunal reach activity along
any navigable waterway in our country?
Mr. Taft. See answer to Q. 8.
10. Senator Roberts. Mr. Taft, does the convention set out
territorial jurisdictional limits of any kind for the Tribunal?
Mr. Taft. See answer to Q. 8.
11. Senator Roberts. Mr. Taft, who decides where the borderline
will be under the convention between the jurisdiction of our Federal
courts and the jurisdiction of the Tribunal? Is there a borderline?
Mr. Taft. Dispute settlement panels under the convention would be
addressing interpretation and application of the convention. In
general, U.S. Federal courts would not be addressing the convention; it
should be noted in this regard that one of the declarations in the
proposed resolution of advice and consent makes clear that the
convention would not be judicially enforceable in U.S. courts (with the
exception of certain provisions related to privileges and immunities).
One area of overlap would be U.S. enforcement of decisions of the Sea-
bed Disputes Chamber pursuant to article 39 of Annex VI. In this
regard, another proposed declaration makes clear that such decisions
are to be enforceable in the United States not directly through
invocation of the convention but only in accordance with procedures
established by implementing legislation.
12. Senator Roberts. Mr. Taft, who will resolve conflicts in views
between the U.S. Congress and the Tribunal or other Convention parties?
Mr. Taft. As I have noted in testimony and a letter to the Senate,
the United States would be able to implement the convention under
existing laws and regulations (including enforcement practices), which
are consistent with the convention and which would not need to be
changed in order for the United States to meet its convention
obligations. Were Congress in the future to enact legislation in some
way at odds with U.S. obligations under the convention, such
legislation would prevail in the United States as a matter of U.S. law,
notwithstanding the contrary view of any other state or dispute
settlement body under the convention.
ADMINISTRATION OBJECTIONS
13. Senator Roberts. Mr. Taft, if the Senate decides to take up
this treaty, would the administration object in principle if the Senate
decided to improve the draft resolution of ratification first?
Mr. Taft. The administration would have no objection in principle
to improvements to the draft resolution of advice and consent. The
administration has, however, worked closely with the Foreign Relations
Committee in drafting the resolution of advice and consent that has
been reported to the Senate and believes that this resolution is
satisfactory in its present form. The administration's position on
particular proposals would, of course, depend upon the proposal in
question.
PROLIFERATION SECURITY INITIATIVE
14. Senator Roberts. Mr. Taft, please explain why submitting our
Nation's naval activity to the convention regime does not sap vital
operational flexibility needed for the Proliferation Security
Initiative (PSI) and other operations to confront 21st century threats.
Mr. Taft. As stated in my testimony, the convention's navigation
provisions derive from the 1958 UNCLOS, to which the United States is a
party, and also reflect customary international law accepted by the
United States. As such, U.S. accession to the convention will not
affect applicable maritime law, policy, or practice regarding maritime
interdiction of weapons of mass destruction or other maritime
operations. If anything, as Admiral Clark testified, joining the
convention will support both the worldwide mobility of our forces and
our traditional leadership role in maritime matters; it supports the
freedom to get to the fight, 24 hours a day and 7 days a week, without
a permission slip.
15. Senator Roberts. Mr. Taft, since the PSI was conceived and is
executed by a group of like-minded and willing allies outside of the
United Nations ambit, please explain how the State Department's efforts
to directly link it to the United Nations through this Convention will
enhance it.
Mr. Taft. The PSI Statement of Interdiction Principles states
clearly that all PSI activities will be undertaken consistent with
national legal authorities and international law. The convention
reflects customary international law accepted by the United States and
therefore ratification of the convention will not impact our PSI
maritime-related activities. Adherence to the convention does not link
PSI to the United Nations, just as adherence to the U.N. Charter does
not link PSI to the United Nations.
16. Senator Roberts. Mr. Taft, which is the more important
criterion for foreign state participation in PSI? The foreign state's
political will to help the United States counter illicit proliferation
or the fact that the foreign state is (or is not) a party to the
convention?
Mr. Taft. Any state participating in PSI must have the political
will to counter illicit proliferation. That is the purpose of PSI. A
PSI partner does not need to be a party to the convention.
17. Senator Roberts. Mr. Taft, China opposes interdiction of ships
to stop proliferation. This became very clear recently in the U.N.
Security Council, when the U.S. attempted to obtain a strong resolution
on arms trafficking. Could China, as a party to the convention, use the
convention to challenge U.S. PSI operations in the Pacific?
Mr. Taft. The purpose of UNSCR 1540, as called for by the
President, was to require states to criminalize proliferation, put in
place strong export controls, and secure sensitive materials. As part
of that resolution, we also obtained a strong statement of political
support for cooperative action to stop proliferation, consistent with
international and national legal authorities. We are pleased with the
strong endorsement by the Security Council, including China, for
activities like the PSI, which involve cooperative action to stop
proliferation. Even so, were China or any other Party to the convention
to challenge PSI operations, such operations would not be subject to
dispute settlement because of the exception for disputes concerning
military activities.
PROTECTING U.S. MARITIME INTERESTS
18. Senator Roberts. Mr. Taft, why do you feel that the U.N.
Security Council (where the U.S. actually does have a permanent seat
and veto) is a forum inferior to convention bodies for protecting U.S.
maritime interests?
Mr. Taft. It is not a matter of the Security Council's being an
``inferior'' forum. The fact is that various convention bodies, not the
Security Council, are charged with implementing and applying convention
provisions of great interest to the United States. The Continental
Shelf Commission, for example, has begun its work examining the
proposed outer limits of various states' continental shelves in
accordance with the criteria in article 76 of the convention. Its
conclusions have implications not only for the claims of other states,
which we will want to ensure do not exceed allowable limits, but also
for the future claim of the United States that the United States is
currently in the early stages of developing. As another example, the
deep seabed mining institutions are engaged in work of interest to
potential exploration and exploitation of the deep seabed by U.S.
entities.
SO-SAN
19. Senator Roberts. Mr. Taft, why did Spanish commandos, instead
of U.S. troops, board and stop the SO-SAN off the Horn of Africa in
December 2002, as it carried a cargo of SCUD missiles from North Korea?
Mr. Taft. Spanish commandos boarded and stopped the SO-SAN because
those forces were the best available at the time and location of the
boarding. Although the PSI did not exist at the time, this is exactly
the kind of cooperative action envisioned by the PSI.
20. Senator Roberts. Mr. Taft, in preparing the ``execute order''
for this mission, did the State Department or the Department of Defense
take notice of the convention in any way? If so, how?
Mr. Taft. As directed by President Reagan in 1983 and subsequently,
the United States, including the U.S. Navy, has been acting
consistently with the non-seabed provisions of the convention. The
convention provided a number of possible bases to board the vessel,
which were considered as the situation on the scene developed.
21. Senator Roberts. Mr. Taft, did the convention present any
obstacles to the boarding?
Mr. Taft. No.
22. Senator Roberts. Mr. Taft, if the convention did pose an
obstacle to boarding the SO-SAN, why should the United States become a
party to a convention that prevents unconventional actions that may be
vital to fighting terrorism and proliferation?
Mr. Taft. Joining the convention would not change the law currently
applicable to the United States in conducting such actions, either by
virtue of the 1958 Conventions or by virtue of customary international
law accepted by the United States.
ARTICLE 110
23. Senator Roberts. Mr. Taft, Article 110 of the convention on the
``Right to Visit'' is very explicit. In summary, it permits a warship
on the high seas to board a foreign ship where there is a reasonable
ground for suspecting that the ship is:
1. engaged in piracy;
2. engaged in the slave trade;
3. engaged in unauthorized broadcasting;
4. without nationality; or
5. the same nationality as the warship though flying a foreign
flag or no flag.
Article 110 does not, however, state that boarding is permitted
where there is a reasonable ground for suspecting that the ship is
engaged in terrorism or proliferation. China demonstrated in the
Security Council recently that it adamantly opposes interdiction of
ships to prevent WMD proliferation. Is it safe to assume that China's
unhelpful attitude is also supported by convention context?
Mr. Taft. No. First of all, China did not oppose interdictions and,
in the course of negotiations, that a range of actions, including
interdictions, could be used to stop proliferation. The specification
of certain grounds permitting the boarding of foreign ships in article
110 does not limit the numerous other legal bases under the convention
for taking enforcement action against vessels and aircraft suspected of
engaging in proliferation of weapons of mass destruction, for example,
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, either by general agreement in
advance or approval in response to a specific request, waive in favor
of other states); and universal jurisdiction over stateless vessels.
Further, nothing in the convention impairs the inherent right of
individual or collective self-defense. Nothing in the convention would
support any country's statements of opposition to the PSI.
24. Senator Roberts. Mr. Taft, why is it in our
counterproliferation and counterterrorism interests to lock ourselves
into this restrictive article?
Mr. Taft. This article reflects existing international law accepted
by the United States. We are not changing any policy or practice of the
United States relating to activities on the high seas.
25. Senator Roberts. Mr. Taft, isn't it true that Article 110 of
the convention would require the U.S. to pay damages for
``unjustified'' boardings?
Mr. Taft. The United States does not make ``unjustified''
boardings. It should also be noted that a requirement to pay damages
for ``unjustified'' boardings is contained in the 1958 Geneva
Convention on the High Seas, to which the United States is already a
party.
26. Senator Roberts. Mr. Taft, if the U.S. is required to pay
damages, would such damages be payable to convention parties only or to
non-parties like North Korea as well?
Mr. Taft. Inasmuch as all U.S. boardings are justified in advance,
the U.S. will not be liable for damages.
27. Senator Roberts. Mr. Taft, who decides whether a boarding is
unjustified?
Mr. Taft. The United States will determine whether a boarding is
justified before undertaking it.
28. Senator Roberts. Mr. Taft, would the SO-SAN have been an
``unjustified'' boarding?
Mr. Taft. No. It was originally suspected of being a vessel without
nationality. When its nationality was confirmed, the ship was searched
with the permission of the flag state. (The ship was found, among other
things, to have a false manifest of the goods on board.)
29. Senator Roberts. Mr. Taft, if the SO-SAN were to have been an
``unjustified'' boarding, and assuming that the U.S. had been a
convention party at the time of the SO-SAN boarding, to whom could the
U.S. have owed damages?
Mr. Taft. As noted above, the SO-SAN boarding (conducted by Spain)
was not an unjustified boarding. The SO-SAN's flag state was Cambodia.
``NO RESERVATIONS'' CLAUSE
30. Senator Roberts. Admiral Clark, this convention's ``no
reservations'' clause interferes with the Senate's treaty power. The
executive branch, by making it difficult for the Senate to attach
reasonable conditions to complex treaties, leaves the Senate no choice
but to reject them. Such clauses might have made sense during the U.S.-
Soviet arms race, but no longer. Would the Navy object to a Senate
effort to remove the no reservations clause?
Admiral Clark. My understanding is that the only way to remove the
``no reservations'' clause from the treaty would be for the parties to
the convention to amend it. Moreover, the ``no reservations'' clause
serves the valuable function of preventing other states parties from
picking and choosing among the various provisions of the treaty. For
example, if the ``no reservations'' clause were removed, parties could
potentially ``opt out'' of freedom of navigation articles to which the
United States attaches great importance. In that case, the Navy would
object to such a result because it would undermine the stable and
predictable navigation regime currently embodied in the convention.
31. Senator Roberts. Admiral Clark, would the Navy object if the
Senate makes other changes to the treaty, or to the resolution of
ratification approved by the Foreign Relations Committee to address its
concerns?
Admiral Clark. My understanding is that the Senate cannot
unilaterally make changes to the treaty. Except for renegotiating the
treaty, the only way to change it is for the United States to become a
party and propose amendments. With respect to the resolution of advice
and consent, while the Navy staff participated in the drafting of the
proposed resolution and believes the resolution is satisfactory in its
present form, there is no objection in principle to changes to it.
Navy's position on any change would, of course, depend upon the nature
of the proposal.
[Whereupon, at 2:16 p.m., the committee adjourned.]