[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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
         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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.]

                                 
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