[Senate Hearing 110-592]
[From the U.S. Government Publishing Office]
S. Hrg. 110-592
THE UNITED NATION'S CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-
39)
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HEARINGS
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 27 AND OCTOBER 4, 2007
__________
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COMMITTEE ON FOREIGN RELATIONS
JOSEPH R. BIDEN, Jr., Delaware, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin NORM COLEMAN, Minnesota
BARBARA BOXER, California BOB CORKER, Tennessee
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
BARACK OBAMA, Illinois GEORGE V. VOINOVICH, Ohio
ROBERT MENENDEZ, New Jersey LISA MURKOWSKI, Alaska
BENJAMIN L. CARDIN, Maryland JIM DeMINT, South Carolina
ROBERT P. CASEY, Jr., Pennsylvania JOHNNY ISAKSON, Georgia
JIM WEBB, Virginia DAVID VITTER, Louisiana
Antony J. Blinken, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
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Page
Thursday, September 27, 2007
England, Hon. Gordon, Deputy Secretary, Department of Defense,
Washington, DC................................................. 17
Prepared statement........................................... 18
Lugar, Hon. Richard G., U.S. Senator from Indiana................ 3
Negroponte, Hon. John D., Deputy Secretary, Department of State,
Washington, DC................................................. 6
Prepared statement........................................... 10
Walsh, ADM Patrick M., Vice Chief of Naval Operations, Department
of the Navy, Washington, DC.................................... 21
Prepared statement........................................... 23
Webb, Hon. Jim, U.S. Senator from Virginia....................... 1
Prepared Statements, Letters, and Other Material Submitted for the
Record
Prepared statement of Senator Joseph R. Biden, Jr................ 47
Letter from the Joint Chiefs of Staff............................ 47
Letter from Secretary Michael Chertoff, Homeland Security........ 48
Letter from Senate Select Committee on Intelligence with
attachments--letter from J.M. McConnell, Director of National
Intelligence and statement of William H. Taft IV, legal
adviser, Department of State................................... 49
Wall Street Journal September 26, 2007, article.................. 53
Memo from former Chiefs of Naval Operations...................... 54
Prepared statement of Senator Barbara Boxer...................... 55
Coordinated responses of Deputy Secretary Negroponte and Admiral
Walsh to questions submitted for the record by Senator Bill
Nelson......................................................... 56
Policy brief submitted by the Nicholas Institute from
Environmental Policy Solutions, Duke University, Durham, NC.... 57
Letter from Frederick S. Tipson, Senior Policy Counsel, Microsoft
Corporation.................................................... 61
------
Thursday, October 4, 2007
Burnett, Douglas R., partner, Holland & Knight, LLP, New York, NY 143
Prepared statement........................................... 144
Clark, ADM Vern, USN (Ret.), former Chief of Naval Operations,
U.S. Navy, Phoenix, AZ......................................... 72
Prepared statement........................................... 74
Cox, Joseph J., president, Chamber of Shipping of America,
Washington, DC................................................. 139
Prepared statement........................................... 140
Gaffney, Frank J., Jr., president, Center for Security Policy,
Washington, DC................................................. 75
Prepared statement........................................... 77
Kelly, Paul C., president, Gulf of Mexico Foundation, Houston, TX 132
Prepared statement........................................... 135
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 68
Menendez, Hon. Robert, U.S. Senator from New Jersey, opening
statement...................................................... 65
Oxman, Bernard H., professor of law, University of Miami School
of Law, Miami, FL.............................................. 91
Prepared statement........................................... 92
Smith, Fred L., Jr., president, Competitive Enterprise Institute,
Washington, DC................................................. 99
Prepared statement........................................... 102
Prepared Statements, Letters, and Other Material Submitted for the
Record
Prepared statement of Senator Lisa Murkowski..................... 153
Prepared statement of Don Kraus, executive vice president,
Citizens for Global Solutions, Washington, DC.................. 154
Letter to Secretary of State Condoleezza Rice from Senator Joseph
Biden.......................................................... 151
Response from the State Department to Senator Biden.............. 152
Letters to eight Senate committees from Frank Gaffney, Coalition
to Preserve American Sovereignty............................... 169
Letter to Secretary of State Condoleezza Rice from Senator Bill
Nelson......................................................... 206
Response from the Department of State to Senator Nelson.......... 207
Letters received from:
Paul Kelly on behalf of ADM James Watkins and Leon Panetta... 156
AT&T, Bedminster, NJ......................................... 159
Tyco Telecommunications, Morristown, NJ...................... 160
Patricia Forhan, president, Humane Society International,
Washington, DC............................................. 162
Chamber of Commerce of the United States of America.......... 181
Pacific Crossing Limited, Dallas, TX......................... 182
State Department Watch, Woodland Hills, CA................... 183
Level 3 Communications, Broomfield, CO....................... 185
Military Officers Association of America, Alexandria, VA..... 186
Former Commandants of the U.S. Coast Guard................... 186
United Nations Association of the USA and the Business
Council for the U.N., New York, NY......................... 187
National Ocean Industries Association, Washington, DC........ 188
The Pew Charitable Trusts, Philadelphia, PA.................. 188
The Joint Ocean Commission Initiative, Washington, DC........ 189
The University of Notre Dame, Notre Dame, IN................. 190
12 environmental groups...................................... 191
Center for Oceans Law & Policy............................... 191
New York City Bar, Committee on International Environmental
Law, New York, NY.......................................... 193
California Western School of Law, San Diego, CA.............. 194
Citizens for Global Solutions, Washington, DC................ 196
John Norton Moore, Director, Center for Oceans Law and Policy 196
GEN Bantz J. Craddock, general, U.S. Army.................... 200
The Department of the Interior and the Department of Commerce 200
Horace B. Robertson, Jr., rear admiral, U.S. Navy (Ret.)..... 201
James H. Doyle, Jr., vice admiral, U.S. Navy (Ret.).......... 201
United Oil and Gas Consortium Management Corp., Beverly
Hills, CA.................................................. 202
The Maritime Law Association of the U.S., New York, NY....... 203
George P. Shultz, Hoover Institution, Stanford University,
Sanford, CA................................................ 205
Alexander M. Haig, Jr., general, USA (Ret.).................. 206
Wendy Wright, president, Concerned Women for America......... 207
The Advocacy Committee, Bucks County Chapter, U.N.
Association of the USA, Newtown, PA........................ 208
The State Department to Senator Joseph Biden................. 209
Stephen J. Hadley, Assistant to the President, White House,
Washington, DC............................................. 209
``The Senate Should Give Immediate Advice and Consent to the Law
of the Sea Convention: Why the Critics are Wrong'' by John
Norton Moore and William L. Schachte, Jr....................... 210
Prepared testimony of John Norton Moore.......................... 241
Prepared testimony of Caitlyn L. Antrim.......................... 254
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-
39)
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THURSDAY, SEPTEMBER 27, 2007
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Jim Webb,
presiding.
Present: Senators Webb, Lugar, Corker, Murkowski, DeMint,
Isakson, and Vitter.
OPENING STATEMENT OF HON. JIM WEBB, U.S. SENATOR FROM VIRGINIA
Senator Webb. The hearing will come to order. Today the
Committee on Foreign Relations meets to consider the Law of the
Sea Convention. I am presiding at the request of Senator Biden,
who had a schedule change and had to be out of Washington this
afternoon. Chairman Biden supports the Convention and is
committed to moving it forward. Recognizing the difficulty of
scheduling, the senior officials from the executive branch, who
are sitting before us, he decided that the hearing should
proceed in his absence. I ask consent and will include a
statement by Senator Biden for the record.
As a former Secretary of the Navy, I have had a continuing
interest in the Convention on the Law of the Sea, and I thank
Senator Biden and the distinguished ranking member for
beginning the process of moving it forward with this hearing
today.
The Convention on the Law of the Sea is a product of
several decades of bipartisan effort. Negotiations begun in the
1970s, under President Nixon, were continued under Presidents
Carter and Reagan. In 1982, President Reagan refused to sign
the Convention because of its objectionable provisions of deep
seabed mining. The following year, President Reagan proclaimed
that the United States would accept an act in accordance with
the other aspects of the Convention, relating to traditional
uses of the oceans. In 1990, under President Bush, a new effort
was initiated to address the problems identified by President
Reagan with the deep seabed mining provisions. Four years
later, during President Clinton's term, a new agreement was
included that modifies the seabed mining provisions. The
Convention is now endorsed by President Bush, who in May, urged
the Senate to approve it during this session of Congress.
Three years ago, this committee approved the Convention by
a unanimous vote of 19 to 0. At that time no Senator on the
committee voiced any objections to it. The Convention balances
the interests of coastal states with longstanding rights of
freedom of navigation. As the world's premier maritime power
and a country with long coast lines, we have a strong interest
in both. I believe the Convention strikes the right balance and
effectively protects our security, economic, and environmental
interests.
Our security is advanced by the Convention because the
United States Navy will benefit from navigational rules of
passage through territorial waters, international straits, and
archipelagic sealanes. Many strategic sealanes run through
straits, such as the Strait of Gibraltar, or in archipelagos,
such as in Indonesia. These rights of passage through straits
or archipelagos are not contained in the 1958 treaties on the
Law of the Sea, to which we are currently a party.
In my judgment, our naval commanders are better off with
clearer legal parameters that are treaty-based, rather than
relying on the uncertainties inherent in customary
international law. Our economic interests are advanced in
numerous ways, including by codifying our right to an exclusive
economic zone, out to 200 nautical miles, in which the United
States has sovereign control over the resources, whether living
or nonliving, by providing a means for international
recognition of our sizable Continental Shelf, particularly off
the coast of Alaska, where we can export mineral resources, by
setting clear rules for laying of undersea cables, which are an
essential component of the telecommunications infrastructure,
by establishing an international framework for deep seabed
mining in areas outside of national jurisdictions, which we
have long expected would be subject to international
regulation.
Our environmental interests are advanced by the rules
permitting coastal states to control the exploitation of the
resources in the zone and to address pollution from various
sources in the territorial sea.
The case against the Convention is rooted in the opposition
to it by President Reagan, who objected only to the deep seabed
mining regime in the 1982 treaty. The 1994 agreement that
modifies these mining provisions, an agreement that is also
before the committee, should be seen as a triumph of American
diplomacy. After rejecting the Convention, President Reagan
asked our key allies to join us staying outside of it, most of
them did. The large majority of our NATO partners, as well as
Australia and Japan, did not ratify the Convention until after
the conclusion of the 1994 agreement.
A concerted diplomatic effort by the United States and
other major powers, produced an agreement that will protect
American technology, provide for market-based approaches to
production, and give the United States a permanent seat on the
decisionmaking body of the Seabed Mining Authority.
This week, the committee has received letters from more
than 100 public figures urging the Senate to approve the
treaty. Among these letters are those from two Secretaries of
State under President Reagan, Al Haig and George Shultz; two of
Reagan's National Security Advisors, Bud McFarland and Colin
Powell. They understand, like the President and our military
leaders, that the Convention, as modified by the 1994
agreement, is a good deal for America.
Today the committee will hear from the Deputy Secretary of
State, who in earlier phases of his career, worked on the
Convention and who also served as Deputy National Security
Advisor to President Reagan. We also welcome the Deputy
Secretary of Defense and Vice Chief of Naval Operations.
The Chief of Naval Operations, Admiral Mullen, is preparing
to assume the duties of Chairman of the Joint Chiefs of Staff
in a few days and has told us that he would not be able to
appear today.
Next week, on October 4, the committee will hear from
witnesses from outside the government, both proponents and
opponents, as well as representatives of affective industries.
I now would like recognize Senator Lugar, who put this
Convention on the agenda of the committee 4 years ago and has
done so much to bring us to this point today.
STATEMENT OF HON. RICHARD G. LUGAR, U.S. SENATOR FROM INDIANA
Senator Lugar. I thank the chairman for holding this
important hearing on the United Nations Convention on the Law
of the Sea. And I welcome our distinguished panel and
appreciate the strong position taken by President Bush and his
administration in favor of this treaty.
Four years ago, as the chairman has mentioned, the Foreign
Relations Committee began consideration of the Law of the Sea
Convention after it was designated by the Bush administration
as one of five urgent treaties, deserving of ratification. The
Foreign Relations Committee took up all five of these treaties,
as requested by the President, during the 108th Congress and
all but the Law of the Sea eventually gained the advise and
consent of the Senate.
Our committee held two public hearings and four briefings
to examine the Law of the Sea Convention. Representatives from
the Department of State, the Office of the Secretary of
Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce
Department testified in support of the Convention at various
congressional hearings. Six Bush administration Cabinet
Departments participated in the interagency group that helped
write the Resolution of Advice and Consent accompanying the
treaty. And the U.S. Commission on Ocean and Policy, appointed
by President Bush, strongly endorsed U.S. accession to the Law
of the Sea.
In the private sector, every major ocean industry,
including shipping, fishing, oil and natural gas, drilling
contractors, ship builders, and telecommunications companies
that use underwater cables supported U.S. accession to the Law
of the Sea and lobbied in favor of it. The National Foreign
Trade Council, representing hundreds of exporting companies,
also supported ratification. Moreover, a long list of
environmental and ocean groups endorse the treaty because it
protects and preserves the marine environment and establishes a
framework for further international action to combat pollution.
On February 25, 2004, after more than 4 months of
consideration, the committee approved the Resolution of Advice
and Consent by unanimous 19 to 0 vote. This vote came almost 10
years after the Convention was first submitted to the Senate.
Today, as we return to this treaty, the coalition in favor
of it has grown and the urgency of completing Senate
consideration has intensified. As the world's preeminent
maritime power, the largest importer and exporter, the leader
in the war on terrorism, and the owner of the largest exclusive
economic zone off our shores, the United States has more to
gain than any other country from the establishment of order
with respect to the oceans. This treaty is important to an
expansive array of American economic, environmental, and
security interests.
But I want to underscore, for my colleagues, a fundamental
starting point for our hearings. The Commander in Chief, the
Joint Chiefs of Staff, and the U.S. Navy in time of war are
asking the Senate to give its advise and consent to this
treaty. Our uniformed commanders and civilian national security
leadership are telling us unanimously and without
qualification, the U.S. accession to this treaty would help
them do their job.
We have charged the U.S. Navy with maintaining sealanes and
defending our Nation's interest on the high seas. They do this
every day. And even in peacetime, these operations carry
considerable risk. The Navy is telling us that U.S. membership
in the Law of the Sea Convention is a tool that they need to
maximize their ability to protect the U.S. national security
with the least risk to the men and women charged with this
task.
This request is not the result of the Chief of Naval
Operations or recent assessment by naval authorities. The
support of the military and the Navy for this treaty has been
consistent, sustained, and unequivocal. All the members of the
Joint Chiefs have written us a letter supporting advise and
consent. Their predecessors, likewise, supported this
Convention.
As seven CNOs wrote in a joint letter, ``Back in 1998,
there are no downsides to this treaty. It contains expansive
terms, which we use to maintain forward presence and preserve
U.S. maritime superiority. It also has vitally important
provisions, which guard against the dilution of our
navigational freedoms and prevent the growth of new forms of
excessive maritime claims.''
Mr. Chairman, the military is not always right, but the
overwhelming presumption in the U.S. Senate, has been that if
our Armed Forces and our entire national security apparatus
asks us for something to help them achieve a military mission,
we do our best to provide them with just that tool, within the
restraints of law and responsible budgeting.
In recent weeks we have heard a great deal of advocacy
about the necessity of heeding the advice of our military
leaders as they seek to carry out the missions we have given
them. Senators rose to declare that General Petraeus, an
acknowledged counterinsurgency expert, was better positioned
and trained to assess our progress in Iraq than critics in
Congress.
In the coming debate on Law of the Sea, we should be
similarly respectful of the expertise of military commanders.
Articles and statements opposing the Convention, often avoid
mentioning the fact that the military's longstanding and vocal
support for Law of the Sea is certainly there. And this is
because to oppose the Convention on national security grounds,
requires one to say that military leaders, who have commanded
fleets in times of war and peace and who have devoted their
lives to naval and military studies, have illegitimate
opinions.
Those critics, who do mention the military support,
struggle to spin conspiracy theories as to why the military
would back this treaty. One explanation that has been offered,
is that sometimes military commanders have been misled by their
service lawyers. As a former Navy officer, who served as a
briefer to ADM Arleigh Burke, I can say with confidence that
CNOs are not easy to deceive. [Laughter.]
These, in fact, are some of the most talented, learned, and
politically adept individuals ever to serve our Nation. The
suggestion that CNOs, service chiefs, and other military
leaders are blithely allowing themselves to be led astray by
the Defense Department lawyers, is nonsense.
Opponents are similarly reluctant to mention the unanimous
support of affected U.S. industries. To oppose the treaty on
economic grounds requires opponents to say that the oil,
natural gas, shipping, fishing, boat manufacturing, exporting,
and telecommunications industries do not understand their own
bottom lines. It requires opponents to say that this diverse
set of industries is spending money and time supporting an
outcome that will disadvantageous of their own interests.
The ongoing delay in ratifying the Convention would be just
an interesting political science case study, if the United
States were not facing serious consequences because of our
nonparticipation. As a nonparty, we do not have a seat at the
table to prevent proposed amendments that would roll back
Convention rights we fought hard to achieve.
In addition, as a nonparty, our ability to influence the
decisions of the Commission on the limits of the Continental
Shelf is severely constrained. Russia is already making
excessive claims in the Arctic. Until we become a party to the
Convention, we will be in a weakened position to protect our
national interests in these discussions.
Opponents seem to think that if the United States declines
to ratify the Law of the Sea, the United States can avoid any
multilateral responsibilities or entanglements related to the
oceans. But unlike some treaties, such as the Kyoto Agreement
and Comprehensive Test Ban Treaty, where U.S. nonparticipation
renders the treaty virtually irrelevant or inoperable, the Law
of the Sea will continue to form the basis of maritime law
regardless of whether the United States is a party.
International decisions related to national claims on
continental shelves beyond 200 miles from our shore, resource
exploitation in the open ocean, navigation rights, and other
matters will be made in the context of the treaty, whether we
join or not.
Consequently, the United States can not insulate itself
from the Convention merely by declining to ratify. The
Convention is the accepted standard in international maritime
law. American's who use the ocean and interact with other
nations on the ocean, including the Navy, shipping interests
and fisherman have told me that they already have to contend
with provisions of the Law of the Sea on a daily basis. They
want the United States to participate in the structures of the
Law of the Sea to defend their interests and to make sure that
other nations respect our rights and our claims.
Given the United States has been abiding by all but one
provision of the treaty since President Reagan's 1983 statement
of oceans policy, and that we have been a party to a less
advantageous international convention on ocean law since 1958,
dire predictions about the hazards to sovereignty, of joining
the Law of the Sea ring particularly hollow.
It is irresponsible for us to wait to ratify the Law of the
Sea until we feel the negative consequences of our absence from
the Convention. The Senate should ratify the Law of the Sea
Convention now, in the interest of U.S. national security, U.S.
economy, and the American people.
I thank the Chair.
Senator Webb. I thank the distinguished ranking member for
all of the work that he has done on this over many, many years.
I would now like to recognize our distinguished panel of
witnesses. Secretary Negroponte, you're welcome to begin your
remarks.
STATEMENT OF HON. JOHN D. NEGROPONTE, DEPUTY SECRETARY,
DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Negroponte. Thank you very much, Mr. Chairman, Senator
Lugar. Thank you for the invitation to testify on the 1982 Law
of the Sea Convention.
Accession to the Convention is a serious piece of
unfinished business for the United States that we should now
bring to closure. Joining would strengthen our national
security interests, our sovereignty, our economic rights, and
our leadership on oceans and beyond--on oceans issues and
beyond.
Senator Webb was mentioning my prior experience dealing
with the Law of the Sea and I was listing to myself the variety
of positions I'd held where Law of the Sea had come up during
the course of the exercise of my duties. I was on the National
Security Council under Dr. Henry Kissinger, when I was
responsible for helping bring together the instructions for our
delegations to the Seabeds Committee of the United Nations,
which was the conference the group that prepared the Law of the
Sea, that took place starting in 1974 in Caracas.
Subsequent to my time on the National Security Council I
was a political officer in Quito, Ecuador, where the question
of fisheries and tuna boat captures and the extension of
fisheries jurisdiction was a very live issue in our bilateral
relationship with that country, and it was also a time during
which I was able to participate, however briefly, at the first
meeting of the third Law of the Sea Convention parties at
Caracas, Venezuela.
I was a Deputy Assistant Secretary for Oceans and
Fisheries, later in that same decade, from 1977 to 1980 when I
participated in the negotiations of many agreements related to
fishing rights of the United States and other countries and the
effort to sort out overlapping claims of jurisdiction and such
issues.
And later, in the mid-1980s, I was the Assistant Secretary
for Oceans Environment and Science, where I dealt with these
issues on an almost daily basis. And finally of course, in this
administration, from 2001 to 2004, I was Ambassador to the
United Nations, where I was able to observe the keen interest
on the part of other nations that we finally become a party to
this Convention.
President Bush set forth, for the clear benefits of
accession, in his May 15 statement, seeking urgent Senate
approval of the Convention. As he stated, ``Joining will serve
the national security interests of the United States, it will
secure U.S. sovereign rights over extensive maritime areas,
promote U.S. interests in the environmental health of the
oceans, and give the United States a seat at the table, when
the rights vital to our interests are debated and
interpreted.''
Mr. Chairman, as the foremost maritime power and a country
with an extensive coastline, the United States has basic and
enduring interests in the oceans. We have long sought a stable
international legal regime, and in terms of its content, an
appropriate balance between the interests of countries in
controlling activities off their coasts and the interests of
all countries in protecting freedom of navigation. And we have
consistently taken the view that our various interests in the
oceans, including military and economic ones, are best advanced
through a comprehensive, widely accepted treaty.
The United States joined and remains a party to a set of
Law of the Sea treaties from 1958. However, these do not
satisfactorily address several key issues. So we continue to
pursue a single treaty that would promote our interests and
attract near universal acceptance. In the 1970s, beginning
under President Nixon, the United States and other maritime
powers pushed hard to secure navigational freedoms, including
the right of transit passage, to limit the size of the
territorial sea, to gain sovereign rights over offshore natural
resources, and to establish mechanisms for enforcing the rights
and freedoms gained during the negotiations.
The Convention completed in 1982, was a victory for the
U.S. negotiators on almost every front. The only exception was
deep seabed mining. Due to flaws in that chapter, President
Reagan decided not to sign it. However, he considered the
Convention's other aspects so favorable, that in 1983 he
directed that the United States Government abide by these
provisions and to encourage other countries to do likewise.
Under the first President Bush, the world had changed
enough to embark upon a fundamental overhaul of the
Convention's deep seabed mining chapter. The resulting
agreement, also before the Senate, fixed all the flaws
identified by President Reagan. These revisions achieve our
longstanding objective of ensuring access by companies to deep
seabed minerals on reasonable terms and conditions. George
Shultz, the Secretary of State under President Reagan, recently
wrote to Senator Lugar, ``The treaty has been changed in such a
way, with respect to the deep seabeds, that it is now
acceptable in my judgment. Under these circumstances, and given
the many desirable aspects of the treaty on other grounds, I
believe it is time to proceed with ratification.''
I would also emphasize that the role of the International
Seabed Authority is limited to administering deep seabed mining
areas, in areas beyond national jurisdiction. It has no other
authority over uses of the oceans, such as navigation, or over
other resources in the oceans, such as fisheries, or, for that
matter, over national 200-mile exclusive economic zones. With
these changes in hand, we should join the Convention without
delay to take full advantage of the many benefits it offers,
and to avoid the increasing costs of being a nonparty. The
benefits of accession to the Law of the Sea Convention relate
to sovereignty, security, and sustainability.
Let me first address sovereignty, which includes the
expansion of U.S. sovereign rights over maritime areas. The
Convention provides for maximum sovereignty over a territorial
sea of 12 nautical miles from the coastline, and sovereign
rights over natural resources out to 200 miles, within the so-
called exclusive economic zone. It also recognizes sovereign
rights over resources found in and on the Continental Shelf,
including oil, gas, and other resources. The shelf extends
automatically out to 200 miles, but may extend beyond that
point if it meets certain geological criteria.
The United States stands to secure resource rights over one
of the largest Continental Shelves in the world, including up
to 600 miles off Alaska. Our extended shelf is likely to be the
size of an area equal to two Californias. United States
interests are well served, not only by the Convention's
substantive definition of the Continental Shelf, but also by
the procedure it sets forth for parties to gain international
recognition and legal certainty concerning the outer limits of
the shelf.
Recent Russian activities in the Arctic, all the way to the
North Pole, have focused attention on this aspect of the
Convention. Continuing data collection by Russia and other
parties to the Convention, reflect a commitment to maximizing
their sovereign rights over natural resources in that region.
The United States is at a distinct disadvantage in relation
to such parties. As a nonparty, we are not currently in a
position to maximize U.S. sovereign rights over the shelf in
the Arctic or elsewhere. We have no access to the Convention
procedure that would assure the full exercise of our sovereign
rights. In the absence of such international recognition and
legal certainty, U.S. companies are unlikely to secure the
necessary financing and insurance to exploit energy resources
on the extended shelf.
Turning to national security aspects of the Convention, on
which my colleagues from the Defense Department will elaborate,
our security interests are intrinsically linked to freedom of
navigation. The U.S. military relies on the navigational rights
set forth in the Convention for worldwide access, without
permission from countries along the way. As we ask our military
to fight a global war on terrorism, worldwide maritime mobility
takes on ever greater importance. The United States has been
fairly successful in promoting these provisions as reflective
of customary international law, as well as in challenging them
militarily. However, these tools alone are not adequate to
ensure the continued vitality of these rights. Customary law is
not universally accepted and changes over time, in this case
potentially to the detriment of our interests.
U.S. accession would put these vital navigational rights on
the firmest legal footing. We would have treaty rights, rather
than have to rely solely on force on customary law. Moreover,
joining the Convention would promote international cooperation
on initiatives of great security importance, such as
facilitating the interdiction of weapons of mass destruction
through the Proliferation Security Initiative or PSI. The PSI
specifically requires participating countries to act consistent
with international law, which includes the law reflected in the
Convention. Almost all PSI partners are parties to the
Convention. Further, joining the Convention is likely to
strengthen PSI by attracting new cooperative partners.
Turning to the third benefit of accession, sustainability,
the Convention supports U.S. interests in the health of the
world's oceans and the living resources that they contain. In
addressing marine pollution, it appropriately balances the
interests of coastal states with the navigational rights and
freedoms of all the states. This framework supports vital
economic activities off our coasts. The Convention also
promotes the conservation of various marine resources.
What do we have to do in exchange for securing these
benefits? We will not have to change U.S. law and practices or
give up rights, largely because we have already followed the
Convention, per the mandate from President Reagan. In other
words, we have been living with the Convention for years and it
has stood the test of time. The first several years of the
Convention's life was fairly quiet, but now its provisions are
being actively applied, interpreted, and developed, and we are
on the sidelines.
One example, is the technical body reviewing the
Continental Shelf beyond 200 miles. Its recommendations, which
are being made without participation of a U.S. expert, will
affect our rights with respect to other countries shelves, in
addition to creating precedence that could affect the future
outer limit of our own shelf. In both inside and outside the
Convention, our position as a nonparty puts us in a far weaker
position to advance U.S. interests than should be the case for
our country.
Given the benefits of joining and the downsides of not
joining, there is no persuasive reason why we should remain a
nonparty. My written statement addresses a number of what we
call myths about the Convention, and I'd be pleased to answer
any questions in this regard.
Mr. Chairman, no alternative to joining the Convention
stands up to scrutiny. We can not rely on the 1958 Law of the
Sea Treaties. They are less favorable in many respects, such as
navigational rights, the Continental Shelf, and ability to
conduct boardings on the high seas. And as noted, we can not
rely on customary law.
Finally, my Department of Defense colleagues will explain
why it is implausible and undesirable for the United States to
preserve and enforce its navigational and economic rights,
based solely on military power.
In closing, the administration urges the committee to give
its swift approval for accession to the Convention and
ratification of the 1994 agreement. And we urge the Senate to
give its advice and consent before the end of this session of
Congress.
I thank you very much for you attention.
[The prepared statement of Hon. Negroponte follows:]
Prepared Statement of Hon. John D. Negroponte, Deputy Secretary,
Department of State, Washington, DC
Mr. Chairman and members of the committee, thank you for the
opportunity to testify on the 1982 United Nations Convention on the Law
of the Sea (``the Convention'') and the 1994 Agreement relating to the
Implementation of Part XI of the United Nations Convention on the Law
of the Sea of 10 December 1982 (``the 1994 Agreement'').
At my confirmation hearing earlier this year, I reminded the
committee that the Senate confirmed me 20 years ago as Assistant
Secretary for Oceans and International Environmental and Scientific
Affairs. Shortly thereafter, under the first President Bush, we began
to work on revising the deep seabed mining section of the Convention to
address the flaws President Reagan had correctly identified, so that we
could join the Convention. That effort succeeded, resulting in the 1994
Agreement overhauling the deep seabed mining regime, as I will explain
in greater detail.
Since my first involvement with the Law of the Sea Convention, I
have had the privilege to serve the United States in other assignments
that have only strengthened my support for this treaty. As Ambassador
to the United Nations, I learned that other countries look to the
United States for leadership on oceans issues such as maritime
security--a role that is lessened without U.S. accession to the
Convention. As Ambassador to Iraq, I saw firsthand the importance of
navigational freedoms for deploying and sustaining our forces in combat
zones, and how the Convention serves as a foundation for our
partnerships in the Proliferation Security Initiative. Most recently,
as Director of National Intelligence, I was reminded how the Convention
strengthens our ability to carry out intelligence activities that other
countries might seek to restrain.
Mr. Chairman, these experiences compel me to endorse--most
enthusiastically and emphatically--the President's urgent request that
the Senate approve the Convention, as modified by the 1994 Agreement.
As the President said in his May 15 statement, joining will serve the
national security interests of the United States, secure U.S. sovereign
rights over extensive marine areas, promote U.S. interests in the
environmental health of the oceans, and give the United States a seat
at the table when the rights essential to our interests are debated and
interpreted.
HISTORY
From the earliest days of its history, the United States has relied
on the bounty and the opportunity of the seas for sustenance, for trade
and economic development, for defense, for communication, and for
interaction with the rest of the world. Today, as the world's strongest
maritime power and a leader in global maritime trade and commerce, the
United States has a compelling national interest in a stable
international legal regime for the oceans. We have consistently sought
balance between the interests of countries in controlling activities
off their coasts and the interests of all countries in protecting
freedom of navigation. The United States joined a group of law of the
sea treaties in 1958, by which it is still bound. But those treaties
left open some important issues. For example, they did not set forth
the maximum breadth of the territorial sea, an issue of critical
importance to U.S. freedom of navigation, and they did not set forth a
procedure for providing legal certainty regarding the Continental
Shelf. We therefore continued to pursue completion of a single,
integrated law of the sea treaty that would attract near-universal
acceptance; the U.S. delegation played a very prominent role in the
negotiating session that began under the Nixon administration and
culminated in the 1982 Convention.
The resulting treaty was a victory for U.S. navigational, economic,
and other interests except for one important issue--deep seabed mining.
Due to flaws in the deep seabed mining chapter--Part XI of the
Convention--President Reagan decided not to sign the 1982 Convention.
However, the other aspects of the treaty were so favorable that
President Reagan, in his Ocean Policy Statement in 1983, announced that
the United States accepted, and would act in accordance with, the
Convention's balance of interests relating to traditional uses of the
oceans--everything but deep seabed mining. He instructed the Government
to abide by, or as the case may be, to enjoy the rights accorded by,
the other provisions, and to encourage other countries to do likewise.
As I mentioned earlier, the first Bush administration agreed to
participate in negotiations that modified part XI--in a legally binding
manner--overcoming each of the objections that President Reagan had
identified. The United States signed that agreement in 1994. The
Convention came into force that same year, and has since been joined by
industrialized countries that shared the U.S. objections to the initial
deep seabed mining chapter. There are now 155 parties to the
Convention, including almost all of our traditional allies.
This administration expressed its strong support for the Convention
in testimony before this committee in the fall of 2003. Thereafter we
worked closely with the committee to develop a proposed Resolution of
Advice and Consent, which we continue to support, that addressed a
number of issues, including those relating to U.S. military interests.
Since then, our conviction has only grown: We must join the Law of the
Sea Convention, and join it now, to take full advantage of the many
benefits it offers the United States and to avoid the increasing costs
of being a nonparty.
JOINING IS A WIN-WIN
Joining is a win-win proposition. We will not have to change U.S.
laws or practices, or give up rights, and we will benefit in a variety
of ways. The United States already acts in accordance with the
Convention for a number of reasons:
First, as noted, we are party to a group of 1958 treaties
that contain many of the same provisions as the Convention.
Second, the United States heavily influenced the content of
the 1982 Convention, based on U.S. law, policy, and practice.
Finally, the treaty has been the cornerstone of U.S. oceans
policy since 1983, when President Reagan instructed the
executive branch to act in accordance with the Convention's
provisions with the exception of deep seabed mining.
Thus, we are in the advantageous position in the case of this
treaty that U.S. adherence to its terms is already time-tested and
works well.
At the same time, the United States would gain substantial benefits
from joining the Convention--these can be summarized in terms of
security, sovereignty, and sustainability.
Security. As the world's foremost maritime power, our security
interests are intrinsically linked to freedom of navigation. We have
more to gain from legal certainty and public order in the world's
oceans than any other country. Our forces are deployed throughout the
world, and we are engaged in combat operations in Central and Southwest
Asia. The U.S. Armed Forces rely on the navigational rights and
freedoms reflected in the Convention for worldwide access to get to the
fight, sustain our forces during the fight, and return home safely,
without permission from other countries.
In this regard, the Convention secures the rights we need for U.S.
military ships and the commercial ships that support our forces to meet
national security requirements in four ways:
By limiting coastal states' territorial seas--within which
they exercise the most sovereignty--to 12 nautical miles;
By affording our military and commercial vessels and
aircraft necessary passage rights through other countries'
territorial seas and archipelagoes, as well as through straits
used for international navigation (such as the critical right
of submarines to transit submerged through such straits);
By setting forth maximum navigational rights and freedoms
for our vessels and aircraft in the exclusive economic zones of
other countries and in the high seas; and
By affirming the authority of U.S. warships and government
ships to board stateless vessels on the high seas, which is a
critically important element of maritime security operations,
counternarcotic operations, and antiproliferation efforts,
including the Proliferation Security Initiative.
The United States has had a certain amount of success in promoting
these provisions internationally as reflective of customary
international law, as well as in enforcing them through operational
challenges. However, these tools alone are not adequate to ensure the
continued vitality of these rights. Customary law is not universally
accepted and, in any event, changes over time--in this case,
potentially to the detriment of our interests. There are increasing
pressures from coastal states around the world to evolve the law of the
sea in ways that would unacceptably alter the balance of interests
struck in the Convention. Operational challenges are inherently risky
and resource-intensive. Joining the Convention would put the
navigational rights reflected in the Convention on the firmest legal
footing. We would have treaty rights rather than have to rely solely
upon the acceptance of customary international law rights by other
states or upon the threat or use of force. Securing these treaty
rights, and obtaining a seat at the table in treaty-based institutions,
would provide a safeguard against changes in state practice that could
cause customary law to drift in an unfavorable direction. Moreover,
joining would promote the willingness of other countries to cooperate
with us on initiatives of great security importance, such as the
Proliferation Security Initiative.
Sovereignty. Joining the Convention would advance U.S. economic and
resource interests. Recent Russian expeditions to the Arctic have
focused attention on the resource-related benefits of being a party to
the Convention. Because so much is at stake in vast areas of
Continental Shelf beyond 200 nautical miles, I will explain in some
detail the Convention's provisions that govern these areas and why
being a party would put the United States in a far better position in
terms of maximizing its sovereign rights.
The Convention recognizes the sovereign rights of a coastal state
over its Continental Shelf, which extends out to 200 nautical miles--
and beyond, if it meets specific criteria. These rights include
sovereign rights for the purpose of exploring the Continental Shelf and
exploiting its natural resources, including oil, gas, and other energy
resources. U.S. interests are well served not only by the Convention's
detailed definition of the shelf (in contrast to the 1958 Convention's
vague standard), but also by its procedures for gaining certainty
regarding the shelf's outer limits. Parties enjoy access to the expert
body whose technical recommendations provide the needed international
recognition and legal certainty to the establishment of the continental
shelf beyond 200 nautical miles.
Following such procedures, Russia made the first submission (in
2001) to that expert body, the Commission on the Limits of the
Continental Shelf. The Commission found that Russia needed to collect
additional data to substantiate its submission. Russia has announced
that the data it collected this year support the claim that its
Continental Shelf extends as far as the North Pole. Setting aside its
recent flag planting, which has only symbolic value, Russia's
continuing data collection in the Arctic reflects its commitment to
maximizing its sovereign rights under the Convention over energy
resources in that region.
Currently, as a nonparty, the United States is not in a position to
maximize its sovereign rights in the Arctic or elsewhere. We do not
have access to the Commission's procedures for according international
recognition and legal certainty to our extended shelf. And we have not
been able to nominate an expert for election to the Commission. Thus,
there is no U.S. Commissioner to review the detailed data submitted by
other countries on their shelves.
Norway has also made a submission to support its extended
Continental Shelf in the Arctic, and Canada and Denmark are conducting
surveys there to collect data for their submissions. The Commission has
already made recommendations on submissions by Brazil and Ireland and
is considering several other submissions. Many more are expected in the
coming months.
The United States has one of the largest continental shelves in the
world; in the Arctic, for example, our shelf could run as far as 600
miles from the coastline. However, as noted, we have no access to the
Commission, whose recommendations would facilitate the full exercise of
our sovereign rights--whether we use them to explore and exploit
natural resources, prevent other countries from doing so, or otherwise.
In the absence of the international recognition and legal certainty
that the Convention provides, U.S. companies are unlikely to secure the
necessary financing and insurance to exploit energy resources on the
extended shelf, and we will be less able to keep other countries from
exploiting them.
Joining the Convention provides other economic benefits: It also
gives coastal states the right to claim an exclusive economic zone
(``EEZ'') out to 200 nautical miles. That gives the United States, with
its extensive coastline, the largest EEZ of any country in the world.
In this vast area, we have sovereign rights for the purpose of
exploring, exploiting, conserving, and managing living and nonliving
natural resources.
Sustainability. The Convention also supports U.S. interests in the
health of the world's oceans and the living resources they contain. It
addresses marine pollution from a variety of sources, including ocean
dumping and operational discharges from vessels. The framework
appropriately balances the interests of the coastal state in protection
of the marine environment and its natural resources with the
navigational rights and freedoms of all states. This framework, among
other things, supports vital economic activities off the coast of the
United States. Further, the United States has stringent laws regulating
protection of the marine environment, and we would be in a stronger
position as a party to the Convention as we encourage other countries
to follow suit.
The Convention also promotes the conservation of various marine
resources. Indeed, U.S. ocean resource-related industries strongly
support U.S. accession to the Convention. U.S. fishermen, for example,
want their government to be in the strongest possible position to
encourage other governments to hold their fishermen to the same
standards we are already following, under the Convention and under the
Fish Stocks Agreement that elaborates the Convention's provisions on
straddling fish stocks and highly migratory fish stocks.
Joining the Convention provides other important benefits that
straddle the security, sovereignty, and sustainability categories. For
example, its provisions protect laying and maintaining the fiber optic
cables through which the modern world communicates, for both military
and commercial purposes; for that reason, the U.S. telecommunications
industry is a strong supporter of the Convention.
WE NEED TO JOIN NOW
Some may ask why, after the Convention has been in force for 13
years, there is an urgent need to join. There are compelling reasons
why we need to accede to the Convention now.
Although the first several years of the Convention's life were
fairly quiet, its provisions are now being actively applied,
interpreted, and developed. The Convention's institutions are up and
running, and we--the country with the most to gain and lose on law of
the sea issues--are sitting on the sidelines. For example, the
Commission on the Limits of the Continental Shelf (which is the
technical body charged with addressing the continental shelf beyond 200
nautical miles) has received nine submissions and has made
recommendations on two of them, without the participation of a U.S.
commissioner. Recommendations made in that body could well create
precedents, positive and negative, on the future outer limit of the
U.S. shelf. We need to be on the inside to protect our interests.
Moreover, in fora outside the Convention, the provisions of the
Convention are also being actively applied. Our position as a nonparty
puts us in a far weaker position to advance U.S. interests than should
be the case for our country.
We also need to join now to lock in, as a matter of treaty law, the
very favorable provisions we achieved in negotiating the Convention. It
would be risky to assume that we can preserve ad infinitum the
situation upon which the United States currently relies. As noted,
there is increasing pressure from coastal states to augment their
authority in a manner that would alter the balance of interests struck
in the Convention. We should secure these favorable treaty rights while
we have the chance.
DEEP SEABED MINING
One part of the Convention deserves special attention, because, in
its original version, it kept the United States and other
industrialized countries from joining. Part XI of the Convention, now
modified by the 1994 Implementing Agreement, establishes a system for
facilitating potential mining activities on the seabed beyond the
limits of national jurisdiction--specifically, the deep seabed beyond
the continental shelf of any nation. The Convention, as modified, meets
our goal of guaranteed access by U.S. industry to deep seabed minerals
under reasonable terms and conditions.
Specifically, the Convention sets forth the process by which mining
firms can apply for and obtain access and exclusive legal rights to
deep seabed mineral resources. The International Seabed Authority is
responsible for overseeing such mining; it includes an Assembly, open
to all parties, and a 36-member Council. The Authority's role is
limited to administering deep seabed mining of mineral resources in
areas beyond national jurisdiction; it has no other authority over uses
of the oceans or over other resources in the oceans. The Council is the
primary decisionmaking body, with responsibility for giving practical
effect to the requirement for nondiscriminatory access to deep seabed
minerals and for adopting rules for exploration and development.
The 1994 Agreement, which contains legally binding changes to the
1982 Convention, fundamentally overhauls the deep seabed mining
provisions in a way that satisfies each of the objections of the United
States, as stated by President Reagan, and of other industrialized
countries. President Reagan considered that those provisions would
deter future development of deep seabed mining; establish a
decisionmaking process that would not give the United States a role
that reflected or protected its interests; allow amendments to enter
into force without the approval of the United States; provide for
mandatory transfer of technology; allow national liberation movements
to share in the benefits of deep seabed mining; and not assure access
of future qualified miners.
The 1994 Agreement overcomes these objections and ensures that the
administration of deep seabed mining is based on free-market
principles. Specifically, the Agreement:
Deletes the objectionable provisions on mandatory technology
transfer;
Ensures that market-oriented approaches are taken to the
management of deep seabed minerals (e.g., by eliminating
production controls), replacing the original part XI's
centralized economic planning approach;
Scales back the deep seabed mining institutions and links
their activation and operation to actual development of
interest in deep seabed mining;
Guarantees the United States a permanent seat on the
Council, where substantive decisions are made by consensus--the
effect of which is that any decision that would result in a
substantive obligation on the United States, or that would have
financial or budgetary implications, would require U.S.
consent;
Ensures that the United States would need to approve the
adoption of any amendment to the part XI provisions and any
distribution of deep seabed mining revenues accumulated under
the Convention; and
Recognizes the seabed mine claims established on the basis
of the exploration already conducted by U.S. companies and
provides assured equality of access for any future qualified
U.S. miners.
The deep seabed is an area that the United States has never claimed
and has consistently recognized as being beyond the sovereignty and
jurisdiction of any nation. As reflected in U.S. law (the Deep Seabed
Hard Mineral Resources Act of 1980), it has long viewed deep seabed
mining as an activity appropriate for international administration. The
United States asked for changes to the 1982 Convention's deep seabed
mining provisions and got them. As George P. Shultz, Secretary of State
to President Reagan, said recently in a letter to Senator Lugar: ``The
treaty has been changed in such a way with respect to the deep seabeds
that it is now acceptable, in my judgment. Under these circumstances,
and given the many desirable aspects of the treaty on other grounds, I
believe it is time to proceed with ratification.''
WHY STAY OUT?
Given all the valuable benefits of joining and the substantial
costs of not joining, is there a persuasive argument why the United
States should remain a nonparty? I do not think there is one.
Certain arguments distort the risks of joining and/or paint an
unrealistic picture of our situation as a nonparty. In this regard,
opponents do not offer viable alternatives to the Convention. Some say
we should rely on the 1958 conventions; however, those are less
favorable in many respects, such as navigational rights, the outer
limits of the continental shelf, and authority to conduct boardings on
the high seas. Some say we should continue to rely on customary law;
however, as noted, customary law is not universally accepted, evolves
based on state practice, and does not provide access to the
Convention's procedural mechanisms, such as the Continental Shelf
Commission. Finally, some say we should rely on the threat or use of
force; however, it is implausible and unwise to think that the United
States can rely on military power alone to enforce its rights,
particularly economic rights.
Certain arguments against U.S. accession are simply inaccurate. And
other arguments are outdated, in the sense that they may have been true
before the deep seabed mining provisions were fixed and thus are no
longer true. I would like to address some of these ``myths''
surrounding the Convention:
Myth: Joining the Convention would surrender U.S. sovereignty.
Reality: On the contrary. Some have called the Convention a ``U.S.
land grab.'' It expands U.S. sovereignty and sovereign rights over
extensive maritime territory and natural resources off its coast, as
described earlier in my testimony. It is rare that a treaty actually
increases the area over which a country exercises sovereign rights, but
this treaty does. The Convention does not harm U.S. sovereignty in any
respect. As sought by the United States, the dispute resolution
mechanisms provide appropriate flexibility in terms of both the forum
and the exclusion of sensitive subject matter. The deep seabed mining
provisions do not apply to any areas in which the United States has
sovereignty or sovereign rights; further, these rules will facilitate
mining activities by U.S. companies. And the navigational provisions
affirm the freedoms that are important to the worldwide mobility of
U.S. military and commercial vessels.
Myth: The Convention is a ``U.N.'' treaty and therefore does not
serve our interests.
Reality: The Convention is not the United Nations--it was merely
negotiated there, as are many agreements, and negotiated by states, not
by U.N. bureaucrats. Further, just because a treaty was drawn up at the
United Nations does not mean it does not serve our interests. For
example, the United States benefits from U.N. treaties such as the
Convention Against Corruption and the Convention for the Suppression of
Terrorist Bombings. The Law of the Sea Convention is another such
treaty that serves U.S. interests.
Myth: The International Seabed Authority (ISA) has the power to
regulate seven-tenths of the Earth's surface.
Reality: The Convention addresses seven-tenths of the earth's
surface; the ISA does not. First, the ISA does not address activities
in the water column, such as navigation. Second, the ISA has nothing to
do with the ocean floor that is subject to the sovereignty or sovereign
rights of any country, including that of the United States. Third, the
ISA only addresses deep seabed mining. Thus, its role is limited to
mining activities in areas of the ocean floor beyond national
jurisdiction. It has no other role and no general authority over the
uses of the oceans, including freedom of navigation and overflight.
Myth: The Convention gives the United Nations its first opportunity
to levy taxes.
Reality: Although the Convention was negotiated under U.N.
auspices, it is separate from the United Nations and its institutions
are not U.N. bodies. Further, there are no taxes of any kind on
individuals or corporations or others. Concerning oil/gas production
within 200 nautical miles of shore, the United States gets exclusive
sovereign rights to seabed resources within the largest such area in
the world. There are no finance-related requirements in the EEZ.
Concerning oil/gas production beyond 200 nautical miles of shore, the
United States is one of a group of countries potentially entitled to
extensive continental shelf beyond its EEZ. Countries that benefit from
an Extended Continental Shelf have no requirements for the first 5
years of production at a site; in the 6th year of production, they are
to make payments equal to 1 percent of production, increasing by 1
percent a year until capped at 7 percent in the 12th year of
production. If the United States were to pay royalties, it would be
because U.S. oil and gas companies are engaged in successful production
beyond 200 nautical miles. But if the United States does not become a
party, U.S. companies will likely not be willing or able to engage in
oil/gas activities in such areas, as I explained earlier.
Concerning mineral activities in the deep seabed, which is beyond
U.S. jurisdiction, an interested company would pay an application fee
for the administrative expenses of processing the application. Any
amount that did not get used for processing the application would be
returned to the applicant. The Convention does not set forth any
royalty requirements for production; the United States would need to
agree to establish any such requirements.
In no event would any payments go to the United Nations, but rather
would be distributed to countries in accordance with a formula to which
the United States would have to agree.
Myth: The Convention would permit an international tribunal to
second guess the U.S. Navy.
Reality: No international tribunal would have jurisdiction over the
U.S. Navy. U.S. military activities, including those of the U.S. Navy,
would not be subject to any form of dispute resolution. The Convention
expressly permits a party to exclude from dispute settlement those
disputes that concern ``military activities.'' The United States will
have the exclusive right to determine what constitutes a military
activity.
Myth: The International Tribunal for the Law of the Sea could order
the release of a vessel apprehended by the U.S. military.
Reality: The Tribunal has no jurisdiction to order release in such
a case. Its authority to address the prompt release of vessels applies
only to two types of cases: Fishing and protection of the marine
environment. Further, even if its mandate did extend further--which it
does not--the United States will be taking advantage of the optional
exclusion of military activities from dispute settlement. As such, in
no event would the Tribunal have any authority to direct the release of
a vessel apprehended by the U.S. military.
Myth: The Convention was drafted before--and without regard to--the
war on terror and what the United States must do to wage it
successfully.
Reality: The Convention enhances, rather than undermines, our
ability to wage the war on tenor. Maximum maritime naval and air
mobility 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. It
is essential that key sea and airlanes remain open as a matter of
international legal right and not be contingent upon approval from
nations along those routes. The senior U.S. military leadership--the
Joint Chiefs of Staff--has recently confirmed the continuing importance
of U.S. accession to the Convention in a letter to the committee.
Myth: The Convention would prohibit or impair U.S. intelligence and
submarine activities.
Reality: The Convention does not prohibit or impair intelligence or
submarine activities. Joining the Convention would not affect the
conduct of intelligence activities in any way. This issue was the
subject of extensive hearings in 2004 before the Senate Select
Committee on Intelligence. Witnesses from Defense, CIA, and State all
confirmed that U.S. intelligence and submarine activities are not
adversely affected by the Convention. We follow the navigational
provisions of the Convention today and are not adversely affected;
similarly, we would not be adversely affected by joining.
Myth: The United States can rely on use or threat of force to
protect its navigational interests fully.
Reality: 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. But these operations
entail a certain degree of risk, as well as resources. 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
stronger position to assert our rights.
Myth: Joining the Convention would hurt U.S. maritime interdiction
efforts under the Proliferation Security Initiative (PSI).
Reality: Joining the Convention would not affect applicable
maritime law or policy regarding the interdiction of weapons of mass
destruction. PSI specifically requires participating countries to act
consistent with international law, which includes the law reflected in
the Convention. Almost all PSI partners are parties to the Convention.
Further, joining the Convention is likely to strengthen PSI by
attracting new cooperative partners.
Myth: President Reagan thought the treaty was irremediably
defective.
Reality: As explained above, President Reagan identified only
certain deep seabed mining provisions of the Convention as flawed. His
1983 Ocean Policy Statement demonstrates that he embraced the nondeep
seabed provisions and established them as official U.S. policy. The
1994 Agreement overcomes each of the objections to the deep seabed
mining provisions identified by President Reagan. As President Reagan's
Secretary of State, George P. Shultz, noted in his recent letter to
Senator Lugar, ``It surprises me to learn that opponents of the treaty
are invoking President Reagan's name, arguing that he would have
opposed ratification despite having succeeded on the deep seabed issue.
During his administration, with full clearance and support from
President Reagan, we made it very clear that we would support
ratification if our position on the seabed issue were accepted.''
Myth: The Convention provides for mandatory technology transfer.
Reality: Mandatory technology transfer was eliminated by the 1994
Agreement that modified the original Convention.
Myth: The United States could and should renegotiate a new law of
the sea agreement, confined to the provisions on navigational freedoms.
Reality: Assuming, for the sake of argument, that this were a
desirable outcome, other countries would have no reason or incentive to
enter into such a negotiation. The Convention is widely accepted,
having been joined by over 150 parties including all other major
maritime powers and most other industrialized nations. Those parties
are generally satisfied with the entirety of the treaty and would be
unwilling to sacrifice other provisions of the Convention, such as
benefits associated with exclusive economic zones and sovereign rights
over the resources they contain, as well as continental shelves out to
200 nautical miles and in some cases far beyond. And parties that would
like to impose new constraints on our navigational freedoms certainly
would not accept the 1982 version of those freedoms.
CONCLUSION
Mr. Chairman, I am confident that the committee will agree that
U.S. accession to the Convention is the best way to secure navigational
and economic rights related to the law of the sea. I hope I have
convinced the committee that arguments against joining the Convention
are completely unfounded, that there are not viable alternatives to
joining, and that we cannot just go out and negotiate another treaty,
much less one that is more favorable. And we certainly cannot have much
influence over development of the law of the sea in the 21st century
from outside the Convention.
The safest, most secure, and most cost-effective way to lock in
these significant benefits to our ocean-related interests is to join
the Convention. President Bush, Secretary Rice, and I urge the
committee--once again--to give its swift approval for U.S. accession to
the Law of the Sea Convention and ratification of the 1994 Agreement,
and we urge the Senate to give its advice and consent before the end of
this session of Congress.
Senator Webb. Thank you very much, Secretary Negroponte.
And now we'll hear from Deputy Secretary of Defense
England, who I should also point out, has served as Secretary
of the Navy, and has some additional breadth of experience on
this issue.
Secretary England.
STATEMENT OF HON. GORDON ENGLAND, DEPUTY SECRETARY, DEPARTMENT
OF DEFENSE, WASHINGTON, DC
Mr. England. Mr. Chairman, thank you, and Senator Lugar,
thank you, distinguished members. I appreciate the opportunity
to be here today.
I've been in Washington now almost 7 years, this is the
first time I've had an opportunity to appear before this
committee, and I thank you for the opportunity. Particularly on
this important subject.
This is the second time now, in Washington, I have been
able to support this treaty, and a treaty that is vitally
important to the Department of Defense and, Mr. Lugar, I
appreciate your comments--I believe you summarize it
extraordinarily well in terms of how this--the importance of
this Convention is to--not just the Navy--but the entire
Department of Defense. And what I would like to do is just
provide, literally, 10 overview reasons why this is important
to the Department of Defense.
So, first, it is legal certainty in the world's largest
maneuver space--there's over 150 nations, I believe it's up to
155 nations now--that includes major maritime powers, and it
also includes almost all of our coalition partners, and as
you'll hear, that's a very important point.
We need to have the global mobility, 24/7, 365 days a year
with no permission slips. As Senator Lugar commented, all the
CNOs since 1982 have supported a Convention. The chairman, the
Joint Chiefs are all united in support, and that has been the
case, I think, as long as this treaty has been debated.
Strategic mobility--the treaty preserves the DOD's
navigation and overflight rights. And I emphasize, it's
overflight, it's not just on the surface, but it is overflight.
So, the transit passage--under, through, and over critical
chokepoints.
Unrestricted military activities in foreign-exclusive
economic zones in the high seas, is the right of approach and
visit, and it reaffirms that our sovereign immunity of war
ships, and then it extends that sovereignty to public vessels,
like our maritime prepositioning ships.
We need to be able, as Secretary Negroponte commented--we
need to be able to influence from inside the Convention, rather
than depending on other nations to represent our interests, and
particularly, we need to be able to resist coastal state
attempts other countries, in terms of limiting our navigational
freedoms.
Homeland security--this is a positive treaty law for our
Coast Guard to enforce our port security initiatives. And,
again, we have sovereignty in our territorial sea and our
continue zone, and this is supported by the Commandant of the
Coast Guard. Frankly, we owe our Soldiers, our Sailors, our
Airmen, Marines, and Coast Guards a treaty-based rights, as
opposed to the vagurities of customary international law, and
you will hear more of that from Admiral Walsh.
This is important--this support for combined operations
with our coalition partners. This eliminates the seams in the
coalitions, and it furthers our global partnerships. Again, as
Secretary Negroponte commented, this supports a Proliferation
Security Initiative--the vast majority of the Proliferation
Security Initiative countries that have joined with us are
parties to this Convention. And U.S. membership will eliminate
the barriers to more companies, or more parties joining.
It also permits U.S. warships to board stateless vessels on
the high seas. Importantly, the military activities are
completely exempt from the Convention's dispute resolution
procedures--that is, there are no courts or arbitration panels
when dealing with military activities. Article 298 permits the
United States to completely remove military activities from
dispute resolutions, as Russia, China, and others have already
done.
And, last, DOD recognizes that our strength is not found in
our force of arms alone. It also rests on strong alliances,
friendships, and international institutions which enable us to
promote freedom, prosperity, and peace, in common purpose with
others, and that is directly out of our national security
strategy, as signed by President Bush. So, this Convention
needs to be in our arsenal.
I also want to comment that I strongly endorse--which
you're about to hear from Admiral Walsh, who will discuss with
you in just a moment, our partnership in counterproliferation
efforts. Now, Admiral Walsh served as a commander of all U.S.
and coalition maritime forces in the Persian Gulf, the North
Arabian Sea, the Horn of Africa, and the Red Sea from 2005 to
2007, and there's no better practitioner at sea when
partnership and maritime interception operations than Admiral
Walsh. So, this is a practical matter for our Nation, for the
Department of Defense and for the U.S. Navy.
So, in summary, the national security benefits of the
treaty are significant and they substantially and
unquestionably outweigh any perceived risk. The Department of
Defense strongly supports the Law of the Sea Conventions, and
we ask the Senate for your advice and support in joining the
Convention.
And, I thank you again for the opportunity to be with you
today, and I also look forward to your questions.
[The prepared statement of Mr. England follows:]
Prepared Statement of Hon. Gordon England, Deputy Secretary, Department
of Defense, Washington, DC
Mr. Chairman and members of the committee, thank you for the
opportunity to testify on the 1982 United Nations Convention on the Law
of the Sea (``the Convention'') and the 1994 Agreement relating to the
Implementation of Part XI of the United Nations Convention on the Law
of the Sea of 10 December 1982 (``the 1994 Agreement'').
As Deputy Secretary of Defense, and a prior Deputy Secretary of
Homeland Security and prior Secretary of the Navy, I am well acquainted
with the Law of the Sea Convention. The legal framework that the
Convention establishes is essential to the mission of the Department of
Defense, and the Department of Homeland Security concurs that it is
also essential for their mission. For that reason, Secretary Gates, the
Joint Chiefs of Staff, the Military Department Secretaries, all of the
Combatant Commanders, and the Commandant of the Coast Guard join me in
asking the Senate to give its swift approval for U.S. Accession to the
Law of the Sea Convention and ratification of the 1994 Agreement.
In our judgment, the bar should be set very high for the United
States to decide to join a major multilateral treaty, such as this
Convention. Therefore, before the President issued his statement of
support for the Convention on May 15, the administration thoroughly
reviewed the benefits and challenges. As I will explain further below,
the benefits to joining this Convention are significant, and they
substantially and unquestionably outweigh any perceived risks.
As the President noted in his May 15 statement, joining the
Convention will secure U.S. sovereign rights over extensive marine
areas, promote U.S. interests in the environmental health of the
oceans, and give the United States a seat at the table when rights
vital to our national interests are debated and interpreted.
The President also noted that joining will serve the national
security interests of the United States, including the maritime
mobility of our Armed Forces worldwide. It is this point that is the
focus of my testimony today. The navigation and overflight rights and
high seas freedoms codified in the Convention are essential for the
global mobility of our Armed Forces and the sustainment of our combat
forces overseas. We are a nation at war, and we require a great
sacrifice of the men and women in uniform who go into harm's way on our
behalf. Joining this Convention will make our Nation stronger and will
directly support our men and women in uniform.
As the world's foremost maritime power, our security interests are
intrinsically linked to freedom of navigation. America has more to gain
from legal certainty and public order in the world's oceans than any
other country. By joining the Convention, we provide the firmest
possible legal foundation for the rights and freedoms needed to project
power, reassure friends and deter adversaries, respond to crises,
sustain combat forces in the field, and secure sea and air lines of
communication that underpin international trade and our own economic
prosperity. Specifically, the legal foundation of this Convention:
Defines the Right of Innocent Passage, whereby ships may
continuously and expeditiously transit the territorial seas of
foreign states without having to provide advance notification
or seek permission from such states.
Establishes the Right of Transit Passage through, under, and
over international straits and the approaches to those straits.
This right, which may not be suspended, hampered, or infringed
upon by coastal states, is absolutely critical to our national
security. This is the right that underpins free transit through
the critical chokepoints of the world, such as the Strait of
Hormuz, the Straits of Singapore and Malacca, and the Strait of
Gibraltar.
Establishes the Right of Archipelagic Sealane Passage,
which, like Transit Passage, helps ensure free transit through,
under, and over the sealanes of archipelagic nations, such as
Indonesia.
Secures the right to exercise High Seas Freedoms in
exclusive economic zones, the 200 nautical milewide bands of
ocean off coastal shores. The Department's ability to position,
patrol, and operate forces freely in, below, and above those
littoral waters is critical to our national security.
Secures the right of U.S. warships, including Coast Guard
cutters, to board stateless vessels on the high seas, which is
a critically important element of maritime security operations,
counternarcotic operations, and antiproliferation efforts,
including the Proliferation Security Initiative.
If the United States is not a party to the Convention, then our
current legal position is reduced to President Reagan's oceans policy
statement of March 1983 and several 1958 Conventions on the seas that
remain in force but are, in our judgment, no longer adequate. President
Reagan accepted that the navigation and overflight provisions of the
Convention--as well as those relating to other traditional uses of the
oceans--reflected customary international law and state practice.
Further, President Reagan directed the U.S. Government to adhere to
those provisions of the Convention while he and successive Presidents
worked to fix the Deep Seabed Mining provisions of the Convention.
In perspective, the U.S. reliance on customary international law
was intended to serve as an interim measure while the Deep Seabed
Mining provisions of the Convention were modified to address U.S.
concerns. In his recent letter to the committee, former Secretary of
State George Shultz confirms that President Reagan and his
administration supported ratification of the Convention if the Deep
Seabed mining provisions were fixed. Secretary Shultz also stated that
the treaty has been changed in such a way with respect to the Deep
Seabed that it is now acceptable in his judgment. Mr. Ken Adelman,
another former Reagan administration official who dealt directly with
the Convention, has also confirmed this point.
Although reliance on customary international law has been
relatively effective for us as an interim measure, neither customary
international law nor the 1958 Conventions are adequate in the long
term. U.S. assertions of rights under customary international law carry
less weight to states than do binding treaty obligations. By its very
nature, customary international law is less certain than convention
law, as it is subject to the influence of changing State practice. In
addition, the 1958 Conventions are inadequate for many reasons,
including their failure to establish a fixed limit to the breadth of
territorial seas, silence regarding transit passage and archipelagic
sealanes passage, and absence of well-defined limits on the
jurisdictional reach of coastal states in waters we now recognize as
exclusive economic zones. If the United States remains outside the
Convention, it will not be best positioned to interpret, apply, and
protect the rights and freedoms contained in the Convention.
Becoming a party to the Law of the Sea Convention directly supports
our National Strategy for Maritime Security. As the President noted in
the opening pages of the Strategy: ``We must maintain a military
without peer--yet our strength is not founded on force of arms alone.
It also rests on economic prosperity and a vibrant democracy. And it
rests on strong alliances, friendships, and international institutions,
which enable us to promote freedom, prosperity, and peace in common
purpose with others.'' That simple truth has been the foundation for
some of our most significant national security initiatives, such as the
Proliferation Security Initiative. As the leader of a community of
nations that are parties to the Convention, more than 150 in total, the
United States will be better positioned to work with foreign air
forces, navies, and coast guards to address jointly the full spectrum
of 20th century security challenges.
Before closing, I would like to address some of the opposing views.
Critics of the Convention argue that an international tribunal will
have jurisdiction over our Navy and that our intelligence and
counterproliferation activities will be adversely affected. In the
judgment of the Department, these concerns have been more than
adequately addressed within the terms of the Convention.
Our intelligence activities will not be hampered by the
Convention. This matter was fully addressed in a series of open
and closed hearings in 2004. Just recently, the Defense
Department, State Department, and Office of the Director of
National Intelligence confirmed the accuracy of the testimony
provided in those hearings.
The Senate can ensure that international tribunals do not
gain jurisdiction over our military activities when we join
this Convention. In 2003, the administration worked closely
with the committee to develop a proposed Resolution of Advice
and Consent--which we continue to support--that contains a
declaration regarding choice of procedure for dispute
resolution. The United States rejected the International Court
of Justice and the International Tribunal for the Law of the
Sea and instead chose arbitration. That choice-of-procedure
election is expressly provided for in the Convention itself. In
addition, and again in accordance with the express terms of the
Convention, the draft Resolution of Advice and Consent
completely removes our military activities from the dispute
resolution process. Furthermore, each state party, including
the United States, has the exclusive right to determine which
of its activities constitutes a military activity, and that
determination is not subject to review.
Regarding our counterproliferation efforts, which include
interdiction activities at sea and in international airspace, I
strongly endorse the position of the Vice Chief of Naval
Operations, Admiral Walsh, who served as the commander of all
U.S. and coalition maritime forces in the Persian Gulf, North
Arabian Sea, Horn of Africa, and Red Sea from 2005 to 2007.
There is no better authority on maritime interception
operations than Admiral Walsh, and he correctly points out that
not only does the Convention enhance our interdiction
authorities, but not joining the Convention is detrimental to
our efforts to expand the number of countries that support the
Proliferation Security Initiative.
And, as all recognize, this Convention does not affect the
United States inherent right and obligation of self defense.
Further, as Mr. Negroponte has explained in detail, joining the
Convention gives us the opportunity to extend our sovereign
rights dramatically and advance our energy security interests
by maximizing legal certainty and international recognition for
our extended Continental Shelf off Alaska and elsewhere.
As I noted in opening this statement, President Bush, Secretary
Gates, the Joint Chiefs of Staff, the Military Department Secretaries,
the Combatant Commanders, the Commandant of the Coast Guard, and I urge
the committee to give its approval for U.S. accession to the Law of the
Sea Convention and ratification of the 1994 Agreement. The United
States needs to join the Law of the Sea Convention, and join it now, to
take full advantage of the many benefits it offers, to mitigate the
increasing costs of being on the outside, and to support the global
mobility of our Armed Forces and the sustainment of our combat forces
overseas.
Thank you for the opportunity to make the Department of Defense's
views known on this important matter.
Senator Webb. Thank you very much, Secretary England.
Admiral Walsh, welcome to the committee, you may proceed.
STATEMENT OF ADM PATRICK M. WALSH, VICE CHIEF OF NAVAL
OPERATIONS, DEPARTMENT OF THE NAVY, WASHINGTON, DC
Admiral Walsh. Mr. Chairman, thank you. Senator Lugar,
members of the Committee on Foreign Relations, good afternoon.
I'd like to thank you for the opportunity to testify in
support of the United States joining the Law of the Sea
Convention.
By way of introduction to the committee, I'd like to take
this opportunity to provide an operational perspective on how
the Convention supports national security.
I'm a practitioner. I represent a service with a global
view, that must represent and assert national interests on an
international stage. In my previous assignment, as the Deputy
Secretary described, I wore three hats: As the commander of
U.S. 5th Fleet, as the commander of the U.S. naval component to
U.S. Central Command, and the commander of the Combined
Maritime Force in the Central Command area of responsibility.
My headquarters was located in Bahrain, staffed by officers
from 18 countries working in operations, intelligence, and
planning, that comprised the Coalition Maritime Force. Just as
a review--these are representatives from Australia, Belgium,
Canada, France, Germany, Italy, Japan, Netherlands, New
Zealand, Pakistan, Portugal, Singapore, Spain, Turkey, the
United Kingdom, Bahrain, and Saudi Arabia--all but one of those
mentioned are parties to the Law of the Sea Convention.
The area of operations I was responsible for begins at the
Suez Canal, flows through the Gulf of Aqaba in the Red Sea, the
Straits of Bab el-Mandeb, the Gulf of Aden, the waters
surrounding the Horn of Africa, the Western Indian Ocean, the
North Arabian Sea, the Strait of Hormuz, and into the gulf
itself--it's one continuous body of water. Two and a half
million square miles of ocean, it encompasses three of the
world's most important oceanic chokepoints, and over 6,000
miles of coastline.
Maritime forces share the sea, so by its very nature, the
approach that maritime forces take recognize that we share both
the benefit, as well as the responsibility for 70 percent of
the Earth's surface.
The Maritime Commander and Air Commander must respect the
international community's use of the oceans and the airspace
above it for peaceful purposes. If we did not, then you would
know about it, and we would need to answer more questions. The
premise for maritime security is respect for the obligations
contained in the Law of the Sea Convention, ensured through the
exercise of the rights and freedoms codified in that same
Convention.
There is a perception, held by some, that by joining the
Convention, our Armed Forces will somehow be constrained--if
not by the actual language of the convention, then by
international tribunals or arbitration panels operating under
the authority of the Convention. I could not support the treaty
if I thought the treaty curbed the reach or the authority, or
limited in any way, our actions.
First, as was stated earlier, responsible maritime forces
and air forces do not operate without due regard for the
requirements of international law.
Second, the Convention is an enabling element. For example,
under article 110 of the Convention, coalition warships under
my command were authorized to stop and board vessels when there
was reason to suspect they were without nationality, or engaged
in piracy. Using article 110, we were able to interdict
pirates, terrorists, and drug runners tied to terrorism.
Another example is the Proliferation Security Initiative.
PSI represents the collective approach of almost 90 nations, to
use all available national and international authorities to
interdict the shipment of weapons of mass destruction and
related material. Joining the Convention will help expand the
number of nations that participate in PSI.
Geographically strategic nations, such as Indonesia and
Malaysia, would be more likely to join PSI if we, in turn, join
the Convention. Personally, I have participated in PSI
exercises. I value the strength, and see the potential these
exercises have, and this initiative has in the future, and I
would offer my endorsement that we would take all necessary
steps to strengthen this initiative in any way we can. Senate
support for this treaty is one means of doing that.
Third, we've been operating under the Convention since
1983, when President Reagan determined that, with the exception
of the Deep Sea Bed Mining Provisions, which were later fixed,
the U.S. Government would adhere to the Convention, and demand
the same from others.
Fourth, joining the Convention will not subject our Armed
Forces to the jurisdiction of international tribunals, or
arbitration panels. The Convention is very clear on these
points. It recognizes and confirms the sovereign immune status
of warships, government vessels used for noncommercial
purposes, and military aircraft. The Convention is not an arms-
control treaty. The United States, like other nations, will
exclude its military activities from the dispute resolution
process.
So how, then, does joining the Convention support our
national security? It codifies, in a manner that only a binding
treaty can, the navigation and overflight rights, and high seas
freedoms that are essential for the global mobility of our
Armed Forces. Rights, such as the Right of Transit Passage,
through, under, and over international straits, and the
approaches to those straits, the Right of Innocent Passage in
foreign territorial seas, and the Right of Archipelagic Sealane
Passage through archipelagic nations, such as Indonesia. We
need to lock in the navigation and the overflight rights, and
high seas freedoms contained in the Convention, and then by
acting from within the Convention, we can best exercise our
leadership to ensure that those rights and freedoms are not
whittled away by foreign states.
In closing, I'd like to note that it is my deeply held
belief that military leaders have a duty to ensure that our men
and women can execute the demanding tasks placed upon them.
Right now, where I sit, we have a deficiency, by not being
party to the Law of the Sea Convention, and it is one that we
must correct. This Convention is valuable to our Soldiers,
Sailors, Airmen, Marines, and Coast Guardsmen, and it's time we
joined the Convention, and we owe it to them.
So, thank you, and I'm happy to answer your questions, sir.
[The prepared statement of Admiral Walsh follows:]
Prepared Statement of ADM Patrick M. Walsh, Vice Chief of Naval
Operations, Department of the Navy, Washington, DC
Chairman Biden, Senator Lugar, members of the Committee on Foreign
Relations, good afternoon. I would like to thank you for this
opportunity to testify in support of the United States joining the Law
of the Sea Convention.
As Deputy Secretary Negroponte and Deputy Secretary England have
stated, accession to the Convention is an important priority for the
administration. Statements supporting accession have been made by the
President, senior Cabinet officials, the Joint Chiefs of Staff,
Commandant of the Coast Guard, a host of former legal advisors for the
Department of State, our current and former Secretaries of the Navy,
and former Chiefs of Naval Operations. Their statements outline the
compelling reasons for accession. Instead of trying to improve upon
them, I want to take this opportunity to focus on why I support
accession.
I support accession because it helps our soldiers, sailors,
marines, airmen, and coastguardsmen do their job.
Our sailors' job is to make sure that fully trained and combat-
ready naval forces are available to deter our adversaries and defeat
our enemies, 24 hours a day, 7 days a week, 365 days a year. Our
sailors' job is to ensure the uninterrupted delivery of vast quantities
of materiel necessary for the sustainment of our combat troops
overseas. Their job is to ensure that the sealines of communication,
which underpin global trade and our domestic economic prosperity,
remain open and reliable. Our sailors' job is to execute our National
Security Strategy by:
1. Interdicting terrorists and preventing them from gaining
weapons of mass destruction;
2. Gathering and analyzing critical intelligence;
3. Helping our friends to secure critical economic
infrastructure; and
4. Expanding and strengthening global maritime coalitions
dedicated to dealing with the full spectrum of 21st century
security challenges.
Our Navy can better protect the United States and the American
people if we join the Law of the Sea Convention.
The Law of the Sea Convention is the bedrock legal instrument for
public order in the world's oceans. It codifies, in a manner that only
binding treaty law can, the navigation and overflight rights, and high
seas freedoms that are essential for the global strategic mobility of
our Armed Forces, including:
1. The Right of Innocent Passage, which allows ships to
transit through foreign territorial seas without providing the
coastal state prior notification or gaining the coastal state's
prior permission.
2. The Right of Transit Passage, which allows ships,
aircraft, and submarines to transit through, over, and under
straits used for international navigation and the approaches to
those straits.
3. The Right of Archipelagic Sealanes Passage, which, like
transit passage, allows transit by ships and aircraft through,
over, and under normal passage routes in archipelagic states,
such as Indonesia.
4. The right of high seas freedoms, including overflight and
transit within the Exclusive Economic Zone.
Innocent Passage, Transit Passage, and Archipelagic Sealanes
Passage are the crown jewels of navigation and overflight. These rights
are vital not just to our Navy, but also to our Army, Air Force, Marine
Corps, and Coast Guard. They make it possible to move vast quantities
of war materiel through the Straits of Gibraltar, Singapore, Malacca,
and Hormuz and into the Arabian Gulf to soldiers, sailors, airmen, and
marines in Iraq. These rights permit us to move our submarine fleet
through choke points to conduct all missions. They permit the U.S. Air
Force to conduct global missions without requirement to overfly foreign
national airspace. And they ensure the uninterrupted flow of commerce
to and from our shores.
NATIONAL SECURITY/DEFENSE BENEFITS
Convention extremely favorable to U.S.
--Limits breadth of territorial sea
--Innocent passage
--Transit passage through international straits
--Archipelagic sealanes passage
--Freedom of navigation and overflight in EEZs
--Unrestricted military activities in high seas
--Right of approach and visit
--Legitimate coastal state authority in territorial sea and
contiguous zones
The Convention also allows us to exercise high seas freedoms in
foreign exclusive economic zones, including conducting military
activities without coastal state interference. And this is important--
the single most contentious issue in oceans law and policy today is the
attempt by some foreign coastal states to treat the exclusive economic
zone--or EEZ like a territorial sea. The Convention makes clear that
coastal states enjoy resource rights within the EEZ, but they do not
enjoy and may not assert full sovereignty within the EEZ.
Because we are not a party to the Law of the Sea Convention today,
we must assert that our navigation and overflight rights and high seas
freedoms are based upon customary international law. However, that
approach plays directly into the hands of those foreign coastal states
that want to move beyond the Convention. They too cite customary
international law as the basis for their developing claims of coastal
state sovereignty in the EEZ and in international straits.
We need to lock in the navigation and overflight rights and high
seas freedoms contained in the Convention while we can. Then, acting
from within the Convention, we can exercise effective leadership, and
in conjunction with our freedom of navigation program, ensure that
those rights and freedoms are not whittled away by foreign states.
NATIONAL SECURITY/DEFENSE BENEFITS
Joining the Convention:
--Codifies navigational rights . . . puts them in the firmest legal
category--treaty rights
--Provides legal certainty and stability within the world's largest
maneuver space
--Gives us greater voice in development of rules vital to global
mobility
--Promotes international cooperation . . . supports PSI
Joining the Convention will also strengthen maritime coalitions and
further important national security initiatives such as the
Proliferation Security Initiative. Over 150 nations are parties to the
Law of the Sea Convention, including the vast majority of our PSI
partners and members of the coalition fighting the global war on
terror.
Our Maritime Security Strategy is founded upon the basic truth that
nations with common interests in international commerce, safety, and
security can work together to address common challenges. While the
Armed Forces of the United States will always enjoy the capability to
unilaterally conduct military operations wherever and whenever
necessary, we also know that global security depends upon a partnership
of maritime nations sharing common goals and values.
Global maritime security is undergoing significant transformation
today, and as the world's foremost maritime power, the United States is
both expected and required to lead that transformation. We must lead
and manage a maritime security domain in which friendly navies, coast
guards, and industry develop common interoperability protocols and
information sharing frameworks. In turn, these arrangements must enable
distributed maritime operations appropriately scaled to address the
full range of 21st century maritime security challenges, including
proliferation of WMD, terrorism, piracy, and transnational criminal
activities such as narcotics and human trafficking.
Joining the Law of the Sea Convention is critical to the success of
our Maritime Security Strategy. By joining the Convention the United
States will be able to effectively develop and lead an association of
maritime partners dedicated to ensuring public order in the world's
oceans.
On this specific point, it is worth looking at the example of the
President's Proliferation Security Initiative, or PSI. PSI began in May
2003, when 10 like-minded countries joined the United States to prevent
the proliferation of weapons of mass destruction, their delivery
systems, and related materials. Those 11 countries endorsed a series of
PSI founding principles, including two essential principles from an
operational perspective: One, that all States have broad domestic
authorities to act against proliferators and, two, that acting
cooperatively, they can use those authorities and international law--
including the Law of the Sea Convention--to prevent proliferation. The
Law of the Sea Convention recognizes numerous legal bases for taking
action against vessels suspected of engaging in proliferation
activities, including port state control measures, flag state
authority, and the right of warships to approach and visit commercial
vessels.
In just 4 years, PSI has expanded from its original 11 partner-
nations to almost 90, and we have had specific operational successes in
preventing the proliferation of weapons of mass destruction under PSI.
However, our failure to be a party to the Law of the Sea Convention is
limiting further expansion of PSI. Critically important democratic
Pacific countries have indicated a desire to support our
counterproliferation efforts, but they tell us that so long as we are
not a party to the Law of the Sea Convention, they will not be able to
convince their legislatures to endorse PSI. How, they ask us, can they
convince their legislatures that PSI interdiction activities will only
occur in accordance with international law including the Law of the Sea
Convention, when the leading PSI nation, the United States, refuses to
become a party to the Convention?
Another example of the future of maritime security operations is
Task Force 150 in the Central Command area of Operations. Task Force
150, a multinational task force comprised of naval and Coast Guard
forces, is responsible for maritime security in the Gulf of Oman,
Northern Arabian Sea, part of the Indian Ocean, Gulf of Aden, and Red
Sea. The task force is responsible for helping secure the approaches to
three of the world's most important choke points: The Suez Canal, Bab
el-Mandeb, and Strait of Hormuz. The task force's mission includes
interdicting terrorists and WMD material, supporting local countries in
developing their maritime capabilities, and addressing the full
spectrum of 21st century security challenges, including narcotics
trafficking and piracy. The task force is typically commanded by a flag
officer from a foreign navy, such as Pakistan, the United Kingdom,
Germany, the Netherlands, or France. The United States contributes
forces at the tactical level and acts as the overarching coordinating
authority through the Combined Force Maritime Component Command
headquarters in Bahrain, which is colocated with the U.S. Fifth Fleet
headquarters.
One of the most important aspects of strengthening the
effectiveness of a maritime coalition, like TF-150, is to craft
operations that take full advantage of the various capabilities that
each country brings to the fight, while respecting their respective
national political authorities and limitations. Although some
differences are inevitable, for example in classification disclosure
policies, others can and should be eliminated when possible. One such
difference that should be eliminated is our nonparty status under the
Law of the Sea Convention. When we operate with coalition partners in
challenging environments, we need to use the same playbook, and the Law
of the Sea Convention is a critically important part of the playbook.
Before closing, I would also like to point out that the Law of the
Sea Convention directly supports our Homeland Defense and domestic
maritime law enforcement interests. In addition to permitting the
United States to expand its territorial sea from 3 nautical miles to 12
and claim an adjacent contiguous zone with a 24 nautical mile limit,
the Convention is the legal instrument underpinning maritime port state
control measures and the authority of flag states to consent to the
interdiction of vessels. Initiatives relating to container security,
maritime domain awareness, counternarcotics and counterproliferation
are all based on the legal regimes established in the Convention. This
is why the Commandant of the Coast Guard supports immediate U.S.
accession to the treaty.
In closing, I would like to note that I have been responsible for
leading the young men and women of our country in combat. I led strike
missions over Iraq in Desert Storm, and as the recent commander of the
United States Fifth Fleet, I led marines, sailors, and coastguardsmen
during Operation Enduring Freedom and Operation Iraqi Freedom. It is my
deeply held belief that military leaders have a sacred duty to ensure
that the men and women under their command have the tools and training
necessary to execute the demanding tasks placed upon them. Right now,
as I sit before you, we have an identified deficiency--not being a
party to the Law of the Sea Convention--but thankfully it is one that
we can easily correct. It is time that we join the Convention. We owe
it to them.
Senator Webb. Thank you very much, Admiral. I appreciate
the testimony of all the witnesses.
At this point I'd like to ask consent to insert several
items into the hearing record. First, a letter from the Joint
Chiefs of Staff in support of the Convention.
Second, a letter from Michael Chertoff, the Secretary of
Homeland Security, in support of the Convention.
Third, a letter from the chairman and vice chairman of the
Senate Select Committee on Intelligence, concluding that the
Convention will not adversely affect U.S. intelligence
collection, or other intelligence activities.
Fourth, an article from yesterday's Wall Street Journal by
former Secretaries of State, George Schultz and Jim Baker.
Fifth, a memo in support of the Convention, from seven
former Chiefs of Naval Operations that was submitted, as has
been mentioned, to the Senate in 1998.
And, sixth, a statement by Senator Boxer.
[Editor's note.--The six articles submitted by Senator Webb can
be found on pages 47-55 in ``Material Submitted for the
Record.'']
Senator Webb. We'll have 7-minute rounds of questions, and
if there are further questions, people can feel free to engage
in a second round.
Gentlemen, there are critics who have stated that the
Convention would impair intelligence-gathering activities. They
point to articles 19 and 20, and claim, for example, that they
prohibit submarines from transiting, submerged, through the
territorial sea of another country in order to gather
intelligence, and that if caught, the coastal state could bring
the case to the International Tribunal for the Law of the Sea.
Do you believe that this is a legitimate concern?
Secretary Negroponte.
Mr. Negroponte. No, sir. Because nothing impedes a
submarine from proceeding, submerged, in the territorial sea of
another country, it simply wouldn't enjoy the right of Innocent
Passage.
Senator Webb. Secretary England.
Mr. England. Mr. Chair, if I could just add, that this was
a subject of extensive briefings before the committee in 2004.
They were closed briefings, but that was probably--those were
not before this, it was before the Senate Committee on
Intelligence. We have reviewed those hearings, both ourselves,
the DNI, I believe the Secretary of State--we all still, today,
support those hearings and the comments made.
The conclusion of those hearings is that this would have no
effect on any of our intelligence activities, but they were
closed, so I would refer you to those hearings, sir.
Senator Webb. Admiral Walsh, would you have anything to
add?
Admiral Walsh. I support comments previously made here,
sir. I do not see the objections raised by the critics on this
point. We have been operating, really, by the provisions of the
treaty since 1983, and we have not had to change our activities
as a result of following the treaty.
Senator Webb. Thank you.
There are opponents who claim that the Convention would
establish a tax on U.S. entities, and that the money would go
to the United Nations, is this correct, Secretary Negroponte?
Mr. Negroponte. There are no taxes, Senator, in the case of
the extension of the Continental Shelf beyond 200 miles, if
after 7 years an oil company is starting to generate revenues,
they would have to pay 1 percent of a fee, and then it would go
up in subsequent years, up to a maximum of 7 percent, I
believe.
But, these are provisions that were completely agreed to
and advocated by the affected interests--that is to say, the
oil companies. They welcomed this provision, and--and they
welcomed the provisions governing the Continental Shelf--was
because of the legal certainty that it would afford them, with
regard to the recognition of the extent of our shelf beyond 200
miles.
Senator Webb. Would that money go to the United Nations?
Mr. Bellinger. Sir, I'm John Bellinger, I'm the Legal
Advisor to the Secretary of State.
No, sir; this is one of the myths about the treaty--
although it is called the U.N. Convention on the Law of the
Sea, it's only because it was negotiated under the auspices of
the United Nations, because it was such a comprehensive treaty.
But, the royalties that Ambassador Negroponte mentioned would
not go to the United Nations. There is no U.N. entity, there is
no U.N. bureaucracy, there are no U.N. employees.
The royalties that might ultimately be paid by our
companies--and again, only if they are successfully drilling
for oil--would go to a group of Member States, in which the
United States would decide how they would be distributed. So,
we are not paying money, taxes to the United Nations at all,
this is not a U.N. entity.
Senator Webb. How would the Member States become a part of
the group that would receive those royalties?
Mr. Bellinger. The United States--they would have to be
reached by consensus, Senator. It's not decided in advance.
Senator Webb. Geographical propinquity?
Mr. Bellinger. There would have to be a consensus on how
the money would be distributed. The United States would have--
not only a seat at the table--but a permanent seat on the
Council that would decide how any money would be distributed.
Consequently, we would have a veto right on how any money would
be distributed.
Again, the important point here is that it is not money
going to a U.N. bureaucracy or entity, and the United States
has a strong voice, and ultimately a veto right in how the
money would be distributed.
Senator Webb. Thank you.
Are there any concrete indications of how this treaty would
erode U.S. sovereignty?
Secretary Negroponte.
Mr. Negroponte. To the contrary, Senator, I think we gain
sovereignty in the sense of the certainties that are acquired
by this. I think the Continental Shelf is probably a good
example of that. And, of course, the creation of an exclusive
economic zone was an expansion of sovereign rights which is
recognized by the treaty. So, I would say that in all, you'd
have to say that it was a plus for United States sovereignty.
And, I can't really see any area where it's subtracted from.
Senator Webb. Is there any portion of this treaty that you
believe would impact negatively on our national security?
Secretary England.
Mr. England. No, sir; I do not. We don't see any downside
at all to the treaty, frankly. Military activities are exempt,
so frankly, it doesn't cover military activities. On the other
hand, it does give us freedom in terms of straits, over/under,
through--as I commented before--for our ships and airplanes. It
gives us the Right of Passage around the world, including in
other people's economic zones, so it is freedom that we have
now, guaranteed freedom to rules.
I mean we--it's very helpful for our military to understand
exactly what the rules are as we go around the world, and what
our limits are, in terms of going around the world, so as we
navigate to have freedom of navigation, understand exactly what
those freedoms are, and by the way, it's also true for our
country, I mean we have--it enhances our security. The U.S.
Coast Guard, strong supporter of this treaty, because of the
added security, I mean, there is certainty to the 12-mile
limit, there is certainty to the 200-mile limit as prescribed
in terms of the freedoms that you have--particularly outside
the 12-mile zone, but also the protections we have within the
12-mile zone.
So, it's important for us in terms of freedom around the
world, and also for the security of the United States in terms
of the authorities we have, at the 12, and then the continuous
areas, out to 24 miles, and ultimately to 200 miles. So, there
are all important attributes for the national security of the
United States. My view is, I think the--well, I can tell you
the view of the Department of Defense is--this enhances our
national security.
Senator Webb. Admiral Walsh, would you agree that there's
no portion of this treaty that, in any way, impacts our
national security as an operator?
Admiral Walsh. That's correct, sir. And I have looked at
the treaty on issues related to immunity for warships, and some
of the sovereignty concerns that have been raised as a result
of the debate.
The immunity provisions, I think, are extensive, and I
think they're clear and consistent throughout the treaty. So,
it begins with definitions of warships with article 29, and
works its way through article 32, which highlights nothing in
the Convention affects the immunity of warships or other
government ships operating in noncommercial service.
It describes in article 95, ``Warships on the high seas
have complete immunity from the jurisdiction of any state,
other than the flag state.'' It seems to me the treaty is very
consistent on this point.
Senator Webb. Thank you very much.
Senator Lugar.
Senator Lugar. Thank you very much, Mr. Chairman.
Critics of the treaty often start with the fact that it
mentions the United Nations. Today you have replied to that
critism that the United Nations was a convener of the countries
that have come to agreement, but is not involved in the
administration of the treaty, recipient of taxes, or other
situations.
I mention this because, rightly or wrongly, there are a
large number of Americans who do not like the United Nations.
As far as they're concerned, our involvement with the United
Nations is an anathema, and so they start with the thought that
a treaty that has the United Nations in the title, ipso facto,
has some problems.
Now, leaving aside that, others would say, even if the
United Nations is not involved, the question of sovereignty is.
And essentially, the assertion is made by some that the real
problem--which you gentlemen, the Navy and the Defense
Department--have not faced is that we have 300 or fewer
warships. We used to have, they would claim, 1,000. The fact
is, that you don't need Law of the Sea, you don't need
international law, you don't need agreements--you need 1,000
warships.
And as a result, if you want to go somewhere, you apply
that force, and simply shoot it out, if necessary, until people
respect that and therefore there is no need for international
law. Erosion of sovereignty for them means we've had an erosion
of our military authority.
In that context, Admiral, I would like to ask, Would, in
fact, the Law of the Sea Treaty tend to reduce the need for
dangerous operations involving the threat of the use of force,
or the actual use of force, and what is the meaning of that to
those Americans who serve in the U.S. Navy, in terms of their
service, their longevity, their ability, to serve as Americans,
by limiting risks through this type of international law?
Admiral Walsh. Thank you, Senator. There's several elements
that I'd like to try and hit, and if I miss something, please
remind me and I'll come back to it.
But, to begin with, this notion of sovereignty extends to
warships. Warships are defined in the treaty. There is a
consistent theme of protection for the sovereignty of those
vessels throughout the treaty.
Incidentally, those 18 coalition partners that I was
telling you about in our headquarters have got, essentially,
the same set of questions that are coming up, and have had to
debate the same set of issues inside their own nation-states.
As far as the ability to assert ourselves on the high
seas--let me just suggest to you that there was a time and
place when threats were made, and lines drawn in the water, in
terms of the potential loss of life and limb on crossing
international waters, and that's the Gulf of Sidra in 1981. It
seemed to me the warship response, the grey-hull response, was
appropriate and proportionate to the threats made at the time.
So, the question before the committee, is that the
appropriate approach that we want to take, with exaggerated
claims of baselines, economic, or environmental interest, is to
respond with a warship? Seems to me that's better set aside for
those best prepared for that kind of discussion, which, I would
recommend, are people on that side of the table.
It would be, in my view, important to point out that many
of the partners that we have in the global war on terror who
have put life, limb, and national treasure on the line, are
some of the same ones where we have disagreements on what they
view as their economic zone or their environmental laws. It
does not seem to me to be wise to now conduct Freedom of
Navigation operations against those very partners that we--are
in our headquarters--trying to pursue a more difficult
challenge ahead of us, which is a global war, a global war on
terror.
It seems to me that, no matter how many ships we have, and
I realize that if I want 1,000 ships, I need to go to the other
committee to ask for that. [Laughter.]
It seems to me, no matter how----
Senator Webb. You would have one vote on that other
committee, by the way. [Laughter.]
Admiral Walsh. It seems to me that no matter how many ships
that we have, we're going to come across the same issue, which
is the allocation of precious resources and assets throughout
90 percent of the globe. So, we can conduct those sorts of
assertions of our sovereignty, if the committee sees fit to,
but I would recommend against it, and see that we could better
use our resources, and our people, in the global war on terror.
Senator Lugar. I thank you for that answer. I agree with
it, but I think this is a part of the issue and one of the
reasons the treaty has not progressed. There is a group of
people in America that are prepared to shoot it out, and
believes that's what sovereignty is all about, and what we
ought to be about. But, I thank you for your response.
Let me just say, there was a quarter-page ad in the
Washington Times yesterday that the U.S. taxpayers need to know
about, U.N.'s Law of the Sea Treaty, and it asserts, ``The
U.N.'s Law of the Sea is the biggest giveaway of American
sovereignty and resources since the Panama Canal Treaty, and
lays the groundwork for another U.N. corruption scandal, worse
than the Oil for Food, by setting up a scheme to facilitate
payoffs based on revenue derived from global taxes or fees. It
gives the U.N. control over billions of dollars worth of oil,
gas, and minerals in the so-called international waters known
as the area. And finally, the International Seabed Authority,
based on the Island of Jamaica, but maintaining a relationship
agreement with the United Nations controls the area.''
Now, I mention that, not in a sense of being an adversary
or to ridicule, but to show that these are the arguments that
are being made. As we can all view here today, unanimously,
everybody in the National Security Council, the President of
the United States, those who served as Secretaries of State
under President Reagan and so forth, it remains that the treaty
has not moved. And, in part, it's because of holds,
parliamentary by Senators, and unwillingness by the leadership
to bring it up and forget the holds. But, second, by the
thought that there must be a large group of Americans out
there, who somehow believe that this is a giveaway, of
sovereignty, of money, of U.N. domination.
Mr. England. Senator.
Senator Lugar. Do you have a response?
Mr. England. Well, my only comment is, rather than a
national security, from an economic point of view, the United
States has the most to gain. I mean, our Exclusive Economic
Zone goes out 200 nautical miles, I mean, we have one of the
largest coastlines in the world, when you think of Alaska, the
Hawaiian Islands, and the East/West Coast, Gulf of Mexico. You
think of our coastline, 200 miles, and we have exclusive
economic rights in that area. And, in addition, as Secretary
Negroponte said, we go out to the Continental Shelf off of
Alaska, that could be as much as 600 miles, and we have
exclusive economic rights in that area. It would seem to me
that, contrary to your comments about what the newspaper said,
the ad taken out, it is the opposite of that.
I mean, some people have said this is a big U.S. land grab,
because, you know, there's so many rights that accrue to the
United States because of our huge coastline. So, it would seem
to me this is hugely beneficial to the United States, rather
than a disadvantage, it's a huge advantage to the United States
in terms of our economic, as well as our security interests.
Senator Lugar. Thank you, sir.
Senator Webb. Secretary Negroponte, did you want to add
something?
Mr. Negroponte. If I could just add briefly--I think some
of these arguments, Senator Lugar, are issues of fact. Like
it's just not a fact that this Seabed Regime is going to be run
by the United Nations, nor is it going to have control over
anything else other than the licensing of seabed mining
operations in the area, if and when they take place. And so, I
think those doubts can be dispelled by just pointing out the
facts of the agreement.
But, I think there's also an issue of judgment, as to
whether we would have been better off without this treaty being
negotiated, and with the historical perspective I've got, I
recall that our big concern back in the 1970s was, if we allow
countries to expand their territorial sea to 12 miles and their
economic zone from 200-miles, could you end up having creeping
jurisdiction from 12 miles for territorial sea and 200 for the
economic zone today to 50 miles and 300 or 400 miles tomorrow?
So, in a way, the treaty has the effect of freezing these
claims in time.
And second, with those claims, was that going to somehow
impede these vital navigational rights, specifically the
transit through international straits, which I think was
probably one of the greatest concerns we had. Would the fact
that countries could now have 12-mile territorial seas, and
therefore there would be a lot of international straits where
they'd be overlapping territorial claims, could we come up with
a satisfactory regime? And so, you can imagine that we felt
we'd really achieved a very significant accomplishment when we
got the right of Straits Passage for our military and other
vessels. And, we think that's a very important achievement for
our national security and other interests that needs to be
memorialized by our ratifying the Convention. Lest others,
maybe at some future time, become tempted to say, ``well, the
United States hasn't signed this thing, maybe we want to change
our attitude toward this, and expand our claims somehow.''
Senator Lugar. Thank you.
Senator Webb. Senator Corker.
Senator Corker. Mr. Chairman, thank you and I join the
others in welcoming this distinguished panel, we appreciate you
being here.
Senator Lugar referred to one form of conflict resolution,
which is shooting it out, if you will, on the open seas. There
will be, though, conflicts that arise, obviously, and I know he
wasn't advocating that, he was referring to another line of
thinking, but there will be conflicts that arise. And I'd like
for you, if you would, to expand a little bit on how conflict
resolution--when there are disputes, if you will, about various
issues, and it's my understanding that from the standpoint of
military issues, there is not dispute there, it's well laid
out, and we have complete sovereignty. But, on commercial
interests, other kinds of issues that arise, talk to us a
little bit about how the treaty lays out the resolution of
those?
Mr. Negroponte. In general terms, Senator, and then if Mr.
Bellinger wants to add anything, if that would be all right.
Basically, as you mentioned, military activities are
exempted from the conflict resolution provisions of the treaty
explicitly and so is the issue of the administration of the
Exclusive Economic Zone, particularly fisheries.
There are conflict resolution provisions that allow for a
choice among arbitration, the International Tribunal for the
Law of the Sea, or the International Court of Justice. We have
indicated that we would go the route of arbitration in any
disputes that might arise under the Convention.
Senator Corker. So, in essence, this arbitration is binding
arbitration, is that correct? Would you give us a little bit of
the layout of how that is set up? And, I can see someone more
technically oriented will answer that question.
Mr. Bellinger. The dispute resolution mechanisms are
exactly what we wanted, because we could, in fact, imagine that
there might be disputes among states, in which we would not
want to send the Navy in to resolve. We have exempted
ourselves--as we are allowed to do under the treaty--from the
jurisdiction of the International Court of Justice and from the
International Tribunal for the Law of the Sea except for a very
narrow category. Instead we will take to arbitration, any
disputes that we would want resolved.
If an arbitral panel makes a decision, that would be final,
and that's exactly the way we would want it. So, for example,
if we challenged another country for asserting too great a
right to its territorial sea, we take them to arbitration, and
if we won, we would not want them to be able to have that
decision overturned in one of their foreign courts. So, the
dispute resolutions are binding, but that's exactly the way
that we want it, we are comfortable with that, and as has been
alluded to several times, military activities may be exempted
under the treaty, and our proposed Resolution of Advice and
Consent would definitely take advantage of that opt-out for
military activities. So, those would not be addressed at all in
any dispute resolution mechanism.
Senator Corker. And the arbitration panel is made up, how?
Mr. Bellinger. As with any international arbitration,
arbitrators are chosen by the sides. So, we would pick the
arbitrators in conjunction with the other side, that we would
want. We have very effective lawyers in arguing in
arbitrations, we win quite regularly, and you have got
arbitrators who you hope will rule fairly. It is, of course,
possible that one can lose cases, but you also can win cases.
And we think we are quite comfortable with the dispute
resolution mechanisms in the commercial set of cases that
they'd apply to, but again, it is very important to recognize
that no International Court of Justice, Tribunal, or arbitral
panel could judge the activities of our military. That's just
off the table.
Senator Corker. I've been here a short time, and haven't
had the opportunity yet to vote on a perfect bill, and I doubt
that I will. [Laughter.]
My guess is this treaty, while you support it strongly, is
not perfect, and obviously there have been people--as is always
the case here--that have made allegations that are just not
based on fact.
But on the other hand, I'm sure there are some
shortcomings, and I would like for you all, if you would, to,
if you will, outline some of those things that you wish would
have been addressed in a little bit better way in this treaty.
Mr. Negroponte. I'm not sure I'm prepared, Senator, to try
and enumerate blemishes or flaws, but maybe this is a helpful
point, and it maybe also goes to the issue that Senator Lugar
raised earlier about why it's taken so long to hopefully, now,
be on the verge of getting this treaty ratified.
And, I think it was true that chapter 11, the original
chapter 11 of the Law of the Sea Treaty was defective. The
chapter that dealt with deep seabed mining provisions. It had
mandatory technology transfer provisions, and it did not give
us the kind of representation in the decisionmaking body that
we would have liked, among other objections that we had to it.
So, improvements were made.
I suppose, in the ideal, one might say, ``well, we would
have preferred to have no regulation,'' I mean, some might have
argued, ``of deep seabed mining, no international regulation of
deep seabed mining beyond 200 miles.'' But then, on the other
hand, if you make that argument, what will happen? In terms of
regulating the behavior of other state actors on the
international scene.
So, I'd be reluctant to try to enumerate specific
shortcomings. I think the preponderant balance of benefits of
this agreement, I think we all believe at this table, is
overwhelming.
Senator Corker. Thank you, I know my time is expired.
Senator Webb. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
And thank you gentlemen, welcome. I appreciate the
testimony that you have given today and for the collective
years of service that we see represented in your various
capacities. Thank you very much.
Certainly Alaska has a great deal of interest in what is
happening with the Law of the Sea Treaty. We have half the
coastline of the United States in the State of Alaska. When we
recognize that the United States is an Arctic nation, we are an
Arctic nation because of Alaska. So, we've got a very keen
interest when we discuss a treaty that governs the world's
oceans and the ocean floors.
Ambassador Negroponte, you said that the United States has
a distinct disadvantage when it comes to exercising sovereign
rights on, particularly on the Continental Shelf. There's a new
Time Magazine this week that has a very intriguing picture,
floating iceberg out there with multiple flags, ``Who own the
Arctic?'' And the article is about the debate over what happens
as global warming, climate change, advances. And we see greater
exposure in the North, we see commerce opening up in a part of
the globe that we haven't seen before--that we've only dreamed
about.
But we recognize that the landscape is changing up there,
and as it changes, the discussion about who owns what is rather
intriguing. You've got a--you can't see this, but it's the top
of the globe, the northern portion--redrawing the map with the
respective flags of what Canada thinks is theirs, what
Greenland thinks is theirs, what Sweden and the United States
thinks is theirs. But there's a big difference between thinking
what is yours and what your legal claim to that may be.
And I think that this was very clearly demonstrated just a
few months back when the Russians went down and planted a flag
on the bottom of the ocean seabed. And if there's anything good
that came out of that, I think it, again, sparked the question
of, what is the status? And getting to the legal certainty, I
think, is where, from my perspective, I'm looking at the Law of
the Sea Treaty and saying this is incredibly important for the
United States to be a full participant and to be sitting at the
table when these decisions are made as to who has what.
The Coast Guard Cutter Healey just came back from a mapping
exploration of the Arctic to determine the extent of the U.S.
Continental Shelf in the Arctic.
Ambassador, if you can tell me what you believe the
significance of the Healey's mission is in terms of the U.S.
overall policy as it relates to the Arctic, and what is the
importance of the Law of the Sea when it comes to our Arctic
policy? And I recognize that right now we are still working to
update that Arctic policy. But if you can just tell me how they
mesh here?
Mr. Negroponte. Right. The key aspect, Senator--and I agree
with everything you said--the key aspect is the fact that the
Convention provides for a commission on the delimitation of the
Continental Shelf. And therefore, and that commission is where
countries would submit their data that would justify their
claim to whatever extention of the Continental Shelf it is that
they choose to assert, and then that commission is the one that
makes the judgment as to whether the claim is justified. So, if
we ratify the treaty, we will most likely get a seat on that
commission and we'll be in a position to comment on the claims
of other countries, which we're not able to do. And we'll also
be able to submit our claim, based on data collected by the
Coast Guard Cutter Healey or whatever activities we do, in
order to map what we think should be our claim to the
Continental Shelf. And then, we will get the legal certainty,
if we are members of that commission, that will come from the
commission agreeing to the merits of our claim.
So, I would agree with you. It's very, very important. And
in terms of a whole host of shelf activities, would add an
element of certainty that doesn't exist at the moment.
[Editor's note.--The following was submitted by Deputy
Secretary Negroponte as a clarification for the record:]
There is a need to clarify my answer to Senator Murkowski's first
question.
The United States would have a permanent seat on the Council of the
International Seabed Authority, not on the Commission on the Outer
Limits of the Continental Shelf. Regarding the Commission, we would be
able to nominate an expert for election. We anticipate that, given U.S.
expertise on Continental Shelf matters, the U.S. nominee would be
elected.
Ambassador Negroponte's written statement correctly noted that, as
a nonparty, ``we have not been able to nominate an expert for election
to the Commission [on the Limits of the Continental Shelf]. Thus, there
is no U.S. Commissioner to review the detailed data submitted by other
countries on their shelves.''
Senator Murkowski. So let me ask you then, if, for
instance, the Russians have, I understand, a couple years to
file their claim to what they believe their claim to be on the
Continental Shelf. If the information that the Healey brings
back allows us to challenge that claim, and if we are not a
signatory to the treaty, then the United States would not be
able to contest Russia's claim?
Mr. Negroponte. That's correct. We have no standing in that
Commission.
Senator Murkowski. Let me ask also, about Canada's claim
that the Northwest Passage is an internal waterway and thus,
under their sovereign control. Has there been any progress in
reaching an agreement on this matter and would this be
something that would be addressed bilaterally or through the
Law of the Sea mechanisms?
Mr. Negroponte. We have dialog with Canada on this subject
and we reached an understanding during the administration of
President Reagan, on the basis of which our Coast Guard vessels
have navigated through the Northwest Passage, but we have never
agreed with the Canadian claim that it is internal water.
Senator Murkowski. So, would it be an issue that would then
come under the auspices of the Law of the Sea, if we were to
sign onto that treaty?
Mr. Negroponte. You know, I don't know the answer to that
question. I'd have to submit that for the record, Senator.
Senator Murkowski. If you would, I'd appreciate it. Thank
you.
[The submitted written response by Deputy Secretary
Negroponte to the requested information follows:]
The United States does not agree with Canada's position that the
Northwest Passage is internal waters. The Northwest Passage is a strait
used for international navigation. Therein, all ships and aircraft
enjoy the right of transit passage, in accordance with international
law as reflected in the Law of the Sea Convention. This view is shared
by others in the international community, including the European Union.
Becoming a party to the Convention would bolster the ability of the
United States to advocate and advance its rights under the Convention.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Webb. Senator DeMint.
Senator DeMint. Thank you, Mr. Chairman.
I thank all the witnesses as well, as I really appreciate
you being here, very complex and interesting subject to
consider.
I know the United States wants to be a constructive part of
the international community and I know that's a lot of the
motivation to work with other countries in a nonmilitary way to
work out differences around the world. I do think we have to
recognize, as we look at treaties like this, that the United
States does have a very different role than all of the other
signatories to this treaty. Our role and responsibility in this
world is very different than any other country and the
expectations of us are very different. And the need to act
independently, as we have seen many times in the last decade,
is very important, not only to us, but the world itself.
I believe that was Reagan's philosophy. I've heard him
quoted today. It's interesting, his diaries have come out and
he said on Tuesday, June 29, 1982, ``Decided in the National
Security Council meeting, and will not sign Law Sea Treaty,
even without seabed mining provisions.'' And he wanted us to go
along with the treaty, obviously, and work with the
international community, but recognized the dangers of signing
up to this.
I think the question before us is, Do we want to submit the
United States to another international body? And I think as we
consider it, we need to think of these other international
bodies that we have a part of. Certainly, if we look at the
United Nations, the concern of the Nation and many here in
Congress continues to grow, at their unwillingness to act in
the best interest of the world, and particularly not in the
best interest of the United States. Every member of the United
Nations signs the Universal Declaration of Human Rights,
including Cuba and North Korea and Iran. We know they don't
follow that. But the United States follows the rules, which
puts us at a distinct disadvantage whenever we sign a treaty
with other countries that don't.
The Kyoto Protocol, which we have fortunately not signed,
yet. Those who have signed it, have not met any of their
targets. Yet we know if the United States is a party of that,
we will do everything we can. The attitude of the international
community appears to be, that if everyone cheats, they will
too. We know the World Trade Organization, which is important
to trade around the world. A number of our citizens feel and we
can see many examples where the United States tries to follow
the rules and are put at a distinct advantage to other
countries that don't.
And we can see clearly in the Law of the Sea Treaty. Russia
is a party to the Law of the Sea Treaty. They signed up to it,
but they didn't go to this authority to ask where their
sovereignty reached. They planted a flag. Canada is part of
this agreement as well.
And if we think, as a Congress, that the members, the
signatories to this Sea Treaty are going to vote in favor of
the United States, we need to look at the list. Iran has an
equal vote to us, so does Saudi Arabia, and a number of the
countries that don't have our interest or have demonstrated
they do not have the world's interest in their mind. Yet we are
submitting ourselves to this.
I know in theory, that everything we're talking about is
good and it would work, but I'm astounded at the thought of
legal predictability that you're talking about, legal certainty
with an international community, when we have yet to see that
demonstrated in any international community, that we can count
on other nations to respond to a body like this with no
enforcement authority. The theory is good, but I think it is
unreasonable for us, as we look at the other bodies that we're
a party of, to submit ourselves again to an international
group.
I think America and our fellow countrymen are deeply
sensitive about it now. We saw that during the immigration
debate. The
e-mails and phone calls we got, a lot of them had nothing to do
with immigration. They were concerned about our sovereignty,
our borders. They were concerned about Congress not acting in
their best interest and not really trusting us to act in their
best interest. All of us get e-mails and phone calls about the
North American Union that people are concerned about, or the
NAFTA highway.
And I would just contend to all of you, as we move forward
with debating this, this is not a good time to bring something
like this back up in front of the American people. I'm a little
confused at the testimony today. Because you've told us a
number of times and a number of different ways that it's
working beautifully right now. And you've told us at the same
time, that there are important military interests, yet this
treaty will have no influence on our military activity around
the world. And I'm just confused.
We know there's already creeping jurisdiction within the
authority of this treaty. We've seen that they claim
jurisdiction on land pollution in Great Britain. And we know
what happens when we turn authority over to a third party, that
what we think is their mission, will soon be greatly expanded
all over the world to the disadvantage of the United States. If
we look at the parties to this agreement, they will not vote--
and have demonstrated in the United Nations and other bodies
that they will not vote--in the best interest of the United
States. And so, we need to consider jurisdiction.
I would just like to ask, and I'll start with you, Director
Negroponte, how will this entity, this authority as it's called
in the treaty, enforce their decisions? I mean, we're in Iraq
today because the United Nations would not enforce their own
resolutions and the parties to the United Nations would not
support us in that. How can they enforce? How are they going to
enforce with Russia, their flag on the bottom of the ocean, or
Canada's claim, when these groups apparently do not even
respect the treaty they've already signed up to? I would like
you to think of that. And how can you say this international
body's going to give us legal certainty? So just start with
those questions, please.
Mr. Negroponte. First of all, Senator, when we talk about
the treaty, as Senator Lugar pointed out, despite the title of
the Convention, this is not a U.N. body.
Senator DeMint. It is a new international----
Mr. Negroponte. It's a new agreement amongst the parties
and there are a lot of Conventions of this kind, where the
parties agree to carry out certain activities. And I'm
familiar, for example, with the Antarctic Treaty Convention,
where we carry out a lot of constructive activities through
agreement amongst the parties down there. That would be my
first point.
Second, with regards to how do you enforce? With respect to
this Russian claim, they haven't--they've symbolically planted
the flag, but they're actually going through the process laid
out in the Convention by gathering the information that they
need to justify their claim to the technical body that
addresses the Continental Shelf beyond 200 miles.
And that information is being studied by that Commission.
And that Commission, which is a technical body, will have the
responsibility of saying whether they think this claim is
justified or not. And if they say it's not justified, Russia
will still be entitled to make a claim, but it's not going to
have the legal certainty, if you will, and the international
recognition that comes with--if you have the blessing of the
Commission. So that would be one point.
On the Seabed Authority, let's be clear. We're only talking
about seabed activity beyond 200-mile jurisdiction, if and when
deep seabed mining activity takes place, which until this date,
it has not done. So, I don't think that this is some kind of a
sweeping matter, regarding the entire use of the oceans. And
we've already mentioned all the different activities that we
believe are protected by the language of the Commission.
Senator DeMint. But they've already identified a land
source of pollution and basically charged Great Britain with
polluting the oceans. Is there any reason to think that they
won't find something in the air 200 miles off of California and
try to make some claim on the United States?
I mean, obviously we're concerned with mission creep and I
know you can't answer that question. And I, my talk was more to
express a concern than question. They have no way to enforce
anything that they do. So they're based--the whole premise is
based on countries that abide by the law.
Mr. Negroponte. But when it comes to economic activity,
which a lot of this deals with, whether it's seabed mining or
Continental Shelf exploitation, if you don't have some kind of
international recognition, it becomes a lot harder to find
investors and companies that are going to be willing to take
the kind of risks that are involved in exploitative economic
activities, in what, I think, are fairly characterized as
usually quite hazardous and challenging conditions when you're
getting out into the seabed.
Senator DeMint. I know my time has expired. Thank you very
much.
Admiral Walsh. Mr. Chairman, if I could respond to the
question raised by the Senator on certainty. I think there's
some national security points here that are germane to this if
I could follow up.
Senator Webb. Alright, Admiral. Admiral Walsh, go ahead.
Admiral Walsh. Yes, sir; thank you.
Senator Webb. I'd ask you to be fairly brief if you could.
We're trying to get through the round here.
Admiral Walsh. Yes, sir.
Senator Webb. But go ahead.
Admiral Walsh. One of the challenges, sir, with regard to
legal certainty is customary international law. That's the
practice here that states operate with. We don't have much
experience with that here at home. And so, it's hard to
recognize when we see it. I can tell you from living in the
neighborhood what it looks like. It's when a state starts doing
something different.
And in this particular case, since the 1975 Algiers Accord
between Iran and Iraq, which had codified the border between
the two countries, what that had done during the Iran-Iraq war
at the termination of hostilities, Saddam made some
arrangements that no one really knows or understands. And what
has happened in place since the end of that war in 1990, is a
custom, is a practice of who owns what water. These are waters
in dispute. And we have measurably and seen demonstrated, now
changes to customary international law in Iran.
You may remember that as the UK15 who were picked up in
Iraqi territorial waters. What we are witnessing over time, is
assertions, exaggerated assertions, illegal assertions, by a
country that is not party to the Convention, that is now
migrating through course of habit and practice, intentionally
moving the line into Iraqi territorial waters. And so, for
those of us who live here, this is hard to see. This is a huge
issue for those who live in the region. The legal certainty
that we ask for in this treaty, is the codification of
understanding what the territorial seas are, what the
contiguous zone is, what the economic exclusion zone is. That's
what we mean by legal certainty.
Senator DeMint. OK. And Iran is a signatory?
Admiral Walsh. No. No, sir; they're not.
Senator DeMint. Well, they're on the list.
Admiral Walsh. I've got the list here.
Senator DeMint. I don't think it's been ratified, but
they're on the list.
Senator Webb. Apparently Iran has signed the treaty.
Senator DeMint. Right.
Senator Webb. But has not ratified.
Senator DeMint. And will not abide by it.
Senator Webb. Thank you, Admiral.
Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman. And I appreciate
Chairman Biden and yourself having this hearing. I was one of
the ones that asked for this hearing, since this is my first
year on the Foreign Relations Committee.
In 1963, we had a Cuban Missile Crisis and we blockaded
Cuba. That was, I guess, under the old or existing law which at
the time was the Law of the Oceans of 1958. Is there any--and
we did that unilaterally and ultimately stood down Khrushchev
and the Soviet Union--is there anything----
Senator Webb. For the record, Senator, that was 1962.
Senator Isakson. Was it 1962?
Senator Webb. Yes.
Senator Isakson. I was in college then, I just--my memory
was bad as to which year it was. [Laughter.]
Anyway, is there anything in the Law of the Sea Treaty that
would not allow that same thing to take place again today, were
our interests to be threatened militarily?
Mr. Negroponte. Nothing would prevent us from doing that if
we determined it to be in our national security interest to do
so.
Senator Isakson. What else did I get wrong?
Mr. Negroponte. I was junior officer in Hong Kong during
that crisis. And because of the way that quarantine, as it was
called, was enforced, we designated quarantine officers all
over our diplomatic and consular establishments. And I was the
quarantine officer in Hong Kong, which involved going down to
all the shipping companies and telling them what would happen
to their ships if they tried to cross the line.
Senator Isakson. And that's why it worked.
With regard to this whole question about the United
Nations, as I understand your legal counsel's explanation when
I was listening earlier, as a signatory you become a member of
the Commission that governs the treaty. Is that correct?
Mr. Bellinger. We would become a permanent member of the
Council for the International Seabed Authority, but none of
this, is not a U.N. entity.
Senator Isakson. No; I understand. Is everybody that signs
a member of the Council?
Mr. Bellinger. No; they're not. We would be in a privileged
position.
Senator Isakson. Is that designated by the treaty?
Mr. Bellinger. It is. Frankly it was clever, because it
gives a seat at the table to the country, as of the date of the
amendments, the new agreement in 1994, to the country with the
largest GDP at that time. There was only one country that had
that. That was the United States.
Senator Isakson. That was good negotiating. The----
Mr. Bellinger. And it's a permanent seat.
Senator Isakson. On that question, the tax question which
was raised earlier and I heard your answer to be, that if, in
fact, deep seabed mining takes place and if, in fact, revenues
start to flow, there'd be a 1-percent up to 7-percent flow of
revenue to the Council. Is that to be decided on its
distribution within the Member Nations, I presume?
Mr. Bellinger. Yes, sir; to the Authority and then it would
not flow anywhere until the Council decided where it would be
distributed to and we would have a veto. The Council has to
reach decisions by consensus. We have a permanent seat on the
Council, so we could block any decision, with respect to
distribution, if they decided, to give it to a country we
didn't like.
Senator Isakson. The current 12-mile sovereignty or 12-mile
limit, is that established under the 1958 law?
Mr. Negroponte. They couldn't agree on the extent of the
territorial sea.
Senator Isakson. Where does the 12 miles come from?
Mr. Negroponte. That comes from this, internationally, from
this Law of the Sea Convention, the one that we're--is under
consideration.
Senator Isakson. What is the 200 miles?
Mr. Negroponte. Also, those were the two, the extension of
sovereignty out to 12 miles, full sovereignty and exclusive
economic jurisdiction out to 200 miles--are key features of
this.
Senator Isakson. Well, that leads to my question.
Mr. Negroponte. And the tradeoff was, in exchange for
acknowledgement, of those jurisdictional extensions, are that
fundamental security and navigational rights would be
recognized.
Senator Isakson. That leads to what will be my last
question. I would imagine our Admiral here will be able to--I
should direct it to him. At the Port of Savannah and the Port
of Brunswick both in my State, I have gone down with the Coast
Guard, flown out to the outer limit, watched their activities
in the interest of Homeland Security, in terms of cargo ships
coming in. That's within the 12-mile limit. That's going to
remain restricted to 12 miles because it's not an economic
function, it's an enforcement function, I presume. Is that
correct?
Mr. Negroponte. What there is, is also a so-called
contiguous zone, which is the 12 miles beyond our 12-mile
jurisdictional zone--which we can use to enforce some of these
port states', if you will, regulations.
Senator Isakson. And I think that's a very important point,
in terms of national security and, in particular, port
security.
Now, last, you said we're not restricted from boarding an
unflagged ship?
Admiral Walsh. Stateless vessels, yes, sir.
Senator Isakson. But you are--you are restricted from
boarding a flagged ship?
Admiral Walsh. There is language in the treaty that talks
about some of the restrictions, with regard to flagged states.
Senator Isakson. On that question, and you probably know
the answer to this, if you have a flagged ship that does not
have a known shipper certificate, cargowise, would you, in the
interest of your port security, be able to board that ship to
search the cargo to make sure it's safe?
Admiral Walsh. There is a long list of operating
definitions that elaborate on what we mean by stateless vessel.
We have seen the ruse by some masters to change flags, to not
have certification, to not be able to identify the master. I
mean, these are typically fishing vessels run by men that have
Rolex watches and clean hands and no fishing nets. So, we do
have experience in this area and have operated under the
provisions of article 110, that have allowed for boardings in
that circumstance.
Senator Isakson. And last--that was my last question, I've
got one more--under the treaty, I think you said we have free,
even though 200 miles expansion would cover the entire Strait
of Hormuz from one side to another, I guess from Abudabeh all
the way over to Iran, we still have rights of passage through
there unfettered. Is that correct?
Admiral Walsh. Yes, sir.
Senator Isakson. And any other restricted, I mean, not
restricted, but tight passages.
Admiral Walsh. Yes, sir. I mean, the Strait of Hormuz is
about 19 miles of operating water and yes, within the strait,
the language is very clear. The protections are there and the
document is very consistent on that.
Senator Isakson. Thank you very much, gentlemen.
Senator Webb. Senator Vitter.
Senator Vitter. Thank you all for being here and, more
importantly, thank you all for your service.
My concerns about the treaty concern our military and our
sovereignty. We have discussed, and you made a very important
point earlier, that military activities are not subject to
review by arbitration panels or the International tribunal of
Law of the Sea under the treaty. However, I still have a
significant outstanding concern that has not been addressed:
Who decides what is, and what is not, a military activity?
Mr. Negroponte. We will decide that.
Senator Vitter. Where does----
Mr. Negroponte. We consider that within our sovereign
prerogative.
Senator Vitter. Where does the treaty say that we determine
what constitutes a military activity and that an arbitral body
does not have the authority to rule on this as a term of the
treaty?
Mr. England. My understanding, and I'll ask, I guess, my
lower behind me, that that's in the treaty, that we make that
determination and that's not subject to review by anyone else.
Senator Vitter. It's not in the treaty. I'd like to point
you to Article 298(1)(B), where it simply says, ``Disputes
concerning military activities are not subject to dispute
resolution.'' What the treaty fails to address is who has the
authority to determine what is and what is not in fact a
military activity.
Mr. England. No; you're right. In my confusion, I believe
as in the resolution, the basic consent that in 2003--is that
correct--it went, came before the Senate, so that would be a
provision of approval. So, we would reserve that right as part
of our approval of this Convention. Have I said that right?
Senator Vitter. But that provision, which is in the
Resolution of Ratification, is our language. This language is
not included in the treaty. And the treaty says, specifically
in article 309, that the treaty is the treaty; no reservations
or exceptions may be made to the treaty's provisions. The fact
that we are concerned enough about the issue of military
activities that we've included it in the Resolution of
Ratification only heightens my concern.
Mr. Bellinger. Could I take a crack at that?
Senator Vitter. Including an exception insisting that only
we can define what constitutes military activities for our own
military in the resolution simply serves to highlight that it's
not in the treaty.
Mr. Bellinger. With respect to almost all treaties, there
are vague terms in the treaties. And if they're not defined,
then a country will take understandings as to how it
understands certain terms to be accepted. And this is a regular
thing that this committee does. So in this case, with military
activities not defined in the treaty, it is up to the countries
to decide what that is going to mean.
And in this case, we are sufficiently concerned that we
want to make clear, that we decide, that we would put that in
as an understanding, as part of the Senate's understanding. And
this is a very common practice, almost all treaties that the
Senate approves have got some understandings as to what the
shared understanding between the Executive and the Senate is,
with respect to particular terms.
Senator Vitter. Right. My point is, just because this may
be our understanding, it does not necessarily follow that it is
the understanding of other signatories to the treaty. Is that
correct?
Mr. England. Can I ask the Admiral to make a comment, who's
behind me, who is our legal counsel. Because I believe there
are declarations that are allowed and this is one of the
declarations. Could I have my legal just comment?
Senator Vitter. Sure.
Mr. England. Because this is a technical but hugely
important point.
Rear Admiral MacDonald. Senator, you're correct in saying
that the treaty doesn't allow reservations to be taken. It
specifically says you can not take a reservation to the treaty.
But it does specifically provide that you can take, you can
make a declaration. And that's what we're going to take if the
Senate approves the treaty and the Resolution of Advice and
Consent, we would make this a declaration, that the United
States alone determines what is or is not a military activity.
Other nations have taken the military activities exemption.
When this was debated back in 2004, this was an issue in 2004,
and after the debate, the PRC, the Chinese came in, and took
the military activities exemption.
Senator Vitter. Let me rephrase my concern another way.
Isn't it true that there would be nothing to prevent another
country, with a different understanding about U.S. military
activities, to bring a dispute regarding what is, or is not, a
U.S. military activity to this mandatory arbitral process, to
which we would be bound?
Mr. Bellinger. Senator, they can always try, but the treaty
specifically states that parties may opt out of any disputes
having to do with military activity. All other major countries
have done that and we would do that.
Senator Vitter. The other country does not agree that the
matter concerns a military activity. The disagreement would be
about defining what is, and what is not, a military activity as
a term in the treaty about which two members disagree. This
type of dispute falls under the treaty.
Mr. Bellinger. It is up to countries to decide what are
their own military activities.
Senator Vitter. That was my first question, Where does it
say that in the treaty?
Mr. Bellinger. Unless an interpretation is contrary to the
object and purpose of a treaty, it is going to be up to a
country to decide what those terms mean. And this is, in fact,
an issue that we've thought about. It's one reason why the
administration recommended in the Resolution of Advice and
Consent that we be very clear on this point. But I would defer
to my military contacts when they say its a risk.
Senator Vitter. I have limited time, so I want to go on to
some other things.
I would just say that the fact that this is actually
included in the Resolution for Ratification heightens my
concern. It underscores the fact that the treaty doesn't
include this protection. We attempt to tack it on in the
resolution.
But let me go on to some other points and related issues:
Are intelligence activities included as military activities?
Mr. England. The question: Are they affected?
Senator Vitter. Are intelligence activities considered to
be excluded from the treaty's jurisdiction as a military
activity?
Mr. England. To the best of my knowledge they are. Again,
Bruce, do you have a--can you help me specifically to the
language. You need to answer.
Mr. Bellinger. Senator, why don't I take a crack at that
also? It would be up to us to determine that there's nothing in
the treaty that limits our intelligence collection activities.
Senator Vitter. No.
Mr. Bellinger. It would be up to us, if we considered an
intelligence activity to be a military activity. And you've
heard the Senate Intelligence Committee assure us that they do
not think it would interfere with our intelligence activities.
Senator Vitter. Well again, this has heightened my concern,
because we say it would be up to us, yet no other treaty
signatory has agreed to this. And to help demonstrate about how
parties can disagree on this point, around Capitol Hill, for
instance, in terms of committee jurisdiction, we consider
intelligence a distinct category separate from the military
issues. So, that's really heightening my concern.
If I could have 1 or 2 more minutes, Mr. Chairman.
Senator Webb. Certainly.
Senator Vitter. Thank you very much.
Another concern is regulation of domestic activity. It
seems to me the treaty clearly states jurisdiction over land-
based pollution sources. Why do we want to open that Pandora's
Box?
Mr. Bellinger. Senator, I think it clearly does not allow
regulation over land-based pollution sources. That would stop
at the water's edge. As far as, at least dispute resolution
involving them, there can be limitations on the pollution that
could emanate, but as far as the ability of any other country
to complain and bring us to dispute resolution over pollution
that would come from land, that's not permitted under the
treaty.
Senator Vitter. Well Article 213 says, ``States shall
enforce their law on and shall--shall,'' mandatory, ``adopt
laws and regulations and take other measures necessary to
implement applicable international rules and standards
established through competent international organizations or
diplomatic conference to prevent, reduce, and control
pollution.'' Well, it sounds to me like the Kyoto Protocol is
an international standard and we shall pass laws to enforce
that.
Mr. Bellinger. Well, this is not a backdoor way to subject
us to the Kyoto Protocol. There is no way that the standard,
that those standards could be standards that someone could
subject us to in dispute resolutions.
Senator Vitter. Why? The treaty states we shall pass laws
to enforce international environmental standards. So why
couldn't a state clearly take us before the Tribunal or
Arbitration Panel to say, ``You're not doing that. You need to
heighten environmental laws A, B, C, D, and E.''
Mr. Negroponte. There are some environmental issues that
are the subject of international agreements, such as ocean
dumping, for example. But the--when you talk about land-based
pollution, our view is that that's just not covered by the
treaty, Senator. I think that's the point, that we believe that
there is no jurisdiction over marine pollution disputes
involving land-based sources.
Senator Vitter. If it is not covered by the treaty, why is
there a section entitled, ``Pollution From Land-Based
Sources''?
Mr. Bellinger. It's just the dispute resolution. The treaty
has got a number of general hortatory provisions, but the
dispute resolution mechanisms are extremely limited for this
very reason. We wanted dispute resolution to have things we
could use in our favor. If our vessels were seized, people
didn't let us go through their territorial seas.
Senator Vitter. Let me follow up on your answer, because
section 6, specifically and directly deals with enforcement of
the treaty's land-based pollution provisions. You said it's not
part of the dispute resolution process, but section 6, is
titled ``Enforcement.'' The article is titled, ``Enforcement
With Respect to Pollution From Land-Based Sources.'' Why is
that article there if there is no enforcement, with regard to
pollution from land-based sources?
Mr. Bellinger. I think this gets sufficiently technical. We
have worked our way through the treaty, we are confident that
pollution from land-based sources would not be subject to the
jurisdiction of the tribunals or arbitral panels, but we're
happy to write it down for you on paper and get it to you,
Senator.
Senator Vitter. Well, I would point you to section 6,
article 213, page 176, which is about enforcement, with respect
to pollution from land-based sources. It seems to me, the very
title of that article at least sets up a prima facie case that
your statement isn't correct.
Mr. Bellinger. We will have a look at it, Senator. Although
again, the bigger picture of the enormous national security
benefits of the treaty, and certainly our military will tell
you that they would not enter into anything where they thought
there would be legal risks to the military. But we will--we
will have a close look at the provision on land-based
pollution.
Senator Webb. Would the Senator----
Senator Vitter. Thank you.
Senator Webb [continuing]. Be amenable to receiving a
response in writing, within a reasonable--like a really
reasonable period of time addressing this point?
Senator Vitter. Sure.
[The submitted written response by Mr. Bellinger to the
requested information follows:]
The Convention addresses various forms of marine pollution,
including pollution from land-based sources (for example, article 207).
However, alleged marine pollution by the United States from land-
based sources is not subject to dispute settlement 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 can be subject to dispute
settlement.
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.
In the case of land-based sources of marine pollution, the
Convention does not obligate the coastal state to follow an
international rule or standard, much less a specified one. On the
contrary, recognizing the sensitivity surrounding land-based
activities, under article 207, coastal states are merely to ``take into
account'' internationally agreed rules, standards, etc.
Thus, there are no specified rules regarding land-based sources
that are applicable to the United States that would be subject to
dispute settlement. (It should be noted that, even if there were
specified rules/standards applicable to the United States, article 207
would not require the coastal state to follow such standards, just to
take them into account.)
The ``enforcement'' provisions in part XII (such as article 213) do
not address party-to-party dispute settlement. Rather, they either
allocate enforcement responsibilities as among flag states, port
states, and coastal states or they address enforcement by parties vis-
a-vis private actors, such as their flag vessels or foreign flag
vessels.
In the case of land-based sources, article 213 provides for parties
to enforce their respective land-based sources laws and to implement
``applicable'' international rules. It does not address party-to-party
dispute settlement, which is covered by article 297 and other
provisions in the dispute settlement chapter.
Senator Webb. All right. Thank you. And on one follow-on
question before we close the hearing. I want to make sure that,
for the record, your position on the other point that Senator
Vitter mentioned, is clearly stated. Let me just ask you if my
understanding is correct. I believe what you were saying, if,
looking at article 298. It basically exempts disputes
concerning military activities, but from my reading of it, is
silent as to what the enforcement mechanism would be. And as
someone who used to draft legislation here, I'm not sure this
directly applies, but I want to, this is my understanding, what
your position is, that anytime legislation is silent, existing
law prevails. And anytime this sort of treaty provision is
silent, it goes back to the law of the individual country
involved. Is that essentially what you're saying?
Mr. Bellinger. Yes, sir. We specifically negotiated the
treaty and at--we had the same interests as other major powers,
like the Russians or Chinese, who certainly did not want to
have their military activities subject to dispute resolution.
So we had a commonality of interests here, to have a provision
that allowed us in the treaty, to opt out of any dispute
resolution involving our military activities. That's a right
you have under the treaty and we would do that. Then, the
Senator has raised a fair question, as to, who decides what's a
military activity. It's not defined in the treaty, so under
general treaty practice, if it's not contrary to language in
the treaty, it would be up to us to decide.
Senator Webb. Right.
Mr. Bellinger. And I'm sure that other major countries
would take exactly the same position.
Senator Webb. That was my understanding of what you were
saying. I wanted to make sure we had that clear for the record.
Senator Vitter. Mr. Chairman, if I can follow up----
Senator Webb. Yes.
Senator Vitter [continuing]. On that very briefly. First, I
am concerned that, when the treaty is silent about defining
what constitutes military activities, and the treaty sets up,
specifically, a mandatory dispute resolution mechanism to
settle differences regarding interpretation of the treaty's
terms, it would be a very reasonable position to assert that
the dispute resolution mechanism can be utilized to determine
what constitutes a military, and a nonmilitary activity.
Second, I'm particularly concerned that we think, and hope,
intelligence is considered military, but that this certainly
isn't stated in the treaty text. And around here, just again to
use Capitol Hill as an example, with committee jurisdictions et
cetera, intelligence is treated as a very distinct smokestack
from military activities.
Senator Webb. Well, the Senator has made his point. And
again, we have the letters from the chairman of the
Intelligence Committee and the ranking member, but his point is
appreciated and we will examine it.
This series of hearings will continue next week with other
witnesses. Gentlemen, we thank you very much for your time
today.
And the hearing is adjourned.
[Whereupon, at 4:24 p.m., the hearing was adjourned.]
----------
Material Submitted for the Record
Prepared Statement of Hon. Joseph R. Biden, Jr., U.S. Senator From
Delaware
I regret that I am unable to attend today's hearing on the
Convention on the Law of the Sea, a framework treaty that governs the
use of the world's oceans. I am grateful to Senator Webb for presiding
in my stead. As a former Secretary of the Navy, he is uniquely
qualified among the members of this committee for this task.
This is the second time that the committee has considered this
treaty. Senator Lugar convened two hearings in October 2003. In 2004,
the committee endorsed the Convention by a unanimous vote of 19-0.
Unfortunately, the Convention was not considered by the full Senate.
This time I hope things will be different. In one respect, they
already are: President Bush has made a strong statement urging the
Senate to approve the Convention. In May he said that the Convention:
``Will serve the national security interests of the United States,
including the maritime mobility of our Armed Forces worldwide. It will
secure U.S. sovereign rights over extensive marine areas, including the
valuable natural resources they contain. Accession [to the Convention]
will promote U.S. interests in the environmental health of the oceans.
And it will give the United States a seat at the table when the rights
that are vital to our interests are debated and interpreted.''
The President's statement is an excellent summary of the reasons
why the United States should ratify this Convention. Let me briefly
echo and elaborate on his statement.
The United States is a major naval power and trading nation.
Freedom of navigation for military and commercial vessels on the seas
is therefore essential to U.S. national and economic security. The
Convention sets forth the rules for navigation in a way favorable to
these interests. Without the benefit of the Convention, we will be left
to rely on the vagaries of customary international law--an unwritten
set of rules that results from the practice of nations.
Today, 155 nations are party to the Convention, including all of
our NATO partners, except Turkey. So, too, are major maritime powers
such as Russia, China, and India. Also members are allies in Asia such
as Australia, Indonesia, Korea, and Japan. If navigational rules are
going to change, it will occur within the framework of the Convention.
If the United States is not a party, our voice will be severely
weakened as those changes are developed.
As a nation with large coastlines, we have an interest in the
sustainable use of the natural resources off our coast, and in
protecting the marine environment. The Convention gives us control over
these resources out to 200 nautical miles, including those on the
Continental Shelf. No nation may fish or exploit the minerals of this
area without the permission of the United States. Far from threatening
our sovereignty, the Convention allows us to secure and extend our
sovereign rights.
I am grateful to Senator Lugar for his efforts on the treaty during
his chairmanship, and to Senator Webb for presiding at today's hearing.
______
Letter From the Director of the Joint Chiefs of Staff
Chairman of the Joint Chiefs of Staff,
Washington, DC, 26 June 2007.
Hon. Joseph Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: As the world's preeminent maritime power, leader
in the War on Terrorism, and Nation with the largest exclusive economic
zone, the United States should accede to the Law of the Sea Convention
during this session of Congress. No country has a greater interest in
public order for the world's oceans. Becoming a Party to the Convention
will ensure our leadership role in the continuing development of oceans
law and policy.
The Convention codifies navigation and overflight rights and high
seas freedoms that are essential for the global mobility of our Armed
Forces. It furthers our National Security Strategy, strengthens the
coalition, and supports the President's Proliferation Security
Initiative.
From sustaining forward deployed military forces, to ensuring the
security of our ports and waters as well as advancing our most
important economic and foreign policy objectives, it is important that
the United States become a Party to the Convention.
In closing, we offer our gratitude for your efforts and those of
Senator Lugar to bring this important Convention to the Senate for
consideration.
Very Respectfully,
GEN Peter Pace,
U.S. Marine Corps, Chairman.
ADM E.P. Giambastiani,
U.S. Navy, Vice Chairman.
ADM M.G. Mullen,
U.S. Navy, Chief of Naval Operations.
GEN T. Michael Moseley,
U.S. Air Force, Chief of Staff.
GEN J.T. Conway,
Commandant of the Marine Corps.
GEN George W. Casey,
U.S. Army, Chief of Staff.
______
Letter From Secretary Michael Chertoff, Homeland Security
Secretary,
U.S. Department of Homeland Security,
Washington, DC, September 26, 2007.
Hon. Joseph Biden,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Chairman Biden: As Secretary of the Department of Homeland
Security, I reiterate the strong support that the Department has
provided since its inception to the United States becoming a party to
the 1982 United Nations Convention on the Law of the Sea. Admiral Thad
A. Allen, the Commandant of the U.S. Coast Guard (USCG), has repeatedly
stated that the United States ``can best maintain a public order of the
oceans through a universally accepted law of the sea treaty that
preserves and promotes critical U.S. national interests.'' In addition,
four former USCG Commandants recently wrote a joint letter to your
Committee. They argue that accession to the Convention will enable the
USCG to better carry out its missions to protect the security and
welfare of the citizens of the United States. I am equally convinced of
the importance of the Convention to promote other missions of my
Department.
Becoming a party to the Law of the Sea Convention would greatly
enhance the U.S. global position in maritime affairs, as well as our
ability to protect the security of the American public. It promotes the
efforts of the USCG to protect and manage the living and non-living
resources of the ocean and to preserve the marine environment. The
Convention strikes the appropriate balance between the exclusive
interests of all countries in controlling many activities off their
coasts with the inclusive interests of all countries in protecting
freedom of navigation and overflight in ocean space. The Convention
gives coastal states the right to protect their marine environment,
manage their fisheries and off-shore oil and gas resources within the
200-nautical mile exclusive economic zone (EEZ), and secure sovereign
rights over resources on and under an extended continental shelf beyond
200 miles. The U.S. has the largest and richest EEZ in the world.
Moreover, our extended continental shelf has enormous potential oil and
gas reserves, particularly in the Bering Sea and Arctic Ocean. Only by
becoming a party to the Law of the Sea Convention and participating in
its processes can the United States obtain secure title to these vast
resources. In my opinion, no American business enterprise is going to
invest the many billions of dollars necessary to develop an off-shore
oil or gas field, no matter how rich it might be, unless it has an
undisputed right to do so under both national and international law.
The Convention is also critical in promoting our national and
homeland security interests. U.S. military forces, including USCG
units, rely heavily on the freedom of navigation and overflight
principles codified in the Convention. These principles allow the use
of the world's oceans to meet challenging national security
requirements, including those necessary to fight the Global War on
Terrorism. In this regard, worldwide mobility requires undisputed
access through international straits and archipelagic waters. The
Convention also ensures our warships and USCG cutters will have their
sovereign immunity protected wherever in the world they may be
operating.
Let me briefly acknowledge that there is a small group of strident
opponents who have raised a number of badly flawed arguments against
the Convention. While many experts have convincingly refuted each of
those objections, let me quote part of the ``24-star letter'' that the
Chairman, Vice Chairman, and every other member of The Joint Chiefs of
Staff signed and sent to your Committee on June 26, 2007: ``From
sustaining forward deployed military to ensuring the security of our
ports and waters as well as advancing our most important economic and
foreign policy objectives, it is important that the United States
becomes a party to the Convention.'' The entire civilian and military
leadership responsible for our Nation's security, from the President
and his National Security Advisor on down, unanimously support the
Convention without reservation. I include myself among those who
strongly support the Convention.
For these reasons, and others developed in testimony before and
submissions to the Committee, I strongly urge the Committee and the
full Senate to approve accession to the Law of the Sea Convention
during this session of Congress. I want to particularly commend your
efforts and those of Senator Lugar for bringing this vitally important
Convention to the Senate for its advice and consent.
An identical letter has been sent to Senator Reid, Senator
McConnell, and Senator Lugar.
Sincerely,
Michael Chertoff.
______
Letter From Senate Select Committee on Intelligence
U.S. Senate,
Select Committee on Intelligence,
Washington, DC, September 14, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman,
Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Hon. Richard G. Lugar,
Ranking Member,
Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman and Senator Lugar: On May 15, 2007, the President
issued a statement urging the Senate to act on the United Nations
Convention on the Law of the Sea (the Law of the Sea Convention) during
this session of Congress. Because concerns have been expressed about
the relationship between the Law of the Sea Convention and U.S.
national security, we feel it important to describe publicly our
Committee's inquiry into, and assessment of, the question of whether
the Law of the Sea Convention would have any impact on U.S.
intelligence capabilities.
On June 8, 2004, the Select Committee on Intelligence held a closed
hearing on the intelligence implications of United States accession to
the Law of the Sea Convention. In that hearing, the Director of Naval
Intelligence, the Assistant Director of Central Intelligence for
Collection, and the Legal Advisor at the Department of State expressed
their support for accession to the Law of the Sea Convention, and
stated that the Convention does not affect the conduct of intelligence
activities.
Given the renewed interest in U.S. accession to the Law of the Sea
Convention, we recently asked the Secretary of State, the Secretary of
Defense, and the Director of National Intelligence to confirm that the
Administration continues to support the conclusion that the Law of the
Sea Convention would not affect U.S. intelligence activities, as
presented in the testimony presented in June of 2004.
The Director of National Intelligence responded with the attached
letter, which was coordinated with the Department of State and
Department of Defense. This letter accurately represents the
conclusions of the classified testimony of the Department of Defense,
Department of State, and Intelligence Community officials on this
matter in 2004. The unclassified statement of William H. Taft IV, the
former Legal Advisor to the U.S. Department of State, which is
referenced in the letter from the Director of National Intelligence, is
also attached.
Based on our consideration of these matters, we concur in the
assessment of the Intelligence Community, the Department of Defense,
and the Department of State that the Law of the Sea Convention neither
regulates intelligence activities nor subjects disputes over
intelligence activities to settlement procedures under the Convention.
It is therefore our judgment that accession to the Convention will not
adversely affect U.S. intelligence collection or other intelligence
activities.
We will be pleased to make available to you and the other members
of the Committee on Foreign Relations, and to appropriately cleared
staff, our full record of that hearing and related materials.
Please let us know if we can be of assistance in any other way in
the Committee's and the Senate's consideration of the Law of the Sea
Convention.
Sincerely,
John D. Rockefeller IV, Chairman.
Christopher S. Bond, Vice Chairman.
Attachments.
Director of National Intelligence,
Washington, DC, August 8, 2007.
Hon. John D. Rockefeller IV,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Hon. Christopher S. Bond,
Vice Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Dear Mr. Chairman and Vice Chairman Bond: In response to your July
6, 2007, letter regarding the Law of the Sea Convention, the testimony
provided at the June 8, 2004, closed hearing continues to represent the
Administration's position about the intelligence impact of the
Convention.
Rear Admiral Richard B. Porterfield, then Director of Naval
Intelligence, delivered classified testimony at the 2004 hearing. We
are advised by the Department of Defense that the following conclusions
can be shared in an unclassified form:
I realize that this Committee is concerned about whether the
Convention prohibits our naval operations, in particular our
maritime intelligence activities. I can say without hesitation
that it does not . . .
[T]he Convention is, if anything, more favorable to our
navigation and security interests than are the 1958 treaties.
Bottom line: Acceding to the Convention will not change the
legal regime under which our intelligence operations have been
conducted for decades.
Mr. Chairman, since 1983 the Navy has conducted its
activities in accordance with President Reagan's Oceans Policy
statement, to operate in a manner consistent with the
Convention's navigational freedoms provisions. If the U.S.
accedes to the Convention, we would continue to operate as we
have done since 1983 . . .
In addition, Mr. Charles Allen, then Assistant Director of Central
Intelligence for Collection, presented the following unclassified
testimony:
First, the overwhelming opinion of Law of the Sea experts and
legal advisors is that the Law of the Sea Convention simply
does not regulate intelligence activities nor was it intended
to . . .
Second, the Convention provides that a party may exclude
military activities from jurisdiction of the Convention's
dispute settlement procedures . . . the term ``military
activities'' includes intelligence activities.
Third, the definition of ``innocent passage'' in the 1982
Convention seems to provide a small advantage over the 1958
Convention, which the U.S. ratified and [under] which we
currently operate . . .
Fourth, the 1982 Convention explicitly recognizes an
additional right of passage through international straits, a
recognition that is absent from the 1958 Convention. This right
of transit passage through one part of the high seas to another
further reinforces the freedom of navigation for U.S. vessels
and may thereby facilitate national security activities.
Fifth, regardless of any party's attempt to bring forth a
claim under the Convention, the Convention makes clear that
parties shall not be required, in the course of any dispute
settlement, to disclose information that may be contrary to the
party's essential interests of security. This protection
against compulsory disclosure is not in the current 1958
Convention to which the U.S. is a party.
Finally, William H. Taft IV, then Legal Advisor at the Department
of State, provided unclassified testimony that may be used in its
entirety.
We also would call your attention to the Report of the
Committee on Foreign Relations in the Senate of the 108th
Congress (Executive Report 108-10 dated March 11, 2004), and in
particular to Part VI, which discusses Committee
recommendations and comments. The points of understanding that
the Committee noted with respect to military activities and
innocent passage are particularly relevant.
This response has been coordinated with both the Department of
State and the Department of Defense. We appreciate the support of the
SSCI as we move forward on this critical initiative.
If you have any questions regarding this matter, please contact the
Director of Legislative Affairs, Kathleen Turner.
Sincerely,
J.M. McConnell.
______
Statement of William H. Taft IV, Legal Advisor, U.S. Department of
State, Washington, DC, Before the Senate Select Committee on
Intelligence--June 8, 2004
Mr. Chairman and members of the committee, thank you for the
opportunity to testify on the 1982 United Nations Convention on the Law
of the Sea (``the Convention''), which, with the 1994 Agreement
relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982 (``the 1994
Agreement''), was reported favorably by the Senate Foreign Relations
Committee on March 11, 2004. Administration witnesses have previously
testified before that committee, the Senate Armed Services Committee,
the Senate Environment and Public Works Committee, and the House
International Relations Committee in support of U.S. accession to the
Convention and reviewed the benefits of becoming a party from a
national security, economic, resource, and environmental point of view.
This testimony focuses on the intelligence-related issues posed by this
committee.
I must say at the outset that I have been puzzled by recent
criticisms of the Convention, particularly the notion that the
Convention is not in our national security or military interest. I have
been familiar with the Convention for more than 20 years, including
during my tenure as General Counsel of DOD in 1982, when we rightly
rejected the deep seabed chapter of the treaty, and later as Deputy
Secretary of Defense. In all that time I never heard it suggested by
any Chief of Naval Operations or Chairman of the Joint Chiefs of Staff
that there would be any adverse impact on the United States from a
national security point of view as a party to the Law of the Sea
Convention. And the current Chief of Naval Operations and Chairman of
the Joint Chiefs of Staff both strongly support accession.
BACKGROUND
Before turning to intelligence issues, I would note that the
achievement of a widely accepted and comprehensive law of the sea
convention--to which the United States can become a party--has been a
consistent objective of successive U.S. administrations for the last 30
years. The United States is already a party to several 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. It sets forth a comprehensive framework governing uses of
the oceans that is strongly in the U.S. interest, including by
providing for U.S. global mobility through freedom of navigation and
overflight.
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 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 and successive administrations.
We urge the Senate to give its advice and consent to this Convention,
on the basis of the proposed Resolution of Advice and Consent, to allow
us to take full advantage of the many benefits it offers.
INTELLIGENCE ISSUES
Turning to intelligence issues in particular, I would note at the
outset that the concerns that have been raised about U.S. accession to
the Convention appear to involve two basic issues:
Whether, as a matter of substance, the Convention prohibits
or regulates intelligence activities in some way; and
Whether a potential challenge to intelligence activities of
a party would be subject to the Convention's dispute settlement
procedures.
The Convention does not prohibit or regulate intelligence
activities. And 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. As such,
joining the Convention would not affect the conduct of intelligence
activities in any way, while supporting U.S. national security,
economic, and environmental interests.
I will now turn to the issues raised in the letters of invitations
to the witnesses on this panel, grouped by subject matter.
With respect to whether articles 19 and 20 of the Convention would
have any impact on U.S. intelligence collection, the answer is ``No.''
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 noninnocent activities is exhaustive and because it
generally uses objective, rather than subjective, criteria in the
listing of activities.) A ship does not, of course, under this
Convention any more than under the 1958 Convention, enjoy the right of
innocent passage in the territorial sea if, in the case of a submarine,
it navigates submerged or if, in the case of any ship, it engages in an
act aimed at collecting information to the prejudice of the defense or
security of the coastal state; however, such activities are not
prohibited or otherwise affected by the Convention. In this respect,
the Convention makes no change in the situation or legal regime that
has existed for many years and under which we operate today. As to
whether our understanding of these provisions' effect (or lack of
effect) on intelligence collection is shared by other states, we are
not aware of any state's taking the position, either under this
Convention or under the 1958 Convention, that the provisions setting
forth the conditions for the enjoyment of the right of innocent passage
prohibit or otherwise regulate intelligence collection or submerged
transit of submarines.
Concerning whether any current Convention party restricts
intelligence collection activities in its exclusive economic zone and
the potential impact of U.S. ratification in relation to such a party,
the Convention does not prohibit, regulate, or authorize the coastal
state to regulate intelligence activities in the EEZ. On the contrary,
high seas freedoms of navigation and overflight are ensured, including
the right to engage in intelligence activities. Certain parties have
published regulations purporting to prohibit military activities in
general (which are presumably intended to cover intelligence
activities) in their EEZs, including Bangladesh, Brazil, Cape Verde,
China, India, Malaysia, the Maldives, Mauritius, Pakistan, and Uruguay.
If the United States were to become a party to the Convention, while I
could not speculate as to whether this would end or affect Chinese or
other challenges to intelligence activities, we would be in a stronger
position to protest such unlawful assertions of coastal state
jurisdiction.
Turning to whether U.S. intelligence operations could be affected
by compulsory dispute resolution under the Convention, the Convention
expressly permits parties to exclude matters of vital national concern
from dispute settlement. Specifically, it permits a state through a
declaration to opt out of dispute settlement procedures with respect to
disputes concerning military activities. The proposed Senate resolution
of advice and consent not only contains such a declaration but also
makes clear that a party has the exclusive right to determine whether
its activities are or were ``military activities'' and that such
determinations are not subject to review. Thus, 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.
Concerning the question whether the Intelligence Community is now
operating under any treaty ``that combines a treatment of intelligence
activity with United Nations compulsory dispute resolution
procedures,'' the answer is ``No.'' And, for reasons already stated,
neither would this Convention be such a treaty. It does not prohibit or
regulate intelligence activity; further, the dispute settlement
procedures (which, I would also note, are not ``United Nations''
procedures, but autonomous procedures established by treaty) would not
apply to any dispute concerning military activities, including
intelligence activities.
Concerning the question whether executive branch priorities already
have an impact on intelligence collection activities and the
implications of U.S. accession, review from a foreign policy point of
view does not include the Law of the Sea Convention, because it does
not affect or impair those activities. No change is expected if the
United States accedes to the Convention, noting that we have been
operating for decades under the 1958 conventions and customary
international law, as reflected in the 1982 Convention.
Regarding the safety of U.S. intelligence collection personnel,
U.S. accession to the Convention would not change the current situation
that vessels not entitled to the right of innocent passage are subject
to appropriate coastal state action if detected. If anything, as
Admiral Clark testified before the Senate Armed Services Committee,
U.S. accession will help protect U.S. personnel ``so that our people
know when they're operating in defense of this Nation far from our
shores that they have the backing and that they have the authority of
widely recognized and accepted law to look to, rather than depending
only upon the threat or the use of force.''
Turning to the package of declarations and understandings set forth
in the proposed Resolution of Advice and Consent, we worked closely
with the Senate to ensure that such declarations and understandings
satisfied the concerns and issues identified by the administration,
including highlighting the importance of the exclusion from dispute
settlement of disputes concerning military activities, which includes
intelligence activities. And we urge Senate advice and consent on the
basis of that resolution.
PROLIFERATION SECURITY INITIATIVE
I would also like to take this opportunity to address the
relationship between the Convention and the President's Proliferation
Security Initiative, an activity involving the United States and
several other countries. 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 Law of the Sea Convention. The
Convention's navigation provisions derive from the 1958 law of the sea
conventions, 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 control
in the 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.
CONCLUSION
Mr. Chairman, thank you for the opportunity to appear today in
support of U.S. accession to the Law of the Sea Convention. In my view,
the United States should lock in the favorable provisions, including
especially those relating to freedom of navigation and national
security, that we achieved in negotiating the Convention and Agreement.
Joining the Convention will not have any adverse effect on our
intelligence operations or activities. The members of this committee
should join the unanimous Foreign Relations Committee and support U.S.
accession.
______
Article From the Wall Street Journal
[From the Wall Street Journal, Sept. 26, 2007]
Why the ``Law of the Sea'' Is a Good Deal
(By James A. Baker III and George P. Shultz)
The Convention of the Law of the Sea is back. It will be the
subject of Senate hearings this week. If the U.S. finally becomes party
to this treaty, it will be a boon for our national security and our
economic interests. U.S. accession will codify our maritime rights and
give us new tools to advance national interests.
The convention's primary functions are to define maritime zones,
preserve freedom of navigation, allocate resource rights, establish
certainty necessary for various businesses that depend on the sea and
protect the marine environment. Flaws in the deep-seabed mining chapter
that prevented President Reagan from supporting the convention were
fixed in 1994. Both President Bill Clinton and George W. Bush have
supported accession. Yet, the U.S. remains one of the few major
countries not party to the convention.
Our participation would increase our ability to wage the war on
terror. The convention assures maximum maritime naval and air mobility,
which is essential for our military forces to operate effectively. It
provides the stability and framework for our forces, weapons and
materials to be deployed without hindrance--ensuring our ability to
navigate past critical choke points throughout the world.
Some say it's good enough to protect our navigational interests
through customary law. If that approach fails, then we can employ the
threat of force or the use of it. However, because customary law is
vague, it does not provide a strong foundation for critical national
security rights. Meanwhile, the use of force can be risky and costly.
Joining the convention would put our vital rights on a firmer legal
basis, gaining legal certainty and legitimacy as we operate in the
world's largest international zone.
This is why the U.S. military has been a strong advocate of joining
the Law of the Sea Convention. This point was reinforced in a recent
letter sent by the Joint Chiefs of Staff to Senator Joe Biden, chairman
of the Senate Foreign Relations Committee, calling on the Senate to
support U.S. accession because ``[i]t furthers our National Security
Strategy, strengthens the coalition, and supports the President's
Proliferation Security Initiative.''
The convention also provides substantial economic benefits to the
United States. It accords coastal states the right to declare an
Exclusive Economic Zone--an area where they have exclusive rights to
explore and exploit, and the responsibility to conserve and manage,
living and non-living resources extending 200 nautical miles seaward
from their shoreline. Our nation's EEZ is larger than that of any
country in the world--covering an area greater than the landmass of the
lower 48 states. This zone can be extended beyond 200 nautical miles if
certain geological criteria are met. This has potentially significant
economic benefits to the U.S. where its continental shelves may be as
broad as 600 miles, such as off Alaska, an area containing vast natural
resources.
Further, as the world's pre-eminent maritime power with one of the
longest coastlines, the U.S. has more to gain and to lose than any
other country in terms of how the convention's terms are interpreted
and applied.
Accession would increase our influence by allowing us to nominate
experts for the technical bodies that apply the convention's terms,
address proposals to amend the convention from within (rather than from
the sidelines), and increase our credibility as a leader in
international ocean policy.
As we speak, international deliberations for rights to energy- and
mineral-rich areas in the Arctic beyond the traditional 200-mile EEZ
are proceeding without U.S. input. Just recently, Russia placed its
flag on the North Pole's ocean floor. While seen as largely symbolic,
the part of the Arctic Ocean claimed by Russia could hold oil and gas
deposits equal to about 20% of the world's current oil and gas
reserves. If the U.S. was party to the treaty, we would strengthen our
capacity to influence deliberations and negotiations involving other
nations' attempts to extend their continental boundaries.
As a non-party, however, the U.S. has limited options for disputing
claims such as these and is stymied from taking full advantage of
resources that could be under U.S. jurisdiction. Similarly, lack of
participation in the convention is jeopardizing economic opportunities
associated with commercial deep-sea mining operations in international
waters beyond exclusive economic zones--opportunities currently being
pursued by Canadian, Australian and German firms.
The continuing delay of U.S. accession to the convention
compromises our nation's authority to exercise its sovereign interests,
jeopardizes its national and economic security, and limits its
leadership role in international ocean policy.
Given President Bush's public statement of support for the
convention, the support of prior presidents and their administrations
and the strong, bipartisan and diverse support it has from all major
U.S. ocean industries, the environmental community and national
security experts, it is clearly time for the Senate to act by
supporting accession to the Convention on the Law of the Sea.
______
Memo From Former Chiefs of Naval Operations
Memorandum for: Hon. Strom Thurmond, Chairman, Committee on Armed
Services; Hon. Trent Lott, Senate Majority Leader; Hon. Jesse
Helms, Chairman, Foreign Relations
Subject: Law of the Sea
On February 5, 1998, Secretary of the Navy John Dalton testified
before the Senate Aimed Services that one of the Navy's top three
legislative priorities for this year is Senate Ratification of the Law
of the Sea (LOS) Convention. As former Chiefs of Naval Operations, we
want to underscore Secretary Dalton's request that the Senate act
promptly to ratify the Law of the Sea Treaty.
For over three decades the Navy has advocated that the United
States push for a multilateral legal and management system which
codifies and respects the myriad commercial, resource, and national
security interests which we have in the oceans. When President Reagan
decided in 1982 that the United States would not sign the 1982 LOS
Convention because of deep seabed mining flaws, he reiterated that the
United States was committed to a multilateral ocean's regime and the
rest of the Convention protected our commercial and national security
interests. The Convention was subsequently modified to satisfy our
concerns. The modified 1982 Law of the Sea Convention has entered into
force and virtually all of our allies and trading partners are now
Party. The time is now right for the U.S. to join.
There are no downsides to this treaty--it contains expansive terms,
which we use to maintain forward presence and preserve U.S. maritime
superiority. It also has vitally important provisions, which guard
against the dilution of our navigational freedoms and prevent the
growth of new forms of excessive maritime claims. We can ill afford to
conduct our foreign policy in the ocean's arena through proxies. It is
therefore important that we act now to ratify the Convention to
solidify our position of leadership in oceans matters and ensure that
our interests are well represented in the organs which will implement
the LOS Treaty.
Ratification is a win for the Navy and the Nation as a whole.
F.B. Kelso, Admiral, USN, (Ret.).
C.A.H. Trost, Admiral, USN, (Ret.).
J.D. Watkins, Admiral, USN, (Ret.).
T.B. Hayward, Admiral, USN, (Ret.).
J.L. Holloway, Admiral, USN, (Ret.).
E.R. Zumwalt, Admiral, USN, (Ret.).
T.H. Moorer, Admiral, USN, (Ret.).
______
Prepared Statement of Hon. Barbara Boxer, U.S. Senator From California
Thank you, Chairman Biden for holding this hearing on the United
Nations Convention on the Law of the Sea.
I would like to express my support for this treaty. The Law of the
Sea has been called an international constitution for our oceans. It is
an important international framework that defines maritime zones,
protects the marine environment, preserves freedom of navigation, and
promotes sustainable development.
I urge that the full Senate strongly support the Convention. Along
with ratification we must include important declarations and
understandings that clarify how the United States will interpret the
Convention to safeguard our environmental, economic, and national
security interests.
This treaty has an impressively broad level of support including
industries--such as fisheries, oil and gas, and marine transportation--
environmental interests, the scientific community, our military, and
the President.
It is also hard to ignore its strong bipartisan support, as evident
in 2004 when the Senate Foreign Relations Committee voted 19-0 in favor
of this treaty, with no abstentions.
In addition, the Presidential-appointed U.S. Commission on Ocean
Policy and the privately funded Pew Oceans Commission--recently
assembled to develop national ocean policy reform--unanimously
recommended accession to the Law of the Sea.
Currently, 155 countries are party to the Convention, including all
member countries of NATO, except Turkey and the United States. As a
world leader in ocean protection, sustainable use, and maritime power--
and with the world's largest Exclusive Economic Zone (EEZ)--it is
critical that the United States be at the table, and a party to this
treaty.
No country has a greater need to be able to fully participate in
governance of the world's oceans. Among many other benefits, this will
allow our ocean-related Federal agencies to fully participate in
crucial international discussions and negotiations.
In supporting the Law of the Sea we need to ensure that we balance
freedoms of navigation with rights to conserve and manage our coastal
resources.
As chairman of the Senate Committee on Environment and Public
Works, I am committed to ensuring that we maintain our right to
safeguard the health of our oceans, our public, and our economy.
I believe we can and must become a party to the U.N. Convention on
the Law of the Sea, and protect our national interests with the
inclusion of declarations and understandings which provide our
interpretation of the Convention.
I look forward to working with you, Mr. Chairman, the Foreign
Relations Committee, and other Senate colleagues to support the
ratification of the Law of the Sea.
Thank you.
______
Coordinated Responses of Deputy Secretary Negroponte, Deputy Secretary
England, Admiral Walsh, and the Department of the Interior Mineral
Management Service to Questions Submitted by Senator Bill Nelson
Question. Is the equidistance principle considered customary
international law?
Answer. ``Equidistance'' is a methodological tool. Article 15 of
the 1982 Law of the Sea Convention (the ``1982 Convention''), like its
analogue in the 1958 Geneva Convention on the Territorial Sea and the
Contiguous Zone (to which the United States is a party), refers to
equidistance as the applicable methodology for delimitation of
overlapping territorial seas, unless the opposite/adjacent countries
agree otherwise or unless historic title or other special circumstances
call for a different delimitation.
Articles 74 and 83 of the 1982 Convention do not refer expressly to
the equidistance methodology with respect to delimitation of
overlapping exclusive economic zones (EEZs) or continental shelves
between opposite/adjacent countries. Rather, they provide that
delimitation is to be effected by agreement, on the basis of
international law, in order to achieve an equitable solution. In this
regard, the United States has generally taken the position
internationally that the equidistance methodology--absent special
circumstances--leads to an equitable solution.
Question. Does the Convention on the Law of the Sea either
explicitly or implicitly endorse the equidistance principal for
maritime boundaries?
Answer. The 1982 Convention sets forth provisions regarding the
delimitation between countries of overlapping territorial seas, EEZs,
and continental shelves.
With respect to the territorial sea, Article 15 provides that
delimitation is to be based on equidistance, unless the parties agree
otherwise or unless historic title or other special circumstances call
for a different delimitation. It should be noted that this provision is
identical to that in the 1958 Convention on the Territorial Sea and
Contiguous Zone, to which the United States is a party.
With respect to the EEZ and continental shelf (areas beyond 12
nautical miles from the baseline), Articles 74 and 83 of the 1982
Convention provide that delimitation is to be effected by agreement, on
the basis of international law, in order to achieve an equitable
solution. Unlike the 1958 Convention on the Continental Shelf, to which
the United States is a party, this provision does not refer to
equidistance, but rather focuses on an ``equitable solution.''
As in the case of the 1958 law of the sea treaties, the 1982
Convention does not address boundaries between political entities
within a country, such as U.S. States. It only addresses boundaries
between countries. As a result, if the United States were to accede to
the 1982 Convention, the Convention would not apply as between U.S.
States, only internationally with respect to maritime boundaries
between countries.
Question. Could ratification of the Convention be interpreted as an
American endorsement of the equidistance principle?
Answer. No. As noted, the Convention's provisions on maritime
boundary delimitation either repeat verbatim the provision from the
relevant 1958 Convention (in the case of the territorial sea) or
replace the reference to equidistance in the relevant 1958 Convention
with a reference to an ``equitable solution'' (continental shelf).
(There is no EEZ in the 1958 treaties.)
Question. If the Convention could be interpreted to endorse the
equidistance principle, would its ratification have an effect on how
that principle is interpreted by United States courts, particularly
with respect to maritime boundaries between U.S. States?
Answer. The 1982 Convention would apply only to maritime boundary
delimitation between countries. As noted, the Convention, like the 1958
law of the sea treaties to which the United States is a party, does not
address boundary delimitation between U.S. States.
Question. Have any United States courts addressed the issue of
whether the equidistance principle applies as to the maritime
boundaries between U.S. States?
Answer. In the late 20th century, the U.S. Supreme Court applied
the equidistance methodology in three Original actions involving
lateral boundaries between adjacent coastal states (Texas v. Louisiana,
Georgia v. South Carolina, and New Hampshire v. Maine). These cases did
not involve delimitation of the Continental Shelf seaward of the
States' waters (3 or 9 nautical miles).
Question. Could ratification of the Convention have any effect on
oil drilling boundaries off the coast of the United States, in
particular the Eastern Gulf of Mexico Planning Area?
Answer. No. U.S. accession to the Convention would not have any
effect on any Outer Continental Shelf oil drilling boundary between
U.S. States, including the Eastern Gulf of Mexico Planning Area.
______
Policy Brief Submitted by the Nicholas Institute for Environmental
Policy Solutions, Duke University, Durham, NC
[Prepared by Raphael Sagarin, Associate Director for Ocean and Coastal
Policy, the Nicholas Institute for Environmental Policy Solutions;
Larry Crowder, Stephen Toth Professor of Marine Biology, Nicholas
School of the Environment and Earth Sciences; Megan Dawson, Research
Assistant, Nicholas Institute for Environmental Policy Solutions; Jon
Van Dyke, Professor of Law, School of Law, University of Hawaii;
Michael Orbach, Professor of the Practice of Marine Affairs and Policy
Nicholas School of the Environment and Earth Sciences]
SUMMARY
The Nicholas Institute for Environmental Policy Solutions has
gathered leading experts on the U.N. Law of the Sea Convention (LOSC)
to provide guidance in the ongoing debate over whether the United
States should accede to the Convention. Rather than provide a complete
summary of LOSC provisions, we highlight in this short paper three
important considerations:
1. Emerging territorial disputes over expanding Arctic waters, most
recently highlighted by Russia's claims to mineral resources under the
North Pole, will be resolved within the Convention framework by
Convention signatories.
2. Concerns about the role of international tribunals in making
decisions that affect U.S. military, economic and environmental
protection interests have been addressed through changes made at the
request of the United States.
3. The United States would benefit from Convention provisions which
help member nations balance the need to navigate freely for security
and commerce with its need to protect its vast coastal natural
resources.
Overall we find:
Arctic melting is creating a vast rush by several nations,
including Russia, to claim navigation and resource rights
around the North Pole. Claims and disputes over these resources
will be resolved under the LOSC framework. The best opportunity
for the United States to achieve standing to make and counter
such claims is through joining the LOSC.
Major points of contention raised by the Reagan
administration, related to seabed mining, technology transfers
to developing nations and representation on key committees have
been resolved in the United States' favor through negotiated
changes to the Convention.
The LOSC provides dispute settlement tribunals and
arbitration panels. The United States would have control over
the type of dispute settlement body cases involving U.S.
interests were brought before and would have significant
representation on those bodies.
The LOSC recognizes the competing interests of navigational
freedom (for military and commerce) and coastal resource
protection (for fisheries, oil and minerals and environmental
resources) and attempts to balance them. Perhaps no nation has
more at stake in striking this balance than the United States
which has both the largest claimed Exclusive Economic Zone
(EEZ) and the largest blue water navy.
Support for accession to LOSC is surprisingly broad,
including the Navy and Coast Guard, maritime industries, the
White House, and private public partnerships such as the Joint
Ocean Commissions Initiative. At the same time, opposition to
the LOSC convention has narrowed to an ideological position
based primarily on mistrust of U.N.-based treaties.
what is the controversy over the law of the sea convention?
The 1982 Law of the Sea Convention (LOSC) is a treaty resulting
from 40 years of international diplomacy that was set into motion by
the 1945 Truman Proclamation,\1\ where the Continental Shelf of the
United States was claimed as a sovereign zone, spawning a subsequent
claim-and-response period for seabed sovereignty. The United States had
a particular interest in codifying this ``constitution of the oceans,''
to protect its marine living resources and maritime interests. In its
current form the treaty designates a 200 nautical mile exclusive
economic zone (EEZ) where nations have sovereign rights ``for the
purpose of exploring and exploiting, conserving and managing the
natural resources.'' The treaty provides parties with the ability to
define those activities that are military while navigating in any part
of the ocean, thus putting few restrictions on ``peaceful'' military
navigation. Additionally it protects the living resources, facilitates
military and maritime activities, and strengthens U.S. national
security. Many of the benefits of LOSC are already utilized by the
United States because most aspects of the treaty are already part of
customary international law, to which all nations subscribe.
---------------------------------------------------------------------------
\1\ Truman Proclamation On The Continental Shelf; Presidential
Proclamation No. 2667; 28 September 1945.
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Despite the great lengths the treaty traveled in regards to
maritime interests, living resource conservation, maritime dispute-
settlement procedures and several other issues, by the early 1980s the
United States still saw some key flaws highlighted by the Reagan
administration. President Reagan supported most aspects of the treaty
and stated officially that the United States would act in accordance
with those provisions. However, his administration opposed perceived
limits on free enterprise with regards to resources to be extracted
from deep seabeds and the mandated technology transfers to poorer
countries.\2\ Over the next decade, culminating in 1994, the United
States was successful in negotiating an Agreement that made key changes
in the LOSC, including provision for a permanent seat for the United
States on the governing Council of the International Seabed Authority
and a seat on the powerful Finance Committee. Decisions by these bodies
are by consensus, thus ensuring U.S. ability to effectively ``veto''
unfavorable judgments. These changes also eliminated the mandatory
technology transfers that riled some parties as ``welfare'' for poorer
nations.
---------------------------------------------------------------------------
\2\ Adelman, Ken. ``Scuttle Diplomacy.'' The Wall Street Journal.
June 2-3, 2007, A11.
---------------------------------------------------------------------------
Though all of the problems cited by President Reagan were resolved
in these negotiations, the United States has yet to ratify the treaty.
Some continued opposition to accession to LOSC, typically focused on
concerns with the jurisdiction of international tribunals, perceived
threats to national security and commerce, or uncertainty about claims
to wide Continental Shelf margins (as is currently being debated with
regard to the Arctic, see below) may be based on incomplete knowledge
of the treaty. Beyond these concerns, continued opposition to LOSC is
largely ideological, stemming from a strong distrust of U.N.-based
organizations and treaties as well as other international bodies having
decisionmaking powers. The roots of these ideological objections are
deeper than LOSC and thus beyond the scope of this paper. Here we deal
specifically with how U.S. accession to the LOSC would affect: (1) The
current disputes over the resources and navigation rights to the
Arctic; (2) the negotiating powers and standing of the United States;
and (3) the balance the United States needs to achieve between various
uses of coastal seas.
SOLVING DISPUTES OVER SOVEREIGNTY IN THE ARCTIC
In most parts of the world debates over limitations on navigation
versus protection of natural resources are played out within well-
defined Exclusive Economic Zones (EEZs). There are, nonetheless,
several areas of active dispute over marine territory. The most
dramatic example is the Arctic--a large, resource rich area where the
territorial claims are almost completely unresolved. The confluence of
three major forces--climatic, economic, and political--have made the
Arctic a focal point for a new round of territorial claims that will be
debated under the LOSC framework. Climatically, global warming has
literally opened the Arctic \3\; 2007 saw the lowest level of recorded
ice \4\ and the trend toward more open sea in the Arctic is likely to
continue. This melting is already having dramatic effects on arctic
wildlife, but it will also open up new shipping routes and fishing
grounds and make previously out of reach mineral and oil resources
attainable. Economically, the demand for new oil and mineral supplies
and associated high prices has made the Arctic an attractive target for
resource extraction. Politically, nations such as Russia are eager to
expand their territory and demonstrate their economic and technological
might. Likewise, Canada has expressed claims of sovereignty over the
Northwest Passage, which will become increasingly ice free.\5\ More
prosaically, several Arctic nations are faced with upcoming deadlines
under LOSC to make scientifically supported claims that their
continental shelves are contiguous with the Arctic sea floor.
---------------------------------------------------------------------------
\3\ Belkin, Douglas. ``As Arctic Ice Melts, Northwest Passage
Beckons Sailors.'' Wall Street Journal, Sept. 13, 2007.
\4\ Schmid, Randolph. ``Arctic Sea Ice Shrinks to Record Low.''
August 17, 2007. Associated Press, Science Writer.
\5\ Alexander, Bryan and Cherry. ``Drawing Lines in Melting Ice.''
The Economist.com. World International. August 16, 2007.
---------------------------------------------------------------------------
The renewed focus on the Arctic was highlighted in news coverage
and response by other Arctic nations to a Russian expedition which
placed a Russian flag on the sea floor under the North
Pole.\6\,\7\ Several Arctic bordering nations including the
United States, responded with expeditions of their own to establish the
geological relationship between the Arctic and their own Continental
Shelf.\8\ It is likely that the territorial rights to the Arctic's
riches will be settled within the LOSC framework. Accession to the LOSC
would provide the United States with a legitimate and internationally
recognized pathway for making and disputing claims on Arctic resources.
---------------------------------------------------------------------------
\6\ Zabarenko, Deborah. ``U.N. Must Decide Russia Arctic Claim:
Russian Experts'' August 9, 2007. Reuters Online.
\7\ Blomfield, Adrian. ``Russia Claims North Pole With Arctic Flag
Stunt'' August 1, 2007, London Telegraph.
\8\ Esser, Doug. ``U.S. Icebreaker to Map Arctic Sea Floor'' August
11, 2007. Associated Press.
---------------------------------------------------------------------------
The flurry of activity related to Arctic claims suggests an urgency
for U.S. accession to LOSC. This urgency is driven both by what the
United States can do and what it can undo as a party to LOSC. During
the 1983-1994 period, the United States negotiated for a permanent seat
at the Commission on Limits of the Continental Shelf, where voting
would be done in groups and by consensus. Perhaps more compelling may
be the ability for the United States, as a member of LOSC, to block and
contest applications to exploit resources or limit transit by other
nations. While we currently can comment on proposals by other LOSC
nations,\9\ accession to the treaty would give the U.S. standing to
substantially modify or block proposals that the United States found
detrimental to its national interests. This could be done by preparing
its own claim to the Continental Shelf Commission, or to work
cooperatively with other Arctic nations to develop logical rules to
govern exploitation of resources and other uses of the Arctic Sea. This
latter strategy reflects one of the biggest benefits of U.S. accession
to LOSC--namely that it would generate goodwill and a sense of
cooperation over a shared mission to responsibly use the resources of
the sea while protecting the oceanic environment for generations to
come.
---------------------------------------------------------------------------
\9\ E.g., The U.S. submitted an Official Statement from the
Department of State to the Commission on the Continental Shelf on 18
March 2002, contesting Russian claims to the Arctic.
---------------------------------------------------------------------------
JURISDICTION AND PARTICIPATION IN INTERNATIONAL TRIBUNALS
The United States has considerable power to determine how accession
to LOSC would affect its national interests. This is primarily a
function of the many years of negotiations getting the treaty to its
1994 form. More recent specific guidance provided by the U.S. Senate
Foreign Relations Committee on conditions for U.S. accession to the
treaty are laid out in a lengthy resolution identifying very specific
declarations, understandings, and conditions that ensure protection of
U.S. interests.\10\ The conditions address a wide array of issues
including representation on treaty decisionmaking bodies, ability to
enforce U.S. environmental law, and rights to free navigation, as well
as harmonization of the treaty with specific aspects of U.S. law. A
particular concern to many in the United States is the specter of
foreign courts making decisions about navigation and resource
protection activities that ultimately affect U.S. interests. This
concern could be said to be overstated for three reasons. First,
accession to LOSC will allow the United States to have a say in the
election of members of the Tribunal and to select members of
arbitration panels making decisions. Second, and more important, is the
fact that the United States, as part of its accession (or any time
thereafter), has the legal right to request the type of body it wants
decisions concerning U.S. interests to be made under.
---------------------------------------------------------------------------
\10\ U.S. Senate Committee on Foreign Relations. March 11, 2004.
Report on the United Nations Convention on the Law of the Sea.
Executive Report 108-10.
---------------------------------------------------------------------------
The choices the United States would have include:
1. A hearing before the International Tribunal for the Law of the
Sea (ITLOS), a standing tribunal of 21 judges, each from a different
nation, that serve 9-year terms. The earliest the United States could
get a seated judge would be in late 2008, when seven seats open.
2. A hearing before the International Court of Justice (ICJ), a
U.N. court of 15 judges appointed by the General Assembly and Security
Council. The United States currently has one sitting judge.
3. A special arbitral tribunal under ``Annex VIII'' made up of
environmental, marine science, navigation, and fisheries experts of
which the United States would pick two of the five arbitrators.
4. A hearing before an ``Annex VII'' arbitration panel composed of
five members of which the United States would be allowed to choose one
and be involved in the appointment of at least three others.
The United States has already indicated its decision to adjudicate
conflicts under the last two options, using the third option for
fisheries, environmental, and navigational disputes, and the fourth
option for other disputes, meaning that all decisions concerning U.S.
interests would go to a small arbitral body whose members are selected
with U.S. input. Finally, nations may opt out of any of the above
adjudication procedures when the issue debated concerns such issues as
scientific research, boundary disputes, military activities, and
setting of limits in natural resource extraction within a nation's
EEZ.\11\
---------------------------------------------------------------------------
\11\ These are addressed in sections 297 and 298 of the United
Nations Convention on the Law of the Sea of 10 December 1982. The full
text of which is available at: http://www.un.org/Depts/los/
convention_agreements/convention_overview_convention.htm.
---------------------------------------------------------------------------
BALANCING ECONOMIC, MILITARY AND ENVIRONMENTAL SECURITY
At the core of disputes in the exclusive economic zone (EEZ) as
codified by LOSC and territorial waters is the tension between nations
that are primarily maritime nations and those that are primarily
coastal nations. Maritime nations are chiefly concerned with the
ability to move cargo, fishing, and military vessels flying their flag
freely through the high seas, EEZs, and territorial waters as well as
in the air above. Any attempt to limit transportation, such as movement
of shipping lanes to protect species or speed limits within certain
zones will cost these nations money and are thus met with resistance.
Coastal nations, by contrast, are concerned with protecting their own
resources in the EEZ, especially fisheries. These nations will propose
any number of regulations to protect the environment, keep shipments of
nuclear materials far off shore, or ensure that ships are not engaged
in illegal fishing.
Of course, many nations have a vigorous interest on both sides of
this dichotomy, but none more so than the United States. With the
largest claimed EEZ of any nation (due in part to the long coast of
Alaska, the Aleutian Islands and Pacific territories) the United States
is a coastal nation and as such demands protection for its coastal
natural resources. From this perspective, the United States may wish to
limit transport by other nations in its EEZ to protect habitats or to
ensure that illegal fishing is not occurring. Indeed, the United States
has imposed mandatory ship reporting requirements to protect right
whales,\12\ and is seeking approval of the International Maritime
Organization for limitations on transit in the northwest Hawaiian
Islands, which has recently been designated a National Monument. But
with the largest and most wide-ranging blue water Navy, the United
States is a maritime nation that must maintain its existing rights to
passage throughout the world's oceans and seas. Moreover, the United
States is reliant on international shipping imports and restrictions on
navigation will raise costs to U.S. consumers. These conflicts are
concentrated in nations' territorial seas and straits, although
conflicts in the wider boundaries of the EEZ are emerging.
---------------------------------------------------------------------------
\12\ Jon Van Dyke. 2005. The disappearing right to navigational
freedom in the exclusive economic zone. Marine Policy. 29:107-121.
---------------------------------------------------------------------------
A natural effect of this split interest is that any one-sided
argument about the perils of the United States joining LOSC is
immediately contradicted. For example, alarmist arguments that LOSC
nations have or will impose limitations on transit are contradicted by
the fact that the United States does impose some limits to transit in
our own EEZ and has plans to continue to do so. Indeed, the very fact
that the United States has perhaps the world's strongest interest in
both protection of coastal resources and right of free transit on,
under, and above the ocean, is the most compelling reason to join LOSC.
As four former U.S. Coast Guard Commandants stated in a letter urging
the chairman of the U.S. Senate Foreign Relations Committee to support
accession to the treaty: ``As a global maritime power and a nation with
one of the longest coastlines, the United States has strong interests
both in preserving freedom of the seas and in protecting our own
coastal areas, including offshore marine resources. The Convention
strikes the right balance between these sets of interests.'' \13\
---------------------------------------------------------------------------
\13\ Letter from Thomas H. Collins, James M. Loy, Robert E. Kramek,
Paul A. Yost to Joseph Biden, Chairman, Senate Foreign Relations
Committee. August 15, 2007.
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WHO SUPPORTS THE LAW OF THE SEA CONVENTION?
Support for U.S. accession to LOSC is surprisingly broad.\14\ Some
of the architects of plans to scuttle the LOSC treaty under the Reagan
administration have now come around to support it because the more
odious provisions were amended or eliminated since that time.\15\ The
Navy, Coast Guard, National Oceanic and Atmospheric Administration, the
State Department and the White House, support accession. These groups
support accession despite the fact that they occasionally squabble over
its implementation, largely due to the dual interest of the United
States (e.g., the environmental protection mandate of the Coast Guard
versus the security mandate of the Navy has put these two forces at
odds in the past \16\). Likewise, major resource extracting industries
and their trade groups, who are often at odds with environmental groups
over regulations, share a common interest with many of these groups in
ratifying LOSC. Finally, the most authoritative body on U.S. ocean
science and policy ever assembled, the Joint Ocean Commissions
Initiative, chaired by retired Navy Admiral James Watkins and former
Congressman and White House Chief of Staff Leon Panetta, has indicated
U.S. accession to LOSC as one of its highest priorities.
---------------------------------------------------------------------------
\14\ For full list see lugar.senate.gov/sfrc/questions.html.
\15\ Ken Adelman. ``Scuttle Diplomacy'' Wall Street Journal, June
2-3, 2007 weekend edition, A11.
\16\ Jon Van Dyke. 2005. ``The Disappearing Right to Navigational
Freedom in the Exclusive Economic Zone. Marine Policy. 29: 107-121.
---------------------------------------------------------------------------
______
Letter From Frederick S. Tipson, Senior Policy Counsel, Microsoft Corp.
September 24, 2007.
Re United Nations Convention on the Law of the Sea
Senator Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Senator Richard G. Lugar,
Ranking Minority Member, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Senators Biden and Lugar: I was chief counsel to the committee
under Chairman Charles H. Percy in 1982 when the original version of
the Law of the Sea Convention was concluded and opened for signature.
(The committee's hearing today happens to fall on Senator Percy's 88th
birthday.) I would like to join with the wide range of supporters of
this treaty in urging the committee to recommend early and favorable
advice and consent by the full Senate.
Treaties were my particular responsibility on the committee staff
in the early 1980s. I was also a specialist on the Law of the Sea
before joining the committee, having been Assistant Director of the
Center for Oceans Law and Policy at the University of Virginia School
of Law. I followed the Law of the Sea negotiations from the time of
their initiation by the Nixon administration, attended several sessions
of the negotiations as an observer during the Ford and Carter
administrations, and was briefly a member of the U.S. delegation in
1980 as counsel to the ranking minority member, Senator Jacob K.
Javits.
In my opinion, becoming a party to this Convention is very
important for the security, economic, and diplomatic interests of the
United States. The original problems with the treaty, which caused
President Reagan to decline signature of the agreement in 1982-83, were
almost exclusively about part XI, relating to the deep seabed mining
provisions. As the principal vote counter on treaties for the committee
at that time, I advised the chairman and the administration that
because of part XI, the Convention would not, in my judgment, receive
the necessary two-thirds vote for advice and consent in the Senate. I
largely concurred with the assessment made by the Reagan administration
of the particular problems with part XI of the Agreement, and had
advised Ambassador Elliot Richardson of those concerns during the final
stages of the negotiations.
However, as the committee is well aware, the problems in part XI
were later addressed by a series of amendments negotiated by the United
States in 1994. By that time, I had been in the private sector (at
AT&T) for 10 years. I was, frankly, astounded that the United States
was able to negotiate those changes the consequence of major shifts in
the international political environment to be sure, but also the result
of some very skillful diplomacy by the U.S. officials involved. Most
people expected that the United States would then follow through and
join the Convention without further delay. Unfortunately, despite a
favorable hearing by this committee that year, the full Senate did not
take up the treaty, and it remained on the committee calendar until the
hearings held by the Foreign Relations, Armed Services, and Environment
and Public Works Committees several years ago.
The compelling reasons for the United States to become a party to
this treaty will be ably and authoritatively addressed by the
distinguished witnesses at the hearing today. It will significantly
advance our security interests, greatly expand our territory and
resources, and confirm our political values and diplomatic leadership.
I will not elaborate on those arguments here, except to suggest that,
in my opinion, the final judgment about the value of this treaty to our
country is not even a close call. The arguments in favor overwhelm any
reservations I have yet heard from opponents.
So, if the Law of the Sea Convention is that favorable to the
United States, this committee and the full Senate have a right to
wonder: Why is it that this treaty, as amended in 1994, was not long
ago approved by the Senate? I suggest that the answer to that question
can be summarized under three headings:
1. ``FREE RIDER'' FALLACIES
Some observers may say that the value of this agreement to the
United States can be derived without having to become a formal party.
Most international law experts would tell you that the jurisdictional
and navigational provisions in this agreement represent ``customary
international law'' that applies to every nation-state, whether or not
they have ratified or acceded to the agreement. On its face, this is a
good argument for most of the provisions in the treaty, and the United
States has repeatedly relied on the text of the Convention as evidence
of accepted standards for state behavior in those areas.
But, in reality, the argument from customary law is a fall-back
position, argued out of necessity and pending the far stronger position
the United States will be in when we become a party to the Convention.
Customary international law is itself a developing process, subject to
revisions through widespread practice that may begin to diverge over
time as conditions change and new issues and attitudes arise. Assertion
of our legal rights under the agreement can easily be met with the
counterargument that we should not be able to rely on a treaty we have
for years failed to ratify. And the suggestion that we can simply
enforce our interests with naval power is grossly out of touch with
current political and military realities.
The current series of claims and counterclaims in the Arctic region
illustrates the problems for the United States in remaining out of the
treaty framework. The basic situation in the Arctic has changed in
recent years as the melting of the ice cap has made both navigation and
resource exploitation feasible in ways that were not deemed likely at
the time this Convention was concluded. Our ability to resist the
claims of other States is undercut by our status as treaty outsider. In
an even more practical way, we have been unable to participate in the
Commission established under the treaty to establish the limits of the
continental shelves beyond 200 miles--areas of huge resource potential.
So our abstention is not only pointless, it is harmful.
2. ``MOUNTAINS OUT OF MOLEHILLS''
Other commentators argue for Senate rejection on the basis of
relatively minor examples of problematic language, exaggerated
interpretations, or far-fetched speculations--as if the point of Senate
review is to find any possible gap or weakness in a text, rather than
to weigh the agreement as a whole for its overall value to the United
States. Having handled many treaties for the committee, I can say that
this sort of ``gotcha'' approach--or ``pronouncement by pot shots''--is
a poor way for Senators to assess the national interest in a
comprehensive setting like oceans policy. The negotiation of this
treaty, with the 1994 amendments, was a huge accomplishment in
advancing and protecting U.S. interests. We should not lose sight of
the big picture by picking through the pixels.
Furthermore, this particular treaty is already in force for the
majority of countries, and having agreed to a series of major U.S.
amendments once before without U.S. followthrough, we can be sure that
these countries will not again agree to ``fix'' or redraft its
provisions prior to U.S. accession. On the other hand, once the United
States becomes a party, and regains our stature as a leader and
supporter of the LOS framework, we are in a far stronger position to
propose improvements or additions to this agreement to meet the changed
conditions of the future.
3. SOVEREIGNTY EXTREMISM
Finally, this treaty has been maligned by a range of critics who
regard virtually all treaties as objectionable because they commit the
United States to principles and procedures which limit our freedom to
act unilaterally, immediately, and with impunity. This attitude toward
U.S. sovereignty is both extreme and naive. Never mind that the
commitments undertaken here involve actions--such as the free passage
of vessels through straits and territorial seas or the conservation of
fisheries--that the United States itself wants to undertake, and that
the real significance of the agreement is the restraints it places on
the behavior of other countries, including some otherwise inclined to
resist these provisions--not to mention the positive framework of
cooperation it creates. And never mind that the Convention ratifies and
protects the sovereignty of the United States over additional
territories the equivalent of the entire lower 48 States. Extreme views
of U.S. sovereignty would read out of the Constitution the option of
reaching treaties of any kind--including those that strengthen U.S.
sovereignty, protect our military and economic interests, and extend
our influence and leadership as this one does.
What is particularly ironic about many of these objections to the
Law of the Sea Convention is that they are made on the basis of values
or principles said to be ``conservative'' in nature. Yet there is a
strong tradition of conservative thought in the United States which has
viewed the rule of law, not as a radical reformist agenda, but as a
conservative strategy for protecting and promoting American interests
through negotiation and agreement with like-minded countries. Whether
or not any particular agreement does, in fact, conserve those values
and interests is a legitimate question for the Senate when asked to
review any international agreement. But a stable international order is
one of the paramount values which American conservatives have rightly
sought to promote through the years, and this Convention is a huge
advance for the rule of law over nearly three-fourths of the Earth's
surface. Conservatives in both parties should be able to support this
agreement with enthusiasm.
For, in the end, the languishing of the Law of the Sea Convention
on the committee calendar has not been the result of a careful,
balanced assessment of its merits by the Senate. Given that body's
enormous agenda, year in and year out, the window of opportunity to
consider any single measure--especially one as comprehensive and
detailed as this Convention--is rare and limited. This treaty has been
the victim not of substantive problems, but of problematic process. All
it has taken to derail the process of Senate advice and consent is for
one critic or another to convince a single member of the Senate--
however well-intentioned and responsible--that there is something wrong
with this treaty, and that has resulted in a ``hold'' on its
consideration--a hurdle which postpones and thereby stalls indefinitely
a thorough assessment of its merits. Leave aside that the concern
expressed may be far outweighed by the benefits and advantages incurred
by the United States through participation. The Senate has never been
able to debate that assessment.
The committee should remedy this situation and lead the Law of the
Sea Convention favorably through the Senate without further delay.
Sincerely,
Frederick S. Tipson
[Chief Counsel, Senate Foreign Relations Committee, 1981-1984. The
author is currently a Senior Policy Counsel at the Microsoft
Corporation. But the views expressed are entirely personal and do not
reflect the review or approval of the corporation, which takes no
position on the Convention and has no direct interest in its
consideration by the committee.]
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-
39)
----------
THURSDAY, OCTOBER 4, 2007
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:35 a.m., in
room SD-419, Dirksen Senate Office Building, Robert Menendez,
presiding.
Present: Senators Menendez, Lugar, Corker, Murkowski,
DeMint, Isakson, and Vitter.
OPENING STATEMENT OF HON. ROBERT MENENDEZ, U.S. SENATOR FROM
NEW JERSEY
Senator Menendez. This hearing will come to order.
Today, the Foreign Relations Committee continues its
examination of the Convention of the Law of the Sea. I'd like
to thank Chairman Biden and Ranking Member Lugar for calling
this important hearing, as well as all of our witnesses for
appearing.
Simply put, the Law of the Sea Convention creates an
international framework that will protect our national
security, foster economic opportunity, and promote stewardship
of the environment. It codifies international law; in
particular, the laws on Freedom of Navigation that are
essential to our military as it carries out missions around the
world. The Convention provides clear rules that affect numerous
marine-based industries represented by our second panel.
The real decision we have before us is not whether we want
the United States to operate under the International Law of the
Sea. The question is whether we want a seat at the table to
help shape its future trajectory. The few vocal opponents of
the treaty have tried to obscure the real issues and, instead,
appeal to people's fears. I urge my colleagues to listen to the
experts. What the experts in the military, in business, and in
the administration are saying is that this treaty will be a
boon to U.S. maritime interests.
The Law of the Sea Convention will firmly secure the rights
of our military as they need to travel the world's oceans and
move troops quickly to hotspots around the globe without
hindrance. This freedom is achieved by limiting the ability of
coastal states to regulate foreign navigation to an area within
12 miles from the coasts. But, even there, all states enjoy the
Right of Innocent Passage. And, as I am sure ADM Vern Clark
will testify to later, the Convention will also allow for the
U.S. Navy to freely travel through straits for international
navigation. Codifying these rights to navigation is essential
to our modern military.
The Law of the Sea Convention will also allow the United
States to secure valuable resource rights. For 200 nautical
miles from our shores, we will have the sovereign right to
explore, extract, and manage our living and nonliving natural
resources. Because of our vast coastlines, the United States
will have the largest exclusive economic zone in the world. In
addition, because the Convention allows for claims for economic
rights for continental shelves that extend beyond the 200-mile
EEZ, we could have internationally recognized rights to natural
resources as far as 600 miles from our shores in some areas.
This treaty provides us with numerous benefits, while it
demands little from the United States in return. There are no
onerous standards, no threats to U.S. power, no dilution of
U.S. sovereignty. In fact, today the United States already
follows the rules of the Convention. This has prompted some to
ask, So, why should we join the treaty? We should be a party to
the Convention, because it gives us a seat at the table. The
Law of the Sea is leaving the dock without us. Some 155
countries are a party to it, including all of our NATO
partners, except Turkey, as well as Japan and Australia. It has
been in effect for over a decade, and its institutions are up
and running. Unlike the Kyoto Protocol of the Comprehensive
Test Ban Treaty, the Law of the Sea Convention will go forward
whether we ratify it or not.
Not only is the Convention widely accepted around the
globe, but it also enjoys wide support in this country. I
cannot think of another coalition of supporters that includes
oil companies, environmental groups, fishermen, shippers,
military officers, telecommunication firms, the current and
former Secretaries of State, the New York Times, and President
Bush all together. [Laughter.]
The fact of the matter is that you never see a coalition
like this, and you can only get such a distinguished and
diverse coalition behind a convention that makes sense and that
is a great benefit to the country.
Now, I have talked about what the Law of the Sea Convention
is, but I want to spend a few minutes talking about what the
Law of the Sea is not. This is simply not the same agreement
President Reagan resisted in the 1980s. President Reagan's
objections to the treaty had to do exclusively with the deep
seabed mining provisions of the Convention. We know this,
because in a 1983 ocean policy statement President Reagan
directed the U.S. Government to abide by everything else in the
Convention other than the deep seabed mining provisions. A 1994
implementing agreement fixed the flawed deep seabed mining
provisions to address each of President Reagan's objections.
There's been a good deal of discussion regarding the
International Seabed Authority and whether the United States
has sufficient influence on its decisionmaking or whether
mandatory technology transfers are still required. The fact is,
the United States would have an effective veto on important
decisions of the Seabed Authority. Any decision that would
result in a substantive obligation, including any amendments to
the deep seabed provisions, or that would have financial or
budgetary implications, would require U.S. consent.
The 1994 agreement also eliminated mandatory technology
transfers. Moreover, article 302 of the Convention explicitly
provides that nothing in the Convention requires a party to
disclose information that is ``contrary to the essential
interests of its security.''
The 1994 agreement also eliminated any production controls
and ensured that market-oriented approaches are taken to the
management of deep seabed minerals.
The International Seabed Authority is also not some large
U.N. bureaucracy that is capable of producing endless and
burdensome regulations over the objection of the United States.
The Authority is an independent institution, created by the
Convention, which employs approximately 30 people and has an
annual budget of $6 million. And any regulation of substance
must be agreed to by the United States.
Another thing this Convention is not is a tacit acceptance
of Russia's claims over mineral rights in the Arctic. To the
contrary, by becoming a party we will likely be able to secure
the appointment of a U.S. scientist to the Continental Shelf
Commission, the body that is reviewing Russia's claim.
In 2001, Russia made a claim for its extended Continental
Shelf that reached the North Pole. The Commission determined
that Russia did not have enough data to prove its claim, but,
ever since then, Russia has been collecting more data to
bolster its case.
In conclusion, I hope my colleagues will dispassionately
weigh the evidence and see the benefits of ratifying the Law of
the Sea Convention and how far they outweigh any possible
costs. In my view, it's a relatively clear call. If we want to
continue to protect our maritime security and economic
interests, the United States should be a party to this
Convention.
Before I turn to my distinguished ranking member of the
full committee, I just want to take the privilege of the Chair
to recognize someone who has been of service to me, and to our
efforts, for nearly 5 years, as my senior foreign policy
advisor, first in the House of Representatives, where I was the
ranking Democrat on the Western Hemisphere, and served there
for 13 years, and now, since I came to the Senate, and on this
committee, and as the subcommittee chair on our Foreign
Assistance--she is an exceptional individual who has an
incredible depth of knowledge, substantive knowledge, and who,
over the years, has taken that substantive knowledge and added
to it the ability to understand the confluence of good public
policy, of politics necessary to achieve that public policy,
and the process in which we ultimately make legislation happen.
That is a rare confluence of skills that exists, so, when you
do have it, it's just an exceptional person. So, that is why I
have filed a demarche with Senator Reid, who has stolen her
from my office, to become his senior foreign policy advisor.
The demarche has been somewhat dismissed out of hand, but I
just wanted to recognize her exceptional service, and, as she
moves to Senator Reid's office as a senior foreign policy
advisor, we continue to look to work with her.
So, Jessica Lewis, thank you so much. Stand up, Jessica.
Thank you very much for your service.
[Applause.]
Senator Menendez. With that, let me recognize the
distinguished ranking member, Senator Lugar.
OPENING STATEMENT OF HON. RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
Senator Lugar. Well, thank you very much, Mr. Chairman. And
I join you in welcoming our witnesses.
At the first hearing of the Law of the Sea, 1 week ago, we
heard unequivocal testimony from the State Department, the
Defense Department, and the Navy in support of U.S. accession
to the Convention. It was clear from this testimony, as well as
from President Bush's statement on the Law of the Sea, and
communications from the Joint Chiefs of Staff, and Homeland
Security Secretary Chertoff, that the United States national
security leadership is strongly united in favor of this treaty.
As ADM Patrick Walsh, the Vice Chief of Naval Operations
and former commander of the Fifth Fleet testified: ``Right now,
where I sit, we have a deficiency by not being party to the Law
of the Sea Convention, and it's one that we must correct. This
Convention is valuable to our soldiers, sailors, airmen,
marines, and coastguardsmen, and it's time we joined the
Convention, and we owe it to them.''
The Commander in Chief, the Joint Chiefs of Staff, and the
U.S. Navy, in time of war, are asking the Senate to give its
advice and consent to this treaty. Our uniformed commanders and
civilian national security leadership are telling us that the
Law of the Sea Convention is a tool that they need to maximize
their ability to protect U.S. national security with the least
risk to men and women charged with this task.
I noted, in our previous hearing, that historically the
overwhelming presumption in the U.S. Senate has been that if
our Armed Forces asked us for something to help them achieve a
military mission, we do our best to provide them with that
tool. It would be ironic if, just weeks removed from defending
the role, expertise, and integrity of General Petraeus as he
pursues his mission in Iraq, Senators disregarded the unanimous
and sustained view of our military on this treaty.
I would offer a historical reference for our discussion
today. In 1950, the Soviet Union was boycotting the United
Nations over the issue of designating the Communist Government
of China as a legitimate representative of the Chinese people.
During this boycott, North Korea invaded South Korea. The
Truman administration quickly introduced, and passed,
resolutions in the Security Council to condemn the invasion and
authorize the use of force to resist it. Because they were
absent, the Soviets could not exercise their veto in the
Security Council. Soviet interests, as they perceived them,
clearly were not served by the boycott.
In absenting ourselves from the Law of the Sea Convention,
we are risking making the same type of mistake that the Soviets
made in 1950. Opponents seem to think that if the United States
declines to ratify the Law of the Sea, the United States can
avoid any multilateral responsibilities or entanglements
related to the oceans. But, unlike some treaties, such as the
Kyoto Agreement and the Comprehensive Test Ban Treaty, where
the United States nonparticipation renders the treaty virtually
inoperable, the Law of the Sea will continue to form the basis
of maritime law, regardless of whether the United States is a
party. Consequently, the United States cannot insulate itself
from the Convention merely by declining to ratify. If we fail
to ratify this treaty, we are allowing decisions that will
affect our Navy, our ship operators, our offshore industries,
and other maritime interests to be made without U.S.
representation.
If the United States does not ratify this treaty, our
ability to claim the vast extended Continental Shelf off Alaska
will be seriously impeded. We will also put ourselves in a
position of self-imposed weakness as we are forced to rely on
other nations to oppose excessive claims to Arctic territory by
Russia and perhaps others. Further, in an era in which our
growing energy vulnerability exposes us to the machinations of
oil-rich states, we will be constraining the opportunities of
our own oil companies to explore beyond the 200-mile limit by
perpetuating legal uncertainty that is likely to prevent the
large-scale investments that are required. We'll be
complicating the job of the Navy in asserting navigational
rights and weakening our ability to constrain negative drift in
customary international law. And we will not even be able to
participate in the amendment process to this treaty, which is
likely to dominate the evolution of accepted ocean law.
This is a partial list of the costs of not joining the
Convention, but it should illuminate, for members, that we do
not have a free pass to this treaty. If the Senate does not
give its advice and consent, we will be incurring tangible
costs in both the short and long terms on issues of vital
importance to our economy and our national security.
As I have listened to the arguments critics have made,
some, I believe, are simply false, others are highly
speculative or sensationalist claims that are sharply
contradicted by our national security leadership, including
President Bush. But some objections can be traced to baseline
philosophical objections to the fundamental idea of a
multilateral treaty that delineates rights and responsibilities
of Member States.
As I mentioned in the first hearing, these philosophical
objections often have been connected to the wish for a U.S.
ocean policy that relies on power projection to protect U.S.
interests. But, as Admiral Walsh testified, this is not a
practical solution in the real world. He pointed out: ``Many of
the partners that we have in the global war on terror who have
put life, limb, and national treasure on the line are some of
the same ones where we have disagreements on what they view as
their economic zones or their environmental laws. It does not
seem to me to be wise to now conduct Freedom of Navigation
operations against those very partners that are in our
headquarters trying to pursue a more difficult challenge ahead
of us, which is the global war, a global war on terror.''
Even a mythical 1,000-ship U.S. Navy could not come close
to patrolling every strait, protecting every economic interest,
or asserting every navigational right. Attempting to do so
would be prohibitively expensive and destructively
confrontational.
It is this recognition, coupled with the understanding of
the limits of customary international law that has impelled a
succession of seven Presidents to move the concept behind this
treaty toward realization. The last seven administrations have
understood that treaty law is the best option for gaining
maximum leverage for U.S. ocean interests.
If anyone doubts that President Reagan did not act to
legitimize the concept of the Law of the Sea Treaty, I would
refer them to President Reagan's two fundamental Presidential
statements on ocean policy. The first was issued on January 29,
1982. The President said: ``Last March, I announced that my
administration would undertake a thorough review of the current
draft and the degree to which it met United States interests in
the navigation, overflight, fisheries, environmental, deep-sea
mining, and other areas covered by that Convention. Our review
has concluded that, while most provisions of the draft
Convention are acceptable and consistent with U.S. interests,
some major elements of the deep seabed mining regime are not
acceptable. I am announcing, today, that the United States will
return to these negotiations and work with other countries to
achieve an acceptable treaty.''
President Reagan then enumerated the problems with the deep
seabed mining provisions, and, after doing so, he continued:
``The United States remains committed to the multilateral
treaty process for reaching agreement on Law of the Sea. If,
working together at the conference, we can find ways to fulfill
these objectives, my administration will support
ratification.''
The following year, President Reagan issued a statement
declaring that the United States would abide by all provisions
of the Law of the Sea, except the deep seabed mining provision.
By explicitly endorsing the multilateral treaty process,
objecting only to deep seabed mining provisions, delineating
precisely the steps required to fix those provisions,
announcing that his administration would support ratification
if they were fixed, and, finally, declaring that the United
States would abide by all other provisions of the treaty,
President Reagan conferred enormous validity on the basic
purposes, concepts, and provisions of the Law of the Sea.
The January 1982 statement was not a casual document. It
was a deliberate and carefully considered culmination of a
thorough
9-month study of the treaty by the Reagan administration. And
it's telling that the President did not raise any objections to
any provision of the Convention, outside the deep seabed mining
section. President Reagan made no demands for other changes in
the treaty.
It was perfectly within President Reagan's power to say
that Presidents Nixon, Ford, and Carter were wrong to have
engaged in negotiations on the Law of the Sea. He could have
withdrawn the United States from further consideration of the
treaty. He could have announced that the United States regarded
Law of the Sea as an illegitimate exercise and would not
recognize the treaty's validity to bind any U.S. interests.
That would have been real repudiation. Instead, his actions
preserved American engagement with the treaty.
In 1990, President George H.W. Bush initiated further
negotiations to resolve U.S. objections to the deep seabed
mining regime. And under President Clinton, these talks
culminated in a 1994 agreement that comprehensively revised the
regime to address the problems President Reagan identified in
1982.
To illustrate how far away from repudiation President
Reagan's actions were, we need only to compare his actions with
the actions of President George W. Bush on a different treaty.
Less than 16 months into his first term, after a similar treaty
review, President Bush formally renounced U.S. obligations as a
signatory to the 1998 Rome statute to establish International
Criminal Court. The Bush administration went so far as to
promote passage of the American Serviceman's Protection Act,
which prohibits U.S. cooperation with the Court, and even
restricts U.S. military aid to countries that refuse to sign an
agreement pledging to shield U.S. troops on their territory
from ICC prosecution. Imagine, instead, that President Bush had
said: ``I am not going to ask the Senate to ratify the
International Criminal Court, because it has one flawed section
that needs to be fixed, but I hereby declare that the United
States will abide by all but one provision. Further, I am
defining the set of requirements for fixing the flawed
provision and sending my negotiations back to the table.'' Such
an action obviously would not have been seen as a repudiation
of the treaty. It would have been a fundamental endorsement of
most of the provisions of the treaty, and, more importantly,
the underlying principles.
Finally, we should not miss the irony that, in 2002, the
year that President Bush decisively repudiated the Rome
statute, he also sent a treaty priority list to the Senate
Foreign Relations Committee designating the Law of the Sea as
one of just five urgent treaties requiring action. President
Bush has not been regarded as an enthusiast for multilateral
agreements, and yet, he understands what his six predecessors
understood, that the Law of the Sea is our best opportunity to
bolster international law related to the oceans in a way that
benefits U.S. interests.
I thank the Chair, and I look forward to our discussion
this morning.
Senator Menendez. Thank you, Senator Lugar.
Senator Corker.
Senator Corker. I'm not going to make any opening comments.
I know we're 30 minutes in, and want to hear from the
panelists. But I do want to thank you for having this hearing
and for the thoughtful comments most of you--both of you made.
Senator Menendez. Senator Isakson.
Senator Isakson. I prefer to hear from the witnesses,
rather than myself, so I'll yield back my time.
Senator Menendez. Senator DeMint.
Senator DeMint. I'll pass, as well. Thank you.
Senator Menendez. Thank you.
With that, let me welcome our witnesses and introduce them.
In our first panel, we welcome ADM Vern Clark, a former Chief
of Naval Operations for the U.S. Navy. He retired from that
position in 2005, after 37 years of service in the Navy. He
currently serves on the board of directors of Raytheon. He is a
distinguished professor of leadership at the Regent University
in Virginia Beach; Mr. Frank Gaffney, who is the president of
the Center for Security Policy in Washington. Mr. Gaffney
served as the Deputy Assistant Secretary of Defense for Nuclear
Forces and Arms Control Policy in the Department of Defense
during the Reagan administration, and, before that, as a
professional staff member on the Senate Armed Services
Committee; Mr. Bernard Oxman, professor of law at the
University of Miami School of Law. He served as the U.S.
Representative and Vice Chairman of the United States
Delegation to the Third U.N. Conference on the Law of the Sea,
and was an assistant legal advisor for oceans, environment, and
scientific affairs at the Department of State; and Mr. Fred L.
Smith, the president of the Competitive Enterprise Institute.
Prior to founding the Institute in 1984, Mr. Smith served as
the director of government relations for the Council for a
Competitive Economy.
We welcome all of you to the hearing. In the interest of
time and a dialog, we ask that you keep your opening statements
to 5 minutes. You'll--we'll include your full written testimony
for the record.
And, with that, let me start with Admiral Clark.
STATEMENT OF ADM VERN CLARK, USN (RET.), FORMER CHIEF OF NAVAL
OPERATIONS, U.S. NAVY, PHOENIX, AZ
Admiral Clark. Thank you, Mr. Chairman, Senator Lugar,
members of the Committee on Foreign Relations. Good morning.
I want to thank you for the opportunity to testify today,
and especially to have the chance to appear alongside a
luminary like Professor Oxman, the two of us speaking in
support of the Law of the Sea Convention.
As you said, Mr. Chairman, I was privileged to serve as the
Chief of Naval Operations. The chance of a lifetime. And, while
I was the Chief of the Navy, it was said that I had to have
several speeches--a 30-minute speech on why we had to have a
Navy, a 20-minute speech, a 10-, a 5-, and a 30-second one. My
30-second version said that our Navy's purpose was to take
credible, persistent combat power to the far corners of the
earth, the sovereignty of the United States of America,
protecting our national security, extending the influence of
the United States, and providing options for the Commander in
Chief anywhere, anytime, without a permission slip.
In Vern Clark's view, that requirement is more true today
than ever. It is our ability to operate freely across the vast
expanses of the world's oceans that makes this far-reaching
combat power possible. And, as the world's foremost maritime
power, the United States relies on full--and I underline
``full''--freedom of navigation upon, over, and under the
world's oceans to protect its national security interests.
Today, I come to this committee as a repeat witness. Don't
get to do that often in my profession. I appeared here in
uniform several years ago to speak in favor of the treaty.
This Convention supports our ability to operate wherever,
whenever, and however needed under the authority of widely
accepted law. The Convention codifies our rights to transit
through, over, and under essential international straits and
archipelagic waters. It reaffirms the sovereign immunity of our
warships and other public vessels. And it preserves our right
to conduct military activities and operations in exclusive
economic zones. These guarantees are of utmost importance to
those of us who have served in times when such guarantees did
not exist. I remember those days.
And I come here today as a former Chief of the Navy. What
is significant, I believe, is that every living CNO--and they
go back to Admiral Holloway, now, who began his term over 33
years ago as Chief of the Navy in 1974--everyone believes that
this treaty is in the best interest of the United States of
America.
Joining the Convention now will support and enhance ongoing
and future U.S. military operations. It will enable our Armed
Forces to defend, at home and abroad, with full legal authority
and certainty. It will provide a stable and predictable legal
regime within which to conduct our operations today, and help
us realize our vision for the future.
Mr. Chairman, as I testified before the Senate in 2004, the
real issue for me was always the people--our freedoms, to be
sure--but, to accomplish our mission, I had to think, every
day, about the people who were willing to serve this country.
As a CNO, it was my privilege to lead the sons and daughters of
America who have chosen to wear what I like to call ``the cloth
of the Nation.'' Twenty-four by seven, 365 days a year, our
sailors are operating at the tip of the spear, and, on any
given day, one-third of our Navy is out there, forward
deployed. Sometimes, we have to place them in harm's way to do
the country's business, and they do it willingly.
For many years now, we have remained outside this
Convention. We have asked our young men and women to conduct
Freedom of Navigation operations. And, as I testified in 2004,
one such operation resulted in the Black Sea bumping incident
between the United States and Soviet warships. And, as a
commander in the U.S. Navy and the commanding officer of the
U.S. ship Spruance, I had the duty of conducting those kind of
operations in what ended up at being too close quarters.
Operating in the Black Sea, I came within inches of being
rammed by another warship. Since we weren't party to this
treaty, we were engaging in activity to guarantee our rights to
the practice of customary international law.
Mr. Chairman, in my view, we need a better venue. We need
more than just Freedom of Navigation operations to maintain
freedom of the seas. We should not rely on limited ability to
formalize our international posture. We can do better than
that. We should look for every possible guarantee that we can
find to ensure our sailors' safety and to keep them from
needlessly going into harm's way. And that's why I believe that
we need to join the Law of the Sea Convention, so that our
people know, when they're operating in defense of this Nation's
national interests far from our shores, that they have the
backing and that they have the authority of widely recognized
and accepted law to look to, rather than depending upon only
the threat or the use of force or customary international law
that can be too easily changed.
And so, again, I thank the committee for offering me--now
civilian Vern Clark--to appear before this committee today, and
I'm happy to answer any questions that you might have.
[The prepared statement of Admiral Clark follows:]
Prepared Statement of ADM Vernon Clark, USN (Ret.), Former Chief of
Naval Operations, U.S. Navy, Phoenix, AZ
Mr. Chairman, Senator Lugar, members of the Committee on Foreign
Relations, good afternoon. Thank you for the opportunity to testify
today in support of the Law of the Sea Convention.
While serving as the Chief of Naval Operations I often said that
our Navy is built to take persistent, credible, combat power to the far
corners of the earth, fighting our enemies, protecting our national
security and extending the influence of the United States anywhere and
at anytime we choose to do so. This is true now more than ever. And it
is our ability to operate freely across the vast expanse of the world's
oceans that makes this far-reaching combat power possible. As the
world's foremost maritime power, the United States relies on full
freedom of navigation upon, over, and under the world's oceans to
protect its national security interests.
We depend on a strong Navy to secure and promote our maritime
safety and security. However, it is clear that the United States and
its Navy cannot effectively do it alone. We must rely on partner
nations and coalition efforts to provide for a free and secure maritime
domain. Global partnerships of like-minded nations are the future of
our national security strategy. Through mutual assistance, nations can
leverage common interests and increase their potential. While the
United States is and will continue to conduct unilateral operations
when necessary, we can share the burden and improve readiness of
allies' navies through cooperative efforts with maritime nations who
share a common interest and a reliance upon international commerce,
safety, security, and freedom of the seas. To maximize the
effectiveness of these efforts to combat transnational criminal
organizations and other dangerous uses of the oceans to disrupt sealane
passage and global commerce, we need to close the seams among like-
minded nations.
We and our coalition partners need to be fully committed to the
same set of rules for the full range of maritime operations, but your
Navy is at a distinct disadvantage with the United States being outside
the Law of the Sea Convention. One hundred and fifty-four nations are
owners of a Magna Carta for the oceans that guarantees robust
navigational freedoms throughout the world's largest maneuver space. We
on the other hand only get to use it on loan and have to filter our
support for what it provides through the lens of customary
international law.
A prime example of the kind of international cooperation we need to
expand is the President's Proliferation Security Initiative (PSI). The
Law of the Sea Convention strengthens this initiative, which aims to
impede and stop shipments of weapons of mass destruction, their
delivery systems, and related materials. Being party to the Convention
will greatly enhance the Navy's ability to support the objectives of
PSI by reinforcing and codifying freedom of navigation rights on which
the Navy depends for operational mobility. Currently, the vast majority
of our PSI partners are party to the Convention. We cannot remain
outside the Convention and convince other nations that we truly believe
in the importance of the rule of law when we are not party to the
Convention which provides legal certainty throughout the world's
oceans.
The Law of the Sea Convention supports our ability to operate
wherever, whenever, and however needed under the authority of widely
accepted law. The Convention codifies the right to transit through,
over, and under 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. And it preserves our right to conduct military activities
and operations in exclusive economic zones without the need for
permission from or prior notice to foreign governments.
Most importantly, the entry into force of the Law of the Sea
Convention 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 have relied upon for our
navigational freedoms is under challenge. Our participation in the
Convention will better position us to maintain law of the sea rights
and freedoms vital to our national security. We will be able to guide
and influence the interpretation of rules, protecting our interests and
deflecting inconsistent interpretations. The agreement is being
interpreted, applied, and developed right now and we need to be part of
it to protect our vital security interests.
Future threats and issues will likely emerge in places and in ways
that are not yet fully clear. For these and other undefined future
operational challenges, we should rejoin the community of 154 nations
inside the Convention to be able to take maximum advantage of its
widely accepted navigational rights and chart the course of future
ocean developments from a position of leadership.
We must be able to get to the fight rapidly. Strategic mobility is
more important than ever. The oceans are fundamental to that
maneuverability and joining the Convention supports the freedom to get
to the fight, 24 hours a day and 7 days a week, without a permission
slip.
Joining the Convention now will support and enhance ongoing U.S.
military operations, including the continued prosecution of the global
war on terrorism. It will enable our Armed Forces to defend us at home
and abroad with legal certainty. It will provide a stable and
predictable legal regime within which to conduct our operations today,
and realize our vision for the future.
As I testified before the Senate Armed Services Committee in 2004,
the real issue for me is people. As the CNO, I had the privilege to be
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 by seven, 365 days a year, our sailors are operating at the
tip of the sphere. On any given day, a third of our fleet is forward
deployed. Sometimes we must place them in harm's way to do our
country's business, and they do so 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. One such operation
resulted in the Black Sea bumping incident between U.S. and Soviet
warships. As a commanding officer, I had, unfortunately, the privilege
of conducting those kinds of operations at too close of quarters.
What that means to me is that these kinds of operations, because
these are what we're largely left with when we do not have agreements
with other nations, and clear international standing, sometimes puts us
at great risk to challenge the excessive maritime claims that other
countries may make to prevent those claims from becoming customary
international law.
Mr. Chairman, in my view, we need a better venue. We need more than
just freedom of navigation operations to maintain freedom of the seas.
We should not rely only on that limited ability to formalize our
international posture. We can do better than that. We should look for
every possible guarantee that we can find to ensure our sailors' safety
and to keep them from needlessly going into harm's way. And that's why
I believe that we need to join the Law of the Sea Convention, so that
our people know when they're operating in the defense of this Nation's
national interests, far from our shores, that they have the backing and
that they have 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.
Senator Menendez. Thank you, Admiral.
Mr. Gaffney.
STATEMENT OF FRANK J. GAFFNEY, JR., PRESIDENT, CENTER FOR
SECURITY POLICY, WASHINGTON, DC
Mr. Gaffney. Mr. Chairman, I appreciate your invitation to
appear.
As you indicated, I had the privilege of working for
President Reagan, and, like him, I believe that the Law of the
Sea Treaty is not consistent with our national security and
sovereignty interests. I'm joined in that view by 18 other
members of the Reagan administration, including his National
Security Advisor, his Attorney General, and his Secretary of
the Navy, in a letter that is, I hope, going to be made part of
your record, as well.
I must say a few words, if I may, please, about the
process, before turning to the criticism of the treaty.
And you also indicated I had the privilege of working in
this body. I admire this institution. I revere its
responsibilities. In particular, what I consider to be one of
its most important, which is the responsibility to advise and
consent on treaties by a two-thirds majority. I believe the
Framers gave the Senate that sacred trust because they
understood how dramatically treaties could affect our
Constitution and the rights of the people. In so doing, I don't
think they contemplated something like the Law of the Sea
Treaty, but it certainly was something they were anticipating.
And I believe the facts, contrary, with all due respect, to
your opening statement and the ranking member's opening
statement, are that the costs of this treaty vastly exceed the
putative benefits. And it pains me that, with the exception of
my colleague here, Fred Smith, the two of us are likely to be
the only two people who will discuss those costs with you, in a
different way than all of the people that you have arranged to
have speak to the benefits of this treaty, and to deprecate
those costs.
This amounts to, with respect, a rubberstamp, not the
world's greatest deliberative body at work. I have written--and
I would ask your permission to include this in the record, as
well--letters to eight other committees of the Senate--serious
committees with serious responsibilities--encouraging them to
look at the costs of this treaty in their areas of
responsibility. These include the Armed Services Committee, the
Intelligence Committee, the Environment and Public Works
Committee, the Energy Committee, the Finance Committee, the
Judiciary Committee, the Homeland Security Committee.
As of this moment, as best I can tell, not one of those
committees will hold a single hearing, let alone hear from
witnesses like Fred Smith and I--and there are lots of them--
who bring to this subject real expertise, real conviction that
there are serious problems associated with this treaty for the
United States, for its national security, for its energy
policies, for its environmental policies, and, not least, Mr.
Chairman, for the responsibilities and prerogatives of this
body, because I submit to you that one of the things that will
come about as a result of empowering a supranational
organization by becoming a party to this treaty is that you
will derogate to them responsibilities that currently are
vested with you. You will have no choice but, in the future, to
implement regulations and rules that they will promulgate
without our representation, except as one member of a 150-
member country organization.
In short, on the process side, I would strenuously urge
this committee to exercise real leadership on this treaty by
encouraging such further oversight, not only by this committee,
but by your colleagues. I think you would thereby maximize the
chances of informed and sound decisions being made about this
treaty, rather than ill-considered, hasty, and possibly lethal
ones that will prove, as a practical matter, to be
irreversible. Such a comprehensive review would demonstrate the
confidence that supporters of this treaty claim to have in this
accord. In the alternative approach, allowing for only the most
superficial examination of this treaty--
5 minutes for each of the opposition witnesses, of whom there
will only be two out of something like 11--is grossly unfair,
and it allows, I'm afraid, the reasonable conclusion to be
drawn, that, in fact, as we believe, this treaty cannot
withstand close scrutiny.
And now let me turn, very quickly, in the 4 seconds
remaining to me under my 5 minutes, to what's wrong with this
treaty. I would ask your indulgence to give me a few more
minutes, Mr. Chairman, to review, at least briefly, what the
problems are here from a national security and sovereignty
point of view; my----
Senator Menendez. Mr. Gaffney----
Mr. Gaffney [continuing]. Colleague will speak to the
others.
Senator Menendez [continuing]. Your 5 minutes to protest,
which I respect you having the ability to do so, but you've
used your 5 minutes to protest. So, I'll give you another 2
minutes to give us the essence.
Mr. Gaffney. I appreciate that, Mr. Chairman.
Senator Menendez. All right.
Mr. Gaffney. The first problem is the nature of the Law of
the Sea Treaty itself. It was brought to us initially by the
U.S. Navy and others who sought to codify, for reasons Vern
Clark has described, the rules of navigation. Unfortunately, it
was hijacked along the trail. It is a treaty that largely
reflects something that is unimaginably out of date today;
namely, the preferences of the majority of those who were
responsible for creating this: The Soviet Union, the so-called
nonaligned, and transnationalists who have tried to create,
hereby, a ``Constitution for the Oceans,'' as they call it.
Along the trail, they've created organizations that will be
used to implement that world view, a redistributionist,
socialist, and fundamentally hostile-to-the-United-States view
of those parties.
Specific problems arise, I believe, from the dispute
resolution mechanisms that are stacked against us. Every single
one of these will be--have the determining vote, selected by
people who are predictably hostile to this country. And, from
that, I believe, flows lots of problems. And I will dwell on
only one in the remaining minute I have.
I wear, with the greatest of pride, a token of an award
that I received from the Navy League of the United States. It's
called the Alfred Thayer Mahan Award. It was given to me, I
believe, because of confidence in my judgment about what is in
the long-term interests of the Navy. And I say this with the
greatest of respect to my friends in uniform. But creating
circumstances in which the Navy will be subjected to mandatory
dispute resolution, notwithstanding the exemptions they think
they have, because some of these resolutions--some of these
disputes will almost certainly be cast as environmental in
character. For example, sonar and the impact that it has on
whales and dolphins. This is going to be used as an example of
the sort of lawfare that the Navy is already struggling with.
And the Secretary of the Navy today is very, very concerned
about the environmental burden that he is currently struggling
with in doing the Navy's job. This will only get worse if the
Law of the Sea Treaty is implemented ditto, technology transfer
implications; ditto, proliferation security implications, and
on and on.
I hope that Members of the Senate, before acting on this
treaty, will look with care at the lengthy statement that I've
submitted to the record. And I ask you, Mr. Chairman, to give
us an opportunity to further this discussion, rather than have
it abbreviated artificially today.
Thank you.
[The prepared statement of Mr. Gaffney follows:]
Prepared Statement of Frank J. Gaffney, Jr., President and CEO, Center
for Security Policy, Washington, DC
Mr. Chairman, I appreciate your invitation to contribute to your
deliberations on the United Nations Convention on the Law of the Sea,
better known as the Law of the Sea Treaty (LOST). I had the privilege
of working for President Reagan's administration and it is my
considered judgment that Mr. Reagan was correct in his judgment that
LOST was not consistent with U.S. national security, sovereignty, and
economic interests. I believe that remains the case today and strongly
encourage the Senate to decline to consent to the ratification of this
defective accord.
THE SENATE'S DUTY
Before turning to the substance of the treaty, I feel constrained
to make an observation about the process.
At an early and formative moment in my career, I had the privilege
of working on the staff of what has been known as the ``World's
Greatest Deliberative Body,'' the United States Senate. Under the
tutelage of two of its most formidable members, Democrat Henry M.
``Scoop'' Jackson and Republican John Tower, I saw firsthand the
exercise of one of the Senate's most important duties under the
Constitution: Its responsibility to advise and consent to treaties by a
two-thirds majority.
I believe the Framers wisely entrusted this role to the upper
body--and set the bar for treaty approval so high--precisely because
they understood that treaties would become ``the supreme law of the
land,'' with potentially far reaching implications for the Nation and
its Constitution. In my opinion, that has never been more true than
with respect to the Law of the Sea Treaty.
It is, therefore, frankly appalling to me that the present approach
to Senate consideration of this accord amounts to little more than a
rubber-stamp. To be sure, I am delighted to be allowed to critique this
treaty--an opportunity that this committee previously denied those of
us who oppose LOST.
The Senate leadership's seeming intention, however, to restrict
such criticism to two experts each of whom is being given 5 minutes
publicly to inform the Senate about a vast array of concerns concerning
one of the most far-reaching international agreements in history
virtually amounts to the same thing: A determined effort to keep the
American people in the dark about what is going to happen to their
rights, their constitutional, representative form of government and our
national interests until after LOST is ratified and is too late to do
anything about it.
In my capacity as a participant in the Coalition to Preserve
American Sovereignty, I have written the chairmen and ranking members
of eight committees of the U.S. Senate. Important aspects of each of
those committees' jurisdiction will be affected, in some cases
profoundly, by the Law of the Sea Treaty. I would ask that these
letters be made a part of the permanent record of this proceeding.
As one who feels privileged to have served on the staff of this
body and cherishes its constitutional role as a ``quality control''
mechanism on treaties, I feel obliged to be blunt: It would be
incomprehensible and irresponsible were each of these eight panels to
fail to conduct their own hearings into LOST's implications.
This committee can and should exercise real leadership by
encouraging such further oversight by your colleagues. You would,
thereby, maximize the chances that informed and sound decisions are
made--rather than ill-considered, hasty and possibly lethal ones that
will prove, as a practical matter, to be irreversible.
Such a comprehensive review would, moreover, demonstrate the
confidence that supporters of the Law of the Sea Treaty have in this
accord. The alternative approach, allowing for only the most
superficial examination of the treaty, by contrast simply reinforces
our belief that LOST cannot withstand close scrutiny.
THE CASE AGAINST THE LAW OF THE SEA TREATY
Let me turn now to a review of the arguments against U.S. accession
to the U.N. Convention on the Law of the Sea. With the understanding
that my colleague, Fred Smith of the Competitive Enterprise Institute,
is going to cover the treaty's many problematic repercussions for the
American economy and businesses should this country become a state
party, I am going to confine myself to the following aspects: LOST's
negative impact on U.S. sovereignty and national security interests.
LOST is a vast and complex undertaking, with obligations and
implications that go far beyond the codification of common navigation
rights and arrangements that were the initial impetus for the treaty.
We cannot safely ignore the fact that, during its negotiation, LOST
became a vehicle for advancing an agenda promoted by the Soviet Union
and so-called ``nonaligned movement'' during the 1970s, known as the
New International Economic Order (NIEO). The NIEO was a classic
``united front'' effort aimed at undermining the economic and military
power of the industrialized West--particularly the United States--in
the name of a centrally planned, global redistribution of wealth to the
benefit of developing nations.
Toward this end, LOST creates various supranational bodies to
develop and enforce its provisions, complete with an executive branch,
legislature, and judiciary. These agencies operate on the basis of one-
nation/one-vote--an arrangement that has proven in the United Nations
and elsewhere to be highly disadvantageous to the United States.
The Reagan Objections
The foregoing considerations were among the reasons that prompted
Ronald Reagan to reject the Law of the Sea Treaty. Even prior to his
election to the White House in 1980, Mr. Reagan had made known his
opposition to LOST, which was then still under negotiation. Then, as
President in 1982, he formally rejected the draft treaty and identified
a large number of changes required to make it acceptable to his
administration. Those changes were not adopted in subsequent
negotiations and Mr. Reagan refused to sign what he considered to be a
defective accord.
Among the specific concerns with LOST identified by President
Reagan in 1982 were:
The lack of adequate American influence within the
decisionmaking bodies of the International Seabed Authority
(ISA), in charge of regulating deep seabed mining in the
oceans;
Limitations on exploitation of the deep seabed;
Mandatory technology transfers to the ISA and developing
countries;
The competitive advantage given to a supranational mining
company affiliated with the ISA known as the ``Enterprise'';
The imposition of financial burdens on deep seabed mining
operations; and
The potential for the ISA to impose regulatory burdens on
the American mining industry.
In other words, President Reagan was concerned not simply with
specific provisions of Part XI of the Law of the Sea Treaty that dealt
with deep seabed mining. As his chief negotiator for LOST, the late
Ambassador James Malone, noted in a Foreign Policy article in 1984: ``.
. . Security and economic interests vital to national well-being and
the principles that form the foundation of American democracy must be
given priority by those individuals entrusted to make public-policy
decisions. It was this basic responsibility that made it necessary for
the President to decide against U.S. acceptance of the United Nations
Convention on the Law of the Sea in 1982.''
Many of President Reagan's chief lieutenants--including: His
National Security Advisor, Judge William Clark; his Counselor and
Attorney General, Edwin Meese; his Secretary of Defense, the late
Caspar Weinberger; his U.N. Ambassador, the late Jeane Kirkpatrick; and
his Secretary of the Navy, John Lehman--agree that what Mr. Reagan
found objectionable about LOST could not be fixed by relatively minor
reworking of its provisions related to the International Seabed
Authority.
The 1994 Agreement Did Not Amend LOST
There are those who nonetheless assert that the Agreement
negotiated in 1994 by the Clinton administration addressed and
corrected the problems President Reagan had with the Law of the Sea
Treaty. This is inaccurate on its face given that, by LOST's own terms,
the treaty could not be amended for a decade after it entered into
force. Since the treaty did not enter into force until 1994, it was not
available for amendment until 2004--10 years after the 1994 Agreement
was signed.
Even if LOST had been available for amendment, moreover, the 1994
Agreement did not conform to the procedures specified by the treaty for
adopting amendments. As a result, the terms of the treaty have not been
formally altered.
Presumably, it is for these reasons that the 1994 Agreement does
not explicitly amend LOST. Rather, the Agreement states that ``The
provisions of this Agreement and Part XI [of LOST] shall be interpreted
and applied together as a single instrument.''
At the time the Agreement was signed, a representative of the
American ocean mining industry cited this shortcoming in testimony
before Congress: ``[The 1994 Agreement] does not even purport to amend
the Convention. It establishes controlling `interpretive provisions'
that will control in the event of a dispute. This is not an approach
that gives confidence to prospective investors in ocean mining."
(Emphasis added.)
Neither does the 1994 Agreement require any of the LOST tribunals
to abide by the Agreement. This increases the likelihood that such
panels, when hearing disputes between parties, will view LOST itself as
the basis for resolving the dispute, and not the 1994 Agreement.
That is especially so since roughly 16 percent of the parties to
LOST--fully 25 member countries--have yet to sign the 1994 Agreement.
It is far from clear on what basis these countries could be expected to
view the Agreement's purported revisions to the treaty as legitimate.
How, for instance, would resolutions be achieved in disputes between
countries that are party to both LOST and the Agreement, on the one
hand, and countries that are party only to LOST, on the other? At the
very least, the latter could legitimately challenge claims by the
United States (or others) to be bound by terms other than those
contained in the Law of the Sea Treaty's agreed text.
The 1994 Agreement's Shortcomings
The foregoing issues aside, the Agreement falls significantly short
of meeting Mr. Reagan's concerns--even with respect to the problematic
sections of LOST that it does address. For example:
The Lack of U.S. Influence: The 1994 Agreement requires that
any ISA Assembly decisions concerning administrative,
budgetary, and financial matters must be based on
recommendations by the ISA Council. While the Agreement
effectively guarantees the United States a seat on the Council,
it does not assure this country a veto. To the extent the
Council operates on the basis of consensus, America may have
what amounts to such leverage. But nothing prevents the Council
from acting instead on the basis of majority rule--in which
case, Mr. Reagan's concerns would still apply.
For example, the 1994 Agreement still allows the ISA to amend
LOST without American consent. The U.N. Secretary General can
convene a conference, at which the Assembly and Council can
vote to accept an amendment to LOST. It then requires the
approval of three-fourths of LOST's states parties to become
final. As is often the case in U.N. settings, the United States
could simply be outvoted.
Furthermore, the argument that the United States would have to
ratify any ``amended treaty'' to be bound by its terms ignores
the reality of how LOST would likely work in practice. Changes
that affect the United States could manifest themselves in the
form of regulations decided upon within LOST bodies, which
would not be ratified externally. Additionally, whether or not
LOST is being ``amended'' in the formal sense would be
dependant upon the subjective views of the LOST deliberative
bodies. The United States could therefore find itself bound by
modifications to LOST even without U.S. ratification of such
changes.
Mandatory Technology Transfers: Although the 1994 Agreement
purports to modify some troubling LOST provisions on the
obligatory sharing of sensitive information and technologies,
it fails to address, let alone alter, other coercive
provisions. These include LOST's requirement that states
parties ``promote the acquisition, evaluation, and
dissemination of marine technological knowledge and facilitate
access to such information and data.''
Neither does the Agreement speak to LOST's requirement to
transfer information and perhaps technology pursuant to the
treaty's mandatory dispute resolution mechanisms. Parties to a
dispute are required to provide the tribunal with ``all
relevant documents, facilities, and information.'' This amounts
to an invitation for competitors to bring the United States
and/or its companies or adversaries before a LOST tribunal to
obtain sensitive data and know-how. These are hardly the sorts
of safeguards upon which President Reagan had insisted.
LOST's Implications for U.S. Businesses: Another topic
unaddressed by the Agreement is LOST's requirement that half of
each area surveyed by an American mining company must be turned
over to the ISA for exploration by the Enterprise--with the ISA
choosing which half President Reagan correctly viewed this
arrangement as one that would force American companies to
assist their competitors.
LOST's Financial Burdens: Although the 1994 Agreement
purports to lessen some of the onerous costs associated with
exploiting the deep seabeds' natural resources, other burdens
imposed by LOST go unaddressed. The latter include taxes and
fees that companies and countries must pay to the ISA, notably
an application fee for required permits, an annual fixed-fee
and royalties payments. Likewise, the Agreement does not try to
alter the ISA's authority to redistribute such revenues to
other countries on the basis of ``equitable sharing,'' with
special emphasis on developing nations--in other words, the
kind of socialist, global wealth-redistribution scheme that Mr.
Reagan viscerally opposed.
LOST's Regulatory Burdens: The 1994 Agreement does little to
address President Reagan's concerns about the Law of the Sea
Treaty's regulatory burdens. For example, the ISA still
maintains the right to adopt ``appropriate rules, regulations,
and procedures for . . . the prevention, reduction, and control
of pollution and other hazards to the marine environment,''
which would undoubtedly impose significant costs on American
businesses and promote big (supranational) government.
Taken altogether, it is a canard to claim that the problems with
the Law of the Sea Treaty that prompted President Reagan to reject it
have been ``fixed.'' To the extent that the 1994 Agreement has any
force and effect, it addresses only some of Mr. Reagan's concerns. That
accord does not even purport to alter much of what the President found
unacceptable in this supranational government-empowering treaty.
Insofar as the Agreement does not actually amend even those parts of
LOST that it does address, it is misleading to contend that the treaty
would now be acceptable to Ronald Reagan--or that it should be to those
who share his vision and values.
LOST and the United Nations
Some treaty proponents insist that the Law of the Sea Treaty does
not involve, let alone unwisely empower, the United Nations. Such
claims try to dismiss the fact that the accord's official name--
``United Nations Convention on the Law of the Sea''--correctly
indicates otherwise. In fact, the ``world body'' at Turtle Bay has
played a decisive role in giving birth to the treaty's preparation via
U.N.-sponsored negotiations and, subsequent to its entry into force, in
LOST's administration and implementation.
The official title also reflects the fact that the LOST's various
international governmental agencies are modeled after, and work in much
the same manner as, the U.N. and associated multilateral institutions.
In some respects, however, the treaty departs from past practice by
conferring on its agencies unprecedented powers--notably for mandatory
dispute resolution and for the management of vast natural resources for
which those agencies are given responsibility.
Since the Law of the Sea Treaty entered into force two decades ago,
LOST's executive, legislative, and judicial entities have largely
operated in obscurity and, with a few exceptions, in uncontroversial
ways. The question occurs: Would U.S. accession to LOST precipitate
changes in the conduct of the treaty's agencies? Would the result be
the emergence of a formidable new international entity? In the process,
would the influence and power of the United Nations and other
supranational organizations be enhanced at the expense of nation-states
like ours? The answers to these questions can be derived from the
following facts:
The Law of the Sea Treaty and its agencies are indisputably
linked to the United Nations, both substantively and
organizationally. What benefits one, benefits the other.
On the substantive plane, other U.N. agencies routinely
promote treaties and regulations designed to build on and
reinforce LOST's importance and the authority of its agencies.
A recent example is instructive: A report of a U.N. review
conference on progress between 2004 and 2006 in the
implementation of the Convention on Biological Diversity
``recognizes the United Nations General Assembly's central role
in addressing issues relating to the conservation and
sustainable use of biodiversity in marine areas beyond national
jurisdiction.''
The report goes on to ``recall that United Nations General
Assembly Resolution 60/30 emphasized the universal and unified
character of the United Nations Convention on the Law of the
Sea, and reaffirmed that the United Nations Convention on the
Law of the Sea sets out the legal framework within which all
activities in the oceans and seas must be carried out, and that
its integrity needs to be maintained, as recognized also by the
United Nations Conference on the Environment and Development. .
. .'' (Emphasis added throughout.)
At a practical level, the ties between the United Nations
and LOST are no less palpable. For example: All staff
associated with LOST bodies are paid by the U.N. system. Day-
to-day monitoring of activities regulated by LOST is conducted
by U.N. staff employees. Employees of LOST-related agencies
participate in the U.N. pension plan. And, under the terms of
the treaty, the U.N. Secretary General plays a direct role in
choosing the fifth arbiter for five-person special arbitral
tribunals that will hear disputes between parties to LOST. He
also is responsible for convening conferences to amend the
treaty.
A U.N. ``on Steroids''
Hard experience argues against further empowering the United
Nations and its affiliates. The United Nations has a long and sordid
track-record of engaging in or endorsing behavior and policies that are
antithetical to the interests of the United States and other freedom-
loving nations. Such behavior and policies are generally the product of
majorities of Member States, like-minded, unaccountable international
bureaucrats and nongovernmental organizations. They conspire to use the
General Assembly's absurd one-nation/one-vote rules to translate shared
hostility toward America and its fellow-developed nations into policies
that vilify the West and seek to redistribute the world's power and
wealth to the developing world.
A small sample of this reprehensible conduct would include: The
Oil-for-Food scandal; the infamous ``Zionism is Racism'' resolution;
the creation of the U.N. Human Rights Council on which countries such
as Cuba, China, and Saudi Arabia are allowed to serve; and the
convening of the 2001 World Conference against Racism in Durban, South
Africa--an event that was nothing more than a forum for anti-Semitism
and Israel-bashing. The United Nations is now preparing a followup to
the 2001 Durban conference, with Libya chairing the planning committee,
and Iran and Cuba serving on the committee as well.
LOST's Transnationalist architects have long sought to build up
supranational agencies. This treaty allows them to do so in
unprecedented ways by: Conferring on LOST ``organs'' responsibility for
regulating seven-tenths of the planet (i.e., the world's oceans and the
vast natural resources to be found in and below them); levying what are
tantamount to international taxes; and imposing mandatory and
unappealable decisions in disputes that may arise involving parties to
the treaty.
To date, the full, malevolent potential of the Law of the Sea
Treaty has been more in prospect than in evidence. Should the United
States accede to LOST, however, it is predictable that the treaty's
agencies will: Wield their powers in ways that will prove very harmful
to American interests; intensify the web of sovereignty-sapping
obligations and regulations being promulgated by this and other U.N.
entities; and advance inexorably the emergence of supranational world
government.
It may be that the only check on such undesirable outcomes is for
the United States to remain a nonstate party to LOST. The latitude such
an arrangement affords America to observe treaty provisions that are
unobjectionable--without being bound by those that are--may not only be
preferable for this country and its vital interests. It could also help
spare other nations the less free, less prosperous, and more onerous
international order that will emerge if the Transnationalists have
their way on the Law of the Sea Treaty.
LOST's Compulsory Dispute Settlement
If, on the other hand, the United States were to become a state
party of LOST, this country will find itself subject to a dramatically
different situation--even with respect to navigation from that applied
by the previous, 1958 convention. Specifically, in the event of
disputes, America will be obliged to submit to mandatory settlement
mechanisms. These apply not just to issues involving the maritime
``rules of the road,'' but to any ocean-related disputes that state
parties cannot resolve on their own.
In fact, nations are required--at the request of either of the
disputing parties--to submit the dispute for resolution by one of
several international tribunals: (1) The International Tribunal for the
Law of the Sea (ITLOS), (2) an arbitral tribunal, or (3) a special
arbitral tribunal. Another option is the International Court of Justice
(ICJ). If the parties to the dispute cannot agree on a mechanism, the
dispute automatically goes to an arbitral tribunal for resolution.
Decisions made by any of these bodies are binding upon the disputants,
and such decisions cannot be appealed.
The question is: How will mandatory dispute resolution affect U.S.
interests?
Proponents of the treaty claim that in the event of disputes, the
United States will avoid potential problems with international courts
by choosing either arbitration or special arbitration as the dispute
mechanisms. The implication is that such an arrangement thereby assures
decisions amenable to U.S. interests.
LOST supporters also insist that military activities will be
exempted from consideration by any of the treaty's tribunals and that
it will be exclusively up to the United States to determine what
constitutes such an activity.
Mr. Chairman, few aspects of this complex treaty require closer
scrutiny than these contentions. If the proponents are wrong about how
dispute resolution will work, the grounds for rejecting the Law of the
Sea Treaty are clear-cut.
For starters, LOST's advocates in the Bush administration
are right to be worried about international courts given the
track record of such panels (particularly the ICJ) in which
they have proven to be highly politicized and generally very
hostile to American interests.
Unfortunately, the appointment procedures that would apply to the
``swing'' arbiters in both the regular and special arbitration
panels are likely to assure a similar stacking of the deck
against the United States. In regular arbitration, each party
chooses one panelist, and the three remaining panelists are
chosen by the President of the Law of the Sea Tribunal. As
noted above, in ``special arbitration,'' each party chooses two
panelists, and the remaining panelist is chosen by the
Secretary General of the United Nations.
Worse yet, the State Department has acknowledged that arbitration
panels would likely look to decisions of the Tribunal to inform
their own rulings. As a practical matter, this means that, were
the United States to become a party to the treaty, it would not
be able to escape the reach of the Tribunal--despite its
determination to forum-shop by choosing arbitration.
Equally flawed is the proponents' insistence that Law of the
Sea Treaty tribunals will be unable to interfere with U.S.
military activities. Although LOST exempts ``disputes
concerning military activities'' from the purview of its
dispute resolution mechanisms, the treaty does not define
``military activities.''
Proponents of LOST argue that the United States can make a
declaration that it will define ``military activities'' for
itself. However, this amounts to a reservation to the treaty,
which is expressly prohibited by LOST. LOST must be accepted or
rejected in its entirety. Furthermore, if the U.S. military
were allowed to make such a unilateral determination under
LOST, the militaries of other nations would exercise the same
option, creating an anarchic situation that would defeat the
purposes of LOST altogether. LOST was clearly not intended to
allow this to happen.
These considerations, combined with the treaty's sweeping
environmental obligations, give rise to circumstances in which
U.S. Navy and perhaps other military services, their
contractors or suppliers seem virtually certain to find
themselves embroiled in one or another of LOST's dispute
resolution mechanisms. For example, the Navy's use of high-
powered sonars would certainly be characterized by Washington
as a military activity. But the Navy could well be forced to
defend the use of such sonars before an unfriendly LOST panel
on the grounds that it has harmed the ``marine environment,''
by killing whales or dolphins.
Worse yet, in the event of any dispute over whether an
activity is military in nature, the tribunals created by LOST
are permitted to make that determination themselves.
The mandatory and rigged nature of the dispute resolution
mechanisms are one of the most important reasons why the United States
will be better served by continuing its practice over the past 25
years--namely, voluntarily observing those parts of LOST that it finds
unobjectionable, but remaining unencumbered by the obligations that
are.
LOST's Negative Security Implications
The Law of the Sea Treaty's compulsory dispute resolution
requirements and procedures are particularly problematic when taken
together with a number of obligations the accord entails that are at
odds with our military practices and national interests. These include
commitments that:
Reserve the oceans exclusively for ``peaceful purposes''
(Article 88): The United States routinely uses the world's
oceans for military purposes, including waging war against our
enemies.
Require states to refrain from ``the threat or use of force
against the territorial integrity or political independence of
any state'' (Article 301): As the world's preeminent maritime
nation, America must project power from the sea and does so
with some regularity. Some would describe such power projection
as contrary to ``the territorial integrity or political
independence'' of states (most recently, for example, attacks
from naval forces against the Taliban's Afghanistan and Saddam
Hussein's Iraq).
Proscribe the use of territorial waters to collect
intelligence and conduct other operations (Article 19): For
many decades, intelligence vital for American security has been
collected on, below, and above the oceans--including, in some
cases, those considered to be ``territorial waters.''
Oblige submarines to travel on the surface and show their
flags in territorial waters (Article 20). The effectiveness and
perhaps the very survival of our submarines would be
compromised were they to have to operate on the surface in
close-in waters where they can only go with the greatest of
stealth.
Bar any maritime research except that conducted for peaceful
purposes and require the coastal state's permission for that
performed in territorial waters (Article 240). Classified
oceans research, including some conducted covertly, is
indispensable to the U.S. Navy's mission.
In statements in support of LOST, the United States military makes
clear that it has no intention of ending such activities, and insists
that it will not have to do so since ``military activities'' are
exempted from the treaty's dispute resolution mechanisms.
Unfortunately, this position both defies common sense and hard
experience with international accords: These articles are wholly
without effect if they do not apply to the military and it is
predictable that America's foes will use every opportunity afforded by
LOST to ensure they do.
LOST's proponents also note that some of these restrictions are
similar to provisions of the 1958 Convention on the Territorial Sea and
Contiguous Zone (1958 Treaty) to which the United States is already a
party.
To make such representations, however, is to ignore the critical
difference between the 1958 Convention and the Law of the Sea: As a
state party to LOST, the United States will be subject to the treaty's
international tribunals and their authority to interpret and enforce
the treaty's obligations in connection with ``any dispute concerning
the interpretation or application of this Convention.'' It bears
repeating that the outcome of such dispute settlement is binding on the
parties to the dispute.
Even though LOST permits a state party to declare ``disputes
concerning military activities'' to be exempt from dispute settlement,
such a declaration would very likely be the beginning of the process,
not its end.
As I have noted earlier, the treaty does not define ``military
activities.'' At the very least, therefore, were the United States
freely to assume the foregoing obligations, it would set the stage for
injunctions, or other adverse rulings, against the U.S. military to be
sought from one LOST dispute resolution agency or another. Given the
stacked-deck nature of these mechanisms, it is far from certain that
our opponents will fail.
This applies in spades to things we consider to be ``military
activities'' but that may well be depicted by our opponents in ITLOS or
arbitration proceedings as environmentally harmful activities (e.g.,
charges that Navy sonars are responsible for killing whales and
dolphins). Importantly, in the event of any disagreement over whether
an activity is military in nature, the treaty grants to its dispute
resolution mechanisms the right to make that determination themselves.
Even if the military's own activities were able to be exempted from
the Law of the Sea Treaty's provisions, it is far from clear that
exemption would also apply to all of the companies that comprise, for
example, the Navy and Coast Guard's civilian technology supply chain.
They would certainly not be spared exposure to dispute resolution
demanded by other treaty parties or activist groups alleging violations
of LOST-imposed obligations to protect the marine environment. For
instance, environmental grounds could be used to object to products
supplied to the U.S. military by civilian companies or perhaps the
industrial and technological processes employed by private sector
entities to manufacture and deliver those products to the Navy and
Coast Guard.
``Lawfare''
The U.S. military has enough problems meeting its environmental
compliance requirements under American statutes. It is almost
unimaginable how severe the repercussions could be if it and/or its
contractors are subjected to new instruments of ``Lawfare''--i.e.,
legal initiatives carried out to achieve an adverse effect on our Armed
Forces--rooted, for example, in LOST regulations' application of the
``Precautionary Principle.''
Reduced to its essence, this principle prohibits a given activity
if it could cause harm. There need not be proof that harm will result,
let alone any evaluation of the potential benefits versus the possible
costs. The European Union has saddled itself with this principle and
has been working for many years to impose it on competitors, notably
the United States.
Regulations promulgated under LOST will afford that vehicle, to the
huge detriment of American businesses, entrepreneurial innovation, and
economic activity. The Precautionary Principle could also have the
effect of denying the Navy and Coast Guard valuable technologies needed
to maintain their military preparedness, with negative effects on
mission performance.
In short, as a general rule, it is an ill-advised practice for
democratic nations to make promises pursuant to international treaties
that they do not intend to honor. That is especially true, however, in
circumstances where Federal judges may just demand compliance on the
basis of the rulings of LOST's tribunals.
LOST and Technology Transfer
The Law of the Sea Treaty requires extensive transfers of data and
technology--at least some of which could be highly detrimental to
America's industrial competitiveness (including in fields far removed
from maritime-related activities) and to the national security. For
example:
LOST's Article 266 mandates that states ``cooperate in
accordance with their capabilities to promote actively the
development and transfer of marine science and marine
technology on fair and reasonable terms and conditions'' and
``endeavor to foster favorable economic and legal conditions
for the transfer of marine technology.''
Article 268 requires states to ``promote the acquisition,
evaluation, and dissemination of marine technological knowledge
and facilitate access to such information and data.''
Article 269 calls for parties to ``establish programs of
technical cooperation for the effective transfer of all kinds
of marine technology to states which may need and request
technical assistance.'' (Emphasis added.)
Compulsory dispute settlement mechanisms afford further
opportunities to obtain sensitive technology and information.
Article 6 of Annex VII requires that parties to a dispute
``facilitate the work of the arbitral tribunal and . . .
provide it with all relevant documents, facilities, and
information.'' It can therefore be expected that countries may
bring the United States or its businesses before arbitral
tribunals--without expectation of a favorable result, solely
for the purpose of obtaining sensitive technology information.
The object of these provisions is consistent with the socialist,
redistributionist, and one-world vision that animated many of LOST's
negotiators: No matter what the costs may be to U.S. security and
business interests, the fruits of marine research, exploration, and
exploitation of ``the Area''--the waters covered by the treaty--and the
associated technology must be shared with developing nations, land-
locked states and ``geographically challenged'' countries.
Some of the technologies in question are most sensitive. They
include: Underwater mapping and bathymetry systems; reflection and
refraction seismology; magnetic detection technology; optical imaging;
remotely operated vehicles; submersible vehicles; deep salvage
technology; active and passive acoustic systems; bathymetric and
geophysical data; and undersea robots and manipulators. Many of these
technologies are inherently ``dual-use,'' having both military and
civilian applications. Their military applications include:
Antisubmarine warfare; strategic deep-sea salvage; and deep-water
bastions for subsurface launching of ballistic missiles.
The effect of mandatory sharing of such technology could directly
benefit not only this country's economic competitors. It could also
help America's military adversaries, both actual and potential.
The so-called ``fixes'' with respect to technology transfer
obligations contained in the 1994 Agreement do not alter this reality.
As noted above, in the first place, the Agreement could not and did not
amend the treaty. Second, even if it had done so, the Agreement did not
purport to modify all areas in which information and technology
transfers are required. For example, all relevant information about
deposits and geology must still be provided to the International Seabed
Authority's ``Enterprise'' in order to apply for a permit to develop
seabed resources, together with the technology necessary to exploit
such resources.
The United States is the nation with the most to lose--from an
economic and national security point of view--from the sort of
obligatory technology transfer provisions contained in the Law of the
Sea Treaty, including those that would be binding even if the 1994
Agreement has effect.
America has long imposed unilateral export control restrictions
precisely for the purpose of preventing transfers that will result in
harm to this country. U.S. accession to LOST would require a
substantial liberalization, if not wholesale scrapping, of such
important self-defense measures.
Actual or potential competitors/adversaries like China, Russia,
state-sponsors of terror and even European ``allies'' understand full
well what a technology windfall U.S. adherence to LOST could represent.
It would be irresponsible, not to say foolish in the extreme, to
believe that none of these parties will take advantage of the
opportunity to reap that windfall, to our very considerable detriment.
LOST Can Be Used To Limit the Proliferation Security Initiative
A particularly contentious question involves the impact the Law of
the Sea Treaty could have on the Proliferation Security Initiative
(PSI), a multicountry arrangement launched in 2003 for the purpose of
permitting the United States and other participants to stop foreign
vessels suspected of transporting weapons of mass destruction ``in
their internal waters, territorial seas, or contiguous zones.''
PSI is one of the most effective tools the U.S. Government has
employed to try to stop the transfer of WMD and their delivery systems.
Proponents of the treaty point out that most of those with whom we
partner in the PSI are treaty members and cite LOST as justification
for their participation.
Yet, the Law of the Sea Treaty provides only a handful of
exceptions to the right of ``innocent passage'' afforded vessels in
these waters. Specifically, LOST's Article 110 only permits such
intercepts in four instances: Piracy (i.e., the ship is flying no
national flag), slavery, narcotics trafficking, and unauthorized radio
broadcasting. In addition, LOST provides government-owned ships
operating on the high seas complete immunity from the jurisdiction of
any foreign country. Since most terrorist-sponsoring nations and their
totalitarian enablers have state-owned merchant marines, the treaty can
thus be used to protect proliferation activities on the high seas.
PSI is not compatible with LOST, despite proponents' claims to the
contrary. As a treaty, LOST is binding international law on the
parties, whereas PSI is only an informal arrangement between certain
nations, and carries no force as international law. The argument that
PSI can be executed within the rules of LOST, even though LOST clearly
prohibits boarding actions critical to PSI, ignores the fact that LOST
outranks PSI in the hierarchy of international law.
As a result, unless one or more of the treaty-approved
circumstances for an at-sea intercept applies, LOST Member States could
be precluded from participating in such an action--even when there
might be compelling evidence that nuclear or other WMD or their
delivery systems were onboard. As long as the United States continues
not to be a LOST state party, it can always act unilaterally. That
option, however, will be foreclosed, and our security possibly
endangered as a result, if the Senate consents to the treaty's
ratification.
In this connection, it must be noted that the Chinese and Russians
have strenuously objected to the Proliferation Security Initiative,
claiming that it violates LOST. They can be expected to seek mandatory
dispute resolution of the matter should the United States become a
state party. Should the ruling go against us, a critical tool in the
Nation's effort to prevent the spread of nuclear, chemical, and
biological weapons and their delivery systems could be lost for good.
LOST as an Unsatisfactory Precedent for Other ``International Commons''
The Law of the Sea Treaty's stated purpose is the establishment of
a ``legal order for the seas and oceans.'' Animating that goal is the
proposition that such waters are the ``common heritage of all
mankind.'' To govern, protect, and preserve this ``international
commons,'' LOST establishes rules with respect to: Navigation of the
oceans, marine research, protection of the marine environment and deep
seabed mining, among other oceans-related issues.
LOST also contains provisions outlining overflight rights over
various parts of the ocean. In other words, it confers--not to be
confused with recognizing or acknowledging--sovereign rights to
territorial waters and their seabeds. The treaty also claims to apply
to the airspace above them.
As discussed previously, LOST establishes supranational agencies
associated with the United Nations to manage the world's waters,
seabeds, and airspace. Their role is to administer the maritime
``international commons,'' implement the treaty's various provisions
and resolve disputes between state parties as to the application of
those provisions. If the disputing parties fail to reach an agreement
on their own, they are required to submit to the jurisdiction of one of
the LOST tribunals.
In addition, parties to LOST must make payments in various forms to
one of the LOST bodies, the International Seabed Authority (ISA), in
order to engage in deep seabed exploration and exploitation. These
amount to a form of international taxation intended, among other
things, to underwrite the operations of the ISA and the treaty's other
``organs.''
It is important to consider as part of the debate over U.S.
accession to the Law of the Sea Treaty whether that action would have
implications for other so-called ``international commons'' such as
Antarctica, the Moon, Outer Space, more generally, and the Internet.
In fact, the logic of LOST--with its supranational order for the
control of a medium used by more than one country--will inevitably be
seized upon by America's foes to demand similar arrangements be
instituted for Outer Space or even the Internet. And U.S. ratification
of LOST will make it difficult for the United States to argue against
accepting binding arrangements for other ``international commons.'' It
was for this reason that President Reagan's Ambassador to the United
Nations, the late Jeane Kirkpatrick, warned the Senate in 2004 not to
consent to ratification of LOST, in part on the grounds that America's
interests in Outer Space could be adversely affected by the LOST
precedent.
LOST and Space Control
It is of particular concern that the LOST model could be used to
cripple America's use of space for national defense. America's military
and intelligence communities have increasingly relied--in fact have
become heavily dependent--upon space assets to gather information and
support terrestrial forces. Far-sighted U.S. strategists appreciate
that space can only become ever more important as a theater of
operations, with control of activities (commercial as well as military)
on earth being determined by control of space.
This country's adversaries recognize this reality, too, and are
attempting to inhibit our use of space--in some cases through active
means, in others via the imposition of international laws and
regulations (another example of ``Lawfare''). U.S. endorsement of LOST
would establish a precedent that would undercut American efforts to
stave off the latter effort.
LOST and the Internet
The same is likely to be true of the Internet--an immeasurably
important engine of American technological and commercial
competitiveness and, increasingly, a key component of U.S. national
security. Other countries have already demanded global Internet
regulation. For example, in March 2005, China's Ambassador to the
United Nations called for international management of the Internet.
Seven months later, the United Nations hosted a conference at which
many delegates insisted on an end to this country's exclusive control
over the assignment of Web addresses and e-mail accounts, in favor of
having such roles performed by one or more U.N. agencies.
The problems with such an arrangement are obvious. The Washington
Post pointed out that any such agencies would inevitably be caught
between free societies that want low barriers to Internet access, and
countries such as China and Saudi Arabia, that insist on limiting
access. The Post went on to observe: ``These clashes of vision would
probably make multilateral regulation inefficiently political.'' As it
happens, the same is true of LOST--and would certainly apply with
devastating effect to the Internet if LOST becomes the template for
multilateral management of the ether's ``international commons.''
LOST and Russia's Arctic Gambit
Before concluding, let me say a few words about the implications
for Senate consideration of the Law of the Sea Treaty associated with
Russia's August 2007 depositing of a titanium flag on the floor of the
seabed of the North Pole. By so doing, the Kremlin sought to publicize
its claim to the Lomonosov Ridge, an underwater ridge that Russia
claims is a natural part of its Continental Shelf. If recognized, such
claims would entitle Russia to natural resource and energy rights in
much of the North Pole region.
Russia is asserting these rights via a mechanism of LOST. A state
party can claim an extension to its Continental Shelf--and therefore
extend its Exclusive Economic Zone (EEZ)--if that state can provide
evidence to the Commission on the Limits of the Continental Shelf (a
LOST ``organ'') showing a natural extension of the shelf as part of its
territory.
Russia's claims are completely without technical merit. The
Lomonosov Ridge is not an extension of Russia's Continental Shelf.
Rather, it is a separate geological formation not connected to the
Russian shelf and, therefore, providing no basis for Moscow's
territorial claims. Even the Law of the Sea Treaty itself explicitly
states that a country's Continental Shelf ``does not include the deep
ocean floor with its oceanic ridges or the subsoil thereof.''
Proponents of the Law of the Sea Treaty have asserted that the
United States must become a party to LOST if it is to prevent Russia
from making off with the valuable resources of the Arctic seabed. This
contention is contradicted by previous experience, however: Russia made
a similar claim before the Commission in 2001. Although not a party to
the treaty, the United States provided data to several nations who
shared its interest in challenging the Russian assertions, prompting
the Commission not to accept them at that time.
Given the baseless nature of the Russian bid, it is entirely
possible that Moscow hopes not only to gain access to the Arctic's
undersea wealth but to provoke the United States into joining LOST--a
treaty that is disadvantageous to the United States. As indicated
above, LOST was created by the Soviet-era Kremlin and its allies in the
Third World as a means of promoting supranational government mechanisms
they could control at the expense of their American and other Western
adversaries. LOST's agenda of global wealth redistribution and its
negative implications for American sovereignty and U.S. military and
economic equities continues to serve Moscow's interests, but not those
of the United States.
The Continental Shelf Commission
The extent to which LOST will prove an asset to our foes is
indicated by the conduct of the Continental Shelf Commission in this
instance. Given the geological realities and the treaty's own terms,
the willingness of the Commission even to consider Russia's claims to
the Arctic seabed is indicative of a serious problem with LOST. The
Commission is blatantly ignoring a clear provision of LOST--a troubling
indicator of what the United States can expect from LOST tribunals.
Since LOST explicitly declares that a country's Continental Shelf
does not include underwater ridges, the Commission's readiness once
again take up the Russian case begs the question: As so often happens
in U.N. agencies, will political considerations influence the outcome?
The Commission currently has only two Arctic members, Russia and
Norway. A simple majority vote by non-Arctic states--perhaps engineered
by Russian pressure and/or bribes--could result in decisions that would
be binding on all member-nations. If the United States were a state
party to LOST, it would likely still be outvoted, yet be obliged to
accept the Commission's unsatisfactory dictates.
In this case, the consequences of such a decision would be
preposterous--even absurd: Russia would have sole economic rights to
the vast natural resources of the central Arctic Ocean. This would
essentially give Russia a virtual monopoly over the North Pole region.
Acceptance of Russia's claim would, moreover, invite other
countries to make similarly ludicrous claims. If Russia can assert its
ownership of a submerged mid-ocean ridge, then Iceland and the Azores
would have grounds to stake claims to most of the North Atlantic's
seabeds, since those islands are an integral part of the Atlantic mid-
ocean ridge. The same argument could be made by any one of the numerous
island countries that are part of an undersea ridge complex.
The United States was able to play a role in the Commission's
nonacceptance of Russia's first claim to the Arctic seabed back in
2001, even though it was not a party to LOST--and, therefore, not at
risk of being bound by adverse Commission decisions. This episode
demonstrates that, by remaining outside of the treaty, America can
retain its freedom of action (including the use of bilateral diplomacy
and more constructive multilateral mechanisms, such as the Arctic
Council) and still challenge such overreaching Russian claims and win.
conclusion: lost is a threat to american sovereignty
Mr. Chairman, permit me to conclude this bill of particulars by
underscoring one of the most troubling aspects of the Law of the Sea
Treaty: The stated ambition of its architects to promote a
supranational government for 70 percent of the world's surface (i.e.,
the oceans and their seabeds).
Prominent among such architects was the World Federalist
Association (now known as Citizens for Global Solutions). In an undated
white paper on their Web site, these advocates for world government
declare: ``An organization is already in the process of being developed
to control the exploitation of ocean resources, and similar agencies
could be created to govern Antarctica and the moon.''
The Citizens for Global Solutions posting goes on to say: ``By
means of these voluntarily funded functional agencies, national
sovereignty would be gradually eroded until it is no longer an issue .
. . Eventually, a world federation can be formally adopted with little
resistance.'' (Emphasis added.)
This strategy of garroting national sovereignty would be advanced
by LOST in several ways. By way of recap, these include:
LOST entails obligations at odds with our national security
strategy and operations. These obligations may be enforced by
the treaty's mandatory dispute resolution mechanisms that are
stacked against the United States.
LOST involves unprecedented environmental obligations. These
can be used to interfere with the exercise of U.S. sovereignty
on the grounds that what is being done on American soil or in
its airspace will have negative repercussions for the oceans.
Such obligations go far beyond the Kyoto accords and could
entail substantial costs.
For example, steps taken to resuscitate New Orleans in 2005 by
pumping untold quantities of toxic waste out of Lake
Pontchartrain into the Gulf of Mexico could have been
prohibited by an edict from a LOST agency. Such a ruling could
then have been enforced by U.S. courts increasingly acting
under the sway of international tribunals and treaties.
LOST empowers an unaccountable, unrepresentative
international agency for the first time to collect what amount
to taxes. The United Nations is already insufficiently
transparent and ever more hostile to U.S. interests.
Institutionalizing arrangements that would allow it and other
supranational organizations to become self-financing can only
exacerbate these trends. (Such a step--and the ominous
precedent it sets--are, moreover, an affront to a nation whose
genesis was rooted in the principle of ``no taxation without
representation.'')
LOST will allow interference with and the penalization of
American businesses, including those that conduct research for,
equip and provide logistical support to, the U.S. military. It
will: Impose the ``Precautionary Principle'' (according to
which innovations cannot be introduced unless proven free of
any adverse consequences); give standing to Alien Torts claims
in U.S. courts; require sharing proprietary information and
technology with international bureaucrats and competitors;
compromise WTO rights; and give precedence to European-
dominated international standards. The costs of such
derogations of our sovereignty could be high, perhaps even
crippling, for affected businesses--including those supporting
our Armed Forces.
Finally, this accord will establish problematic precedents
for ``managing'' other, no less strategically important
``international commons,'' including Outer Space. A number of
America's adversaries have long sought to impose arms control
or other treaty arrangements that could make it more difficult
if not, as a practical matter, impossible for the United States
to maintain the access to and control of space required by our
national security interests. If this country joins LOST, it
will invite these adversaries to adapt the treaty's
International Seabed Authority as a prototype for determining
permissible and impermissible activities in space--likely in
ways that will prove inconsistent with the United States
military and intelligence requirements.
Inevitably, American ratification will be a major step toward the
oneworlders' agenda of global, supranational government. One prominent
Transnationalist, Arvid Pardo, the former Maltan Ambassador to the
United Nations who is credited with coining LOST's leitmotif phrase
``the common heritage of mankind,'' has said that American acceptance
of LOST ``however qualified, reluctant, or defective, would validate
the global democratic approach to decisionmaking.'' On that score, at
least, Pardo is absolutely right.
Many of the rights of navigation and overflight that LOST
supporters claim are ``assured'' by the treaty and so valuable to U.S.
security are, in fact, already enjoyed thanks to existing, well-
functioning international agreements to which the United States is a
party.
The majority of those rights are derived from customary
international law, much of which was put in place long before LOST was
ever negotiated. To the extent that LOST has created any new customary
international law, these are laws to which we voluntarily adhere and
from which we have benefited since President Reagan rejected the treaty
25 years ago--without being subject to LOST's other high costs.
Mr. Chairman, I appreciate the opportunity to explain why I and
many other national security-minded individuals strongly oppose the Law
of the Sea Treaty and urge its rejection by the Senate. I pray--for the
good of our country, our national security and economic interests and
our sovereign, constitutional form of government--that you and your
colleagues, and our countrymen, will become familiar with these
concerns before you are asked to consent to this ominous and
irremediably defective accord.
Should that not happen, it will be in no small measure because of a
serious dereliction of duty on the part of the U.S. Senate--one that
has resulted in this being the only hearing in which critics have been
allowed to testify, where only two of us have been heard from and in
whose course each of us has been confined to 5 minutes of oral remarks.
I call on you, Mr. Chairman, the members of this committee and those of
other relevant Senate panels to ensure that such a travesty does not
eventuate.
______
Coalition to Preserve
American Sovereignty,
Washington, DC, October 4, 2007.
Senator Joseph Biden,
Chairman, Senate Foreign Relations Committee,
Russell Senate Office Building, Washington, DC.
Dear Senator Biden: As members of the Reagan administration, we
strongly supported President Reagan's 1982 decision to reject the
United Nations Convention on the Law of the Sea, commonly known as the
Law of the Sea Treaty (LOST). As James Malone, special representative
of the President to the Law of the Sea Conference, explained in 1984:
Let me state very emphatically that the United States cannot
and will not sign the United Nations Convention of the Law of
the Sea. The treaty is fatally flawed and cannot be cured. In
its present form it presents a serious threat to U.S. vital
national interests and, in fact, to global security. Once more,
it is inimical to the fundamental principles of political
liberty, private property, and free enterprise. The
administration firmly believes that those very principles are
the key to economic well-being for all countries--developing as
well as developed.
The President has offered an alternative vision of
international relations built upon stability, rather than
uncertainty, and voluntary cooperation. This dynamic course in
foreign policy is designed to protect U.S. security, enhance
U.S. well-being, and promote true economic development among
all countries willing to commit themselves to the task. The
United States is fully committed to this course and will not
turn back.
Despite claims that Mr. Reagan's objections were fully addressed in
an agreement subsequently negotiated in 1994, that agreement did not
alter the treaty and, consequently, cannot correct its flaws. In our
view LOST still seriously erodes U.S. sovereignty. Worse yet, it would
in addition imperil operations critical to our conduct of the War on
Terror.
With respect to the former, U.S. adherence to this treaty would
entail history's biggest and most unwarranted voluntary transfer of
wealth and surrender of sovereignty. LOST created the International
Seabed Authority (ISA)--a supranational organization with unprecedented
powers to regulate seven-tenths of the world's surface area, levy what
amount to international taxes, impose production quotas (for deep-sea
mining, oil production, etc.), govern ocean research and exploration,
and create a multinational court to render and enforce its judgments.
President Reagan was right to reject the anti-free market principles
and sovereignty-sapping institutions central to the Law of the Sea
Treaty.
LOST's defects take on even greater import, however, in light of
the dangers inherent in the global War on Terror. The Convention
clearly offers grounds for challenging the legality of the
Proliferation Security Initiative (PSI) to those, like Communist China,
who oppose PSI's maritime interdictions and the boarding of suspect
vessels. As renowned legal scholars Jeremy Rabkin and Jack Goldsmith
recently explained, ``In every case, a majority of non-American judges
would decide whether the U.S. Navy can seize a ship it believes is
carrying terrorist operatives or supplies for terrorists.''
Other LOST provisions of particular concern today are the treaty's
stated prohibition of two functions vital to American security:
Collecting intelligence in and submerged transit of territorial waters
during peacetime. While some claim that these provisions will not apply
to our ``military'' activities, it is unwise and irresponsible to
assume formal obligations we have no intention of fulfilling. That is
especially true under circumstances in which disputes over our
compliance will be subjected to binding arbitration via mechanisms
stacked against us.
The irremediably problematic nature and far-reaching implications
of the Law of the Sea Treaty argue for rejection of this accord. We
feel confident that a rigorous and comprehensive review of the Law of
the Sea Treaty, including an unvarnished net assessment of its putative
benefits and real risks, will affirm President Reagan's decision not to
have the United States become a state party to this convention. We urge
your committee and other relevant committees of jurisdiction of the
House and Senate to perform such a review before any action is taken on
LOST's ratification.
Sincerely,
William P. Clark--National Security Advisor to the President; Secretary
of the Interior; Deputy Secretary of State*
Edwin Meese III--Counselor to the President; Attorney General
John F. Lehman, Jr.--Secretary of the Navy
J. William Middendorf--U.S. Ambassador to the Organization of American
States; Secretary of the Navy (Ford Administration)
John Block--Secretary of Agriculture
Gerald Carmen--U.S. Ambassador to the United Nations, Geneva
Henry Cooper--Ambassador for the Defense and Space Negotiations;
Assistant Director, Arms Control and Disarmament Agency
Becky Norton Dunlop--Deputy Assistant to the President
Frank J. Gaffney, Jr.--Assistant Secretary of Defense (Acting)
Ken de Graffenreid--Special Assistant to the President and Senior
Director for Intelligence Programs, National Security Council
Joshua Gilder--White House Speech Writer
James T. Hackett--Director, Arms Control and Disarmament Agency
(Acting)
Phyllis Kaminsky--Director of Public Liaison, U.S. Information Agency
Charles M. Kupperman--Special Assistant to the President; Deputy
Director, White House Administration
Christopher D. Lay--Special Assistant to the Under Secretary for Policy
Vice Admiral Robert R. Monroe USN (Ret.)--Director of Navy Research,
Development, Test and Evaluation
Lieutenant General Edward L. Rowny--Chief U.S. Negotiator, Arms Control
and Disarmament Agency
Jose Sorzano--Special Assistant to the President; Deputy U.S.
Ambassador to the United Nations
Curtin Winsor--U.S. Ambassador to Costa Rica
* Unless otherwise noted, positions were those held during President
Reagan's administration.
Senator Menendez. Thank you, Mr. Gaffney. I'll wait for all
the questioning to respond to some of your concerns.
Mr. Oxman.
STATEMENT OF BERNARD H. OXMAN, PROFESSOR OF LAW, UNIVERSITY OF
MIAMI SCHOOL OF LAW, MIAMI, FL
Mr. Oxman. Thank you, Mr. Chairman, Senator Lugar, members
of the committee. It is, indeed, a privilege for me to be here,
and a special privilege to be asked to join Admiral Clark in
speaking in favor of the Convention. It's also a privilege for
me to be sitting next to Mr. Gaffney again. As I recall, the
last time was when we appeared together in a hearing on the Law
of the Sea Convention before the Committee on Environment and
Public Works chaired by Senator Inhofe.
And I want to express my admiration for the formidable
imagination and ingenuity of the analyses that have been
presented by Mr. Gaffney over the years.
Mr. Chairman, if there were a treaty before this committee
that did even a fraction of the awful things Mr. Gaffney has
described, I would stand shoulder to shoulder with him in
opposing it. The reality, however, is that the ``LOS'' Treaty
that Mr. Gaffney conjures bears no relation to the Convention
on the Law of the Sea that I spent well over a decade helping
to draft and negotiate, as the representative of our country
and as the chairman of the drafting group responsible for the
English text of the Convention. It is that Convention to which
my remarks are addressed this morning.
The Law of the Sea Convention is the result of a long-term
and successful bipartisan effort to further American interests,
as Senator Lugar has indicated. That effort engaged high-level
attention in successive administrations, and among
distinguished Members of both Houses of Congress. It's no
accident that all living former Legal Advisors of the U.S.
Department of State signed a letter in support of the
Convention at the time of the hearings in 2004, and that, more
recently, the letter of September 24, 2007, to which Senator
Lugar adverted, comes from an extraordinary group of prominent
citizens that includes former Secretaries of State Albright,
Baker, Haig, Powell, and Schultz.
The Convention is now a legal and political reality. There
are 155 parties, including all other major maritime states, as
you, Mr. Chairman, have pointed out.
It's puzzling to me that a few commentators maintain that
dire consequences would flow from Senate acceptance of a text
that President Reagan publicly committed the United States to
respect. President Reagan formally declared: ``The United
States will recognize the rights of other states in waters off
their coasts, as reflected in the Convention, so long as the
rights and freedoms of the United States and others under
international law are recognized by such coastal states.''
The question before us is not whether we are obliged to
respect the rules set forth in the Convention. Clearly, we are.
There is no other plausible platform or principle on which to
operate. Our legislation has long been consistent with the
Convention. No prudent manager or investor in the private
sector would plan on any other basis.
And we have not been dragged into this posture kicking and
screaming. Quite to the contrary, we led the way. We're obliged
to respect the rules set forth in the Convention, because, as
President Reagan made clear, we expect foreign countries to do
the same. And we expect them to do the same because their
restraint is to our benefit.
Mr. Chairman, a treaty is a reciprocal bargain in which
each of the parties agrees to limit its own freedom of action
in exchange for the limitations imposed on the others. That,
Mr. Chairman, is an exercise of sovereignty. Indeed, entering
into treaties with foreign powers is one of the most important
ways in which sovereignty is exercised.
The real question, therefore, is: What is it that we want
other countries to do, and not do? What we want is respect for
one of the most important attributes of national sovereignty
and independence; namely, our freedom to navigate around the
world for security, economic, and other purposes, as we see
fit, and without interference from the foreign states off whose
coasts we navigate. It is that sovereignty that is essential to
our security and well-being, and it is that sovereignty that is
at risk if we do not act to consolidate the Law of the Sea
Convention as the foundation for the future development of the
International Law of the Sea.
By becoming party to the Convention, the United States will
be in a much stronger position to control the evolution of the
Law of the Sea, and, in particular--and I want to emphasize
this point--to influence the perception and behavior of foreign
nations regarding their rights and our freedoms in areas that
are off their coasts.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Oxman follows:]
Prepared Statement of Bernard H. Oxman, Professor of Law, University of
Miami School of Law, Miami, FL
Mr. Chairman, Senator Lugar, members of the committee, It is an
honor to be asked to testify before this committee.
I was last invited to appear before this committee 4 years ago.
Although I took ill as I boarded the plane to Washington at that time,
my prepared statement was included in the 2004 Report of the Committee,
a report that unanimously recommended Senate approval of the Convention
on the Law of the Sea and the related Implementing Agreement. I
presented a slightly expanded version of that statement before the
Senate Committee on Environment and Public Works in March 2004. Rather
than repeat all that was said there, with your permission, Mr.
Chairman, I would propose to append that statement to my remarks today
and, for the sake of completeness, to include my written response to
followup questions posed by Senators Inhofe and Jeffords.
Mr. Chairman, permit me to begin as I did before. Whatever the
utility of my remarks today, I hope the committee will bear in mind the
authority, insight, and conviction with which the case for the
Convention would have been presented by two extraordinary individuals
with whom it was my great honor to work most closely, the late
Ambassador John R. Stevenson and the late Ambassador Elliot L.
Richardson. Both served at critical formative periods as Special
Representative of the President for the Law of the Sea. They are
unquestionably remembered throughout the world as among the small
handful of individuals singularly responsible for the ultimate shape of
the Convention.
I hope the committee will also bear in mind that the Law of the Sea
negotiations were a long-term bipartisan effort to further American
interests that engaged high level attention in successive
administrations and among distinguished Members of both Houses of
Congress. President Nixon had the vision to launch the negotiations and
establish our basic long-term strategy and objectives. President Ford
solidified important trends in the negotiations by endorsing fisheries
legislation modeled on the emerging texts of the Convention. President
Carter attempted to induce the developing countries to take a more
realistic approach to deep seabed mining by endorsing unilateral
legislation on the subject. President Reagan determined both to insist
that our problems with the deep seabed mining regime be resolved and to
embrace the provisions of the Convention regarding traditional uses of
the oceans as the basis of U.S. policy. President George H.W. Bush
seized the right moment to launch informal negotiations designed to
resolve the deep seabed mining problems identified by President Reagan.
President Clinton carried that effort through to a successful
conclusion and transmitted the Convention and the 1994 Implementing
Agreement to the Senate. And President George W. Bush has called on the
Senate to complete the job and approve the Convention and the
Agreement.
It is no accident that all the living former legal advisors of the
U.S. Department of State signed a letter in support of Senate approval
of the Convention in 2004, and that, more recently, the letter of
September 24, 2007, to Senators Reid and McConnell in support of the
Convention comes from an extraordinary group of prominent citizens that
includes former Secretaries of State Albright, Baker, Haig, Powell, and
Shultz.
The Law of the Sea Convention is in large measure the product of
American efforts. The United States succeeded in creating a firm,
globally accepted basis for long-term order and predictability at sea
whose provisions, in President Reagan's words, ``fairly balance the
interests of all states.'' \1\ The result is a Convention that is a
legal and political reality. It now has 155 parties, including all
other major maritime nations.
---------------------------------------------------------------------------
\1\ Statement by the President, United States Oceans Policy, Mar.
10, 1983, 19 Weekly Comp. Pres. Docs. 383 (1983).
---------------------------------------------------------------------------
Pursuant to an overwhelming vote of approval of the Senate, the
United States is already party to the Law of the Sea Convention's
Implementing Agreement on fisheries that entered into force in 2001; in
that agreement we accepted much of the fisheries management and dispute
settlement system set forth in the Convention.
The United States has long been party to the four 1958 Geneva
Conventions on the Law of the Sea, many of whose provisions are copied
and elaborated upon in the 1982 Law of the Sea Convention. It is
puzzling that a few commentators maintain that dire consequences would
flow from Senate acceptance of texts that are no different from those
already contained in the Geneva Conventions and other treaties to which
we are party.
It is also puzzling that a few commentators maintain that dire
consequences would flow from Senate acceptance of texts that President
Reagan publicly committed the United States to respect. President
Reagan formally declared that ``the United States will recognize the
rights of other states in the waters off their coasts, as reflected in
the Convention, so long as the rights and freedoms of the United States
and others under international law are recognized by such coastal
states.'' \2\
---------------------------------------------------------------------------
\2\ Id.
---------------------------------------------------------------------------
The Convention provides the legal framework for cooperation with
other countries. Almost all of our neighbors, friends, and allies are
party to the Convention. At best, they will not agree to cooperative
action at sea unless it is consistent with the Convention. At worst,
they will keep their distance from us because we are not party to the
Convention. During his confirmation hearings for Chief of Naval
Operations before the Senate Armed Services Committee on September 27,
Admiral Roughead stated that he saw in the Pacific that some countries
would avoid participating with us in the proliferation security
initiative because we are not party to the Law of the Sea Convention.
The question before us is not whether we are obliged to respect the
rules set forth in the Convention. Clearly we are. There is no other
plausible platform of principle on which to operate. Our legislation
has long been consistent with the Convention. No prudent manager or
investor in the private sector would plan on any other basis. And we
have not been dragged into this posture kicking and screaming. Quite to
the contrary, we led the way: We are obliged to respect the rules set
forth in the Convention because, as President Reagan made clear, we
expect foreign countries to do the same. And we expect them to do the
same because their restraint is to our benefit.
The real question is: What are the additional rights and
opportunities that we would enjoy as a party to the Convention? In this
connection, we might ask ourselves: What is it that we want other
countries to do and not do?
The answer has long been quite simple. We want maximum freedom to
navigate and operate off foreign coasts without interference.
We want that freedom for security purposes. If we mean to deter and
confront threats to our security in the far corners of the globe, then
we need to be able to get there and to operate there. The precise
nature of the threats may change. But so long as our interests demand
that we operate far from our shores, we want to minimize the cost and
uncertainty of getting there and operating there.
We also want that freedom for economic purposes. Our economy is
dependent on international trade. Much of that trade moves by sea. Our
trading partners may change, but so long as our interests demand that
we move raw materials and products to and from the far corners of the
globe, we want to minimize the cost and uncertainty of the trip for any
ship that carries our trade. We want security of supply and the lowest
possible cost for delivering both our imports and our exports. And many
sectors of our economy are increasingly dependent on the use of
undersea telecommunications cables and accordingly on the freedom to
lay and maintain them throughout the world.
Physical challenge by foreign states to ships and aircraft
navigating off their coast is one possible source of interference that
can augment costs and uncertainty dramatically. But negative political
and economic reactions by foreign coastal states can also prove costly
and destabilizing.
In attempting to address this problem, we must recognize that there
are many reasons why a coastal state may not wish to accord maximum
freedom to foreign ships and aircraft off its coast. It may prefer to
control natural resource activities off its coast. It may prefer to
control pollution from foreign ships off its coast. It may fear
implications for its security of foreign operations off its coast. It
may even hope to leverage control over offshore areas in order to
extract political and economic concessions from those who need to pass
through or lay and maintain cables in such areas.
Even though it is the principal global maritime power with the most
to benefit from maximum freedom to use the seas off foreign coasts, the
United States shares many of the interests of other coastal states in
controlling activities off the coast.
The result is a contradiction. At best, many coastal states want to
maximize freedom off foreign coasts while maximizing their control over
foreign activities off their own coasts. At worst, a fair number of
people don't even worry about global mobility, and think of interests
in the sea exclusively in terms of controlling foreign activities off
the coast. The real challenge in the law of the sea is to reconcile the
tension in a manner that reasonably accommodates the conflicting
interests both within and between states over time.
If the law of the sea is left to drift, it will drift in the
direction of increasing coastal state restrictions on global freedoms.
This is not idle speculation. It is precisely what happened in the 20th
century. That century began with free high seas except for a narrow 3-
mile band along the coast. It ended with coastal state sovereignty
within liberal baselines enclosing internal and archipelagic waters,
coastal state sovereignty within a 12-mile territorial sea measured
from those baselines, coastal state sovereign rights and jurisdiction
for many purposes within a 200-mile exclusive economic zone, and
coastal state sovereign rights over resources of a continental shelf
that may extend even further where the continental margin is wider than
200 miles. I traced this process in greater detail in a recent essay
that, with your permission, Mr. Chairman, I propose to append to this
statement for the committee's convenience.\3\
---------------------------------------------------------------------------
\3\ Bernard H. Oxman, ``The Territorial Temptation: A Siren Song at
Sea,'' 100 AJIL 830 (2006). The essay proceeds on the premise that
``there is no plausible alternative to the system of territorial
states, a system that, for all its limitations, continues to confer
significant benefits on humanity.'' Id., p. 831.
---------------------------------------------------------------------------
The result in this century is that the drift toward increased
coastal state control has already consumed the valuable natural
resources of the sea and seabed in large areas off the coast. Now the
target of new assertions of coastal state control is more likely to be
navigation and overflight and telecommunications.
The reality is that the areas of greatest importance to our global
mobility are already subject to coastal state sovereignty or sovereign
rights. Our capacity to move around the world depends on the
willingness of these coastal states to respect navigation and
overflight and related rights and freedoms in waters they already
perceive to be theirs. The challenge is not to our capacity to make
legal arguments. The challenge is to our ability, at minimum cost to
ourselves, to persuade foreign coastal states to restrain their own
claims and actions in the first place.
Customary international law will not work well in this situation.
Customary law is the creature of state practice. The likely drift of
state practice is in the direction of increasing restraints on our
global mobility that will be costly to respect and costly to resist.
The classic options we face in response to increasing coastal state
assertions of control over communications rights and freedoms have been
described as follows:
1. Resistance, with the potential for prejudice to other U.S.
interests in that coastal state, for confrontation or violence,
or for domestic discord;
2. Acquiescence, leading inevitably to a weakening of our
position of principle with respect to other coastal states
(verbal protests to the contrary notwithstanding) and domestic
pressures to emulate the contested claims; or
3. Bilateral negotiation, in which we would be expected to
offer a political, economic, or military quid pro quo in
proportion to our interest in navigation and military
activities that, under the Convention's rules, can be conducted
free of such bilateral concessions.\4\
---------------------------------------------------------------------------
\4\ Panel on the Law of Ocean Uses, ``United States Interests in
the Law of the Sea Convention,'' 88 AJIL 167, 171 (1994).
Beginning with the determination of basic policy by President Nixon
1970, a universally ratified Law of the Sea Convention was conceived as
a more effective and less expensive option for controlling the coastal
drift, for protecting our security and economic interests in global
mobility, and for providing a basis for protection of the marine
environment that is both effective and compatible with these interests.
This is so in part because written rules are more easily ascertained
and are more determinate than customary rules, and in part because
parliaments, courts, and the population at large tend to take treaty
commitments more seriously than elusive notions of customary law.
But the experience with other treaties suggested that this is not
enough: Unilateral interpretation of treaties can lead to the same
erosion of rights and freedoms as the processes of customary law. Thus
from the outset in 1970, the U.S. objective was to include
institutional provisions that help persuade coastal states to accept
and respect the Convention in general, and the rights and freedoms on
which our global mobility depends in particular. To achieve this
objective, the United States proposed, and the Convention creates:
A system for compulsory settlement of disputes that permits
a state to challenge actions by another state that are believed
to violate the Convention, especially violation by coastal
states of navigation, overflight, and telecommunications rights
and freedoms;
An expert panel to review the scientific basis for claims
over the continental margin beyond 200 miles, giving the
coastal state an incentive to work with the panel by providing
added legal security to investors if agreement is reached; and
An international regime for exploitation of deep seabed hard
minerals beyond the Continental Shelf that blocks further
national sovereignty claims, provides the security of tenure to
mine sites necessary for investment in response to market
demand, and protects high seas freedoms.
That system now exists. For the foreseeable future, it is the basis
for the legal and political environment in which we operate every day.
It is the only plausible platform of principle for global operations.
But law, even treaty law, never stands still. The question is: How
will it evolve?
In my opinion, by becoming party to the Law of the Sea Convention,
the United States will be in a much stronger position to control the
evolution of the law of the sea and, in particular, to influence the
perceptions of foreign nations regarding their rights and our freedoms
off their coasts. Let me briefly explain why.
Protecting American Interests. Because we are the main global
maritime power, our interests demand that we consider the global effect
of the Convention's rules and their interpretations; there are a number
of issues that are of greater concern to us than to most other
countries. It is not prudent for us to sit idly by on the sidelines and
rely on others to protect our global interests from the inside. For
example, despite our close security relationship with most of its
Member States, there are disturbing signs that the European Community
may try to shift the Convention's balance in a sharply coastal
direction in derogation of the freedom of navigation beyond the
territorial sea and free transit of international straits.
Practice of the Parties. The practice and views of the parties to
the Convention regarding its meaning and application influence the
perceptions and behavior of lawyers and governments as well as judges,
national and international. If left unattended, that practice is likely
to evolve in the same way that customary law would evolve, namely in
derogation of the rights and freedoms on which we rely for global
mobility. Yet other states find it odd when we criticize their actions
as a violation of a treaty to which we have yet to become party. If the
underlying challenge to the maintenance of our interests in global
mobility is to maximize our influence over the perception of coastal
states around the world regarding their rights and our freedoms off
their coasts, then it stands to reason that the enhanced credibility
our interpretations would acquire as party to the Convention is an
important element in protecting and advancing our interests now and in
the future.
Judicial and Arbitral Bodies. Interpretations rendered by judicial
and arbitral tribunals established under the Convention will also
influence the perceptions and behavior of lawyers and governments
around the world and the future understanding of the law. While the
actual judgment may be binding only on the parties to a case, the
effect of a judicial or arbitral decision on perceptions of the law is
not limited to parties to a case or even to parties to the Convention.
By joining the Convention the United States would have the right to
nominate and participate in the election of judges to the International
Tribunal for the Law of the Sea (ITLOS) that sits in Hamburg, as well
the right to add names to the lists from which arbitrators are selected
under the Convention. Moreover, by joining the Convention, the United
States would enhance the likelihood that judges and arbitrators would
pay serious attention to its views regarding the interpretation and
application of the Convention, even in cases where the United States is
not a party to the dispute and has not exercised its right to intervene
under the Convention.
Thus, even though the United States opts for arbitration under the
Convention rather than accepting the jurisdiction of ITLOS, by joining
the Convention our influence will extend well beyond any arbitration to
which we may be a party. Moreover, we gain the right to seek urgent
temporary provisional measures from ITLOS pending the constitution of
an arbitral tribunal. As the Senate recognized when it approved the
existing Implementing Agreement regarding fisheries to which we are
already party, this enhances our leverage over foreign fishing on the
high seas adjacent to our exclusive economic zone. Becoming party to
the Convention extends that leverage to fishing vessels flying the flag
of any country that is party to the Law of the Sea Convention.
Amending the Convention. The parties to the Convention have the
right to decide whether to try to amend the Convention. Such an effort
could easily alter the balance of the Convention, whether or not we
accept the amendment. This could weaken the platform of principle on
which we currently operate globally, as well as our capacity to
influence the perceptions and behavior of foreign coastal states. It is
not easy for a nonmember to convince the members that they should or
should not change their agreement. As a party to the Convention, we
would have substantially greater influence over the question of whether
and, if so how, to approach the question of amendments or new
implementing agreements.
The Continental Shelf. There is an extensive continental margin
beyond 200 miles off the coast of Alaska and elsewhere off the coast of
the United States. As a party to the Convention, we will be able to
submit the results of our scientific studies regarding the seaward
limits of the continental margin to the Commission of experts
established by the Convention. Once we are satisfied with the outcome
of our exchanges with the Commission, we can exercise the right to
declare limits that are final and binding on all parties to the
Convention. This will increase the certainty of our control and the
willingness of private capital to make the substantial investment
required to explore and exploit areas as deemed suitable for
development.
Moreover, as a party to the Convention, we acquire the right to
nominate and participate in the election of members of the Commission,
as well as the right to comment on both the procedure and the substance
of the Commission's work. These rights are important because we have a
major interest in influencing the review of continental margin claims
around the world before they become final and binding, in order to
ensure that reasonable claims are confirmed and made more secure, and
that excessive claims do not limit our own access to the areas in
question for economic, scientific, or other purposes. Mr. Chairman, the
Canadian and Russian Governments have every right to seek to use the
Commission to advance their interests. But Alaska is caught in the
middle, and our capacity to protect our interests off Alaska and in the
Arctic generally will be enhanced by getting on the inside and making
sure our concerns are heeded.
Deep Seabed Mining. The way in which the International Seabed
Authority carries out its mandate will be decided by its members. The
Convention limits the role of the Authority to regulating the mining of
deep seabed minerals beyond 200 miles and the continental margin, and
carefully prescribes the manner in which that mandate is to be
exercised. In particular, the adoption of mining regulations requires
consensus on the 36-member Council. Once the United States takes its
guaranteed seat on the Council, our blocking power will permit us to
ensure that the Seabed Authority remains within its mandate and that
the content of any regulations is satisfactory. We will have additional
influence over the budget by virtue of our membership on the Finance
Committee, which also functions by consensus. In addition, the United
States will acquire the ability to sponsor the mining applications of
American companies and to ensure that their access and other rights are
respected.
Mr. Chairman, I have outlined some of the benefits of becoming a
party to the Convention. But as many of us have learned, the best
things in life may be free, but the rest has a price. What exactly is
that in this case?
A treaty is typically a reciprocal bargain in which each of the
parties agrees to limit its own freedom of action in exchange for the
limitations imposed on the others. That, Mr. Chairman, is an exercise
of sovereignty. Indeed, entering into treaties with foreign powers is
one of the most important ways in which sovereignty is exercised.
The most significant obligation that we undertake as a party to the
Convention is to respect the same substantive rights and freedoms as
every other state under the Convention. But this involves no
incremental cost to us. The Convention is in fact the platform of
principle on which we rely to protect our own interests at sea every
day. President Reagan committed us to respect those rights and
freedoms, and that commitment has been honored by all of his successors
and by Congress in relevant legislation. The reason for undertaking the
commitment is to promote our interests in persuading other states to do
the same; thus, we would undermine our own interests if we abandoned
our respect for the Convention even if we did not become party.
By becoming party to the Convention, we also acquire rights as well
as duties under the institutional and dispute settlement provisions of
the Convention. The institutions created by the Convention are
independent organs and are not part of the United Nations.
In this regard, let me emphasize that I would expect any first-year
law student to be able to conjure infinite risks of incalculable
magnitude from virtually any legal text. The real question for those
entrusted with policy decisions is one of assessing probable risks and
probable benefits and their probable magnitude. It is that perspective
that informs my own analysis; it is one that I believe would be most
useful to members of the committee.
The Seabed Authority. The best known of the institutional
provisions are those in Part XI of the Convention and related annexes
that concern the International Seabed Authority. We rejected those
provisions. Our reasons for doing so were specifically and successfully
addressed in the 1994 Implementing Agreement, which supersedes
inconsistent provisions of the Convention. With your permission, Mr.
Chairman, I will attach for the record a copy of my published analysis
of the ways in which this was achieved.
There are now 130 parties to the 1994 Implementing Agreement, which
expressly provides that it prevails over the Convention. The parties
include all other major industrial states. From the day the Seabed
Authority opened its doors, it has functioned in accordance with the
1994 Agreement. There is no doubt whatsoever among the parties to the
Convention on this score.
The Seabed Authority is a lean organization based in Kingston that
employs approximately 30 people and has an annual budget of some $6
million. The primary function of the employees is to support meetings
of representatives of the states parties. Those meetings may involve
all or only some of the states parties depending on the organ in
question, and each state party pays for its own participants.
The Deep Seabed Hard Minerals Act of the United States expressly
contemplates, and indeed encourages, the creation of an international
regime for deep seabed mining as part of the law of the sea
negotiations. One of Congress's purposes in enacting the statute was to
provide a basis for interim reciprocal cooperation among industrial
states, so as to make clear to the rest of the world that the deep
seabed mining interests of industrial and consumer nations would have
to be accommodated in the law of the sea negotiations to a greater
degree than was apparent at the time. It took some time and some
serious bumps in the road, but that strategy worked.
The Commission on the Limits of the Continental Shelf. The
Convention also creates another institution, the Commission on the
Limits of the Continental Shelf. The Commission is comprised of experts
elected by the state parties. Salaries are paid by the State that
nominated the Commissioner.
Under the Convention, coastal states that have continental margins
that extend beyond 200 miles may submit precise seaward limits of the
continental margin and supporting data to the Commission for review. An
iterative process between the Commission and the coastal state is
likely to follow if there are some points of doubt or disagreement.
There is no obligation to comply with the Commission's conclusions.
Once the Commission makes its recommendations to the coastal state,
that state is free to ignore them. However, if the coastal state
chooses to establish the seaward limits of its Continental Shelf beyond
200 miles on the basis of the Commission's recommendations, those
limits will be final and binding on all parties to the Convention. The
result is a high level of certainty that avoids disputes and
facilitates investment in areas the coastal state deems suitable for
oil and gas development.
Dispute Settlement Procedures. The parties to the Convention are
given a choice regarding the procedures for binding settlement of
disputes concerning the interpretation or application of the Convention
that are not settled by other means. Unless they declare otherwise, the
parties are deemed to accept arbitration under Annex VII. While the
Convention determines which disputes are and are not subject to
arbitration under the Convention, and sets forth the procedures for
constituting an arbitral tribunal, the parties to the case have the
right to select the arbitrators and bear the costs of arbitration.
Since 1994, there have been five arbitrations under Annex VII: The
first was dismissed for lack of jurisdiction; the second was suspended
pending a determination of jurisdiction by the European Court of
Justice; the third was settled; the remaining two resolved maritime
boundary disputes between neighboring states in the Caribbean area.
The Convention also establishes a standing tribunal, the
International Tribunal for the Law of the Sea. ITLOS sits in Hamburg in
an impressive facility built with German funds. Only the President of
ITLOS resides in Hamburg full time, where there is a small permanent
staff. The remaining judges receive a fixed stipend plus remuneration
for actual days worked. The budget for 2005-2006 was $21 million.
ITLOS may hear cases between states that file declarations
accepting its jurisdiction under the Convention or that submit disputes
under another agreement. In addition, ITLOS may hear cases brought by
any party to the Convention in three limited situations. The first two
involve urgent situations: Where a state has failed to comply with its
obligation under the Convention to promptly release on bond a vessel
and crew that have been detained for an alleged fisheries or pollution
violation, and where there is a request for temporary provisional
measures pending the constitution of an arbitral panel in a dispute
that has been submitted to arbitration under the Convention. The third
involves certain disputes regarding deep seabed mining in the
international seabed area, which are heard by a special chamber of
ITLOS.
Since 1994, ITLOS has heard and decided only one full case on the
merits, which was a textbook case of illegal interference with freedom
of navigation off Guinea. Most of ITLOS's cases have been brought under
a special procedure designed to secure prompt release on bond of
detained vessels and crew awaiting trial in a national court for
fishing or pollution violations. Some of these cases were dismissed on
jurisdictional or similar grounds, some have determined whether the
bond set by the detaining state is reasonable, and one resulted in
release before the hearing was held. These decisions have been highly
deferential to coastal state interests in enforcing conservation laws
and regulations.
Three of the arbitrations under Annex VII of the Convention were
preceded by requests to ITLOS for provisional measures pending the
constitution of the arbitral tribunal. While some provisional measures
were prescribed in all three cases, in two of those cases ITLOS
declined to order suspension of the activities in dispute, and in one
of the cases ITLOS temporarily reinstated catch limitations on fishing
that had previously been agreed by the parties.
The declarations contained in the resolution of advice and consent
recommended by this committee in 2004 opt for special arbitration under
Annex VIII of the Convention for certain categories of disputes to
which that annex applies, and arbitration under Annex VII for the
remainder.
Virtually all agreements to submit future disputes to arbitration
designate some neutral individual to make the remaining appointments in
the event that the parties to the dispute fail to appoint the requisite
number of arbitrators within a specified time. Annex VIII of the
Convention designates the Secretary General of the United Nations for
this purpose, and Annex VII designates the President of ITLOS. Each
party to the Convention has the right to add a certain number of names
to the lists of individuals eligible for selection as arbitrators where
the parties have not appointed the full panel themselves.
In assessing the costs and benefits of this system, it is important
to bear in mind that the objectives of the United States are served if
a state that violates its obligations to respect navigation,
overflight, and other communications rights and freedoms is subject to
suit by any party to the Convention. The plaintiff need not be the
United States.
On the other hand, the United States can also find itself in the
position of a defendant. That is the risk that comes with the benefit.
The United States successfully endeavored to minimize that risk by
supporting both mandatory and optional exceptions to the obligation to
arbitrate or adjudicate disputes. Let me highlight a few:
First, the obligation applies only to disputes concerning the
interpretation and application of the Law of the Sea Convention that
have not been settled by other means.
Second, the obligation does not apply to disputes that are also
subject to arbitration or adjudication under some other agreement.
Third, the obligation does not apply where there is an agreement
between the parties to settle the dispute by some other means, and that
agreement excludes any further procedure.
Fourth, only a very limited category of cases may be brought
against coastal states with regard to their exercise of sovereign
rights or jurisdiction. The most important of these, central to the
objectives of the United States with respect to the Convention as a
whole, involves alleged violation by the coastal state of the
provisions of the Convention regarding rights and freedoms of
navigation, overflight, submarine cables and pipelines, and related
uses.
Fifth, a state may file a declaration excluding disputes concerning
maritime boundaries between neighboring coastal states, concerning
military activities, and concerning matters before the U.N. Security
Council. A declaration excluding all such disputes is contained in the
resolution of advice and consent contained in the committee's 2004
report.
The record of dispute settlement tribunals under the Law of the Sea
Convention to date is certainly reassuring. Very few cases have been
brought since 1994. All have been handled with considerable caution and
prudence, especially in terms of the operative provisions of the
judgments and awards.
My conclusion, therefore, is that the probable costs and risks are
small, that the magnitude of the probable benefits is very high, and
accordingly that America's interests are best served becoming party to
the Convention. To put it differently, the risks of damage to America's
long-term security, economic, and environmental interests by not
becoming party to the Convention are far greater than the risks of
becoming a party.
The major stakeholders in our country agree that the United States
would benefit substantially from becoming party to the Convention. They
are supported by an extraordinary array of present and former political
and military leaders of our country's foreign, defense, and economic
policies. Virtually all of our friends and allies around the world are
already party to the Convention, and remain puzzled by our hesitation.
Mr. Chairman, it is time for the Senate to heed President Bush's
call to approve the Convention on the Law of the Sea and the 1994
Implementing Agreement as soon as possible. I urge it to do so
promptly.
Senator Menendez. Thank you, Mr. Oxman.
Mr. Smith.
STATEMENT OF FRED L. SMITH, JR., PRESIDENT, COMPETITIVE
ENTERPRISE INSTITUTE, WASHINGTON, DC
Mr. Smith. Thank you, Senator Menendez and members of the
committee.
I am Fred Smith. I do head a free-market think tank. And we
focus on regulations. And regulations, in many ways, are very
similar to treaties. They are passed as hortatory language, and
all of the messy, complex tradeoffs, the complicated choices,
are made offstage, largely influenced by special interest
groups, not by the detailed analysis of a democratic society.
I speak, today, regarding the treaty's regulatory,
litigation--regulatory, litigation, and economic features, a
combination of intellectually foolish, politically
irresponsible, and morally wrong elements. I ask that--I've got
some materials I'd like to submit for the record, that I'll
give after this.
On this committee, you've heard, and will hear more, about
how LOST was, indeed, an initially poorly crafted document, but
that it's been improved, it has been fixed, it's the best we
can get--the train's leaving the station, we have to have a
seat at the table, we must accept the bad to get the good.
These points are all wrong. That they have been given any
credence merely reflects the fact that a lie repeated often
enough can gain acceptance. The Senate of the United States is
one of the world's greatest deliberative bodies, but this hasty
effort to rush through a fatally flawed treaty does you no
credit. I hope the members of the committee will think through
some of the issues that we'll raise here today.
You have been assured by some venerable scholars--and we
respect them--who have sought, for decades, to put lipstick on
this pig, and you seem eager to accept their reassurances. But
the--given the fatally flaw--the archaic collectivist premises
of the economic aspects of this treaty that remain at its core,
it really can't be fixed. We should give our proponents our
thanks for doing their best, but you would be irresponsible to
allow their ``Bridge on the River Kwai'' attitudes to lead us
into ratifying this destructive treaty.
The treaty is a weird mixture of the codification of some
long-established and widely accepted navigational rules. There
are reasons to consider those. But they combine that with an
outdated and counterproductive collectivist scheme to basically
not develop the world's resources. The treaty would create a
socialist entity to develop the oceans, viewed as the common
heritage of all mankind. This would open up a new regulatory
and legal regime to protect the oceans, a noble goal, but it
would not regard the rational cost analysis that are critical
to a responsible, sustainable way to protect those oceans.
Common property--that ``yours is mine'' aspect of laws--
will limit, not increase, mankind's ability ever to benefit
from the vast--potential resources of this vast area.
Incidentally, the intellectual property aspects, that
should certainly concern both Senator Lugar and Senator
Menendez, have already shown some problems, as we've seen in
the collapse of trips and the seizure of some of our
intellectual property rights--or the threat to our intellectual
property rights in those areas.
The treaty--the economic aspect--the treaty would relegate
two-thirds of the world's potential resource--potential--
perpetual status as common property resource, the common
heritage of all mankind. Garrett Hardin alluded long ago, in
his ``A Tragedy of the Commons'' piece, that those policies
essentially assume--can only have tragic results. Some nation-
states are taking a different approach. The United States, the
United Kingdom, Norway, even China are making creative moves
into the deep sea. Other nations, like New Zealand and Iceland,
have done much to extend property rights into the fishery
areas. Those pioneering efforts to extend the institutions that
prove wealth production is possible, offer hope to mankind that
would be short-circuited by the process of LOST.
Cutting a thing down to 5 minutes is not easy, Senator.
The regulatory aspects of this--it's a massive regulatory
bill. It creates a body charged with protecting the seas, but
everything eventually flows into the seas. Thus, the United
Nations gains the power to look upstream and into the skies to
ensure that anything that might, or could have, or might
possibly have, impact on the seas be scrutinized and
disciplined. The unintended consequences of this regulatory
overreach cannot be underestimated. Its potential for damage is
massive. The committee has not done due diligence on this
topic. And for the complacent note--for the complacent, note
that the proponents of this bill--environmental alarmists,
trial lawyers, rent-seeking businesses--are adept at converting
hortatory language into legal prohibitions.
Did anyone expect the Endangered Species Act to become a
national land-use planning act? Super Fund to become a costly
green pork-barrel measure? The Clean Waters Act to allow us to
seize property throughout the land to protect wetlands? And
that's in the United States. When we go, globally, where
antiglobalization, NGOs, antitechnology, antigrowth are far
more powerful, won't they be able to block wealth-creating
moves even more so? They're already blocking wealth-creating
moves in many poor--in poor countries throughout the world.
The application of this is worsened by something called the
``precautionary principle.'' I hope, like others, I'll have a
second to finish my speech this morning.
The U.S. Division for Ocean Affairs boldly announced that
LOST is not a static instrument, it will be expanded. And it
already is being expanded. Some of you know, already, the MOCs
issue, where the United Kingdom, which does have a seat at the
table, is being attacked by Ireland for a nuclear power
facility. Won't we expect more and more as this act--if we
accede to this act?
LOST opens, not one, but myriad Pandora's boxes,
exacerbating the problems of litigation. We already have an
over-litigious society. When we go this route, with the Alien
Tort Claims Act, trial lawyers aggressively, and other measures
moving in this direction, we may expect even more lawsuit
problems for the United States.
This power--this act was passed when the United States was
still--when Russia was still a superpower, when the world was
convinced that collectivist development was superior to free
markets, when the West was viewed as a dying dream. It is
vastly more foolish today, when even the most dedicated Marxist
sees private property, not common property, resource and the
market as the paths to prosperity. We do the world no favor by
allowing this textual and legal dinosaur to stand in the path
of mankind's future.
The navigational features have been said they're good. They
can be handled in a much more creative way than a Law of the
Seas Treaty.
Ironically, though, LOST purports to develop seaboard
resources. It also protects land-based mineral interests
against competition from seabed mining. That was passed by the
three Z's--Zaire, Zambia, and Zimbabwe. Does anyone believe
Zimbabwe is the ideal nation to lead mankind into a more
prosperous future?
My concluding remarks. LOST has become a solution in search
of--has become a solution in search of a problem. Weakening our
access to the ocean floor's plentiful resources is costly,
especially to the poor of the world. Equally significant is the
cost of developing the entrepreneurial creative energies that
America has done so much to do.
A quarter of a century ago, Reagan refused to sign this
bill. You've heard about this already. And yet, we were told
chaotic results would result from our failure to do that.
There's not been one incident, to my knowledge, since the
failure to do it.
Arthur Clarke, the famed author, once wrote a futurist book
called, ``The Deep Range,'' which dealt with one scenario for
the development of the oceans in the 21st century. In that
book, his oceans had largely been privatized with sonic
underwater fences separating one pasturage from another.
Imaginative, as all futurists were, but his oceans were
productive.
Efforts are now underway to realize that creative extension
today--the fisheries issue, the oil issues. To make sure that
the oceans no longer remain barren, that two-thirds of the
world does start contributing to mankind's welfare. But that
admirable goal should not lead us----
Senator Menendez. Mr. Smith, I've now let you go on for
7\1/2\ minutes. I'd ask you to----
Mr. Smith [continuing]. Don't act in haste. Think about
these questions. Ask--take your time. This is not something we
have to do today. It's questions like this that I think should
motivate you to reconsider.
Thank you.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Fred L. Smith, Jr., President, Competitive
Enterprise Institute, Washington, DC
Thank you, Chairman Biden and members of this committee for your
invitation to testify on the Law of the Sea Treaty. I am Fred Smith and
head the Competitive Enterprise Institute (CEI), a free-market public
policy group that has focused for the last two decades plus on
regulatory issues. It is to LOST's regulatory litigation features--to
intellectually foolish, politically irresponsible, and morally wrong
that I speak today. I ask that my written testimony along with two
recent policy papers by Doug Bandow, part of the Reagan team that
rejected this treaty long ago, [The Law of the Sea Treaty: Impeding
American Entrepreneurship and Investment by Doug Bandow, September
2007] and Jeremy Rabkin, now a professor at George Mason University and
scholar at the American Enterprise Institute--be included in the record
[The Law of the Sea Treaty: A Bad Deal for America by Jeremy Rabkin
June 2006].
On this committee, you'll heard much of how LOST was indeed an
initially poorly crafted document, but that over the last three
decades, its been fixed, that elements of the treaty remain troublesome
but it's the best we can get, that we must accept the bad to get the
good, that the risks are acceptable. These points are all wrong--that
they have been given any credence reflects merely the fact that repeat
a lie often enough and it gains acceptance. The Senate of the United
States is the world's greatest deliberative body but this hasty effort
to rush through a fatally flawed treaty does you no credit.
You've been assured by some venerable scholars who've sought for
decades to put lipstick on this pig--and you seem too eager to accept
their reassurances. One should never be surprised that people who've
worked on a project for much of their lives wish it to succeed. But,
this treaty has not been fixed--indeed, given the archaic collectivist
premises that remain at its core--it cannot be fixed. We should give
its proponents our thanks for doing their best but you would be
irresponsible to allow their Bridge on the River Kwai shortcoming to
lead us into ratifying this destructive treaty.
The treaty is a weird mixture of the codification of some long
established and widely accepted navigational rules for the oceans with
an outdated and counterproductive collectivist scheme to make the
oceans the funding source for a U.N.-
organized wealth redistribution plan. The treaty would create a
socialist entity to develop the oceans viewed as ``the common heritage
of mankind.'' The entity (the ``Authority'' and other bizarre language
no longer heard even in North Korea) would gain its resources and
knowledge by forcing private firms--likely U.S.--to ``share'' with
``all mankind.'' That ``what's yours is mine'' aspect of LOST will
limit mankind's ability ever to benefit from the potential resources of
this vast area.
This redistributionist, collectivist language, I've suggested, is
archaic and this is not surprising. The treaty was drafted during the
height of the G-77--when many saw world poverty as the result of the
West's wealth. People in Africa, Asia, and South America were poor
because we were rich; make us poorer and they will become richer. In
that era, only foreign aid and other wealth redistribution schemes were
viewed as offering any hope of alleviating world poverty. LOST was
typical of the flawed policy prescriptions of that era. But the world
has learned much over the last decades. Most now recognize that foreign
aid, while occasionally useful in emergency relief situations, can too
often stifle the entrepreneurial forces and political reforms which
offer the only hope for sustainable economic growth. The work of Lord
Peter Bauer, recipient of the Cato Institute Friedman Prize, showed
that too often foreign aid is simply the transfer of wealth from the
poor in the rich world to the rich in the poor world, that such wealth
transfer programs hurt, rather than helped the poor. LOST was crafted
in this era and it shows. Even the World Bank and its other
international institutions increasingly recognize that the key to
addressing poverty is for the affected nation-states to move toward
economic freedom, private property, a predictable rule of law, a
reduction in domestic violence. To enshrine collective political
management of the oceans does nothing to advance this cause.
This treaty would relegate two-thirds of the world's potential
resources to perpetual status as common property resources--``the
common heritage of all mankind. But as Garrett Hardin noted long ago in
his article, ``The Tragedy of the Commons,'' policies that relegate
resources to be managed by all, are all too likely to have tragic
results. Some nation-states--the United States, the United Kingdom, and
Norway, even China--have made dramatic steps in moving land-based
technology down to the sea. Other nations like New Zealand and Iceland
have done much to extend property rights into the fisheries area. These
pioneering efforts to extend the institutions that have made so much of
the earth's land productive and beneficial to mankind to this most
complex and costly world have been encouraged by the hope that they
will profit, that the knowledge they acquire will be theirs to make
future steps more efficient, that any profits they make will be
retained. These positive trends will be weakened or destroyed if LOST
is ratified.
Note that the United States has long recognized that ownership of
the surface can--and in fact should sometimes--be severed from
ownership of subsurface resources. That creative extension and
adaptation of traditional private property encouraged exploration and
development of the resources beneath the earth's surface. This creative
extension of property rights made possible the rapid development of
oil, coal, and other mineral resources in the United States.
An analogous separation of the ocean resource into navigational
rights and ocean floor rights poses no serious difficulties. This would
allow us to achieve the useful, if redundant, gains promised in the
navigational area, without hindering the creative and ongoing
institutional innovations. Innovation is rare when resources are
relegated to ``common property'' status. Indeed, as the materials
supplied to this committee make clear, the development goals of this
treaty could far more effectively be advanced--without the risks of
overregulation and overlitigation--by simply creating a claims office
to allow ocean floor rights to be catalogued and titled. Private
property would do far more than U.N. bureaucracies to encourage the
development of the ocean's resources in mankind's interest.
The Law of the Sea Treaty mandates global redistribution of
resources and technology, creates a monopolistic public mining entity,
and restricts competition just the sort of statist panaceas that were
discredited by the collapse of Soviet communism and that have been
largely abandoned everywhere.
Far from being a market-oriented system, as claimed by some
conservatives who have been coopted by treaty enthusiasts on this
issue, the treaty will forever discourage widespread exploration and
production.
The treaty's purported benefits are illusory; the treaty's features
would impose heavy costs on America and the world.
LOST is a heavily regulatory bill, creating a body charged with
protecting the seas. But, everything eventually flows into the seas.
Thus, the United Nations gains the power to look upstream and into the
skies to ensure that everything that has--or might have--impact on the
seas be scrutinized and disciplined. The unintended consequences of
this regulatory overreach cannot be underestimated; its potential for
damage is massive. This committee has not done ``due diligence'' on
this topic. And, for the complacent, note that the proponents of this
bill--environmental alarmists and legal enthusiasts--are adept at
converting hortatory language into legal prohibitions. Did anyone
expect the Endangered Species Act to become a national land use
planning act? Did anyone expect Superfund to become one of the most
costly green pork barrel measures in history or that the Clean Water
Act would compel the Corps of Engineers to ban development throughout
any area that might have been or might become at some time a
``wetland?''
The treaty's regulatory approach would be guided by the
precautionary principle, the serious application of which would halt
economic development, since it is impossible to prove a negative--that
a new process or technology involves no risk.
Indeed, it is the precautionary principle that has burdened Europe
with a regulatory yoke only a bureaucrat could love. As The Economist
noted last week: ``The European model rests more on the `precautionary
principle,' which underpins most environmental and health directives.
This calls for preemptive action if scientists spot a credible hazard,
even before the level of risk can be measured. Such a principle sparks
many transatlantic disputes: Over genetically modified organisms or
climate change, for example . . . Some Eurocrats suggest that the
philosophical gap reflects the American constitutional tradition that
everything is allowed unless it is forbidden, against the Napoleonic
tradition codifying what the state allows and banning everything
else.''
Regulatory Bonapartism may appeal to some Europeans, but it is not
a model to which America should ever subject itself.
The U.N.'s Division for Ocean Affairs and the Law of the Sea boldly
announced that the LOST ``is not . . . a static instrument, but rather
a dynamic and evolving body of law that must be vigorously safeguarded
and its implementation aggressively advanced.''
The proponents of this bill know full well that it will empower
their special interests to gain massive power over the economic hopes
of peoples throughout the world. Development is unlikely under the
clumsy management of the U.N. bureaucracy. Moreover, the treaty by
empowering environmental elites to raise significant new legal
objections against agriculture, manufacturing, transportation, and even
technology will gain new abilities to stop or slow economic
development. Ratifying LOST would be to open not one but myriad of
Pandora's boxes--exacerbating the problems of an already overly
litigious society, an America that already finds it difficult to site
and build anything. We do not build a better future by empowering the
forces of stasis. The NIMBY problems that America now faces may fade as
LOST moves us toward NOPE policies.
The problems of LOST have not been fixed. And, indeed, proponents
do not really believe that they have been. They simply argue that
``this is the best that we can do.'' (Indeed, the State Department
acknowledges that the 1994 ``Agreement retains the institutional
outlines of Part XI''--that is, only some of the details have changed.
The structure and underlying principles remain the same.) Thus, to
adopt this flawed and largely unchanged treaty would be foolish. It was
foolish when Reagan rejected the treaty almost 25 years ago, a time
when Russia was still a superpower, when the world was convinced that
collectivist development was superior to free markets, when the West
was viewed as a dying dream. It is vastly more foolish today when even
the most dedicated Marxist sees private property and the market as the
path to prosperity. We do the world no favor by allowing this textual
and legal dinosaur to stand in the path of mankind's future.
Some treaty advocates argue that it would help ensure passage for
American shipping. This point is moot. Irrespective of any treaty text,
only the U.S. Navy can guarantee free ocean transit in situations where
nations have both the incentive and ability to interfere. That remains
true under the U.S.'s status as a nonparty to the treaty. Were we to
ratify LOST, the Law of the Sea Tribunal might declare such action
unlawful.
As noted, the treaty's best provisions--those covering navigation--
largely codify existing customary international law. Its worst
provisions those creating the seabed regulatory regime--would
discourage future minerals production as well as punish
entrepreneurship in related fields involving technology, software, and
intellectual property that have an ocean application. Since technology
often has multiple uses, it would also slow innovation generally.
In addition to the Tribunal's likelihood to be used against U.S.
interests, the primary argument against ratification is the treaty's
bizarre regulatory regime governing seabed mining of deep ocean
resources like the minerals cobalt and manganese. This system is unique
in its Byzantine complexity.
Some modest improvements made in 1994 have been made, but its
collectivist biases remain dominant. The treaty is a disastrous
throwback to the era when socialism was seen as the wave of the future.
Ratifying it would be even more foolish today, in a world of exploding
economic opportunities and technological possibilities.
The Law of the Sea Treaty would give governments that may not have
the best interests of the United States in mind an important say over
American firms' work in the field of resource extraction, an industry
that is only gaining in importance in the current world of rising
commodity prices, global growth, and reliance upon unstable regions.
Seabed mining requires no international bureaucracy, but simply a
system for recording seabed claims and resolving conflicts.
Unfortunately, President Ronald Reagan's successors took the treaty
as a given, and have attempted to ameliorate its most onerous
provisions without questioning its necessity.
Under the Law of the Sea Treaty, taxpayers in industrialized
countries will pay for the privilege of being regulated by a Third
World dominated body. The treaty effectively treats the ocean's unowned
seabed resources as property of the United Nations.
American and other global mining firms would be targeted by
misguided antitrust regulators, in ways that would cripple their growth
and creativity. The EU and other developing nations would use these and
other regulations to harm U.S. and other economic interests. LOST would
empower an inefficient international bureaucracy and incompetent and
often kleptocratic--Third World officials. Wealth that is never created
cannot help the world's poor.
Western governments would be required to enforce payment of fees
and royalties, subsidize the U.N.'s mining operation, and provide
resources for redistribution to Third World entities and likely
antiglobalization NGOs.
Ironically, although LOST purports to develop seabed resources, it
also offers land-based mining interests protection against competition
from seabed mining. It stipulates that fees ``shall be within the range
of those prevailing in respect of land-based mining of the same or
similar minerals.'' Because seabed mining is more expensive and riskier
than land-based mining, this could force seabed producers into
insolvency. This would discourage resource exploration and production.
This provision historically was promoted by the three Zs--Zaire,
Zambia, and Zimbabwe. Does anyone believe Zimbabwe is the ideal nation
to create a more prosperous future?
If there were to be a mining treaty--a dubious proposition to begin
with--then the proper ``fix'' would be to junk the treaty's part XI,
which contains the seabed mining provisions, thus severing seabed
mining from the rest of the treaty. A separate agreement among those
few nations having capacity in this complex technology area might be
useful. But that treaty would not resemble LOST.
The voting system hasn't been fixed, either. According to the
revised treaty, the United States would be guaranteed a seat on the
Council but no veto. This is not a Security Council style treaty.
Nor is there any obvious limit to America's potential fiscal
liability. The United States is expected to provide the largest share
of the budget for the International Seabed Authority, the governing
body set up by the treaty, starting at 25 percent.
Another failed fix involves technology transfer. Section 5,
paragraph 1(b) of the revised text replaces the mandatory technology
transfer requirement with a duty of sponsoring states to facilitate the
acquisition of mining technology ``if the Enterprise or developing
States are unable to obtain'' equipment commercially. Mandatory
transfers and licensing of costly private intellectual property is no
way to encourage innovation.
CONCLUDING REMARKS
The treaty has become a solution in search of a problem.
Today, it is hard to imagine any entrepreneur investing capital
sufficient to create a viable deep seabed mining operation. The
underwater environment is forbidding, in ways potentially as
challenging as space. The great depths, incredible pressure, and uneven
seabed already make the creation of a workable, let alone an
economical, mining operation extremely difficult. The Law of the Sea
Treaty would only make it more so.
Losing access to the ocean floor's plentiful resources could be
costly, especially in the future as land-based supplies wane. Equally
significant would be the cost of discouraging the development of
technologies to explore and develop the seabed.
The Law of the Sea Treaty retains its coercive, collectivist
philosophical underpinnings. It will have a negative impact on
entrepreneurship even if no mining ever occurs. The worst principle is
the declaration that all seabed resources are mankind's ``common
heritage'' under the control of a majority of the world's nation-
states. American ratification would help validate some of these
discredited collectivist principles.
Moreover, the treaty could set a bad regulatory precedent for the
commercial development of space. Subjecting private space exploration
and development to a similar regulatory system would discourage private
ventures.
By punishing entrepreneurship directed at transforming the great
``frontiers'' of the oceans and space, the Law of the Sea Treaty
threatens potentially enormous losses well into the future.
A quarter of a century ago, President Reagan's refusal to sign the
Law of the Sea Treaty left some critics predicting chaos and combat on
the high seas. Yet we have witnessed not one incident as a result of
the failure to implement the treaty.
Biasing the process against economic development globally would
have profound impacts on all peoples, and especially those in the
poorest lands who most need the results of economic growth,
international investment, and trade and globalization.
A secure economic environment would be particularly important for
entrepreneurs entering high-risk investment fields, notably underwater
and in space, where the viability of the very process, let alone the
security of the expected profit, would be in doubt.
Contrary to the claims of treaty supporters, the 1994 revisions did
not ``fix'' the agreement. LOST remains captive to its collectivist and
redistributionist origins, it would still establish an unjust and
unworkable seabed mining regime.
Arthur Clark, the famed author, once wrote a futurist book called
``The Deep Range'' which dealt with one scenario for the development of
the oceans in the 21st century. In his book, the oceans had largely
been privatized with sonic underwater fences separating one
``pasturage'' from another. It was a productive world. Efforts are now
underway to realize that creative institutional extension today and
this offers a far more effective way of realizing the hopes of LOST's
proponents. It is indeed important that we no longer neglect the
critical but now largely barren two-thirds of our planet. But that
admirable goal should lead us to act hastily, to sacrifice a vastly
superior approach simply to join a deeply flawed global consensus.
America, following Reagan's lead, should once again tell LOST
proponents to get lost.
Senator Menendez. Thank you very much.
Before we go to questioning, I feel compelled, on behalf of
Chairman Biden, to briefly respond to Mr. Gaffney's complaint
about the process, and then we'll go to questions.
It's simply not true to suggest that the Senate is
rubberstamping the treaty. The Convention has been pending
before the Senate for 13 years. Much has been written about it
by experts in and outside of the government. We have the
benefit of seeing more than a decade of the Convention in
practice. It hardly seems like a rush to judgment.
This is the fourth hearing that this committee will hold on
the treaty--two in this Congress, and two in the 108th
Congress. In 2004, hearings were held in the Committee on Armed
Services, the Committee on Environmental and Public Works, and
the Select Committee on Intelligence. Hundreds of questions for
the record have been answered by the executive branch.
And, finally, I would note that the committee has invited
written testimony from any interested party, made a public
notice to that effect in the Congressional Record last week.
And, of course, all of the statement--the full statements of
all our witnesses will be included in the record.
With that, since we have two panels, we'll turn to 5-minute
rounds. The Chair will recognize himself.
You know, Mr. Gaffney, I want to say, I have great respect
for the Navy League, as well, the entity that gave you your
watch that you so proudly told before the committee. And I'd
ask unanimous consent to include into the record a letter from
the Navy League that says, ``On behalf of the Navy League of
the United States, we write to urge you and your Senate
colleagues to vote in favor of the ratification of the Law of
the Sea Convention.'' It goes on to say, ``The Law of the Sea
Convention not only safeguards and codifies currently generally
accepted principles of Freedom of Navigation and Overflight,
but it also is fully consistent with current efforts in support
of the global war on terrorism and the Proliferation Security
Initiative.''
And, without objection, it'll be included in the record.
[Editor's note.--The above mentioned letter was not available
at the time of printing.]
Senator Menendez. I want to ask you, Mr. Gaffney--over a
decade ago, you called the Chemical Weapons Convention, a
treaty that the Senate approved by 75 to 25, fatally flawed.
You asserted that it would create a massive new U.N.-style
international bureaucracy, that it would create the most
expensive, intrusive, complex, and burdensome ``verification
regime ever negotiated, and that the additional costs of treaty
participation on the taxpayers and private companies were
conservatively estimated to be in the billions of dollars.''
Those are your words.
But here are the facts. For fiscal year 2006, the United
States contributed just under $24 million to the Organization
for the Prohibition for Chemical Weapons, the entity created to
administer the Convention. The United States incurred an
additional cost of $14 million to accommodate inspections by
the OPCW in this country. In fiscal year 2006, the total cost
to accommodate OPCW inspections reported by all private
companies--U.S. companies--was under $172,000.
Given how inaccurate your predictions were about the
Chemical Weapons Convention, why should the committee believe
your predictions about this treaty?
Mr. Gaffney. Well, thank you, Mr. Chairman.
I do want to note the absence of Senator Biden, and, for
that matter, the other three people running for President, from
this committee, what I would argue is one of the most treaties
this committee will hear in the history of this country.
As to the Chemical Weapons Convention, we can quibble----
Senator Menendez. I just would interrupt you. You know, I--
it depends how you want to use your time.
Mr. Gaffney [continuing]. I'm----
Senator Menendez. I think you want to use it----
Mr. Gaffney [continuing]. I'm trying to respond to your
comments.
Senator Menendez. I think you want to do--is use it in
response to questions and to bolster your arguments. I would
say, Senator Biden has been at various of these hearings in the
past.
Mr. Gaffney. He's never heard----
Senator Menendez. He's very----
Mr. Gaffney [continuing]. The opponents'----
Senator Menendez [continuing]. He's very well----
Mr. Gaffney [continuing]. Opponents' views.
Senator Menendez. He's very well versed with the treaty.
Mr. Gaffney. He's never heard the opponents' views in this
committee.
Senator Menendez. And he has been at several of these
hearings. But I won't----
Mr. Gaffney. Senator, if I may use my time my way, I would
use it to say this committee has never, before today, heard a
single opposition witness to this treaty. You're confining the
two that you have heard from to about 15 minutes and a 5-minute
round of your colleagues. I consider that to be inadequate. I
would--if I were running for President, I would want to know
whether I'm doing damage to the country by voting for this
treaty.
Senator Menendez. Do you want----
Mr. Gaffney. But it's his----
Senator Menendez [continuing]. To respond to my----
Mr. Gaffney [continuing]. Decision as to----
Senator Menendez [continuing]. Question?
Mr. Gaffney [continuing]. Whether he wants to be here.
Senator Menendez. Would you like to----
Mr. Gaffney. As to the----
Senator Menendez [continuing]. Answer the question?
Mr. Gaffney. I would be happy to respond to the other part
of your question, sir.
In my estimation, the key question about the Chemical
Weapons Convention was, Would it rid the world of chemical
weapons? Not the issues of how much it was going to cost us. I
was worried about the costs. And, frankly, I think there have
been costs that are not enumerated in your numbers. But the
main point is, Mr. Chairman, as I said, and as I believe has
been borne out by the facts, that treaty did not rid the world
of chemical weapons. It was fraud. We have gone the lengths of
eliminating our chemical weapons. Unfortunately, all of the
countries that are likely to use them against us continue to
have them, including----
Senator Menendez. None of the----
Mr. Gaffney [continuing]. Many that signed the treaty.
Senator Menendez. None of the predictions you made, that I
quoted directly from your testimony, have transpired.
Mr. Gaffney. I--what I'm suggesting to you, sir, is, the
main prediction was that the treaty would not be in the
interests of the United States.
Senator Menendez. Let me ask----
Mr. Gaffney. I believe that to be true----
Senator Menendez. Let me ask----
Mr. Gaffney [continuing]. Of that treaty, as well----
Senator Menendez. Let me ask you this.
Mr. Gaffney [continuing]. As this one.
Senator Menendez. In May 2007, in an op-ed that you
authored in the Washington Times, you wrote, ``In 2004, the
Bush administration decided to embrace the Law of the Sea
Treaty. The argument seemed, principally, to be that, in the
aftermath of the bruising fight over Iraq, doing so would
demonstrate that the United States could still play well with
its allies and other nations.''
Now, are you aware that the Law of the Sea Convention was
designated as an urgent treaty in the administration's treaty
priority list, which was issued in February 2002, over a year
before the invasion of Iraq?
Mr. Gaffney. I was not, sir. And, to be honest with you, I
don't think anybody else was, because they didn't press for its
ratification until after the time I spoke----
Senator Menendez. Well, certainly it wasn't about playing
with other countries----
Mr. Gaffney. I think, clearly, that was a factor----
Senator Menendez. In 2000-----
Mr. Gaffney. Mr. Chairman.
Senator Menendez [continuing]. A year before the----
Mr. Gaffney. Ask----
Senator Menendez [continuing]. Iraq----
Mr. Gaffney. Ask----
Senator Menendez [continuing]. Invasion?
Mr. Gaffney. Ask--no, I'm speaking of the 19--of the 2003.
Ask those involved in the interagency process, and I think
you'll find that that explanation was given.
Senator Menendez. Finally, you say, in--also in the
Washington Times, you say that, ``The Bush administration is
now under the influence of American transnational
progressives.'' And you note a series of people within the
administration who you put in that category. This committee has
received testimony from the President, the Deputy Secretary of
Defense, the Vice Chief of Naval Operations, letters or
statements of support from the six members of the Joint Chiefs
of Staff, the Secretary of Homeland Security, the Commandant of
the Coast Guard, the Secretary of the Interior, the Secretary
of Commerce. We've also received a resolution of support,
approved in 2006 by the Western Governors Association, that
include the Republican Governors of Alaska and Texas, and all
the states in between. All of these people are under the
influence of American transnational progressives?
Mr. Gaffney. Mr. Chairman, I would ask this question of
everyone you've just asked--that you've just enumerated. Have
any of them read this treaty? And I would ask the same of you.
I can't imagine anybody who has read this treaty would conclude
that it warrants the kind of support you've just listed, let
alone that it reflects the kind of treaty that Bernie Oxman is
talking about. It does not stack up. If you read it carefully,
it is, in fact, the product of transnational progressives. And
I'm afraid a lot of people are being sold a bill of goods.
Senator Menendez. Senator Lugar.
Senator Lugar. Well, thank you, Mr. Chairman.
I would just observe that, as we've already heard
testimony, the treaty has been recognized and observed by our
country for the last 24 years, more or less, except for the
controversy over the deep seabed mining provisions that
President Reagan indicated he found objection to. And this is
why one can conjecture all sorts of things that may occur, but
it has been of value to our country to observe that. The point
is that we're not around the table with regard to issues that
may come up, and the deep seabed mining issue is one of these.
Now, I'd like to ask you, Mr. Oxman, leaving aside all the
controversies on the rest of the treaty, which has been
observed for about a quarter of a century, we still have the
problem of the deep seabed mining business, because there is at
least validity to the claim that there could be mineral
resources that are valuable that are offshore. And the question
is, Who do they belong to? Because there has been no agreement
about this, no investment has really taken place. In other
words, there may be valuable resources for the world out there,
but if, in fact, you assert a claim, and do so without having
at last some international acceptance of that situation, you
may be in jeopardy. People may say no and take action to
prevent that investment. So, for people that want to put
billions of dollars into oil, natural gas, and whatever else
might be down there, obviously they have hesitated to do so,
quite properly.
So, I'd just ask you, as a legal scholar, Is interest in
the Law of the Sea Treaty now coming to the fore because the
world sees some urgency, in terms of shortages of these natural
resources? And, if there is not United States participation, is
it possible that other nations who are sitting around the table
are going to try to make some disposition of this?--to which I
suppose we could say, ``Well, by golly, we'll send our fleet in
there, break up whatever anybody else is doing.'' And Admiral
Clark has suggested, as a Navy veteran, that it's probably
precarious to settle every dispute in that way. But can you
give us some idea as to how the deep-sea mining issue might
work out, and why our presence around the table, through
ratification, would be important?
Mr. Oxman. Thank you, Senator. I completely agree with
that. Indeed, I'd like to go back to the beginning.
President Nixon was the one who laid out our basic strategy
with respect to the Law of the Sea, including deep seabed
mining. And he proposed a new deep seabed mining regime, for
three basic reasons: One, to stop sovereignty claims; two, to
protect the Freedom of the Seas; and, three, your point,
Senator, to provide a secure basis to acquire recognized title
to mine sites so that private investors will be able to invest.
Now, it took us a long time to get there, but we have
gotten there. And I do want to make it clear that, while part
11, which President Reagan rightly rejected, did reflect
collectivist views of economic organization that were not in
our interest, and not consistent with our philosophy--those
objectionable provisions were rejected, point by point, in the
1994 Implementing Agreement; and, not only that, the ideology
was expressly rejected. The Implementing Agreement says it
responds to market approaches to economic activity.
We now have an organization that is going to adopt mining
regulations. All of the other major industrial states are
sitting there. They are going to adopt those regulations. They
have mining companies that, naturally enough under market
approaches, are in competition with each other, and with our
own potential investors. We have a guaranteed seat on the
council which determines all of the regulations, and we have
not yet filled it. What will happen is that, over time, more
and more regulations will be adopted, and that will be the real
system.
I cannot imagine that the billion or so dollars that would
be required to invest in a mine site is going to be regarded by
conservative bankers as a prudent investment if it has to be
made in direct defiance of the system that 155 countries,
including all the other major industrial countries, regard as
the appropriate system for acquiring mine sites. The only
possibility for mining the minerals of the deep seabed is to do
it under the Convention. And the best possibility for making
sure that that system is consistent with our belief in the free
market and in making minerals available in response to market
demand, is for us to get on the council and refuse to approve
any regulations that are inconsistent with those interests.
Thank you, Senator.
Mr. Gaffney. Mr. Chairman, would it be possible to respond?
Senator Menendez. Sure, if you can do briefly.
Mr. Gaffney. I'll do so very briefly.
I'm heartened by the emphasis that Mr. Oxman has applied to
the 1994 agreement, correcting dramatically flawed pieces of
this treaty. The only problem, I believe, is, he's wrong that
it fixed anything, for the following reasons. It was not done
during the window that the treaty specifies for amendments. It
was not done in the manner the treaty specifies for amendments.
It does not explicitly amend any part of the treaty. And not
all of the parties to the 1994 agreement--excuse me--not all of
the parties to the underlying treaty are parties to the 1994
agreement. It is unimaginable to me on what basis people
persist in saying the 1994 agreement fixed what are at least
acknowledged to be fatal flaws in this treaty. And, indeed,
President Reagan's negotiator called the treaty--Jim Malone,
before he passed away--fatally flawed, and said it cannot be
cured.
So, these are the sorts of things that we ought to be
wrestling through, not simply taking the word of a lot of
people who, as I say, have not read the treaty, let alone this
agreement. Even some who you would have thought had, like Mr.
Bellinger, last week, and Mr. Negroponte, here, who testified
inaccurately before this committee as to whether land-based
pollution would be considered a problem, something that the Law
of the Sea Treaty mechanisms could go after and, indeed,
enforce. And, thank goodness for Senator Vitter, of your team
here, who pointed out they were wrong.
Now, that's the sort of thing, with the greatest of
respect, I believe argues for much more close investigation of
this treaty, rather than taking everybody's word for it.
Senator Menendez. Thank you, Mr. Gaffney. Since your
comments were impugned, Mr. Oxman, do you want to respond to
them?
Mr. Oxman. Thank you, Mr. Chairman. Two quick points.
First, as the practice of this committee over, I suspect,
more than a century demonstrates, nothing in international law
prevents states from entering into new agreements that modify
earlier agreements. It's done all the time, and that's exactly
what happened in the 1994 agreement. It was a subsequent
agreement that modified, quite substantially, the provisions of
part 11 of the Convention.
There is no doubt whatsoever on this point. There are 130
parties to the Implementing Agreement. From the day it opened
its doors, the Seabed Authority has functioned in accordance
with the 1994 Implementing Agreement. There is no question on
this point whatsoever.
As for satisfying President Reagan's points, as Senator
Lugar pointed out, President Reagan said, explicitly, that if
his six objections on deep seabed mining were accommodated, his
administration would support Senate approval of the Law of the
Sea Convention. The President said that. And he said that
publicly.
I have included in the record, Mr. Chairman, an essay that
I wrote pointing out how each one of the points made by
President Reagan was accommodated.
Thank you, Mr. Chairman.
Senator Menendez. Thank you.
Senator Corker.
Senator Corker. Thank you, Mr. Chairman.
And, for the panel, I would be one of those, in political
terms, independents, who's here just to learn about this treaty
and to try to make--utilize, you know, my ability on the Senate
to make a good decision. I appreciate all of you being here.
Obviously, there are some different points of view.
I am a little concerned, due to testimony that we had in
this last--panel last week regarding the issue of the
pollutions--global warming issues, you know, carbon issues. And
since that has been brought up, if you will, Mr. Oxman, I
wonder if you could address that, briefly. I have a number of
questions.
Mr. Oxman. Absolutely, Senator. Not only do I share your
concern, that concern has been shared since the beginning of
the Law of the Sea negotiations.
This is a Convention on the Law of the Sea. The delegates
who attended the negotiations were experts in activities at
sea. They were not experts on land activities. And it's,
therefore, not surprising at all that, although land activities
are a major source of marine pollution, very little is said
about them in the Convention; and what is said about them is
very tentative. The substance is in article 207, and article
207 is a hortatory, best-efforts provision designed to
encourage states to do something about land-based sources of
marine pollution. It contains no hard legal obligations.
Article 207 says there should be national legislation, Senator,
and it says there should be international and regional efforts
to develop international standards and recommendations. But it
doesn't specify particular means and outcomes, and it does not
prescribe any binding standards.
For that reason, there are no applicable international
standards for the coastal state to enforce under article 213.
And, for that reason, there is no dispute settlement obligation
under 297, paragraph 1, because there are no land-based
standards binding on the United States for purposes of this
Convention.
So that I want to emphasize again, Senator, that the
concern that you raise is absolutely valid. It was shared all
along, and it was shared not only by the United States, but by
a large number of countries around the world who were not
prepared to negotiate hard obligations with respect to
activities on land in a negotiation concerning the sea.
Thank you, sir.
Mr. Gaffney. Could I----
Senator Corker. And I----
Mr. Gaffney. Could I follow up on that, sir?
Senator Corker. Well, no. But, thank you. I'd like to use
my time. Thank you. We will want to follow up a little bit more
with that after this, and our staff, I'm sure, will follow up
with you. And just back to the contrary of that. If there are,
Mr. Gaffney--for instance, if there are bad actors that are
doing really bad things as it relates to the environment, and
are polluting the oceans, what recourse do--would we have as a
country against people like that without a treaty like this
being in place?
Mr. Gaffney. Senator, I would really like to have my
colleague, who is a specialist on these matters, speak to that.
I would prefer to have the opportunity to also answer your
question. I would just say that it is, on the face of it,
preposterous to say that this is hortatory language in article
207. It dictates that states' parties shall adopt legislation.
And people who tell you that there's no implementing
legislation associated with this obviously are not reading the
text, either. There are going to be implications--I believe
they will extend on our sovereign soil--from adopting this
treaty, if you do.
Senator Corker. All right, let--well, again, you all are
not--I'd like to ask the questions, if it's OK.
Mr. Smith. You asked the question, Senator.
Senator Corker. I asked----
Mr. Gaffney. May I ask the expert--the duty expert to
answer your question?
Senator Corker. Well----
Mr. Smith. This is the area that, actually, I do spend a
fair amount of time on. If you don't want the answer, it's
fine.
Senator Corker. I will say that--can I have a 30-second
reprieve here, Mr. Chairman?
Senator Menendez. Absolutely.
Senator Corker. I'm sort of one of those guys that truly is
here to learn, and I would just say that, candidly, I want to
get the facts. The tactics are not exactly building a lot of
amicability. So, just for what it's worth----
Mr. Gaffney. Senator, if that's my fault, I apologize. I
wanted to make a--an important point in connection with what
you were just told, by way of rebuttal. But I really would
recommend, if you want the facts, that you hear from somebody
who really knows the answer, and I would defer to Fred on it.
Senator Corker. OK. And I will certainly meet with him. I'm
sure we'll want to meet with you all after this.
I want to ask you another question, though. On the oil-
company piece, for people to make large investments in the
deep-sea area, without a mechanism like this--and I ask all
these questions, truly, in purity; I just want to know--what
would cause people to want to go ahead and explore those areas
without some kind of legal knowledge that, if they were
investing large sums of money, they would actually be able to
generate a return without being hurt in any way, legally? OK.
So, you're just a--sort of, the----
Mr. Gaffney. I work on----
Senator Corker. That's fine.
Mr. Gaffney [continuing]. National security, Senator, and
I'd be delighted to answer any questions that touch on that.
And I think there are a lot of them here. I'm happy to meet
with you----
Senator Corker. We'll let----
Mr. Gaffney [continuing]. All afterward, but----
Senator Corker. Thank you.
Mr. Gaffney [continuing]. To the extent we can educate the
Senate, as a whole, and the public, through these hearings, I
hope we could respond fully to your questions. But I would,
again, defer to my colleague, who----
Senator Corker. Just briefly----
Mr. Gaffney [continuing]. Really knows about the
environment and----
Mr. Smith. And I'm sorry, too. I shouldn't have been so
hasty. Look, I think the argument you're making is a very
important one. How do we go about bringing the surety needed to
have economic development? You don't do it by making everything
the common heritage of mankind; you create property rights.
That's why fisheries are beginning to develop creative rules
for ensuring sustainable fisheries around the world. It's why
we have seen the development of the offshore oil fields, not
just in the United States, but in Norway and elsewhere around
the world. We do that by creating surety of property rights,
not by becoming the common heritage of all mankind. The United
Nations elements that believe that the way you increase the
interests of people of developing resources for mankind is to
turn them into a common property resource is counteracted by
everything economic history tells us. There's--and there's a
lot of literature. I could go into that.
We're already seeing the unintended consequences of being
careless about this. Hortatory language may not mean much in
much of the world, but, in America, the hortatory language of
the Clean Air Act, the Endangered Species Act, and so forth,
has had profound consequences, because we take laws and
treaties--treaties or, and laws very seriously, and we have a
very aggressive environmental movement, and a very aggressive
trial-lawyer group who can translate vague provisions into
binding constraints on people's ability to use property. And
we've already seen it in the Law of the Sea Treaty with the
ability of the Irish Government to raise charges against a
domestic operation in the United Kingdom.
The acidification of the oceans is a big issue to a lot of
people in the world, and every use of energy throughout the
world potentially affects the acidification of the oceans. All
energy use is now prone to be brought into this issue, as are--
I'm from Louisiana--I'm raised in Louisiana. My--one of my
families was horribly destroyed by Katrina. We had to pump out
New Orleans. We had to discharge polluted waters into the
Mississippi, and the Mississippi flows into the gulf, which
flows into the seas. Would that action--it was extremely slow
already--would that action been slowed even further if we had
to get the ability of an approval from another organization?
Senator Menendez. Thank you. Thank you.
Mr. Smith. I think these are important questions.
Senator Menendez. Thank you. The Chair is trying to have
some degree of flexibility, but there is only a degree.
Senator DeMint.
Senator DeMint. Thank you, Mr. Chairman.
I appreciate just hearing from both sides here today. It at
least can inform us that there are reasons to consider the
possibility that there may be some problems with the treaty.
A treaty assumes that others will follow the rules and that
there's an enforcement authority that will act forcefully and
quickly and fairly. I think, in this time, with our experience
with international bodies, that this is terribly naive. And to
suggest this creates a predictable framework for us to operate
in, as a nation, concerns me deeply.
I mean, our experience with the United Nations and the WTO,
and we see the world courts and other international bodies--
there's absolutely no indication that there will be
predictability and that the signatories to these agreements are
actually going to follow the resolutions of the authority.
We can look at the signatories to the Law of the Sea
Treaty, and look at their voting record with us in the United
Nations. Well over 90 percent have voted against the United
States over half of the time. And if--as I look at the
language, this idea that the United States has a veto--a vote--
is not carried out by the facts of the agreement. We don't have
an individual veto vote, by what's in the language. And to
suggest that we can stop things and conform things with a
veto--the language appears to say that the individual chambers
can veto if they have two-thirds vote. And we will be in a
chamber with China, Italy, Japan, and Russia, all of whom have
voted with us less than 50 percent of the time, and some down
at the 20-percent level. And we have to get two-thirds of that
council in order for there to be a veto. Now, if I'm wrong,
technically, obviously I'd like to hear it.
Reagan's name is used often in this. And if you read what
his Ambassador, Jim Malone, has said, even after 1994, he did
not think this agreement was fixed. And Reagan didn't--Reagan
had an approach that I think we need to think about today. He
supported the treaty and tried to comply with it. But he did
not submit our country to it. In other words, we left room to
act in our own best interest.
Clinton, as he--in his letter of submission--when he
submitted the document here, or the whole agreement, he saw it
as a far-reaching environmental accord addressing vessel-source
pollution, pollution from seabed activities, ocean dumping, and
land-based sources of marine pollution.
So, it seems like everyone we hear from is telling us
something a little different. Our military is saying this is
vital to military interests, that it has something to do with
the ownership of seabed properties. It also is a major
environmental treaty. And there's vague language in all of
these areas, as it's not complete.
And, just, my one question to this--and I'll just direct it
to you, Admiral, because the testimony does appear to say that,
while there's no current problem, there could be a problem in
the future. But we've been operating under customary law for a
long time. How is the United States military currently
encumbered by not being a party to this treaty?
Admiral Clark. I think that the answer to that is we have
embraced the principles. The Commander in Chief--when President
Reagan said we were going to operate in accordance with the
principles that were related to national security, we
absolutely embraced those principles.
The manner in which we are impacted today are in areas--for
example, the Proliferation Security Initiative is a very
important vehicle that is aiding us in the execution of the
global war on terrorism. When you talk to our commanders
today--and I've been retired 2 years, but I spoke to the people
that were part of this as late as last night--I am hearing from
senior commanders that our nonparticipation in this Convention
are causing people--other countries, today--not to become part
of PSI, because it is a public proclamation that we do not want
to be part of the community of nations that have defined rights
that are important to us.
Let me emphasize that the most important--and I have called
it the ``crown jewel of rights'' that I believe that we need to
nail down--is this idea of transit passage. It didn't--when I--
in my earlier testimony, I said, ``I was there when we didn't
have these rights.'' So that every time we passed through an
archipelagic situation or a strait, the issue was on the table
about what particular range this particular--excessive range
claims, territorial claims, that a particular nation is making.
Senator DeMint. Do we not have those rights now, right?
Admiral Clark. What I'm suggesting is that it is the view
of the U.S. military--and that's why you've got the Joint
Chiefs of Staff and the U.S. Coast Guard and all the parties
that have spoken up in support of this--is that it is important
for us to proclaim our support for this set of standards and
rights that are essential for us to avoid a confrontation every
time we pass within a particular range of----
Senator DeMint. Is it your belief that Iran and other
signatories will follow the directive of the Law of the Sea
Treaty?
Admiral Clark. I'm not responsible for what Iran--the
position Iran decides to take.
Senator DeMint. But they are signatories of this----
Admiral Clark. I----
Senator DeMint [continuing]. Treaty. Your----
Admiral Clark [continuing]. I very----
Senator DeMint [continuing]. Suggestion is----
Admiral Clark. What I am responsible----
Senator DeMint [continuing]. Is that we will submit to a
treaty, assuming that all the other countries will submit to
it, as well, so that we will have a predictable--predictable
courses that we can follow without--and you are assuming that
our enemies are going to do the same.
Admiral Clark. Well, what I am--would suggest to you this
morning is that we would certainly hope that they would honor
the rights that they've signed up to. Senator, if they don't,
believe me, we know what to do.
Mr. Gaffney. Senator, may I take a minute to respond?
I'm very concerned about the Proliferation Security
Initiative, too. I agree with Admiral Clark that it is very
important. I think all of us believe it's a very important
tool.
Were we to be party to this treaty, there are exactly four
circumstances under which we could engage in the interception
and boarding of ships. That is not the case today. We have the
right to do that where we think that the need exists, and we
have, currently, happily, still got the naval power to do it.
But, under this treaty, unless a vessel is engaged in drug
trafficking, piracy, offshore broadcasting, or slave
trafficking, we cannot intercept that ship. And I submit to you
that we shouldn't be hamstringing this Proliferation Security
Initiative, and it is going to be hamstrung, I think.
And, to the question that the Admiral pointed out about
what importance this has for our services, I understand the
importance they attach to these navigation rights. I also
believe that part of what is animating them is a concern that
these navigation rights are going to be mutated in the future.
The problem is our participation in the treaty is not going to
prevent that from happening. The seat at a table is, as my
colleague has pointed out, not going to give us a veto over
those kinds of changes. And I think that they will work to our
disadvantage, because we'll be bound to honor them.
Senator DeMint. Well, thank you. I'm over time.
And thank you for indulging us, Mr. Chairman.
Senator Menendez. Mr. Oxman, I see you looked pained. Do
you want to briefly--since everybody seems to be buying their
own time here in the process----
[Laughter.]
Senator Menendez [continuing]. Would you like to----
Mr. Oxman. Thank you, Mr. Chairman.
Senator Menendez [continuing]. Quickly----
Mr. Oxman. Very, very quickly. Senator DeMint--and, I
think, totally correctly, because the way in which these
provisions are organized makes them almost opaque--raised the
point that he didn't see the reference to veto which would flow
from a consensus decisionmaking system, and I just wanted to
point out that it can be found in article 161(8)(d), which, in
effect, gives us a veto, when we take our seat, over the
adoption of amendments and over the adoption of regulations.
The other is on the Proliferation Security Initiative. What
Mr. Gaffney is complaining about is the limitations on boarding
that are contained in the existing Convention on the High Seas
that the United States is a party to. The new Law of the Sea
Convention gives us greater rights to board than we have under
the existing treaty to which we are a party. The new Law of the
Sea Convention--I come from Florida--gives us greater rights to
rescue our citizens who may get into trouble in the Cuban
territorial sea than we have under the existing Territorial Sea
Convention to which we are also a party. So that, in fact, we
are in a stronger position under PSI if we adopt the new
Convention than if we stick with the existing treaties that are
the law of the land.
Thank you, sir.
Senator Menendez. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman. I apologize
that I was not here for the testimony, although I did have an
opportunity to hear testimony from several on the panel. This
was back in--a couple of years ago, when you were before the
Environment and Public Works Committee. And welcome you back
again, and appreciate your perspectives.
Mr. Gaffney, I want to ask you about the Arctic--a little
interest of mine. You argue that Russia's claims to the Arctic
are without merit, but, at the same time, other Arctic nations
are looking to stake their own claim. You have been suggesting,
or arguing, that the United States can't trust other countries
to look after our own interests when it comes to the Law of the
Sea, but, on this particular issue, you seem to suggest that
the United States doesn't need to have a seat at the table,
because we can provide data to other nations that will
challenge Russia's claim.
That seems a little contradictory to me. Walk me through
that.
Mr. Gaffney. If that were the case, it would be. I may have
confused you, and I apologize if I did.
My view is this, that the Arctic is, indeed, an interest of
high--an area of high interest to us, as well as to other
nations. What is current going on there, fundamentally, is a
border dispute between the Russians and ourselves, with other
interested parties; notably, the Canadians, the Danes, and a
few others. To the extent that one believes that multilateral
solutions are the best way to handle border disputes, I've
submitted that there are other mechanisms available to us,
including the Arctic Council, in which a small number of
countries, most of whom are basically friendly to us, will
resolve the matter. Another alternative is simply to do it
bilaterally. The worst of the possible solutions, it seems to
me, is to ask this gaggle of countries, the vast majority of
whom are not all that friendly to us, whether it's through the
Commission on the Continental Shelf or through other Law of the
Sea Treaty mechanisms, to resolve this for us.
And this goes back to something that we've touched on
several different times, if I may. And, since you weren't here,
I think it's important, especially, to emphasize for you. There
is a difference between the decision to observe this treaty and
to be bound by it. And I'm here, with my colleague, Fred Smith,
to talk about the costs of being bound by this treaty. And, to
the extent we don't understand those, to the extent we don't
talk about those, to the extent that witnesses aren't allowed
to explore them with you, it does a disservice, I think, to
those of you who have to evaluate the upsides and the downsides
of this.
I believe the costs of having the worst kind of
multinational adjudication of the Arctic resources--namely,
under this Law of the Sea Treaty--vastly exceed the benefits of
being a party to this treaty. And this is one of those hard
things. You're being told, incessantly, that we will have more
influence if only we can appoint a scientific advisor to the
decisionmaking--informing bodies, not even the decisionmaking
bodies; and then we will have a vote at the table. Sadly, as
this committee knows, probably better than any in the Congress,
we get overruled all the time when it's one country, one vote.
And we can have the best scientific advisor on the planet, and
it still isn't going to matter, when the ultimate votes are
taken.
Senator Murkowski. I want to ask a question, and I'm not
sure who to address it, so I'll throw it out to the panel. We
have learned that isolationism is not an effective strategy
when it comes to combating terrorism. To what extent has our
nonparticipation in the treaty impacted or could impact, our
efforts in the global war on terror? Who wants to take that?
Mr. Oxman.
Mr. Oxman. Senator, I think it has a major impact. My point
of departure would be President Bush's statement, with which I
don't think anyone could disagree, that if we wait until the
terrorists deliver weapons of mass destruction to our
territory, we have waited too long. And, therefore, it is
absolutely critical that we be able to operate around the
world.
The question is whether those missions, in effect, become
two missions, which is another way of expressing what Admiral
Clark said, and that is, one mission is to go after the
terrorists, and another mission is to deal with the coastal
states that may try to interrupt us.
The trend in the Law of the Sea is against our global
mobility. We started the 20th century with free high seas and
3-mile territorial sea. We ended the 20th century with 12-mile
territorial sea, 200-mile zones, and so on and so forth. We
have to operate, in order to deal with terrorism, in areas that
foreign states already regard as subject to their jurisdiction.
And, in order do so, we have to--we have to--convince them that
we have a right to be there, even if they don't like it. I
agree, many of them may not like it. And that is going to be
absolutely critical if we're going to carry out the kind of
mission that has been described.
Thank you, Senator.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Menendez. Thank you.
Senator Isakson.
Senator Isakson. And I assume, Mr. Oxman, on that point,
the Strait of Hormuz would be a good example of where it's
critical to have that international right, because that is--
Iran is on one side of the Strait of Hormuz, and its 60 miles
wide, which is far shorter than the 200-mile----
Mr. Oxman. Absolutely. It's absolutely critical that we
have the right of transit passage through the strait. We
relied, in fact, on the Convention. And, while Iran is not
party to the Convention, so many states are that it, in effect,
felt compelled to acquiesce and, sort of, say it wasn't
interfering, for the moment.
Senator Isakson. There have been a couple of statements.
One, I read. Mr. Gaffney's testimony, on page 5, talks about
all the relevant documents, facilities and information which
has to be submitted in a dispute. And it didn't say
``intellectual rights.'' It implies ``intellectual property.''
And I think it implies national security interests.
And then the chairman, Senator Menendez, in his opening
statement, referred to article 203, which prohibits any--allows
the integrity of any intellectual property and national
security interest to be withheld by a country.
Which statement is right?
Mr. Gaffney. Well, Senator----
Senator Isakson. Does article 203 actually give us
protection, or does it not?
Mr. Gaffney. What you will doubtless be told is that, not
only are those protections built in, but, also, the 1994
agreement fixed all of the technology transfer obligations.
Senator Isakson. Well, I'm just----
Mr. Gaffney. I don't believe either is true. And let me
just--let me just to suggest to you, as a way of thinking your
way through this, if there is any uncertainty, you can bet it's
going to be litigated. And it will be litigated in courts that
are stacked against us. That's part of the problem with this
treaty. As opposed to the previous conventions, where we have
chosen to honor navigation rights and so on, this one has a
mandatory dispute resolution mechanism that can be very
problematic.
Senator Isakson. Would you answer the question regarding
article 203?
Mr. Oxman. Yes, Senator.
Mr. Gaffney and I went through this before Senator Inhofe,
and I will do what I did with Senator Inhofe, and that is read
the text, ``Nothing in this Convention shall be deemed to
require a State Party, in the fulfillment of its obligations
under this Convention, to supply information the disclosure of
which is contrary to the essential interests of its security.''
We are not the only country in the world that has an interest
in protecting its secrets.
Second, we are not subject to standing international
tribunals that are allegedly stacked against us. The resolution
of advice and consent contained in the 2004 report of the
committee opted for arbitration; and, under arbitration, the
parties choose the arbitrators. And that has been the pattern.
Thank you.
Mr. Gaffney. Mr. Chairman, that is a factual error of----
Senator Isakson. OK, just----
Mr. Gaffney [continuing]. The first order.
Senator Isakson. Let--I've got one other----
Mr. Gaffney. It needs to be----
Senator Isakson [continuing]. Question.
Mr. Gaffney [continuing]. Corrected.
Senator Isakson. I would like for both of you to submit to
me, and to the committee in writing, your rather brief and
succinct reasons as to why you disagree on that point.
[The written responses from Mr. Oxman and Mr. Gaffney
follows:]
RESPONSE OF MR. GAFFNEY
Background: LOST departs dramatically from the previous, 1958
convention governing navigation by obligating member states, in the
event of disputes, to submit to mandatory settlement mechanisms. These
apply not just to issues involving the maritime ``rules of the road,''
but to any ocean-related disputes that state parties cannot resolve on
their own.
Nations are required--at the request of either of the disputing
parties--to submit the dispute for resolution by one of several
international tribunals: (1) The International Tribunal for the Law of
the Sea (ITLOS), (2) an arbitral tribunal or (3) a special arbitral
tribunal. Another option is the International Court of Justice (ICJ).
If the parties to the dispute cannot agree on a mechanism, the dispute
automatically goes to an arbitral tribunal for resolution. Decisions
made by any of these bodies are binding upon the disputants, and such
decisions cannot be appealed.
The question is: How will mandatory dispute resolution affect U.S.
interests?
LOST proponents in the Bush administration are right to be
worried about international courts given the record of such
panels, particularly of the ICJ, to be highly politicized and
generally very hostile to American interests.
Unfortunately, the appointment procedures that would apply
to the ``swing'' arbiters in both the regular and special
arbitration panels are likely to assure a similar stacking of
the deck against the United States. In regular arbitration,
each party chooses one panelist, and the three remaining
panelists are chosen by the President of the Law of the Sea
Tribunal. In special arbitration, each party chooses two
panelists, and the remaining panelist is chosen by the
Secretary General of the United Nations.
Worse yet, the State Department has acknowledged that
arbitration panels would likely look to decisions of the
Tribunal to inform their own rulings. As a practical matter,
this means that, were the United States to become a party to
the treaty, it would not be able to escape the reach of the
Tribunal--despite its determination to forum-shop by choosing
arbitration.
Equally untenable is the proponents' insistence that Law of
the Sea Treaty Tribunals will be unable to interfere with U.S.
military activities. Although LOST exempts ``disputes
concerning military activities'' from the purview of its
dispute resolution mechanisms, the treaty does not define
``military activities.''
Proponents of LOST argue that the United States can make a
declaration that it will define ``military activities'' for
itself. However, this amounts to a reservation to the treaty,
which is expressly prohibited by LOST. LOST must be accepted or
rejected in its entirety. Furthermore, if the U.S. military
were allowed to make such a unilateral determination under
LOST, the militaries of other nations would exercise the same
option, creating an anarchic situation that would defeat the
purposes of LOST altogether. LOST was clearly not intended to
allow this to happen.
These considerations, combined with the treaty's sweeping
environmental obligations, give rise to circumstances in which
U.S. Navy and perhaps other military services, their
contractors or suppliers seem virtually certain to find
themselves embroiled in one or another of LOST's dispute
resolution mechanisms. For example, the Navy's use of high-
powered sonars would certainly be characterized by Washington
as a military activity. But the Navy could well be forced to
defend the use of such sonars before an unfriendly LOST panel
on the grounds that it has harmed the ``marine environment,''
by killing whales or dolphins.
Worse yet, in the event of any dispute over whether an
activity is military in nature, the tribunals created by LOST
are permitted to make that determination themselves.
The mandatory and rigged nature of the dispute resolution
mechanisms are one of the most important reasons why the United
States will be better served by continuing its practice over
the past 25 years--namely, voluntarily observing those parts of
LOST that it finds unobjectionable, but remaining unencumbered
by the obligations that are.
RESPONSE OF MR. OXMAN
The other industrial countries, the competent agencies of the
United States Government, and the mining companies and sponsoring
states that are already dealing with the Seabed Authority do not share
Mr. Gaffney's concerns. Neither should the committee.
No State Party to the Convention may be required to reveal
classified national security information to anyone, whether it concerns
technology or any other matter.\1\ United States domestic discovery and
evidence rules do not apply to international tribunals. They cannot
compel states to produce information against their will. The Convention
does not give private parties the right to sue states in those
tribunals. States are cautious about bringing suit against each other,
and are careful to avoid taking positions that could prejudice their
own interests in other circumstances. All states have security secrets
that they do not wish to reveal.
Annex III, article 5, of the original Convention imposed technology
transfer obligations on companies engaged in mining the deep seabeds
beyond the Continental Shelf. That was one of the reasons the United
States and other industrial states objected to the regime for mining
the deep seabeds, and did not become party to the original Convention.
Section 5 of the Annex to the 1994 Implementing Agreement states
clearly and succinctly, ``The provisions of Annex III, Article 5, of
the Convention shall not apply.''
There is no plausible basis for questioning the fact that the 1994
Agreement modified the deep seabed mining regime set forth in the
Convention. The United States would be joining the Convention only as
modified by the Agreement, not the original Convention. The Agreement
is in force and is legally binding. Of the 155 parties to the
Convention, 130 are party to the 1994 Agreement, including all major
industrial states party. Of the few remaining parties, some signed the
Agreement, most participated actively in its application for a dozen
years now, and none has challenged and all have acquiesced in its
application. The Seabed Authority has elected its organs and operated
under the 1994 Agreement since the day it opened for business.
The 1994 Agreement states explicitly that developing countries are
to look to the open market and freely negotiated contracts to obtain
technology with respect to deep seabed mining. If for some reason that
does not work, the new text calls for cooperation with the Seabed
Authority by those engaged in deep seabed mining beyond the Continental
Shelf and their sponsors in facilitating the acquisition of such
technology ``on fair and reasonable commercial terms and conditions,
consistent with the effective protection of intellectual property
rights.'' This is not an obligation to transfer technology.
The data provisions of Annex III, article 14, are not technology
transfer provisions. They deal only with data necessary to carry out
the Seabed Authority's administrative functions with respect to deep
seabed mining beyond the Continental Shelf, relate only to the
particular mine site, and expressly protect proprietary data (as does
art. 181(2)). Determination of what data is necessary for carrying out
administrative functions and related matters is to be made by rules,
regulations and procedures of the Authority. The miner's obligation to
submit data applies only ``in accordance with [the] rules, regulations
and procedures'' of the Authority, the adoption of which requires a
consensus on the Council (art. 161, para. 8(d); see Ann. III, art. 17,
para. 1(b)). Consensus ``means the absence of any formal objection''
(art. 161, para. 8(e)). The power of the Council in this respect cannot
be questioned by a tribunal under the Convention, which ``shall not
pronounce itself on the question of whether any rules, regulations and
procedures of the Authority are in conformity with this Convention, nor
declare invalid any such rules, regulations and procedures'' (art.
189).
There is, in short, no plausible risk that China or anyone else can
go to a tribunal under the Convention and get access to state secrets
or proprietary data.
----------------
\1\See Convention, art. 302. In response to a question by Senator
Vitter during the hearing, I noted that the Department of Defense and
the CIA have stated that their intelligence activities at sea are
military activities, and I concluded that as such they would be
excluded from dispute settlement obligations by the declaration under
article 298(1)(b). It is pertinent to add here that the United States
is not required to divulge information regarding its classified
intelligence activities at sea.
Senator Isakson. Second, there's one other point on which
you disagree, which I'd like to receive an answer regarding.
Mr. Oxman--Mr. Gaffney cited the limitations on PSI--
limitations of the U.S. Navy on boarding ships, and referenced
PSI--and referenced only four ways to board. And then, Mr.
Oxman disagreed with that categorically by saying the current--
the new law--the new Law of the Seas expands the old Law of the
Seas rights to board. And one of you's right, and one of you's
wrong. Who's right?
Mr. Oxman.
Mr. Oxman. Thank you, Senator. It's a question of comparing
the two texts. The existing High Seas Convention, to which we
are a party, talks about right to board, and gives a list. That
list is repeated in the new Convention, but items are added--
for example, an important item on the right to board ships
without nationality. In addition, there is a clear----
Senator Isakson. Without a flag?
Mr. Oxman. Without a flag, that's right. Or if they try to
use two flags, they can now be boarded. And this is very
useful, because, very frequently, countries can easily
dissociate themselves by saying, ``Oh, it's not our ship at
all,'' and that has happened, and we acquire a right to board
because we can reasonably believe that it's without
nationality. So, the rights have been expanded.
But, on top of that--that's not the only basis. The basis
of PSI is our agreements with other countries in advance. In
addition, if we discover a ship where we don't have an
agreement in advance, we can ask that country; and, when we
present evidence, they may well be persuaded to grant us
consent; indeed, it would be serious if they didn't. Further,
we can follow the ship into port, and have the ship inspected
in port, which we have done. Finally, if it is so urgent that
we really can't wait to even follow the ship into port, then I
have little doubt that those are circumstances in which we can
board, not under the Law of the Sea, but under our right of
self-defense under the U.N. Charter.
Thank you, sir.
Mr. Gaffney. I have great respect for Mr. Oxman,
particularly his legal skills, but, I think, in this case, this
is a prime example of why this treaty warrants much more
rigorous examination, including, by the way, by the Armed
Services Committee.
I think you will find that, whatever the relative strength
of these provisions is, were we to become party to this one,
which identifies, explicitly, four provisions, you would find
it constraining, not expanding, our powers.
And, most especially, I have to tell you, if you're going
to use the right of self-defense, then you don't need the Law
of the Sea Treaty. And I submit to you that what you'll find is
the mandatory dispute resolution mechanisms will be used to
interfere with the assertion of our right of self-defense, not
enhance it.
Senator Isakson. OK.
Admiral Clark, I would appreciate your submitting to me in
writing your response to that specific point with regard to the
rights under the new, versus the old Law of the Sea.
Admiral Clark. I do so, gladly. And I would wish that we
had the time to do it here today.
[The written response of Admiral Clark to Senator Isakson's
request follows:]
The 1982 Law of the Sea (LOS) Convention provides more extensive
authority to conduct maritime boardings compared to the 1958
Conventions and thus will enhance the effectiveness of the
Proliferation Security Initiative (PSI). Article 110 of the LOS
Convention provides that a vessel suspected of being without
nationality--a ``stateless'' vessel--may be boarded. This right is not
included in the 1958 Conventions and is a key authority for our naval
forces to conduct maritime boardings.
In addition to expanded authority under Article 110, PSI boardings
may be conducted under the following bases:
Port State Control: All States exercise jurisdiction within their
ports and inland waters and may enforce their national laws over
foreign commercial ships. States may also place conditions upon ship
entry into their ports and territory such as an inspection on the high
seas prior to entry into national waters. 1982 LOS Convention Articles
2(1), 25, 29-32.
Flag State Consent: The flag State has the exclusive right to
exercise legislative and enforcement jurisdiction over its ships on the
high seas. The United States has entered into bilateral PSI boarding
agreements with seven countries. 1982 LOS Convention Articles 92, 94.
Self Defense: Under Article 51 of the U.N. Charter, all states
retain the right to take appropriate action in self defense; the LOS
Convention does not impair that right.
Additionally, almost all PSI partners are parties to the LOS
Convention and joining it is likely to strengthen PSI across the globe
by attracting new cooperative partners.
Senator Isakson. I wish we did, too, sir.
Thank you, Mr. Chairman.
Senator Menendez. Thank you.
Senator Vitter.
Senator Vitter. Thank you, Mr. Chairman.
Thanks to all of you for being here today, and for all of
your past and present service.
I have some real concerns about the treaty, and almost all
of them revolve around the fact that it does have a binding--or
several binding dispute-resolution mechanisms by which, if we
enter into the treaty, we would be bound. I believe that, in
the current international environment, these tribunals and
arbitration panels are very likely to be stacked against us.
And also in the current international environment, there is
very much a trend toward internationalizing what I would
consider domestic issues, and litigating them in an
international forum. I'm very concerned about all of those
related trends.
In that context, Professor Oxman, I wanted to ask you a
question about a previous statement. You mentioned, a few
minutes ago, in regard to the arbitration panels, the parties
choose the arbitrators. As I read it, they try to choose the
arbitrators, and, if they can't all agree on the choices,
somebody else--the ``king,'' of the Law of the Sea Land--
chooses three of the five arbitrators. Isn't that the case?
Mr. Oxman. Absolutely, Senator. First, I want to say that
the concerns that you've expressed about compulsory dispute
settlement procedures are concerns we always have to look very,
very carefully at, and the glass in the Law of the Sea
Convention is not all full, and it's not all empty. We tried to
be very careful on that.
As to the arbitration, what you describe is correct. When
lawyers draft arbitration clauses, not just in treaties, the
question is, What happens if the parties don't appoint----
Senator Vitter. Right.
Mr. Oxman [continuing]. Their arbitrators? And the answer
is to try to find a neutral appointing authority. In the case--
under the resolution of advice and consent in the 2004 report,
we would opt for arbitration under Annex 8, with respect to the
subjects covered there. And there, the appointing authority, if
agreement couldn't be reached, would be the Secretary General
of the United Nations, currently from South Korea.
Senator Vitter. Professor----
Mr. Oxman. The remainder----
Senator Vitter [continuing]. I don't want to cut you off,
but----
Mr. Oxman. OK.
Senator Vitter [continuing]. I want to preserve my time.
The bottom line is, if the opposing party to us in a
dispute wants to make it so, they can ensure that a majority of
arbitrators is chosen by either the head of the United Nations
or the head of this new Law of the Sea entity, correct?
Mr. Oxman. If agreement cannot be reached, that's right.
But they're running a risk.
Mr. Gaffney. That's----
Senator Vitter. OK. Well, I----
Mr. Gaffney. It is correct. And it is a problem.
Senator Vitter. I think that is a recipe for disaster for
us.
In line with that, is there any clear provision of the
treaty that exempts intelligence matters from the binding
dispute resolution process?
Mr. Oxman. Yes, Senator. My understanding is that the
Departments of Defense and the Central Intelligence Agency and
related agencies have taken the position that their
intelligence activities at sea are military activities. I'm
obviously not an expert on this, but there would be no reason
for me, or anyone else, to question that determination; and, of
course, there would be a declaration excluding military
activities from compulsory settlement.
Senator Vitter. So, in other words, excluding our
intelligence activities from binding dispute resolution depends
on whether or not the parties to the treaty consider them to be
military activities.
Mr. Oxman. And being activities at sea; otherwise, they're
not covered at all.
Senator Vitter. Right. And I would just point out, here on
Capitol Hill, we have a committee that deals with military
issues, and there is a completely separate committee that deals
with intelligence matters.
But let's go on to the military issue. Is there anything in
the treaty that clearly says who will decide what is a military
activity and what is not a military activity?
Mr. Oxman. The treaty gives any state the right to exclude
military activities. I don't think it went any further, because
I think if one tries to follow through how you would make that
determination, it is extremely difficult to imagine a situation
in which you could second-guess a determination by any state
that its activity is military, because it's the one that
understands the purpose for which it undertook the activity.
Senator Vitter. Well, I have no doubt that there are plenty
of countries around the world who will second-guess that
determination of ours. And so, my concern is that there is
nothing in the treaty that says who decides that threshold
jurisdiction issue. When you're in a court in the United
States--and I realize there are differences between domestic
law and international law--but when you're in a court in the
United States, and you go before a court, and one side says,
``This court has jurisdiction,'' and the other side says,
``This court doesn't have jurisdiction,'' do you know who
decides whether the court has jurisdiction? The court. Not the
party that says, ``You don't have jurisdiction.''
So, I think that's a very serious issue.
Mr. Gaffney. And that would be----
Senator Vitter. A final----
Mr. Gaffney [continuing]. The case here, too.
Senator Vitter [continuing]. Final issue, on environmental
issues. Professor, in terms of land-based pollution sources,
you point to section 207. As you know, there is a separate
article, article 213, which is entitled ``Enforcement With
Respect to Pollution From Land-Based Sources.'' If everything
about land-based pollution is purely feel-good hortatory, would
there be reason to include an article entitled ``Enforcement
With Respect to Pollution From Land-Based Sources''?
Mr. Oxman. Senator, article 207 does require a state to
adopt laws to control land-based sources. We have extensive
State and Federal laws on that subject. There's no doubt that
we have done so.
Article 213 requires us to enforce those laws--which we do.
That's all it does. It is not possible, as I see it, for us to
violate that provision.
Senator Vitter. If it's not possible for an individual
state to violate the provision, why is it in the treaty?
Mr. Oxman. Many of the pollution provisions of the
Convention are what we call framework provisions. It's what I
mean when I call the Convention a ``Constitution for the
Oceans.'' It, sort of, lays out what the objective should be in
other negotiations, but it doesn't tell you the bottom line.
And that's what's happening here. The purpose is to encourage
states to deal with the question, nationally and
internationally, but it does not tell them precisely what they
have to do.
Senator Vitter. But, again, it seems odd that a simple
feel-good provision would have the title ``Enforcement With
Respect to Pollution From Land-Based Sources,'' possibly
because this treaty does have enforcement mechanisms. And
finally, in conjunction with the same point, I'd highlight that
this isn't wild speculation. I have an article here by William
Burns, another law professor, about the upcoming litigation
onslaught of environmental issues under this treaty. It's
titled, ``Potential Causes of Action for Climate-Change Damages
in International Fora: The Law of the Sea Convention.'' He
says: ``The United Nations Convention on the Law of the Sea is
a promising instrument through which such action might be
taken, given its broad definition of pollution to the marine
environment and the dispute resolution mechanisms contained
within its provisions.''
So, I'd just use this one article to point out, this isn't
wild speculation. They're a team of----
Senator Menendez. Senator?
Senator Vitter [continuing]. International lawyer types
chomping at the bit.
[Additional written material submitted by Mr. Oxman
regarding his preceding oral testimony follows:]
Article 213 forms part of section 6. That section does not deal
with settlement of disputes or enforcement by international tribunals.
It deals with enforcement by states of their own laws and regulations.
It obliges states to enforce their own laws and regulations that are
adopted, in accordance with the substantive provisions of section 5,
with respect to particular sources of marine pollution. The relevant
provision of section 5 with respect to land-based sources of marine
pollution is article 207. That article does not bind a state to
implement international standards in its laws and regulations, but
merely to take them into account. Since no international standards are
binding on a state by virtue of article 207, article 213 requires a
state to adopt laws and regulations to implement international
standards only if those standards are binding on it by virtue of its
acceptance of another treaty that contains such standards.
The United States, on both the Federal and State level, has among
the strictest laws and regulations in the world governing land-based
sources of marine pollution, including those regarding the release of
toxic, harmful or noxious substances. Both Federal and State
authorities enforce those laws and regulations. The only obligation
under article 207 is to adopt such laws and regulations, and the only
obligation under article 213 is to enforce them. Neither provision
specifies the content of such laws and regulations or the particular
means of enforcement. Accordingly, there would be no basis for finding
the United States in violation of these articles. Moreover, there would
not be jurisdiction to do so since article 297, paragraph 1, limits
jurisdiction to compliance with international standards that are
binding on the coastal state by virtue of its acceptance of another
treaty, and articles 281 and 282 further restrict jurisdiction in that
situation.
The MOX Plant case does not address article 297, paragraph 1. The
United Kingdom did not invoke the jurisdictional limitations of that
provision. Rather, it focused its jurisdictional objections on article
282. While I am not privy to the reasons, it is possible that the
United Kingdom's lawyers felt they had a stronger case under article
282, and were concerned that their case under article 297 (that there
were no standards binding on the U.K.) was not only weaker on the facts
of that case because of other binding treaty commitments of the U.K.
but, worse still, that even making the argument would prejudice the
strength of the United Kingdom's case under article 282 (that the
dispute was subject to the jurisdiction of another court or tribunal by
virtue of another treaty dealing with the same matter). Be that as it
may, the MOX Plant case says nothing about the effect of article 297,
paragraph 1, because the question was not raised.
The Law of the Sea Convention does not permit private parties to
sue states in an international tribunal. MOX Plant was a classic case
of overreaching by a few environmental activists, even where they do
manage--which is difficult to persuade a state to bring a case against
another state. In this regard, I find the ambitions of Professor Burns
implausible and unpersuasive, and believe the record already shows that
international tribunals would react in the same way. Indeed, despite
being asked to do so on more than one occasion, neither the
International Tribunal for the Law of the Sea nor any arbitral tribunal
appointed under the Convention on the Law of the Sea has given Mr.
Burns' colleagues even the purely rhetorical satisfaction of invoking
the so-called precautionary principle. There is no instance in which
these tribunals have applied a treaty that is not binding on the
parties. In environmental cases the tribunals have been content to call
on the parties to engage in consultation and study and, in one
instance, ITLOS temporarily reinstated tuna catch limitations that had
previously been agreed by the parties in order to allow time for the
pending arbitration to proceed.
The record of the MOX Plant dispute between Ireland and the United
Kingdom is cause for reassurance, not concern, in this regard. In that
dispute, Ireland challenged the operation of a nuclear reprocessing
facility by the United Kingdom on grounds that the operation, including
maritime transport of radioactive materials, endangered the Irish Sea.
Ireland was persistent. But it lost. Four times. Ireland lost in the
arbitration it brought under a separate European environmental treaty
(the so-called OSPAR Convention). The International Tribunal for the
Law of the Sea denied Ireland's requests for intrusive provisional
measures pending the constitution of an arbitral under the Convention
on the Law of the Sea, limiting itself to requiring consultation
between the parties and periodic reporting back. The arbitral tribunal
suspended proceedings on the merits pending a determination of
jurisdiction by the European Court of Justice under the European Union
treaties binding on Ireland and the U.K., and has since lifted even the
reporting back requirements. And the European Court of Justice ruled
that Ireland violated its obligations under the applicable EU treaties
by instituting arbitral proceedings against the U.K. under the Law of
the Sea Convention.
The record amply supports the conclusion that international
tribunals, including arbitral tribunals, to which cases may be
submitted under the Law of the Sea Convention will act in a prudent and
cautious manner.
The United States is party to many treaties conferring jurisdiction
on standing international tribunals as well as arbitral tribunals. The
provisions of the Law of the Sea Convention regarding the manner of
appointment of arbitrators are quite standard; similar provisions
appear in many other treaties. There is no indication whatsoever that
the United States has ever been the victim of political bias by the
appointing authority in the application of the standard, ubiquitous,
and obviously necessary clause permitting a neutral individual to
appoint arbitrators if the states party to the dispute do not do so.
The reality is that parties ordinarily agree on the arbitrators because
they have an incentive to do so, and that even if they cannot agree,
the appointing authority can be expected to consult with the parties
and be sensitive to their concerns.
Compulsory dispute settlement is one of the important benefits to
the United States of the Law of the Sea Convention. It is central to
achieving the objective of the United States of finding means other
than direct confrontation for discouraging further expansion of coastal
state jurisdictional claims around the world that prejudice global
mobility for security and economic purposes. If there is to be
compulsory jurisdiction, then the only options are a standing tribunal
or an ad hoc arbitral tribunal that can be constituted by someone else
if the defendant is recalcitrant. The risks this entails with respect
to the constitution of an arbitral panel are hypothetical and, at the
very worst, would affect only one case with one state.
The risk of continuing erosion of our global mobility throughout
the world is real, and that erosion will be very costly to us in
political, military, and economic terms. Whether we like it or not,
that erosion will reduce the realistic options available to the
President to protect this country from threats to its security and
economic interests. And the risk of such erosion is the one on which we
must focus in reaching a decision on the Convention.
Mr. Gaffney. Could I just add one point to that, sir?
Senator Menendez. I'm sorry, we've gone----
Mr. Gaffney. May I submit something for the record----
Senator Menendez. It----
Mr. Gaffney [continuing]. On the----
Senator Menendez. Absolutely.
Mr. Gaffney [continuing]. Message?
Senator Menendez. Absolutely.
Mr. Gaffney. I also have a letter from 30 groups that have
opposed this treaty, which, if I may have your permission to
insert in the record, as well----
Senator Menendez. Without----
Mr. Gaffney [continuing]. I would appreciate it.
Senator Menendez. Without objection.
Mr. Gaffney. Thank you, sir.
[The written information submitted by Mr. Gaffney follows:]
Background: Law of the Sea Treaty contains numerous provisions that
involve obligations to share information and technology. The treaty's
architects had in mind not only the importance of technology transfers
to the viability of its various maritime research, environmental, and
industrial goals. They also saw such transfers as tangible examples of
LOST's agenda more equitably to distribute the world's wealth, both
physical and intellectual.
LOST requires transfers of information, know-how and hardware in
such areas as: Underwater mapping and bathymetry systems; reflection
and refraction seismology; magnetic detection technology; optical
imaging; remotely operated vehicles; submersible vehicles; deep salvage
technology; active and passive acoustic systems; bathymetric and
geophysical data; and undersea robots and manipulators. Many of these
technologies are inherently ``dual-use,'' having both military and
civilian applications. Their military applications include:
Antisubmarine warfare capabilities; strategic deep-sea salvage
abilities; and deep-water bastions for subsurface launching of
ballistic missiles.
The Law of the Sea Treaty requires extensive transfers of
data and technology--at least some of which could be highly
detrimental to America's industrial competitiveness (including
in fields far removed from maritime-related activities) and to
the national security. For example:
LOST's Article 266 mandates that states ``cooperate in
accordance with their capabilities to promote actively the
development and transfer of marine science and marine
technology on fair and reasonable terms and conditions''
and ``endeavor to foster favorable economic and legal
conditions for the transfer of marine technology.''
Article 268 requires states to ``promote the acquisition,
evaluation, and dissemination of marine technological
knowledge and facilitate access to such information and
data.''
Article 269 calls for parties to ``establish programs of
technical cooperation for the effective transfer of all
kinds of marine technology to States which may need and
request technical assistance.'' (Emphasis added.)
Compulsory dispute settlement mechanisms afford further
opportunities to obtain sensitive technology and
information. Article 6 of Annex VII requires that parties
to a dispute ``facilitate the work of the arbitral tribunal
and . . . provide it with all relevant documents,
facilities and information.'' It can therefore be expected
that countries may bring the United States or its
businesses before arbitral tribunals--without expectation
of a favorable result, solely for the purpose of obtaining
sensitive technology information.
The 1994 Agreement ostensibly made certain modifications to
technology transfer obligations contained in LOST's part XI,
which governs administration of the deep seabed. It is
misleading, however, to suggest that the United States would,
as a result, have no difficulties with technology transfer
should it become a party to LOST.
For one thing, the 1994 accord could not have amended LOST
since the treaty was not open to amendment until 8 years
after the Agreement entered into force. For another, there
are specific arrangements for amending the treaty, and the
Agreement did not conform to them. Finally, not all of
LOST's state parties have endorsed the Agreement. At the
very least, this would allow the nonsignatories to insist
on the application of the original provisions, including
those requiring technology transfers.
Even to the extent the 1994 Agreement can be said to have
modified the Law of the Sea Treaty, it did not do so with
respect to all of the treaty's numerous technology transfer
provisions. For example, just the requirements for
information-sharing contained in the mandatory dispute-
resolution obligations--which are unaddressed by the
Agreement--could be sufficient to compel problematic
transfers of sensitive data, technology, and know-how.
The United States is the nation with the most to lose--from
an economic and national security point of view--from the sort
of obligatory technology transfer provisions contained in the
Law of the Sea Treaty, including those that would be binding
even if the 1994 Agreement has effect.
America has long imposed unilateral export control
restrictions precisely for the purpose of preventing transfers
that will result in harm to this country. U.S. accession to
LOST would require a substantial liberalization, if not
wholesale scrapping, of such important self-defense measures.
Actual or potential competitors/adversaries like China,
Russia, state-sponsors of terror and even European ``allies''
understand full well what a technology windfall U.S. adherence
to LOST could represent. It would be irresponsible, not to say
foolish in the extreme, to believe that none of these parties
will take advantage of the opportunity to reap that windfall to
our very considerable detriment.
______
Letter Submitted for the Record by Mr. Gaffney
Coalition to Preserve
American Sovereignty,
Washington, DC, October 15, 2007.
Hon. Joseph Biden,
Chairman, Senate Foreign Relations Committee,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: As you know, the Foreign Relations Committee
previously considered and approved a resolution of accession for the
U.N. Convention on the Law of the Sea. Regrettably, the Committee did
not take testimony from any witnesses opposed to this convention, also
known as the Law of the Sea Treaty (LOST)--a fact that almost certainly
contributed to the unanimous support LOST enjoyed when the vote was
taken to report out the resolution.
The failure of the full Senate to act on the committee's resolution
during its penultimate session means that before such action can be
taken in the 110th Congress, a new resolution of accession will have to
be introduced and passed by the Foreign Relations Committee.
We understand that you intend to hold hearings on LOST for this
purpose later this month and perhaps to move a new resolution of
accession shortly thereafter. If so, we are writing to express our
strong opposition to the U.S. ratification of the Law of the Sea
Treaty. We call upon you to ensure that critics of this accord, as well
as proponents, will be afforded an opportunity to testify.
In particular, we would hope that such hearings would address the
following matters of concern to us and our members:
We agree with President Ronald Reagan, who wisely refused to
sign the LOST in 1982, on the grounds that it was the product
of an unfriendly international agenda that aimed to
redistribute the world's wealth from developed nations, like
the United States, to developing ones. Specifically, Mr. Reagan
objected to the treaty's part XI, and the supranational
agency--the International Seabed Authority (ISA)--it created to
regulate activities on and under the seven-tenths of the
globe's surface that lies beneath international waters.
The then-Soviet Union and so-called nonaligned nations that
dominated the LOST negotiations even empowered the ISA to levy
taxes, a first in the history of multilateral institutions.
President Reagan made clear his concerns about both the
specific character of this organization and the ``undesirable
precedents'' it would establish for other international
institutions.
Today, even the treaty's supporters profess to recognize the
wisdom of many of Mr. Reagan's objections. They claim, however,
that subsequent negotiations, which produced an accord known as
``The Agreement'' in 1994, ``fixed'' what was wrong with the
original Law of the Sea Treaty. In fact, this is a matter of
some dispute--even with regards to part XI--since the Agreement
does not actually amend the LOST and since fully 25 of the
states parties to the treaty have not ratified the 1994 accord.
Other aspects of the Law of the Sea Treaty have implications
for U.S. sovereignty and national security interests and
clearly remain uncorrected. A number of these reflect, in much
the same way the original part XI and its supranational ISA
did, the agenda of actual or potential adversaries interested
in making it more difficult for this country to use the seas to
prosper economically and to protect our national interests.
For example, the treaty compels parties to submit to
mandatory dispute resolution, something the Senate has
traditionally rejected. Even under the revisions contained in
``The Agreement,'' the United States would be committed to
transfer potentially militarily relevant technology to possibly
unfriendly hands.
American business interests will likely be adversely
affected by the imposition of sweeping new environmental
obligations--including some contained in treaties to which the
United States is not a party--and by LOST's application of the
Luddite ``Precautionary Principle.'' The latter invites
regulations and legal actions in the event there is any
uncertainty about a given initiative's down-stream
implications. Shareholders are surely unaware of these risks to
their equities and will be surprised to discover that corporate
executives (many of whom publicly support LOST) are, too.
LOST will give legal grounds to those who wish to prevent us
from performing vital intelligence-collection activities over,
on, and under the seas, and from interdicting maritime WMD
proliferation activity. We believe that LOST will act as a
brake on vital U.S. activity such as President Bush's
Proliferation Security Initiative, not a lubricant to it.
We believe that the U.S. Navy's support of LOST is
particularly misplaced, since the treaty will afford fresh
opportunities for what has come to be called ``lawfare''--the
use of such legal instruments to interfere with our military,
its operations and logistical support (much of which is
provided by commercial vessels and civilian personnel).
In light of the foregoing concerns, we believe that--in addition to
renewed deliberations in the Foreign Relations Committee--other panels
of the Senate (including, but not limited to, the armed services,
intelligence, government affairs, finance, energy and environment and
public works committees) should hold their own hearings on the
implications of this accord for matters within their jurisdiction. So,
too, should their counterparts on the House side given the considerable
body of far-reaching implementing legislation likely to be made
necessary should LOST be ratified.
Sincerely,
David Keene, American Conservative Union; Phyllis
Schlafly, Eagle Forum; Dr. Alan Keyes,
Declaration Alliance; Paul M. Weyrich,
Coalitions for America; Frank J. Gaffney,
Jr., Center for Security Policy; Fred
Smith, Competitive Enterprise Institute;
Cliff Kincaid, America's Survival; Wendy
Wright, Concerned Women for America; Jim
Martin, 60 Plus Association; Jim Boulet,
Jr., English First; Tom McClusky, Family
Research Council; Jack Wheeler, Freedom
Research Foundation; C. Preston Noel III,
Tradition, Family, Property; David
Ridenour, National Center for Public Policy
Research; Richard Falknor, Maryland
Taxpayers Association; Mark Williamson,
Federal Intercessors; Jim Backlin,
Christian Coalition of America; Steve
Baldwin, Council for National Policy Action
Inc.; Ron Pearson, Council for America;
Jeffrey Gayner, Americans for Sovereignty;
Colin A. Hanna, Let Freedom Ring; Thomas P.
Kilgannon, Freedom Alliance; Gabrielle
Reilly, GabrielleReillyWeekly.com; Doug
Bandow, American Conservative Defense
Alliance; Richard Viguerie,
ConservativeHQ.com;
Amy Ridenour, Americans for the Preservation of
Liberty; John Fonte, Center for American
Common Culture; Dean Mathew Staver, Liberty
University School of Law; John C. Willke,
Life Issues Institute; Kelly Shackelford,
Esq., Free Market Foundation; Chris
Perkins, Coalition for a Conservative
Majority; Kevin L. Kearns, U.S. Business &
Industry Council (USBIC); Forest Thigpen,
Mississippi Center for Public Policy;
Jonathan DuHamel, People for the West,
Tucson; Paula Easley, Alaska Land Rights
Coalition; Mike Dail, American Land
Foundation; Chris Derry, Bluegrass
Institute; Dan Byfield, Liberty Matters;
Joyce Morrison, Citizens for Agricultural
Property Rights; Joe Eldred, Constitution
Party of New York; Harold Stephens,
Citizens to Protect the Confluence; Fred V.
Grau, Jr., Take Back Pennsylvania; Sharon
Votaw, Homestead Land and Water Alliance;
Katherine Lehman, People for the USA
Grange; Candace Oathout, Citizens Against
Recreation Eviction-USA; C.J. Williams,
U.P. Patriots--Upper Peninsula of Michigan;
Henry F. Cooper, High Frontier; Dane
vonBreichenruchardt, U.S. Bill of Rights
Foundation; Ellen Verell, Coalition of
Concerned Citizens; Timothy L. Ravndal,
Montana Multiple Use Association; Lew
Uhler, The National Tax Limitation
Committee;
Thomas Schatz, Council for Citizens Against
Government Waste; Eugene Delgaudio, Public
Advocate; Craig Rucker, Committee for a
Constructive Tomorrow; Michael Coffman,
Sovereignty International; Mychal Massie,
Project 21; Carol W. LaGrasse, Property
Rights Foundation of America; Paul
Driessen, Center for the Defense of Free
Enterprise; Wanda Benton, The Property
Rights Congress, Ozarks Chapter; L.M.
Schwartz, The Virginia Land Rights
Coalition; Robert R. Galbreath, Jr.,
Citizens for a Constitutional Republic;
Malcom Wallop, Frontiers for Freedom; Linda
Runbeck, American Property Coalition; Jim
Chmelik, Idaho County Farm Bureau; J.
Michael Smith, Home School Legal Defense
Association; LeRoy Watson, National Grange;
Jim Vogt, Taxpayers for Accountable
Government; Andrew F. Quinlan, Center for
Freedom and Prosperity; Howard Phillips,
The Conservative Caucus; Rev. Louis
Sheldon, Traditional Values Coalition;
William Greene, RightMarch.com; Leon E.
Donahue, Washingtonians for Immigration
Reform; John J. Karch, Slovak American
Information Council; Sean Carr, Golden Gate
Minutemen; Tom DeWeese, American Policy
Center; R. Peter Weaver, Independent Liquid
Terminals Association; and Elaine Donnelly,
Center for Military Readiness.
Senator Menendez. Also, I'd ask unanimous consent to
include a letter in the record written to Senator Biden and
Senator Lugar by Senator Rockefeller and Senator Bond, the
chair and the vice-chair of the Senate Intelligence Committee,
in which--it goes on to say, ``On June 8, 2004, the Select
Committee on Intelligence held a closed hearing on the
intelligence implications of United States accession to the Law
of the Sea Convention. In that hearing, the Director of Naval
Intelligence, the Assistant Director of Central Intelligence
for Collection, the legal advisor to the Department of State,
expressed their support for accession to the Law of the Sea
Convention, and stated the Convention does not affect the
conduct of intelligence activities.'' And it goes on to say,
``Based on our considerations of these matters, we concur in
the assessment of the intelligence community and the Department
of Defense and the Department of State that the Law of the Sea
Convention neither regulates intelligence activities, nor
subjects disputes over intelligence activities to settlement
procedures under the Convention. It is, therefore, our judgment
that accession to the Convention will not adversely affect U.S.
intelligence collection or other intelligence activities.''
Mr. Gaffney. Senator, again, there have been----
Senator Menendez. Without objection----
Mr. Gaffney [continuing]. Opposition witnesses heard.
Senator Menendez. Mr. Gaffney, I've given you a lot of
flexibility----
Mr. Gaffney. I'm very grateful----
Senator Menendez [continuing]. But, with all due respect--
--
Mr. Gaffney [continuing]. For your courtesy, sir.
Senator Menendez [continuing]. We run the committee
hearing, not you, sir.
Mr. Gaffney. Just on your point?
Senator Menendez. With----
Mr. Gaffney. It----
Senator Menendez [continuing]. That----
Mr. Gaffney. There were no opposition witnesses heard.
Senator Menendez [continuing]. The gentleman's----
Mr. Gaffney. How could they arrive at an informed
decision----
Senator Menendez [continuing]. The gentleman----
Mr. Gaffney [continuing]. If none were heard?
Senator Menendez. The gentleman is out of order.
Mr. Gaffney. I appreciate it, sir.
Senator Menendez. You can ask Senator Rockefeller and
Senator Bond how they did that.
Without objection, the letter is entered into the record.
[Editor's note.--The above mentioned letter can be found on
page 49 of the preceding November 27 hearing.]
Senator Menendez. We thank all the witnesses. There will be
other questions for the witnesses submitted for the record. We
would appreciate your expeditious answers.
And we thank you for your testimony.
Senator Vitter. Mr. Chairman.
Senator Menendez. And, with that--Senator Vitter.
Senator Vitter. Just a final question. This treaty has been
around a long time. I understand that. I've been a member of
this committee a relatively short time. In that tenure, we've
had two hearings, about 11 witnesses--two witnesses against the
treaty, nine witnesses in support of it. In that context, I
don't consider the hearings held in this committee to have been
balanced enough. And I would request that we have at least one
additional hearing to invite other witnesses, including
additional opponents of the treaty.
Senator Menendez. The Chair will bring your desires to
Senator Biden's attention. And I'm sure you may do so, as well.
With that, the witnesses are excused. We appreciate your
testimony.
Let me call up the second panel: Mr. Paul Kelly, the
president of the Gulf of Mexico Foundation, who also previously
served on the U.S. Commission on Ocean Policy; Joseph Cox, the
president of the Chamber of Shipping of America; and Mr.
Douglas Burnett, the partner at the law firm of Holland &
Knight--he is also an international law advisor to the
International Cable Protection Committee.
Thank you, gentlemen, for appearing before the committee
for your testimony. In the interest of time, we ask that you
keep your opening statement to 5 minutes, summarize your
written testimony. And, of course, we will include your full
written testimony for the record.
With that, let me recognize Mr. Kelly.
STATEMENT OF PAUL C. KELLY, PRESIDENT, GULF OF MEXICO
FOUNDATION, HOUSTON, TX
Mr. Kelly. Thank you, Mr. Chairman. Thank you for giving me
this opportunity to testify today to express the U.S. oil and
natural-gas industry's support for U.S. accession to the Law of
the Sea Convention.
Taken together, the six associations I am speaking on
behalf of here today--the American Petroleum Institute, the
International Association of Drilling Contractors, the National
Ocean Industries Association, the American Exploration and
Production Council, and the Independent Petroleum Association
of America, as well as the United States Oil and Gas
Association--represent the full spectrum of American companies
involved in all phases of oil and natural-gas exploration and
production in the oceans of the world, as well as the marine
transportation of petroleum and petroleum products.
Although I am currently a consultant for Rowan Companies,
which I retired from 2 years ago, I have worked in the oil and
natural gas industry for 35 years, and I'm also president of
the Gulf of Mexico Foundation, as well as former Commissioner
on the U.S. Ocean--on the U.S. Commission on Ocean Policy. And,
as you're probably aware, there is a follow-on organization to
the U.S. Commission, named the Joint Ocean Commission
Initiative, cochaired by ADM James D. Watkins and Leon Panetta.
And they have asked me to submit, for the record, which I did
yesterday, a letter signed by 101 distinguished Americans,
including former Secretaries of State, Governors of the States,
academic and legal authorities, former naval officers, and
leaders in industry and the conservation communities.
The offshore oil and natural gas industry spends billions
of dollars annually in the search for, and production of, oil
and natural gas in the world's oceans. U.S. offshore production
accounts for more than 27 percent of the country's oil
production, and 15 percent of its natural gas production. Each
year, offshore energy development contributes between $4 and $6
billion in revenues to the Federal treasury. Millions are also
paid to states and local communities.
The Federal offshore produced approximately 500 barrels of
oil and about 3 trillion feet of natural gas in 2006. In
addition to activities in the areas under U.S. jurisdiction,
such as Alaska and the Gulf of Mexico, our Nation has
substantial interest in offshore oil and gas development
activities globally, given our significant reliance on imported
oil.
U.S. oil and natural gas production companies, as well as
oilfield drilling, equipment, and service companies, are
important players in the competition to locate and develop
offshore natural gas and oil resources.
The pace of technological advancement, which drove the need
to define the outer limits of the continental margin, has not
abated. Advances in technology and increased efficiencies are
taking us to greater and greater water depths and rekindling
interest in areas that was once considered out of reach or
uneconomic.
The Convention is important to our efforts to develop
domestic offshore oil and natural gas resources. The Convention
secures each coastal nation's exclusive rights to the living
and nonliving resources of the 200-mile exclusive economic
zone, the EEZ. In the case of the United States, this brings an
additional 4.1 million square miles of ocean under U.S.
jurisdiction. This is over 3 billion acres. The EEZ, as we
know, is an area larger than the U.S. land area.
The Convention also broadens the definition of
``continental shelf'' in a way that favors the United States
with its broad continental margins, particularly in the North
Atlantic, the Gulf of Mexico, the Bering Sea, and the Arctic
Ocean.
Offshore petroleum production is a major technological
triumph. New technologies are allowing oil explorers to extend
their search for new resources for oil and gas out to and
beyond 200 miles for the first time, thus creating a more
pressing need for certainty and stability in the delineation of
the extended Continental Shelf. In addition, those technologies
also allow that the largest discoveries in a generation can be
made in field sizes not even imagined before.
Before the LOS Convention, there were no clear, objective
means of determining the outer limit of the shelf, leaving a
good deal of uncertainty, and creating significant potential
for jurisdictional conflicts between coastal states.
Under the Convention, the Continental Shelf extends seaward
to the outer edge of the continental margin, or to the 200-
nautical-mile limit of the EEZ, which is--whichever is greater,
to a maximum of 350 nautical miles in certain situations.
The United States understands that such features as the
Chukchi Plateau, and component elevations situated in the north
of Alaska, could be claimed by the United States under the
provisions stated in the treaty, which, in turn, would
substantially extend U.S. jurisdiction well beyond 350 miles.
U.S. companies are interested in setting international
precedents by being the first to operate in areas beyond 200
miles, and to continue demonstrating environmentally sound
drilling, development, and production technologies.
It is in the best interests of the United States to follow
the Convention's procedure for establishing the outer limits of
our continental margin beyond 200 miles, where appropriate. In
so doing, the United States could expand its areas for mineral
exploration and development by more than 291,383 square miles.
We need to get on with the mapping work and other analyses and
measurements required to substantiate the extent of our shelf.
Some of the best technology for accomplishing this resides
in the United States. Establishing the continental margin
beyond 200 miles is particularly important in the Arctic, where
there a number of countries vying to expand their offshore
jurisdictional claims. In fact, Russia and Norway, as we've
discussed earlier today, have made submissions with respect to
the outer limit of their Continental Shelf in the Arctic. Also,
many states that were parties to the Convention in 1999 are
finally waking up to a 2009 deadline for filing offshore
jurisdictional expansion claim submissions on a massive amount
of maritime territory, as provided under the 1982 Convention.
Senator Menendez. Mr. Kelly----
Mr. Kelly. Only eight claims----
Senator Menendez [continuing]. If you could sum up for us,
I'd appreciate it.
Mr. Kelly. Yes.
Senator Menendez. If you could sum up for us, I'd
appreciate it.
Mr. Kelly. I'm sorry?
Senator Menendez. If you could sum up for us, I'd
appreciate it.
Mr. Kelly. OK.
If--so, these countries are finally waking up to a 2009
deadline for filing offshore expansion claim submissions, and
only eight claims have been made, to date, although about 50
coastal states are bound by the 2009 deadline. So, the
Continental Shelf Commission is going to be very busy, in the
next 20 months, taking on new submissions.
And I just--to sum up, I just want to say that, by some
estimates, in the years ahead we could see a historic dividing
up of many millions of square kilometers of offshore territory
with management rights that accrue. An advisor to some of the
coastal states developing their own submissions said, recently,
``This will probably be the last big shift in ownership of
territory in the history of the earth. Many countries do not
realize how serious this is.''
So, our question is, How much longer can we be a laggard in
joining this process? Asked recently about the competitive
aspect of claims on the Arctic, Liv Monica Stubholt, Norway's
Deputy Minister for Foreign Affairs, said that, rather than
pointing the fears--the fingers at Russia, Norway would prefer
to see the U.S. Senate ratify the Convention, which would give
the United States a seat on the Commission and a stake in a
nonbelligerent resolution of competing claims.
So, that's--for all these reasons, members of the
committee, our industry supports your giving advice and consent
to the treaty.
Thank you.
[The prepared statement of Mr. Kelly follows:]
Prepared Statement of Paul L. Kelly, Consultant, Rowan Companies, Inc.;
President, Gulf of Mexico Foundation, Houston, TX
Mr. Chairman and members of the committee, thank you for inviting
me before you today to express the U.S. oil and natural gas industry's
support for United States accession to the Law of the Sea (LOS)
Convention.
INTRODUCTION AND BACKGROUND
Taken together, the six associations I am speaking on behalf of
here today, the American Petroleum Institute (API), the International
Association of Drilling Contractors (IADC), the National Ocean
Industries Association (NOIA), the American Exploration and Production
Council (AXPC), the Independent Petroleum Association of America (IPAA)
and the United States Oil and Gas Association (USOGA), represent the
full spectrum of American companies involved in all phases of oil and
natural gas exploration and production in the oceans of the world, as
well as the marine transportation of petroleum and petroleum products.
Although I am currently a consultant for Rowan Companies, I worked in
the oil and natural gas industry for 35 years. I am also the president
of the Gulf of Mexico Foundation as well as a former Commissioner on
the U.S. Commission on Ocean Policy.
The offshore oil and natural gas industry spends billions of
dollars annually in the search for and production of oil and natural
gas in the world's oceans. U.S. offshore production accounts for more
than 27 percent of the country's oil production, and 15 percent of its
natural gas production. Each year, offshore energy development
contributes between $4 and $6 billion in revenues to the Federal
Treasury. Millions are also paid to States and local communities. The
Federal offshore produced approximately 500 million barrels of oil and
about 3 trillion cubic feet of natural gas in 2006. In addition to
activities in areas under U.S. jurisdiction such as Alaska and the Gulf
of Mexico, our Nation has substantial interests in offshore oil and
natural gas development activities globally, given our significant
reliance upon imported oil. U.S. oil and natural gas production
companies, as well as oilfield drilling, equipment and service
companies, are important players in the competition to locate and
develop offshore natural gas and oil resources. The pace of
technological advancement, which drove the need to define the outer
limits of the continental margin, has not abated. Advances in
technology and increased efficiencies are taking us to greater and
greater water depths and rekindling interest in areas that once were
considered out of reach or uneconomic.
Recognizing the importance of the LOS Convention to the energy
sector, the National Petroleum Council, an advisory body to the U.S.
Secretary of Energy, in 1973 published an assessment of industry needs
in an effort to influence the negotiations. Entitled ``Law of the Sea:
Particular Aspects Affecting the Petroleum Industry,'' it contained
conclusions and recommendations in five key areas including freedom of
navigation, stable investment conditions, protection of the marine
environment, accommodation of multiple uses, and dispute settlement.
The views reflected in this study had a substantial impact on the
negotiations, and most of its recommendations found their way into the
Convention in one form or another. Having been satisfied with the terms
of the Convention, the U.S. oil and natural gas industry's major trade
associations, including those I am representing today, have for many
years supported ratification of the Convention by the U.S. Senate.
Also, the Outer Continental Shelf Policy Committee, an advisory body to
the U.S. Secretary of the Interior on matters relating to our offshore
oil and natural gas leasing program, has adopted resolutions supporting
the United States acceding to the Convention.
OFFSHORE OIL AND NATURAL GAS RESOURCES
The Convention is important to our efforts to develop domestic
offshore oil and natural gas resources. The Convention secures each
coastal nation's exclusive rights to the living and nonliving resources
of the 200-mile exclusive economic zone (EEZ). In the case of the
United States, this brings an additional 4.1 million square miles of
ocean under U.S. jurisdiction. This is over 3 billion acres. This EEZ
is an area larger than the U.S. land area. The Convention also broadens
the definition of the Continental Shelf in a way that favors the United
States with its broad continental margins, particularly in the North
Atlantic, Gulf of Mexico, the Bering Sea, and the Arctic Ocean.
EXPLORATION MOVING FARTHER FROM SHORE INTO DEEPER WATERS
Offshore petroleum production is a major technological triumph. We
now have world record complex development projects located in 8,000
feet of water depth in the Gulf of Mexico (In June 2007, gas production
started on Independence Hub, a semisubmersible platform located in
8,000 feet of water and operated by Anadarko) which were thought
unimaginable a generation ago. Even more eye-opening, a number of
exploration wells have been drilled in the past 3 years in over 8,000
feet of water and a world record well has been drilled in over 10,000
feet of water. New technologies are allowing oil explorers to extend
their search for new resources of oil and gas out to and beyond 200
miles for the first time, thus creating a more pressing need for
certainty and stability in delineation of the extended shelf boundary.
In addition, those technologies also allow that the largest discoveries
in a generation can be made in field sizes not even imagined before.
Before the LOS Convention there were no clear, objective means of
determining the outer limit of the shelf, leaving a good deal of
uncertainty and creating significant potential for jurisdictional
conflicts between coastal states. Under the Convention, the Continental
Shelf extends seaward to the outer edge of the continental margin or to
the 200 nautical mile limit of the EEZ, whichever is greater, to
maximum of 350 nautical miles in certain situations, The United States
understands that such features as the Chukchi Plateau and component
elevations, situated to the north of Alaska, could be claimed by the
United States under the provisions stated in the law of the Sea Treaty
which in turn could substantially extend U.S. jurisdiction well beyond
350 nautical miles. U.S. companies are interested in setting
international precedents by being the first to operate in areas beyond
200 miles and to continue demonstrating environmentally sound drilling
development and production technologies.
IMPORTANCE OF DELINEATING THE EXTENDED CONTINENTAL SHELF
The Convention established the Limits on Continental Shelf
Commission (``the Continental Shelf Commission''), a body of experts
through which nations may establish universally binding outer limits
for their Continental Shelves under article 76. The objective criteria
for delineating the outer limit of the Continental Shelf, plus the
presence of the Continental Shelf Commission, should substantially
reduce potential conflicts offsetting states and provide a means to
ensure the security of tenure crucial to those investing in capital-
intensive deepwater oil and natural gas development projects.
It is in the best interest of the United States to follow the
convention's procedure for establishing the outer limits of our
continental margin beyond 200 miles where appropriate--in so doing the
United States could expand its areas for mineral exploration and
development by more than 291,383 square miles. We need to get on with
the mapping work and other analyses and measurements required to
substantiate the extent of our shelf. Some of the best technology for
accomplishing this resides in the United States. Establishing the
continental margin beyond 200 miles is particularly important in the
Arctic, where there are a number of countries vying to expand their
offshore jurisdictional claims. In fact, Russia and Norway have made
submissions with respect to the outer limit of their Continental Shelf
in the Arctic. Also, many states that were parties to the convention in
1999 are finally waking up to a 2009 deadline for filing offshore
jurisdictional expansion claim submissions on a massive amount of
maritime territory as provided under the 1982 Convention. Only eight
claims have been made to date, although about 50 coastal states are
bound by a May 13, 2009, deadline for submissions 10 years from their
date of acceding to the Convention. Russia was first to make a
submission in 2001. Since then, Brazil, Australia, Ireland, New
Zealand, France, Spain, the United Kingdom, and Norway have filed
claims in whole or in part.
ARCTIC
The world was startled this summer when the Russian Federation
symbolically planted a Russian flag on the seabed beneath the ice of
the North Pole emphasizing its claim of the region to be an extension
of the Russian Continental Shelf in waters 4,261 meters deep. Soon
thereafter, Canadian Prime Minister Harper made headlines when he
toured Canada's Arctic region, emphasizing that Canada's claims include
sovereignty over the Northwest Passage.
In the Arctic, a key dispute is whether the Lornonosov Ridge, a
vast underwater mountain range stretching across the North Pole is an
estension of Russia's Continental Shelf, or part of Greenland, which
belongs to Denmark, or neither one or both.
Such political moves should not have come as a surprise. One reason
is no secret. The U.S. Geological Survey estimates that about one
quarter of the world's undiscovered oil and natural gas lies beneath
Arctic waters; and modern technology now makes it possible to harvest
some of these resources: Securing access to these resources would not
only help the United States meet its own growing energy needs, but
could eventually contribute significant royalty payments to the Federal
Treasury.
HISTORIC SIGNIFICANCE
The Continental Shelf Commission is expected to have a very heavy
workload reviewing coastal state submissions over the next 20 months.
By some estimates, in the years ahead we could see a historic dividing
up of many millions of square kilometers of offshore territory with
management rights to all its living and nonliving marine resources on
or under the seabed. An advisor to developing states preparing their
own submissions said recently, ``This will probably be the last big
shift in ownership of territory in the history of the Earth. Many
countries don't realize how serious it is.''
How much longer can the United States afford to be a laggard in
joining this process? An American geoscientist would make a welcome
addition to the Commission on the Limits of the Continental Shelf and
would have much to contribute. Asked recently about the competitive
aspect of claims on Arctic territory, Liv Monica Stubholt, Norway's
Deputy Minister for Foreign Affairs, said that rather than point
fingers at Russia, ``Norway would prefer to see the U.S. Senate ratify
the 13-year-old U.N. Convention on the Law of the Sea, which would give
the United States a seat on the Commission and a stake in a
nonbelligerent resolution of competing claims.''
MARINE TRANSPORTATION OF PETROLEUM
Oil is traded in a global market with U.S. companies as leading
participants. The LOS Convention's protection of navigational rights
and freedoms advances the interests of energy security in the United
States, particularly in view of the dangerous world conditions we have
faced since the tragic events of September 11, 2001. About 44 percent
of U.S. maritime commerce consists of petroleum and petroleum products.
Trading routes are secured by provisions in the Convention combining
customary rules of international law, such as the right of innocent
passage through territorial seas, with new rights of passage through
straits and archipelagoes. U.S. accession to the Convention would put
us in a much better position to invoke such rules and rights.
U.S. OIL IMPORTS AT ALL-TIME HIGH
The outlook for United States energy supply in the first 30 years
of the new millennium truly brings home the importance of securing the
sea routes through which imported oil and natural gas is transported.
According to API's Petroleum Facts at a Glance for September 2007,
total imports of domestic petroleum were 66 percent or 13,759,000
barrels per day. This is an extraordinary volume of petroleum liquids
being transported to our shores in ships every day.
The Department of Energy's Energy Information Administration (EIA),
in its 2007 Annual Energy Outlook, projects that by 2030, net imports
of crude oil on the basis of bands per day, are expected to account for
71 percent of crude supply up from 66 percent in 2005. Looking at the
September numbers from API makes one wonder whether 2030 is fast
approaching.
GROWING NATURAL GAS IMPORT
EIA's 2007 Outlook also states that, despite the projected increase
in domestic natural gas production, over the next 25 years an
increasing share of U.S. gas demand will also be met by imports. A
substantial portion of these imports will come in the form of liquefied
natural gas (LNG). All four existing LNG import facilities in the
United States are now open, and three of the four have announced
capacity expansion plans. Meanwhile, several additional U.S. LNG
terminals are under study by potential investors, and orders for
sophisticated new LNG ships are being placed. This means even more
ships following transit lanes from the Middle East, West Africa, Latin
America, Indonesia, Australia, and possibly Russia, to name the
prominent regions seeking to participate in the U.S. natural gas
market.
RISING WORLD OIL DEMAND
According to the EIA, world petroleum consumption in 2004 was 82.3
million barrels per day. Up to 1985 oil demand in North America was
twice as large as Asia. As developing countries improve their economic
conditions and transportation infrastructure we could soon see Asian
oil demand surpass North American demand. By 2030 world demand is
expected to reach nearly 118 million barrels per day. Steady growth in
the demand for petroleum throughout the world means increases in crude
oil and product shipments in all directions throughout the globe. The
Convention can provide protection of navigational rights and freedoms
in all these areas through which tankers will be transporting larger
volumes of oil and natural gas.
CONCLUSION
Following my work on the U.S. Commission on Ocean Policy, I am
currently serving on the Joint Ocean Commission Initiative, which is a
collaboration of the U.S. Commission on Ocean Policy, chaired by ADM
James Watkins (Ret.) and the independent Pew Oceans Commission, which
was chaired by the Honorable Leon Panetta. Both Commissions strongly
endorsed U.S. accession to the Convention on Law of the Sea, and this
remains one of the highest priorities of the Joint Initiative.
Recently, the Joint Initiative reiterated its support for accession to
the treaty in a letter to the Senate Majority and Minority leaders and
chairman and ranking member of this committee, signed by 101 prominent
U.S. leaders. I would like to reinforce this call for action by
submitting, on behalf of the Joint Initiative with the approval of the
committee, a copy of this letter, accompanied by a supporting statement
for the record, reiterating the importance of U.S. accession to the
Convention.
In conclusion, from an energy perspective we see potential future
pressures building in terms of both marine boundary and Continental
Shelf delineations and in marine transportation. We believe the LOS
Convention offers the United States the chance to exercise needed
leadership in addressing these pressures and protecting the many vital
U.S. ocean interests. The U.S. petroleum industry is concerned that
failure by the United States to become a party to the Convention could
adversely affect U.S. companies' operations offshore other countries,
and negatively affect any opportunity to lay claim to vitally needed
natural resources. At present there is no U.S. participation, even as
an observer, in the Continental Shelf Commission--the body that decides
claims of extended Continental Shelf areas beyond 200 miles--during its
important development phase. The United States lost an opportunity to
elect a U.S. Commissioner in June 2007, and we will not have another
opportunity to elect a Commissioner until 2012. By failing to ratify
the treaty, the United States is now watching from the outside as the
guidelines and protocols for conduct on the World's oceans are
developed and as certain provisions of the Convention are implemented.
It is for all these reasons that the U.S. oil and natural gas
industry supports Senate approval of the Convention at the earliest
possible time.
Senator Menendez. Thank you.
Mr. Cox.
STATEMENT OF JOSEPH J. COX, PRESIDENT, CHAMBER OF SHIPPING OF
AMERICA, WASHINGTON, DC
Mr. Cox. Thank you, Mr. Chairman.
Senator Menendez. You want to put your microphone on,
please.
Mr. Cox. Thank you, Mr. Chairman, Senator Lugar, Senator
Murkowski, Senator Vitter. I must say, from my training at the
U.S. Merchant Marine Academy, I'm rather intimidated by these
numbers flipping in front of me down to the zero marks. I'll
try to stay within it.
I appreciate being able to submit my testimony for the
record. I'll summarize a few things.
The Chamber of Shipping of America is representative of the
American maritime commercial industry. I'm extremely pleased to
be the president for the past 10 years, and I'm pleased to be
here representing the American community.
CSA started as an organization in 1914, so we've been
around a little bit in this business. Having been around, we
should note that there have been major changes in the
commercial maritime industry--how it's composed, how our ships
are operated--where our ships are built, where our ships are
flagged, who's crewing those ships, who is classing those
ships. It's much different today. It's a much more complex
world.
With respect to the Freedom of Navigation and Innocent
Passage, I think Admiral Clark was who made some very cogent
points about the Navy's abilities to operate around the world,
to go through straits, et cetera. I'm not going to repeat
those. I'm only going to say that the commercial maritime
industry is also a beneficiary of those exact same rights, and
we rely on those rights to be able to conduct our business. And
our business is that of carrying goods on behalf of shippers,
and their customers are the people around the world who buy and
trade products. So, certainly, to the extent that our trade has
increased and developed to the point it is, much of it can be
based on the fact that we exercise our maritime rights.
However, the commercial maritime industry does not have
sovereign immunity. We have to operate under a given set of
rules around the world. And, Mr. Chairman and Senators, we
appreciate the opportunity to look at a written set of rules
that we can point to, that we can have input into what they
say, and that we can have input into how others interpret them,
rather than an unwritten set of rules which can shift with
vagaries of those who are proposing an interpretation.
In our comments, we referred to an issue that had come up,
where we were able to point to the Law of the Sea Convention to
say to the major Western European nations, ``You are wrong.
Your idea is incorrect. It's in violation of the Law of the Sea
Treaty.'' We did so, because that idea, Mr. Chairman and
Senators, was an environmentally based one which would have
placed controls on commercial shipping which were untenable and
illegal. We certainly appreciated the opportunity to do that.
We would like to have the United States in a position where it
could make the most vociferous arguments on our behalf that we
are capable of making.
The next area, Mr. Chairman and Senators, is the one of
security. I know you've heard testimony relative to the
movement of oil in the world, and the importance of that
movement. I refer back to my comments relative to the movement
of ships, and the freedom of those movements.
Certainly, the import of oil into the United States is
critical. It's based on the fact that we do have those rights
of passage. I would only point out that all other maritime
commercial ships have the exact same rights, and all of our
imported goods, all of our exported goods, go through those
very same straits. So, it's not only just oil that we are
security conscious about, it's all of our trade. And, in fact,
our way of life depends on that trade.
In closing, Mr. Chairman, I'll point out that the United
States, while I'm the first one to tell you that I would wish
that our flag could be one of the largest in the world, that's
not the situation today. If there were things we could do and
suggest to you for a change to make that happen, I'd certainly
appreciate coming before the appropriate committees of
Congress. However, we're not the largest flag in the world, but
we are the sixth largest ship-owning nation in the world, which
is reflective of how the maritime industry operates today
throughout the world.
American seafarers are the best-trained in the world, and
they have taken steps, through both their unions and through
other individual circumstances, to go to the world and say,
``We are now able to sail on your ships.'' And, I think, in the
very near future, we will see Americans who are going to be
sailing on foreign-flagged ships.
Thank you, Mr. Chairman. I certainly look forward to any
questions. And I just want to close by saying that the Chamber
of Shipping of America, as representative of the American
commercial maritime industry, are in strong support of
accession to the Law of the Sea Treaty.
Thank you.
[The prepared statement of Mr. Cox follows:]
Prepared Statement of Joseph J. Cox, President and CEO, Chamber of
Shipping of America, Washington, DC
Thank you, Mr. Chairman and committee members. The Chamber of
Shipping of America is very pleased to testify before your committee
today concerning U.S. accession to the Law of the Sea Convention. The
Chamber of Shipping of America has long supported accession to this
very important treaty and have testified a number of times, the latest
being before this committee on October 21, 2003. We are very pleased to
testify today that the Chamber of Shipping of America (CSA) should be
continued to be listed in the strong support column.
CHAMBER OF SHIPPING OF AMERICA
The Chamber of Shipping of America represents 30 American companies
that own, operate, or charter ocean-going vessels or are in closely
allied businesses. Our members operate both U.S.- and foreign-flag
ships in the domestic and international trades of the United States.
Our members operate/own container ships, crude tankers, product
tankers, LNG carriers, bulk ships, integrated tug/barge units, roll-on/
roll-off vessels and breakbulk ships. At any given time, CSA members
have hundreds of ships and vessels operating in the U.S. trades. CSA
traces its founding to 1914 when we were known as the National
Federation of American Shipowners. At that time, the British Government
invited a group of nations to develop a treaty regarding safety at sea.
The American shipowners were involved in that first maritime treaty. It
was prompted by a legendary incident--the sinking of the steamship
Titanic which was American owned and British flagged. While that treaty
did not come to fruition due to the start of World War I, it plotted
the course for future maritime treaties. Today, the safety, security,
and protection of the environment are all subjects of maritime
treaties.
INTEREST IN THE LAW OF THE SEA TREATY
Mr. Chairman, Senators, today we consider the Law of the Sea
Convention. It has been referred to by many as the fundamental
framework governing obligations and rights of states; flag states,
coastal states, and port states. Viewing it in conjunction with the
many other maritime conventions shows the detailed interest the world
has in the maritime industry. The United States has been and continues
to be a critical part of that interest in the maritime world. From 1914
through today, we do not know of any maritime treaties including those
concerning safety, environmental protection, liability, labor
conditions and security, developed in any fora that did not have the
active involvement of the United States. Indeed, many of the
conventions, particularly those addressing security and environmental
concerns, were undertaken at the urging of and subsequent leadership by
the United States. CSA has attended hundreds of international meetings
over the years where these conventions were debated and we are pleased
to note the positive contributions of our great nation to the
development of these treaties including the Law of the Sea Convention.
CHANGES IN THE MARITIME INDUSTRY
The Law of the Sea Convention establishes a legal framework that
has direct impact on the American shipowning community and all
Americans. In 1914, the maritime world was a comparatively simple one;
ships flying a particular flag were manned by nationals from that
nation, were insured there and classed by the national class society.
They were most likely built there and had equipment manufactured there.
The traditional law of the sea was also simple to apply. Today, the
situation is more complex. Ships owned by one company can fly the flags
of several different nations, employ crew from various nations with
mixed crews being more prevalent than single-national ships, be classed
by any one of a number of societies, be insured in any number of venues
and have a multiple of other international mixes involving equipment
and building. This situation has evolved in response to the needs of
the industry to increase efficiency. As we have increased our
efficiency, we have provided lower cost service to our customers. Our
customers are the shippers of the world and their customers are the
consumers. Over 95 percent of the goods shipped into and out of the
United States go by sea. On average, 400 ships a day, from literally
all flag nations of the world, arrive in U.S. ports. The people of the
United States have benefited from the actions of the maritime industry
and we in the industry have benefited from a uniform legal framework.
One consistent comment we make to the Congress, and the various
legislative bodies around the world is that we need to have a uniform
set of rules to follow. If each nation develops their own rules or
interprets existing regulations in a manner substantially different
from others, chaos exists for the maritime community. The United States
has consistently responded to creative interpretations and has taken
the lead in developing rules that meet U.S. needs and the needs of
other nations. The world looks to our leadership in these matters and
we have responded vigorously and positively to that expectation. The
credibility of the United States in international fora where these
agreements are made depends on it.
FREEDOM OF NAVIGATION AND INNOCENT PASSAGE
The United States should continue to be a major player in ensuring
the rights embodied in the treaty and should be seen as a leading voice
in developments affecting maritime shipping including freedom of
navigation and innocent passage. We understand that the origination of
the process leading to the treaty was occasioned by states exercising
sovereignty or sovereign rights in waters where the legal basis was
questionable. We in the maritime industry are concerned with freedom of
navigation. A few years ago, Western European nations developed the
idea that they should establish a controlled area covering the 200-mile
zone off their coasts. We accept that their motivation was to protect
their coasts from environmental damage and we understand the need to
respond to public demand for environmental protection, but we objected
to creation of new rights of coastal states. The idea was that by
establishing the controlled area, a nation could forbid certain types
of ships from transiting. The United States and other countries
objected to the controls proposed for the area as inconsistent with the
Law of the Sea Convention, because they would have unilaterally imposed
construction requirements on transiting ships.
Rather than continue with the flawed rationale, the nations in
question accepted creation of a Particularly Sensitive Sea Area which
is a concept contained in the International Maritime Pollution
Prevention Convention to which the United States is party. The Western
European PSSA currently exists although there are no control measures
except for a reporting requirement associated with its creation. This
is viewed by some as a toothless tiger although our industry is
concerned that tigers can grow teeth. Is it fantasy to believe that the
next marine casualty will reinstitute a process of unilateral control?
Mr. Chairman, Senators, we feel very strongly that a written set of
rules controlling our industry--rules contained in a treaty that we are
party to--is preferable to an unwritten set of requirements that can
shift over time.
In further support of our contention that the concerns by the
world's public with the maritime industry have shifted, we have seen
general agreement by the public with steps taken by their governments
to remove or exclude ships from their exclusive economic zones under
extremely dangerous conditions. Our Government would be in a much
stronger position to protest such actions if the United States were a
party to the Law of the Sea Convention.
SECURITY
Mr. Chairman and Senators, you have heard testimony about the vital
movement of oil into our Nation. There is an additional concern as we
shift to LNG from other sources of energy as we will have to import
increasing amounts of LNG as well as other energy products into our
country. Yes, virtually all ships carrying our energy supply transit
areas that are protected by the Law of the Sea provisions. While energy
supply is of obvious critical importance, we note that other types of
ships, container ships, bulk ships and others also enjoy the same
freedom of navigation afforded the energy carriers. Our way of life
depends on the freedom of the seas and the rights of innocent passage.
Mr. Chairman and members of the committee, freedom of the seas and
rights of innocent passage are not theoretical concepts. These are
critical aspects of the Law of the Sea Convention and ones that we rely
on for the effective operation of our industry. We are very concerned
with protection of those rights. Both U.S.-flag ships and ships owned
or operated by American companies are impacted by international events.
We rely on our Nation to be actively involved. The United States should
place itself in the most effective position to be a force for adherence
to treaty obligations by all. We can do this by acceding to the treaty.
My members operate in the international maritime world. We benefit
from a consistent application of the rules that we have to follow.
There are certainly fewer ships flying our flag than in years past
although that does not mean we are less involved as a nation. The
latest figures we have seen place the United States as the sixth
largest shipowning nation in the world. In recent months, we have seen
actions by companies that will lead to more American seafarers serving
on ships that fly the flags of other nations. Clearly we have a lot at
stake.
______
Letter From Mr. Cox Supplying Additional Testimony in Reply to
Questions Posed to Him During This Hearing
Chamber of Shipping of America,
Washington, DC, October 9, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Foreign Relations Committee, U.S. Senate,
Russell Senate Office Building, Washington, DC.
Dear Mr. Chairman: Last week, it was my pleasure as President of
the Chamber of Shipping of America (CSA) to testify before your
committee in support of United States accession to the Law of the Sea
Convention. During testimony, I was surprised to hear comments about
the potential impact of environmental requirements. I requested an
opportunity to provide the committee with further written comments
concerning environmental impacts noting that the maritime industry is
well regulated regarding prevention of pollution.
Here are some examples of environmental protection legislation that
is currently applicable to the maritime industry:
Act to Prevent Pollution from Ships
Oil Pollution Act of 1990
International Convention on Prevention of Pollution
National Invasive Species Act
Clean Air Act
Clean Water Act (CWA)
The last law is currently the subject of litigation. When the Clean
Water Act (CWA) was passed in 1973, there was little control in
domestic law and regulation or international conventions that regulated
the maritime community. At the time, in crafting the initial
regulations, the Environmental Protection Agency (EPA) chose to exempt
the ships and vessels from coverage under CWA with the expectation that
international requirements were being set by the International Maritime
Organization. In fact, that has taken place and continues to evolve.
EPA was sued two years ago for allowing that exemption. CSA supports
the EPA in contending that they have acted correctly under the CWA. CSA
makes the point here that we recognize that we are subject to the CWA
and we were properly exempted from coverage with the expectation that
we would be covered by international conventions. We contend that the
international requirements now being enforced by EPA and the U.S. Coast
Guard provide adequate protection of our marine environment from
pollution from ships and vessels.
CSA is very active in discussions about further protections of the
marine environment and are dedicated to finding solutions to
environmental problems. If we are part of the problem, we must be part
of the solution.
Thank you again for allowing us to testify on behalf of accession
to the Law of the Sea Convention.
Sincerely,
Joseph J. Cox,
President.
Senator Menendez. Thank you, Mr. Cox.
Mr. Burnett.
STATEMENT OF DOUGLAS R. BURNETT, PARTNER, HOLLAND & KNIGHT,
LLP, NEW YORK, NY
Mr. Burnett. Mr. Chairman, Senator Lugar, members of the
committee, thank you for the invitation to testify on the 1982
Law of the Sea Convention.
Submarine cables are critical infrastructure of our
country. They carry over 90 percent of the United States
international voice, data, video, and Internet communications.
Think about it--``just-in-time logistics,'' international bank
and finance, shipping, airlines, research, export, import--
virtually the foundation of United States commanding stake and
leadership in the global economy and political system rides on
submarine cables.
About 30 cables, each about the diameter of a garden hose,
connect the United States to the rest of the world. They land
in Rhode Island, Massachusetts, New York, New Jersey, Florida,
California, Oregon, Washington, Hawaii, and Alaska. Since the
American entrepreneur Cyrus Field laid the first transatlantic
cable in 1866, U.S. companies have been leaders in
international communication. Their modern counterparts are seen
in the membership of the North American Submarine Cable
Association, whose views I represent today. But their
participation and their leadership in this highly competitive
business is held back by the fact that the United States is not
a party to the Convention. Here's why:
The 1982 Convention is a quantum improvement over earlier
treaties in the critical freedoms to lay and maintain modern
cables. It expressly provides these freedoms include the
operations associated with them, such as marine route surveys,
burial, and repair within the Exclusive Economic Zone and upon
the Continental Shelf. The legal certainty of having these
rights and obligations expressly provided by treaty is exactly
what U.S. telecommunication companies need to achieve their
business goals using the oceans.
This is no accident. U.S. telecommunication companies
worked closely with U.S. diplomats to achieve this highly
advantageous result. The industry is under no illusion that it
will ever get a better deal than it has in the 1982 Convention.
Foreign nations and other seabed users would never allow the
present rights to keep the priority status of cables under any
future theoretical convention which some opponents now offer as
a solution.
U.S. companies are very concerned that the hard-won rights
and benefits conferred by the Convention will be eroded, or
even lost, if the United States does not become a party. Every
day, the industry sees greater threats and actions by coastal
nations which encroach upon the critical freedoms to lay,
maintain, and repair cables outside of territorial seas. In
contrast to the express plain language in 10 Articles of the
Convention, customary international law is hard to find, and
harder to apply. Customer international is unpredictable,
shifting, and not suited to the practical needs of business.
The billions of dollars required by private companies to
maintain and expand their submarine cable networks requires the
legal certainty the Convention provides to submarine cables.
U.S. companies will invest and lead with greater confidence
with the knowledge that their own government can, if it
chooses, take full advantage of all of the protections and
rights for cables in the convention.
A recent example highlights the disadvantage U.S. companies
face when the United States is not a party to the Convention.
Earlier this year, depredations were carried out by pirates
from commercial vessels from Vietnam against two cable systems
co-owned by U.S. companies. Of the 11 countries impacted, only
the United States is not a party to the Convention. Three U.S.
companies who suffered losses--AT&T, Verizon, and Sprint--are
left out from the solutions expressly provided for in the
Convention.
After a quarter of a century of observed state practice
with the Convention, any delay for more study and unrealistic
and hypothetical discussions must end. U.S. telecommunication
companies request with urgency that the U.S. Senate act to all
an up-or-down vote this year on the Convention upon which
global communications so heavily rely.
Thank you.
[The prepared statement of Mr. Burnett follows:]
Prepared Statement of Douglas R. Burnett \1\, Partner, Holland &
Knight, LLP, New York, NY
Mr. Chairman and members of the committee, it is an honor to appear
before you today to testify on the United Nations Convention on the Law
of the Sea and the 1994 Implementation Agreement Regarding Part XI of
the Convention.
My views are based on my 26 years as an admiralty attorney working
with U.S. telecommunications and shipping companies with respect to
submarine cables and marine operations around the world. I am confident
that these views are consistent with those in the telecom industry who
work with submarine cables on a daily basis. In particular, I have been
authorized and requested to present this testimony on behalf of the
North American Submarine Cable Association, or ``NASCA.'' NASCA is a
nonprofit association of submarine cable owners, submarine cable
maintenance authorities, and prime contractors for submarine cable
systems.\2\ NASCA and its members have a strong interest in being able
to maintain and protect their cables that link the United States to the
rest of the world.
These reliable and secure cables absorb the exponentially
increasing international communication growth relentlessly fueled by
the Internet. There are about 30 international cables landing in this
country in 10 coastal states.\3\ Two new Pacific Ocean systems, each
costing about half a billion dollars, are planned to enter service in
2008 to better connect the United States to Asia.\4\
Over 70 percent of our country's international telecom traffic,
which includes voice, data, and video, is carried on these cables, each
of which is only about the diameter of a garden hose. Not counting
Canada and Mexico, over 90 percent of the country's international
voice, video, Internet, and data communications are carried on these
cables. The disproportionate importance of these cables to the Nation's
communication infrastructure can be seen by the fact that if all of
these cables were suddenly cut, only 7 percent of the United States
traffic could be restored using every single satellite in the sky.
Modern fiber optic cables are the lifeblood of the world's economy,
carrying almost 100 percent of global Internet communication. This
underscores the revolutionary capacity \5\ of modern fiber optic
submarine cables. By any standard, they constitute critical
infrastructure to the United States, and indeed the world.
This critical infrastructure, by its very nature, depends upon
international cooperation and law. The promise of continued advances in
international communications hinges on international legal standards
providing a compass whereby nations and private companies may steer a
course that efficiently allows international communications networks to
be seamlessly planned, built, maintained, and operated.
The 1982 Convention provides this modern legal compass. In 10
specific articles,\6\ the Convention provides a comprehensive
international legal regime for submarine cables and pipelines in
territorial seas, archipelagic waters, the Exclusive Economic Zones
(``EEZ''), upon the continental shelves, and on the high seas.
Critics of the 1982 Convention argue that existing customary
international law should suffice. For cables this is simply not the
case for several reasons. Foremost among these reasons is that the
Convention explicitly goes beyond preexisting international law in
crucial areas of submarine cable installation, maintenance, and
operations and provides binding dispute resolution to ensure proper
enforcement of these new obligations, but only for countries that are
parties to the Convention.
At present for the United States, the operative international
treaties for international cables are the 1884 International
Conventions for Protection of Submarine Cables and the 1958 Geneva
Convention on the High Seas, which largely incorporates the earlier
treaty in general terms. While these treaties deal with the laying and
repair of cables on the high seas, they do not provide for the freedom
of cable owners to exercise in the new zone of the EEZ and upon the
Continental Shelf the full range of uses and operations desirable and
required to build and maintain modern fiber optic systems.
This express language in the 1982 Convention reflects the effort of
dedicated visionaries in the telecommunication industry who urged
Ambassador Richardson and the U.S. Delegation negotiating the
Convention to include language that would (1) include within the
freedom to lay and repair cables the operational requirements for
modern fiber optic systems, including marine route surveys,\7\
burial,\8\ and maintenance, and (2) at the same time prevent coastal
nations in their EEZ or upon their Continental Shelf from restricting
these vital activities.\9\
Directly stated, U.S. telecom companies are hurt and their
leadership in this vital sector is diminished without the Convention.
The Convention is the key to the global international telecommunication
policy and legal system; it unlocks the door for the fullest
participation and makes leadership possible by U.S. telecom companies;
it protects existing investments and fosters additional investments.
But if the United States is not a party these valuable, carefully
negotiated rights can be diluted or even removed through amendments or
encroachment by nations that wish to expand their jurisdiction over
cables in the EEZ and upon the Continental Shelf. Having the United
States a party allows it to fully protect the existing rights from
nations seeking to restrict these vital freedoms of the sea.
The U.S. telecom industry is deeply concerned about the attempts
emerging by nations attempting to create new protectionist trends in
customary international law. Having the United States as a party is the
optimum protection against changes to the 1982 Convention, whether by
future amendment attempts or by novel new arguments based on the
unpredictable shifting sands of customary international law.
The urgency with which U.S. telecommunication companies need the
Convention's specific protections for cables' increases with each
passing year. The Russian Federation since 1995 is claiming the right
to delineate cable routes on its Continental Shelf in the Arctic. These
actions are violations of the Convention which does not allow a coastal
nation to delineate or require permits for the routes of international
cables or cable repairs outside territorial seas within the EEZ or upon
the Continental Shelf. Without the United States being a party, U.S.
telecommunication companies are on weaker grounds to question these
actions, because the United States itself is held back from being able
to enforce the Convention's freedoms to lay, maintain, and repair
cables in the EEZ and upon the Continental Shelf.
Under the 1884 treaty, nations are required to provide criminal and
civil sanctions for negligent or intentional actions by third parties
which damage a cable. But under the 1884 treaty, the cable owner must
wait until the damage is done before these sanctions are triggered. In
welcome contrast, under the 1982 Convention, third party conduct which
is likely to result in damage is sanctioned in addition to actual
damage cases. So the cable owner has a remedy to prevent the injury to
critical infrastructure in the first place.\14\ When one considers the
average $1M-plus cost repair a single cable and the disruption a cable
break can cause to essential economic and strategic interests, it is
easy to see why U.S. telecommunications companies need the United
States to accede to the Convention.
Another more recent event underscores how U.S. telecommunication
companies suffer because the United States is not a party. On March 27,
2007, two active international cable systems were heavily damaged on
the high seas and taken out of service for about 3 months as a result
of piratical depredations for private ends by commercial vessels from
Vietnam; they stole a total of over 106 miles of cable, including
optical amplifiers from these active systems.\11\ Repair costs are
estimated in excess of $7.2M with the national economic costs of the
disruptions still being ascertained. The cable systems are owned by
consortiums, common in the industry,\12\ and the ownership and landing
points involve 11 countries. United States coowners who sustained
losses and had their networks disrupted were AT&T, Verizon, and Sprint.
With the exception of the United States, all of the nations impacted
have tangible preventative and compensatory options as well as
obligations to protect their nationals under the 1982 Convention.
The Convention expressly proscribes depredations against property
on the high seas and the EEZs and classifies them as piracy with
recourse to all of the Convention's robust remedies to put pirates out
of action.\13\ Expressly classifying depredations against property such
as cables is an example of how the Convention protects cables from new
emerging threats.
With the security which arises from the knowledge that their own
government is a party, United States telecom companies will make more
confident business investments when protected by reliable and
discernable international law. The Convention instills credence that
their government can defend against future amendments and customary law
encroachments.
Besides telecommunication cables, power cables are protected under
the Convention. The Juan de Fuca cable, an international electrical
cable that will bring power from Canada to Washington State in 2007, is
an example of this international submarine cable use,\14\ and there are
plans for a power cable from Canada to Boston and New York.\15\
The scientific Neptune cable system, funded by the National Science
Foundation, is another example of a cable use recognized by the
Convention. When completed in 2011, along with a joint system now being
laid by Canada, this scientific research cable system will form the
world's most advanced undersea network of scientific observatories with
hundreds of 24/7 monitoring sites off the west coasts of Canada and the
United States. These cables will bring the global Internet to the ocean
depths and yield new insights into the environment ranging from
forecasting volcanic and seismic events to maximizing living marine
resource benefits and environmental protection.
Military cables with sensors vital to national defense and homeland
security depend on the Convention to allow their placement. Coastal
nation encroachment or amendments to restrict this cable use can be
best opposed when the United States is an active party.
The BP Gulf of Mexico system, a domestic submarine cable system,
will connect in 2008 seven of that company's offshore production
platforms, and possibly others in the future, and will enable energy
companies to monitor and operate these platforms continuously from
remote control centers ashore, impervious to hurricanes. This cable
provides greater energy reliability and environmental safeguards.
Cables for all of these uses benefit from the Convention.
Fundamentally, the ability to carry out marine surveys, to lay,
maintain, and repair cables outside of territorial seas on an
international basis rests on the Convention's protections. In a world
where the competition for use of the oceans is accelerating, disputes
by competing coastal nations and seabed users will occur with
increasing frequency. By providing express protections to cables over
other nonspecified uses in the EEZ, the Convention assures that the
critical importance of international cable infrastructure is given the
priority protection it requires to serve our country.\16\
Arguments that the United States already obtains sufficient
benefits from the Convention itself as customary international law fail
to recognize that the Convention is a practical, but powerful tool to
overcome unreasonable coastal nation encroachments on the freedom to
lay and maintain cables and to prevent these rights from being taken
away in the future. If the United States is a party, then U.S. telecom
and power companies, the U.S. Navy, and scientists can seek the
assistance of the U.S. Government to enforce the rights of cable owners
to lay, repair, and maintain cables outside of territorial seas and to
prevent these rights from being diminished without United States
involvement.
If asked, virtually all telecommunication companies that own or
operate international cables would confirm that the Convention is
essential for their growth and success. They can ill afford to be left
in a situation in the future whereby their rights can be lost because
the United States is not a party. Strong support exists in the industry
for action by the Senate this year for an up or down vote on the
Convention.
----------------
\1\ International Cable Law Advisor (1999-2007), International
Cable Protection Committee (ICPC), www.iscpc.org, Chairman, Admiralty &
Maritime Committee (2004-2007), New York County Lawyers Association;
Chairman, Committee on International Law of the Sea (1994-2000),
Maritime Law Association of the United States, Lecturer, Rhodes Academy
of Oceans Law and Policy, 2006, 2007; Partner, Holland & Knight LLP,
Captain, U.S.N. (ret.); University of Denver, J.D. (1980); U.S. Naval
Academy, B.S. (1972).
\2\ NASCA's members include: Alaska United Fiber System
Partnership; Alcatel-Lucent Submarine Networks; Apollo Submarine Cable
System Ltd.; AT&T Corp.; Brasil Telecom of America, Inc./GlobeNet;
Global Crossing Ltd.; Columbia Ventures Corporation; Columbus Networks,
Inc.; Global Marine Systems Ltd.; Hibernia Atlantic; Level (3)
Communications, LLC; New World Network, USA, Inc.; Southern Cross Cable
Network; Sprint Nextel Corp.; Tyco Telecommunications (US) Inc; Verizon
Communications, Inc.; and VSNL International, Inc.
\3\ Rhode Island, Massachusetts, New York, New Jersey, Florida,
California, Oregon, Alaska, Washington, and Hawaii. Eleven cables land
in the Northeast, eleven in Florida or Puerto Rico, and eight on the
West coast.
\4\ The 10,800 mile Transpacific Express cable system (``TPE'')
will connect the United States from Oregon to China, Korea, and Taiwan.
The 12,000 mile Asia-America Gateway cable system (``AAG'') from
California, Hawaii, and Guam will connect the United States with Guam,
Hong Kong, Malaysia, Thailand, Singapore, Vietnam, the Philippines, and
Brunei.
\5\ In 1958, Transatlantic Telephone (``TAT'') 1, the first
transoceanic undersea telephone cable, had 32 circuits. In 1979, TAT-7,
the last analogue cable, had 4,200 circuits. TPE, a fiber optic
undersea cable described supra. at n.4 has capacity equivalent to
62,000,000 circuits or simultaneous telephone conversations.
\6\ Articles 21, 51, 58, 79, 87, 112-115, and 297.1(a).
\7\ Marine surveys, usually conducted by side scan sonar and
sampling, are used to determine, prior to laying the cable, the best
route for a cable system which minimizes conflicts between the cable
and other seabed users and undersea geological features.
\8\ In order to avoid injury by bottom trawling or dredging, where
the seabed and regulations allow, the beer bottle cap diameter fiber
optic cables are buried up to one meter in heavily trafficked areas of
the Continental Shelf. Otherwise, cables are simply laid along the
seabed surface with a benign environmental footprint. Information on
this process and cables in the environment exists in the video ``About
Submarine Cables,'' at www.iscpc.com.
\9\ January 31, 1980 letter from F.M. Tuttle, Jr., AT&T Long Lines,
to Hon. Elliot Richardson and Ambassador Richardson's reply, dated
April 10, 1980.
\10\ Article 113.
\11\ M. Green, D. Burnett, ``Security of International Submarine
Cable Infrastructure-Time to Rethink?'', Ocean Conference on Legal
Challenges in Maritime Security-Heidelberg, Germany, May 2007. (Mr.
Mick Green is the Chairman of the International Cable Protection
Committee.)
\12\ For example, AT&T owns interests in over 80 international
submarine cable systems covering more than 457,000 fiber route miles,
and Verizon has ownership interests in more than 65 international
submarine cable systems covering more than 446,000 fiber route miles.
\13\ Article 101(a)(ii) and (c).
\14\ http://www.jdfcable.com/.
\15\ ``Groups Propose Jules Verne-esque Idea to Import Cheap
Canadian Power,'' Wall Street Journal, May 23, 2001.
\16\ The preamble of the 1982 Convention states, in part:
``Recognizing the desirability of establishing through this Convention,
with due regard to the sovereignty of all States, a legal order for the
seas and oceans which will facilitate international communications . .
.'' (Emphasis added.) Nowhere is this statement truer with respect to
international communication carried by modern fiber optic cables.
Senator Menendez. Thank you all for your testimony.
We'll start 5-minute rounds. And the Chair will recognize
itself.
Mr. Kelly, opponents have argued that this Convention
actually discourages future minerals production, as well as oil
and gas drilling beyond 200 miles on our Outer Continental
Shelf. Seems to me you represent many of the businesses that
are going to be involved in that exploration and exploitation.
What do you--why do you think opponents are wrong?
Mr. Kelly. I think that----
Senator Menendez. If you would put your microphone on,
please, sir.
Mr. Kelly. I think that American business, since the 1970s,
was involved in deliberations over the Convention, and the
petroleum industry was satisfied, early, by the provisions of
the treaty by which steps can be taken for a nation to improve
the extension of its Continental Shelf. Now, the industry has
wells in the Gulf of Mexico today in 8,000 feet of water. The
technology is absolutely incredible. We--and a world-record
well has been drilled in the gulf in 10,000 feet of water--we
are getting closer and closer to the 200-mile nautical limit.
There are a number of wells; in fact, one, I understand, is
about 200 miles from the 200-mile limit. And we've proven that
there are definitely hydrocarbons at these water depths. So,
all around the country, we think that there are probably
resources beyond 200 miles, and the industry is at a point
where it can--we think we can recover those. And, in view of
our growing oil imports, and now natural-gas imports, we think
this would be a help to U.S. energy supply.
With respect to deep-sea mining--a lot of people confuse
the two, because, with respect to the interests of the
petroleum industry, what we're looking at is the features of
the Convention that would allow U.S. extension of its
Continental Shelf limit--with respect to deep-sea mining, I was
involved in some of the--as an advisor--to some of the
negotiations relating to the treaty many years ago, and I
recall associates who were in deep mining--in deep minerals
mining there, as well. And in 1994, they seemed to be satisfied
with the changes that were made, and they thought it would give
them the security of tenure that was needed.
The problem is that the market changed with respect to
minerals mining. There were discoveries made on land, in places
like Africa, where additional supplies of some of the exotic
minerals, such as molybdenum and others, were discovered. So,
the market fell. The prices fell to the point where that
industry didn't feel it was economic to explore. But, since
that time, as we know, we're finding supply-and-demand
imbalances not only with respect to oil and gas, but with
respect to a lot of minerals, and I would think that we're
probably seeing the day when U.S. companies will probably
become involved in deep-sea minerals management.
Senator Menendez. So, is it your view that the Convention
discourages such future production, or encourages it?
Mr. Kelly. It encourages it.
Senator Menendez. All right, thank you.
Mr. Kelly. Yes.
Senator Menendez. Mr. Cox, let me ask you this. We've heard
a great deal of testimony from the military, including the Navy
and the Coast Guard, about the advantages of the Convention, it
providing for the mobility of our Armed Forces. You represent
companies that travel across the seas. In what specific
respects do you think the Convention assists your member
companies with regard to commercial navigation?
Mr. Cox. Senator, in my comments initially, I pointed out
that we benefit from the same rights of passage that Admiral
Clark referred to for the Navy. And certainly, the example that
I had given in my comments was that there were some nations who
were attempting to restrict commercial operators' passage
rights based on an environmental rationale, but that does not
mean that it was not contravening the law.
We call these well-deserved and well-understood rights.
But, Mr. Chairman, this is the book that has them written down.
And this was the book that we are able to point to, to say,
``Here's the starting point for all deliberations which would
control the commercial industry.''
And, while I do have the mike, Mr. Chairman, I know that
some issues came up. You mentioned environment. I know there
were some questions from some of the Senators today regarding
the environment. I'd like to be able to have the opportunity to
submit further comments to the committee relative to the
environmental issues, because I know of no larger issue we are
handling today in the maritime world than environmental impact
from our ships. We are dealing with air pollution issues, we're
dealing with ballast water invasive species issues, we're
dealing, if I may suggest, the green water--the greenhouse gas
issue. I almost said ``green water,'' we appreciate green
water. But----
[Laughter.]
Mr. Cox [continuing]. Thank you, Mr. Chairman. I think that
we are--we would benefit from being able to point to this book.
And, as a U.S. citizen, I would like to point to the book,
saying, ``My Government says this.''
Senator Menendez. And, to ``the book,'' you're referring to
the treaty?
Mr. Cox. The Law of the Sea Treaty.
Senator Menendez. Yes. And we're happy to accept the rest
of your comments for the record.
Mr. Cox. Thank you.
Senator Menendez. We appreciate green water, too, when
we're swimming in it, not when we're drinking it, but----
[Laughter.]
Senator Menendez [continuing]. I'm sure that's how you
meant it.
Senator Lugar.
Senator Lugar. Well, thank you, Mr. Chairman.
I'd like to take a part of my time to cite a letter that
was written to me recently by Dirk Kempthorne, Secretary of the
Interior, and Carlos Gutierrez, Secretary of Commerce, that is
appropriate with this panel.
They say, ``Since the earliest days of the Republic, this
Nation has been committed to the underlying tenets of Freedom
of the Seas to guarantee the economic and national security of
the United States and the freedom of our people. The Convention
creates a comprehensive and balanced legal framework designed
to protect ocean resources while preserving the navigational
rights. It affirms the exclusive U.S. right to manage fisheries
and oil, gas, and mineral resources out to 200 miles from
shore, allows us to maximize our sovereign rights over the
valuable resources of the Continental Shelf beyond 200 miles,
guarantees the right to lay telecommunications cables and
pipelines, protects and promotes access on the high seas and in
coastal areas throughout the world from marine scientific
research, and ensures navigational rights for merchant vessels
upon which the vast majority of our international trade
depends.
``The Department of Commerce and Interior, along with other
Federal agencies work to manage our ocean resources and the
commerce they support. Department of Commerce, responsible for
promoting our Nation's economic development, expanding
international trade and commerce, and protecting and
understanding our oceans, and the Department of the Interior,
which is responsible for managing Outer Continental Shelf
mineral and energy resources, believe it is imperative that the
United States accede to the Convention on the Law of the Sea.
Our two Departments work together to map coastal lands and the
oceans, and to manage and protect an integrated coastal
cosystems, and, together as stewards of our Nation's oceans,
coasts, and the Continental Shelf, we urge favorable Senate
action on U.S. accession during this session of Congress.''
I ask that the full letter be made a part of the record.
Senator Menendez. Without objection.
Senator Lugar. Mr. Chairman, this panel, it seems to me, is
very important, because--we've had a good discussion with our
first panel about issues of national defense, of sovereignty,
of the imperative need of our country to be able to exercise
defense of our principles. And you and I have cited the fact
that starting with the President of the United States, then
pressing through the Secretaries of Defense and State, the
Joint Chiefs of Staff, specific admirals who have
responsibility, there appears to be, if not unanimity with
regard to those who have our national security as a part of
their vested responsibilities, a feeling that this is important
for our Nation's security.
The panel we've just heard is important, because many
persons, in this committee and outside, often consider jobs
important, the economy of our country, our gross national
product, the fact that somehow we might be able to be
competitive in the world. And I hope that those thoughts are
not simply cast out into the hallway as we discuss whether
sovereignty is ours or being infringed upon or so forth.
Sovereignty is very important to you gentlemen, because you
have to deal with this, as do the companies involved and the
employees that you have.
So, I take your testimony very seriously. It has been given
consistently, for years. But, nevertheless, it's current,
because there are current problems.
I cite, specifically, the mention of cables by you, Mr.
Burnett. We've had a great deal of discussion recently with
regard to our intelligence situation, this extraordinary
situation in which conversations in the Middle East,
conceivably with Osama bin Laden himself, are coming through
our cables into our country, and thus, present us with an
opportunity to listen in. This is not simply a commercial
question, although it's an important one for all of our
communications. If we are going to create a sanction against a
bank, say--with regard to North Korea, recently--to stop
deposits by that government, that happens by cable. That has
turned around, in many persons' feelings, our negotiations with
North Korea over nuclear weapons, which is very serious for us.
I just want to underline that. These are not trivial
pursuits. And when our President says, ``This is very
important,'' I take that to be an important objective to try to
forward with our committee and with the Senate.
So, I thank you very much for your explicit testimony. And
I would invite you to add more--as you have suggested you
might, Mr. Cox--as you have heard arguments today. Certainly,
the Chair has been very liberal in inviting all sorts of
comment to come in, and to be a complete record, so that those
on this committee, who have to cast a vote in the Senate, will
have the full benefit of this.
I thank the witnesses, and I thank the Chair.
Senator Menendez. Thank you, Senator Lugar.
We appreciate all of your testimony. It's an important
dimension to the ratification of this treaty, all the economic
impacts, which allows us, not only to prosper, but also to
create jobs here at home and to also have the revenue sources
to fuel America's security. So, we appreciate your testimony.
The record will remain open for 2 days so that committee
members may submit additional questions to the witnesses. And
we certainly would ask the witnesses to respond expeditiously
to those questions.
Senator Menendez. The Chair would recognize that the first
panel lasted for 2 hours, between direct testimony and
questions. It was a very ample vetting of many of the issues to
be presented.
And, having no one else before the committee, and no
additional comments, the hearing is adjourned.
[Whereupon, at 11:57 a.m., the hearing was adjourned.]
----------
Material Submitted for the Record
Letters Exchanged Between Senator Joseph R. Biden, Jr., and Secretary
of State Condoleezza Rice
U.S. Senate,
Committee on Foreign Relations,
Washington, DC, October 29, 2007.
Hon. Condoleezza Rice,
Secretary of State, Department of State,
Washington, DC.
Dear Secretary Rice: The Committee held two hearings in the last
month on the 1982 Convention on the Law of the Sea and the Agreement
relating to the Implementation of Part XI of the Convention on the Law
of the Sea, which was adopted in 1994 (the ``1994 Implementing
Agreement''). As you know, this treaty has been pending in the Senate
for over a dozen years; in this period, hundreds of questions for the
record have been asked and answered by the Department. The Committee is
scheduled to vote on the Convention on October 31, 2007.
One of the topics on which the Department has answered questions is
the relationship between the 1982 Convention and the 1994 Implementing
Agreement. Since this issue has been raised again in recent days, I
would be grateful if you could respond to the following questions:
1. What is the relationship between the 1982 Convention and
the 1994 Implementing Agreement?
2. Have all of the current Parties to the 1982 Convention
indicated their acceptance of the 1994 Implementing Agreement?
3. Does the 1994 Implementing Agreement actually change the
1982 Convention--or does it simply add to and clarify the 1982
Convention?
Thank you for your attention to this matter.
Sincerely,
Joseph R. Biden, Jr.,
Chairman.
______
U.S. Department of State,
Washington, DC, October 30, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of October 29
regarding the relationship between the 1982 Convention on the Law of
the Sea and the related 1994 Implementing Agreement. We are pleased to
answer your questions as follows:
1. What is the relationship between the Convention and the 1994
Implementing Agreement?
The 1994 Agreement, which contains legally binding changes to the
1982 Convention, fundamentally overhauls the deep seabed mining
provisions in a way that satisfies each of the objections of the United
States (expressed by President Reagan) and of other industrialized
countries. Specifically, the Agreement:
Deletes the objectionable provisions on mandatory technology
transfer;
Ensures that market-oriented approaches are taken to the
management of deep seabed minerals (e.g., by eliminating
production controls), replacing the original Convention's
centralized economic planning approach;
Scales back the deep seabed mining institutions and links
their activation/operation to actual development of interest in
deep seabed mining;
Guarantees the United States a seat on the Council, where
substantive decisions are made--the effect of which is that any
decision that would result in a substantive obligation on the
United States, or that would have financial or budgetary
implications, would require U.S. consent;
Ensures that the United States would need to approve the
adoption of any amendment to the deep seabed mining provisions
and any distribution of deep seabed mining revenues accumulated
under the Convention; and
Recognizes the seabed mine claims established on the basis
of the exploration already conducted by U.S. companies and
provides assured access for any future qualified U.S. miners.
It is important to note that, as provided in Article 2 of the 1994
Agreement, ``[t]he provisions of this Agreement and Part XI [the Part
of the Convention that deals with the deep seabed mining regime] shall
be interpreted and applied together as a single instrument. In the
event of any inconsistency between this Agreement and Part XI, the
provisions of this Agreement shall prevail.''
2. Have all of the current Parties to the 1982 Convention indicated
their acceptance of the 1994 Implementing Agreement?
Of the 155 parties to the Convention, 130 have formally indicated
their acceptance of the 1994 Agreement (including Russia), and four
others have signed it. Those that have not formally indicated
acceptance of the Agreement have indicated acceptance through
participation in the modified deep seabed mining institutions. In any
event, the United States would be joining the Convention as modified by
the 1994 and would not be a party to the original Convention.
3. Does the 1994 Implementing Agreement actually change the 1982
Convention--or does it simply add to and clarify the 1982
Convention?
As explained above, the 1994 Agreement makes changes to the 1982
Convention; it does not simply ``add to'' and ``clarify'' the 1982
Convention.
The State Department appreciates your Committee's leadership in
holding hearings on the 1982 Convention and the 1994 Implementing
Agreement. Immediate accession to the Law of the Sea Convention is a
high priority for the Bush administration. We look forward to a very
favorable vote in the Committee on October 31.
We hope this information has been useful. Please do not hesitate to
contact us if we can be of further assistance.
Sincerely,
Jeffrey T. Bergner,
Assistant Secretary,
Legislative Affairs.
______
Prepared Statement of Hon. Lisa Murkowski, U.S. Senator from Alaska
Mr. Chairman, thank you for holding this hearing and the
opportunity to comment on a treaty that is of particular importance to
Alaska.
Some of my colleagues may not be aware, but over half of the United
States coastline is in Alaska. Likewise, the Arctic Ocean covers only 3
percent of the earth's surface, yet it accounts for over 25 percent of
the world's Continental Shelf area. So when we are considering a treaty
that governs the planet's oceans and the ocean floor, the people of
Alaska have a very strong interest.
There are some who do not see the point in joining the rest of the
world in ratifying the Convention on the Law of the Sea. They say that
the United States already enjoys the benefits of the treaty even though
we are not a member--that by not becoming a party to the treaty we can
pick and choose which sections of the treaty we abide by while not
subjecting our actions to international review.
But I would point out, while the situation is favorable now, that
may not always be the case. The treaty opened to amendment in 2004. Do
we want a seat at the table to ensure our voice is heard, or do we
place our interests in the hands of other nations?
I will give one example. When the United States declined to sign
the Law of the Sea Treaty in 1982 out of concern over deep sea-bed
mining provisions in Part XI, one of the objections was that the United
States was not guaranteed a seat on the executive council of the
international seabed authority. With the renegotiation in the 1994
agreement, the United States is essentially assured a seat on the 36-
member State Council by virtue of the ``largest economy'' provision
within the Implementation Agreement.
And I would note that while some decisions by the Council are
subject to majority vote if a consensus cannot be formed, there are
circumstances where decisions must be made by consensus--including the
adoption of rules concerning sea-bed mining, and the adoption of
amendments to Part XI of the treaty. As a party to the Law of the Sea,
the United States can promote rules and regulations based on market
principles and investment protection. But if we do not ratify this
treaty, the Senate will have capitulated the United States ability to
block unfavorable rules and amendments--including potential amendments
that could revoke the United States guarantee of a seat in the Council.
The United States waged a global campaign in the developed world to
hold off ratifying the treaty until the sea-bed mining provisions were
changed. We got what we wanted, but still we have declined to ratify
the Law of the Sea. How can we expect parties in the future to take the
United States seriously when we negotiate treaties or agreements if we
are not willing to follow through in this instance? I believe it is
very important for the United States to be a party to this treaty and
be a player in the process, rather than an outsider hoping our
interests are not damaged.
Now, there are several topics I would like to comment on relating
to the treaty and its potential impact on Alaska. The first being
claims over the Continental Shelf.
In the 1958 Convention on the Continental Shelf, which the United
States is a party to, the issue of limitations on the Continental Shelf
was not resolved due to lack of information about the Continental
Shelf. With technological advances and greater knowledge the Law of the
Sea provides that a coastal state's Continental Shelf can extend for
200 nautical miles, with the potential to extend that claim even
further.
Russia has submitted a number of claims to the Commission on the
Limits of the Continental Shelf that would grant them 45 percent of the
Arctic Ocean's bottom resources--first in 2002 and of course the most
recent when Russia placed a flag on the ocean bottom earlier this year.
We are fortunate that the Commission so far has withheld its approval
of Russia's claim.
According to the U.S. Arctic Research Commission, if we were to
become a party to the treaty, the United States stands to lay claim to
an area in the Arctic of about 450,000 square kilometers--or
approximately the size of California.
But if we do not become a party to the treaty our opportunity to
make this claim, and have the international community respect it,
diminishes considerably--as does our ability to prevent claims like
Russia's from coming to fruition.
Not only is that a negligent forfeiture of valuable oil, gas, and
mineral deposits, but also the ability to perform critical scientific
research. The Arctic Ocean is the most poorly understood ocean on the
planet. Now is the time to be studying the thinning of the polar cap
and its potential impact on the global climate, as well as potential
economic activity in the area--not the least of which is the opening of
polar routes for maritime commerce.
Also in relation to the Arctic Ocean--and the potential thinning of
the polar cap--is the opening of polar routes for maritime commerce.
There are predictions that the Arctic Ocean will be ice free for 90
days or more in the summer by the year 2050--which in turn translates
into greater access, and greater utilization.
By utilizing a polar route, the distance between Asia and Europe is
40 percent shorter than current routes via the Suez or Panama Canals--
and is in a much more stable part of the world.
But with greater usage comes greater responsibility. A number of
nations have Arctic research programs. Alaska's coastline on the Arctic
Ocean is over 1,000 nautical miles. The United States can either
exercise sea control and protection in this area of the world, or cede
that role to whichever nation is willing to assume it. As a party to
the Law of the Sea, the United States ability to enforce our
territorial waters and our Exclusive Economic Zone (EEZ) in the Arctic
Ocean is strengthened even further.
Mr. Chairman, the Convention on the Law of the Sea also provides a
basis for several international treaties with great relevance to our
Nation's most productive fisheries, which occur off the coast of Alaska
and are of significant value to the economies of Alaska and other
Pacific Northwest States.
The Convention on Straddling and Highly Migratory stocks provides
both access to, and protections for fish stocks which migrate through
the high seas and the jurisdictions of other countries. Among the
stocks for which this agreement is of paramount significance is the
Bering Sea stock of Alaska pollock, which is the basis for this
country's largest single fishery.
The Convention on Fisheries in the Central Bering Sea is another
critical piece, which allows us an unprecedented degree of control over
the activities of other fishing nations in the central portion of the
Bering Sea, beyond both the United States and the Russian Exclusive
Economic Zones. Without the influence of the Law of the Sea, neither of
these important fishing agreements would likely have come into being.
Also, Mr. Chairman, let me note the importance--and the somewhat
fragile status of--our maritime boundary agreement with Russia. As you
may know, this agreement delineates a specific boundary between our two
countries. It is necessary because the agreement under which the United
States acquired what is now the State of Alaska was interpreted
differently by the two parties.
Both the boundary agreement, and the fisheries enforcement
mechanisms that stem from it, are critical to the conduct of fisheries
policy in the U.S. and Russian EEZs in the Bering Sea. Although the
United States ratified the maritime boundary agreement shortly after it
was presented to the Senate, the Russian Government has yet to do so,
under pressure both from nationalist political interests and Russian
Far East economic interests. While observing the provisions of the
boundary treaty, the Russian Government also has attempted to persuade
the United States to make a number of significant concessions regarding
Russian access to U.S. fishery resources, suggesting meanwhile that
such concessions would improve the atmosphere for Russian ratification.
The terms of the boundary treaty are widely regarded as highly
favorable to the United States, and are themselves consistent with the
Law of the Sea. However, rejection of the latter by the United States
could trigger similar rejection by the Russian Duma of the boundary
treaty. If that were to occur, it would be extremely difficult to
renegotiate the boundary agreement with similar positive results for
the United States.
The United States and Alaska have tremendous interests in the
Arctic Ocean. Our technological capabilities in calculating the extent
of the Continental Shelf are welcomed by other nations. As a party to
the Law of the Sea Treaty, we have the opportunity to stake our claim
to a significant chunk of real estate that has the potential for impact
on our economy and our national security.
We also have the opportunity to further U.S. leadership in the
international community on maritime issues and ensure the continuation
of those provisions in the Convention that are so vital to the United
States fisheries industries.
The Convention on the Law of the Sea has my strong support and I
look forward to its consideration on the Senate floor.
______
Prepared Statement of Don Kraus, Executive Vice President, Citizens for
Global Solutions, Washington, DC
Mr. Chairman, I appreciate the opportunity to add to the
committee's deliberations and express the support of Citizens for
Global Solutions for United States accession to the United Nations
Convention on the Law of the Sea. This treaty defines maritime zones,
protects the environment, preserves freedom of navigation, and
establishes clear guidelines for businesses that depend on the sea for
resources. Until the United States ratifies the treaty, its rights at
sea will lack international recognition. It is our firm belief that
joining this treaty will significantly advance U.S. goals and restore
our international leadership role.
Mr. Chairman, my organization's 30,000-plus members, supporters,
and activists have long waited for the Senate to consider the Law of
the Sea Convention. Some of our members were engaged with this process
at its inception in the early 1970s. Throughout, the reasons behind our
desire for the United States to join with the 155 nations who have
ratified have remained consistent--security, economic opportunity, and
responsible stewardship.
Mr. Chairman, the United States has a unique role in the world. The
fact that our Navy is globally deployed and that we can and will
operate anywhere and any time means that having a clear set of rules to
guide conduct on the seas promotes our interests. It is because we are
exceptional that we need to be part of this treaty. Its rules function
as a force multiplier for us, and to walk away from the table, to not
play a leadership role in maintaining these rules would be nothing
short of negligence. Joining the Convention will ensure that other
countries recognize the navigational and overflight rights that our
Armed Forces depend on. These rights will help to keep us safe, defend
our interests at sea, and enhance collaboration with our allies.
Our absence from the Convention handicaps our ability to exploit
(or conserve) precious marine resources and protect our investments.
The United States is already far behind in the race to stake claims in
the resource-rich Arctic seabed. Joining would expand our control over
an area larger than the continental United States and give our
businesses access to resources in the deep seabed, where no nation can
set the rules by itself.
Joining the Convention would put us in a position to further global
efforts to protect marine life, conduct research, and prevent marine
pollution. U.S. laws are already strong in these areas; if we join, we
can better urge other countries to fulfill their obligations to keep
the seas clean and safe for future generations.
The Law of the Sea has been described as the most comprehensive and
progressive protection for the oceans of any modern international
accord. It essentially protects the economic, environmental, and
national security concerns of coastal states, as well as establishing
international cooperative mechanisms for resolving disputes on these
issues. The Convention also safeguards imperiled marine habitats by
strengthening state sovereignty over the enforcement of environmental
regulations in each state's Exclusive Economic Zone (EEZ) up to 200
miles offshore. These internationally accepted regulations empower
states to stop harmful pollution and ocean dumping caused by previously
unregulated ships. The Convention also contains special measures to
save endangered whales, salmon, and other marine mammals. It helps the
fisheries of coastal states by allowing them to set limits within their
EEZ. It also protects valuable migratory fish stocks such as tuna and
billfish on the high seas, beyond the 200-mile limit.
In addition to protection of the marine environment, the Law of the
Sea promotes the maintenance of international peace and security by
replacing a plethora of conflicting claims among coastal states with a
12-mile territorial limit and the aforementioned 200-mile EEZ. These
regulations set a definitive limit on the oceanic area over which a
nation may claim jurisdiction. However, the Convention also protects
the freedom of navigation on the high seas as well as the right of
innocent passage, including nonwartime activities of military ships.
It is noteworthy that nations can claim mineral rights to the end
of the Continental Shelf up to 350 nautical miles (and further in some
special circumstances). This favors the United States, one of the few
nations with broad continental margins, particularly in the North
Atlantic, the Gulf of Mexico, the Bering Sea, and the Arctic Ocean.
However, countries must ratify the treaty for their claims to be
internationally recognized. In so doing, the United States could expand
its areas for mineral exploration and production by more than 291,383
square miles.
Beyond this zone the Law of the Sea has established the
International Seabed Authority, an autonomous intergovernmental body
based in Kingston, Jamaica, which was created to organize and control
all mineral-related activities in the international seabed area beyond
the limits of national jurisdiction.
When nations disagree on boundaries, mineral claims, or other
aspect of the Convention, the Law of the Sea contains a unique dispute
resolution mechanism that obligates nations to peacefully settle their
difference through one of four methods: The International Tribunal for
the Law of the Sea, adjudication by the International Court of Justice,
binding international arbitration procedures, or special arbitration
tribunals with expertise in specific types of disputes. Binding
arbitration, the preferred U.S. approach, is the default mechanism if
parties don't agree to another. All of these procedures involve binding
third-party settlement, except for sensitive cases involving national
sovereignty. In such circumstances, the parties are obliged to submit
their dispute to a conciliation commission, but they will not be bound
by the commission's decision. This system will ensure that any
nonmilitary disputes that must be settled by a third party will be
settled fairly and with due consideration to U.S. interests.
There is no overt role for NGO participation in the dispute
resolution process, as there is in more recently negotiated treaties
and agreements (such as NAFTA). However, environmental organizations
see the various intergovernmental bodies established by the Convention
as forums where they can focus attention on the obligation of
governments to ``protect and preserve the marine environment'' that the
treaty establishes.
Negotiations to create the Law of the Sea began during the Nixon
administration but didn't finish until the Reagan administration. Mr.
Chairman, I would like to call attention to President Reagan's
unambiguous support for the vast majority of the treaty. President
Reagan even issued an executive order for the United States to abide by
most of its rules. But ultimately, the United States was one of only
four nations that voted against adoption of the treaty. The Reagan
White House could not accept the portion of the treaty that established
the International Seabed Authority (ISA). President Reagan felt that
the decisionmaking process of the ISA Council and Assembly would not
give the United States or other Western industrialized countries
influence commensurate with their interests. The administration was
concerned that a provision on a Review Conference would allow
Convention amendments to enter into force without U.S. approval and
that the Convention required the mandatory transfer of private
technology. The administration also feared that some provisions would
deter rather than promote future development of deep seabed mineral
resources by incorporating economic principles inconsistent with free
market philosophy, which included the possibility that the ISA would
ultimately transfer wealth to developing nations.
During the administration of George H.W. Bush, the United States
negotiated an annex to the treaty that addressed all of these concerns.
The United States finalized and signed the treaty during the Clinton
administration. Too many years have passed since President Clinton
signed the treaty. I appreciate the time and effort that you, Mr.
Chairman, the members of the Senate Foreign Relations Committee and the
committee staff have put into holding hearings and gathering testimony.
I look forward to this issue quickly coming before the committee for a
vote and with success rapidly to the Senate floor for advice and
consent. It is long past time to resolve this very old and important
piece of business and for the United States to finally join the rest of
the world in ratifying the Law of the Sea.
Thank you.
______
Letter Submitted for the Record by Paul Kelly on Behalf of ADM James
Watkins and Leon Panetta
Joint Ocean Commission Initiative,
September 24, 2007.
Hon. Harry Reid,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Senator Reid and Senator McConnell: We, the undersigned, urge
the Senate to expeditiously provide its advice and consent for United
States accession to the United Nations Convention on the Law of the
Sea. We agree with President Bush's statement of May 15, 2007, in which
he asserted that accession to the Convention is essential to protect
national security interests, secure sovereign rights over extensive
marine areas, and promote U.S. interests in the environmental health of
the oceans. We strongly urge the Senate to approve the Convention
before the adjournment of this session of Congress.
The Convention has been thoroughly reviewed in numerous Senate
hearings and public forums. It has overwhelming bipartisan support from
a broad and diverse range of interests that have carefully considered
the issues from a variety of perspectives. It is clear that accession
will protect and enhance our country's sovereign military, economic,
and environmental interests.
The Convention codifies and strengthens freedoms of navigation and
overflight that are essential to U.S. military mobility. The Navy and
Coast Guard have testified that joining the Convention will strengthen
our ability to defend these and other important maritime rights and
will enhance our national and homeland security efforts. Recent
statements of support for accession from National Security Advisor
Stephen Hadley, Deputy Secretary of State John Negroponte, and Deputy
Secretary of Defense Gordon England reinforce the important national
security benefits that will accompany accession.
All major U.S. ocean industries, including offshore energy,
maritime transportation and commerce, fishing, and shipbuilding,
support U.S. accession to the Convention because its provisions help
protect vital U.S. economic interests and provide the certainty and
stability crucial for investment in global maritime enterprises.
Environmental organizations also strongly support the Convention.
As a party, the United States would be in the best position to lead
future applications of this framework for regional and international
cooperation in protecting and preserving the marine environment.
The congressionally mandated and Presidentially appointed U.S.
Commission on Ocean Policy and the independent Pew Oceans Commission
both unanimously recommend accession to the Convention as an important
part of a comprehensive and coordinated U.S. ocean policy.
Currently, 155 nations are party to the Law of the Sea Convention.
Yet, despite an exceptional level of diverse bipartisan support, the
United States remains the primary industrialized nation not a party to
the Convention. U.S. accession to the Convention would send a clear
message in support of our efforts to foster international approaches,
while significantly furthering our own national interests.
The Senate should move expeditiously to consider and approve U.S.
accession to the United Nations Convention on the Law of the Sea.
Signed by:
James D. Watkins, Admiral, U.S. Navy (Ret.); Chairman, U.S.
Commission on Ocean Policy; Cochair, Joint Ocean Commission
Initiative
Hon. Leon E. Panetta, Chair, Pew Oceans Commission, Cochair, Joint
Ocean Commission Initiative
John Adams, Cofounder, Natural Resources Defense Council
Madeleine Albright, former Secretary of State; Chairman, Board of
Directors, the Democratic Institute for International Affairs
David M. Abshire, President, Center for the Study of the Presidency
Bruce Babbitt, former Secretary of the Interior; Chairman, Board of
Directors, World Wildlife Fund
James A. Baker III, former Secretary of State; Senior Partner, Baker
Botts, LLP
Governor John Baldacci, State of Maine
Robert D. Ballard, Professor, Graduate School of Oceanography,
University of Rhode Island
Lillian C. Borrone, former Assistant Executive Director, Port
Authority of New York and New Jersey
Ted A. Beattie, President and CEO, John G. Shedd Aquarium
Frances Beinecke, President, Natural Resources Defense Council
Senator John B. Breaux, Senior Counsel, Patton Boggs LLP
Charles J. Brown, President and CEO, Citizens for Global Solutions
Governor Felix Camacho, Territory of Guam
Governor Donald Carcieri, State of Rhode Island
David D. Caron, Codirector, Law of the Sea Institute, University of
California, Berkley
Red Cavaney, President and CEO, American Petroleum Institute
Clarence P. Cazalot, Jr., President and CEO, Marathon Oil Corporation
Eileen Claussen, President and Chair of the Board, Pew Center on
Global Climate Change
James M. Coleman, Boyd Professor, Coastal Studies Institute,
Louisiana State University
John Connelly, President, National Fisheries Institute
Joseph J. Cox, President and CEO, Chamber of Shipping of America
Walter Cronkite, CBS
ADM William J. Crowe, Jr., former Chairman, Joint Chiefs of Staff,
U.S. Navy (Ret.); Chairman, Board of Visitors, International
Programs Center and Center for Peace Studies
Ann D'Amato, Commissioner, U.S. Commission on Ocean Policy
Thomas Dammrich, President, National Marine Manufacturers Association
John C. Danforth, Bryan Cave LLP
Lawrence R. Dickerson, President and COO, Diamond Offshore Drilling,
Inc.
John Englander, CEO, International Seakeepers Society
Donald L. Evans, former Secretary of Commerce
Thomas Fry, President, National Ocean Industries Association
VADM Paul G. Gaffney II, U.S. Navy (Ret.)
Jack N. Gerard, President and CEO, American Chemistry Council
James C. Greenwood, President and CEO, Biotechnology Industry
Organization
Governor Christine Gregoire, State of Washington
Carlotta Leon Guerrero, Executive Director, Ayuda Foundation
Alexander M. Haig, Jr., former Secretary of State; Chairman,
Worldwide Associations, Inc.
Scott A. Hajost, Executive Director, IUCN-US
Lee Hamilton, President and Director, Woodrow Wilson International
Center for Scholars
Mike Hayden, Secretary, Kansas Department of Wildlife and Parks
Tony Maymet, Director, Scripps Institution of Oceanography
Marc J. Hershman, Professor, School of Marine Affairs, University of
Washington
Carla A. Hills, former U.S. Trade Representative; Chairman and CEO,
Hills & Company
Michael Kantor, former Secretary of Commerce
Paul L. Kelly, Kelly Energy Consultants
Donald Kennedy, Editor in Chief, Science Magazine, American
Association for the Advancement of Science
Charles Kennel, Founding Director, Environment and Sustainability
Initiative, Scripps Institution of Oceanography
Tony Knowles, former Governor of Alaska
Christopher L. Koch, President and CEO, World Shipping Council
Governor Ted Kulongoski, State of Oregon
Melvin R. Laird, former Secretary of Defense
P. Patrick Leahy, Executive Director, American Geological Institute
Governor Linda Lingle, State of Hawaii
Jane Lubchenco, Wayne and Gladys Valley Professor of Marine Biology,
Department of Zoology, Oregon State University
James R. Luyten, Acting President and Director, Woods Hold
Oceanographic Institution
Steven J. McCormick, President and CEO, the Nature Conservancy
Robert C. McFarland, former National Secretary Advisor; Chairman,
McFarlane Associates, Inc.
Governor Ruth Ann Minner, State of Delaware
Senator George J. Mitchell, Chairman, DLA Piper
John Norton Moore, Director Center for Oceans Law and Policy,
University of Virginia School of Law
Frank E. Muller-Karger, Dean, School for Marine Science and
Technology, University of Massachusetts, Dartmouth
James J. Mulva, Chairman and CEO, ConocoPhillips
Mike Nussman, President and CEO, American Sportfishing Association
Sean O'Keefe, former Secretary of the Navy; Chancellor, Louisiana
State University
Julie Parkard, Executive Director, Monterey Bay Aquarium
Pietro Parravano, President, Institute for Fisheries Resources
Brian T. Petty, Senior Vice President, International Association of
Drilling Contractors
Thomas R. Pickering, former Under Secretary for Public Affairs, U.S.
Department of State; Vice Chairman, Hills & Company
Colin Powell, former Secretary of State
ADM Joseph W. Prueher, U.S. Navy (Ret.)
Joshua S. Reichert, Managing Director, Pew Environmental Group, the
Pew Charitable Trusts
William K. Reilly, former EPA Administrator; Chairman Emeritus, World
Wildlife Fund
Joseph P. Riley, Jr., Mayor of Charleston
Carter S. Roberts, President and CEO, World Wildlife Fund
Peter J. Robertson, Vice Chairman of the Board, Chevron Corporation
David Rockefeller, Jr., Director and former Chair of Board of
Trustees, the Rockefeller Foundation
Andrew A. Rosenberg, Professor, Department of Natural Resources and
Institute for the Study of Earth, Ocean, and Space, University
of New Hampshire
William D. Ruckelshaus, Strategic Director, Madrona Venture Group
VADM Roger T. Rufe, Jr., U.S. Coast Guard (Ret.)
Barry Russell, President, Independent Petroleum Association of
America
Paul A. Sandifer, Senior Scientist, National Ocean Service, National
Oceanic and Atmospheric Administration
RADM William L. Schachte, Jr., U.S. Navy (Ret.)
Harry N. Scheiber, Codirector, Law of the Sea Institute, University
of California, Berkley
Richard Schwartz, Chairman and Founder, Boat Owners Association of
the United State
Governor Arnold Schwarzenegger, State of California
LTG Brent Scowcroft, U.S. Air Force (Ret.)
Andrew Sharpless, CEO, Oceana
George P. Shultz, former Secretary of State; Chairman, J.P. Morgan
Chase International Council
A.F. Spilhaus, Jr., Executive Director, American Geophysical Union
Governor Eliot Spitzer, State of New York
Vikki N. Spruill, President and CEO, Ocean Conservancy
Kathryn Sullivan, Director, Battelle Center for Mathmatics and
Science Education Policy, Ohio State University
John Temple Swing, President Emeritus, Foreign Policy Association
Strobe Talbott, President, Brookings Institution
Russell E. Train, Chairman Emeritus, World Wildlife Fund
Mead Treadwell, Chairman, U.S. Arctic Research Commission
Richard D. West, Rear Admiral, U.S. Navy (Ret.); President,
Consortium for Oceanographic Research and Education
Patten D. White, Commissioner, Atlantic States Marine Fisheries
Commission
Christine Todd Whitman, Whitman Strategy Group
Timothy E. Wirth, President, United Nations Foundation and Better
World Fund
______
Letters Submitted for the Record by Douglas Burnett
AT&T,
Bedminster, NJ, September 7, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Hon. Richard G. Lugar,
Ranking Minority Member, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Chairman Biden and Ranking Minority Member Lugar: As a major
U.S. user of the international seabed, AT&T Inc. (``AT&T'') supports
U.S. accession to the Law of the Sea Convention. We do so because the
Convention improves protections for international submarine cables,
provides compulsory dispute resolution procedures concerning these
cables, and expands the right to lay and maintain them. This is
important to the U.S. economy given the rapid growth of global trade
and the central role of telecommunications in today's global economy.
As a preliminary matter, AT&T, through its affiliates, owns
interests in over 80 international submarine cable systems covering
more than 457,000 fiber route miles and operates an advanced global
backbone network that serves customers around the world and carries
9.668 terabytes of data per average business day. AT&T also has plans
for a new 12,000-mile submarine cable system, the Asia America Gateway
cable, to increase high bandwidth transmission capacity between the
U.S. and Southeast Asia.
Like other U.S. telecommunications providers. AT&T uses
international submarine cables to carry virtually all of its Internet
and voice and data telecommunications traffic outside North America. As
the result of massive, fast-increasing Internet usage and the rapid
globalization of business, total U.S. undersea cable circuit capacity
has increased by a staggering 27,000 percent from 1995 through 2007.\1\
These submarine cables provide backbone international transmission
facilities for the global Internet, electronic commerce and other
international voice and data communications services that are major
drivers of the 21st century global information-based economy.
---------------------------------------------------------------------------
\1\ See FCC 2005 Section 43.82 Circuit Status Data, Jan. 2007,
Table 7 (total available U.S. undersea fiber-optic capacity increased
from 315,630 circuits in 1995 to an estimated 86,222,299 circuits in
2007).
---------------------------------------------------------------------------
Recent experience underscores the importance of taking all
appropriate measures to protect these critically important global
network facilities from damage and disruption. In March 2007, for
example, service was disrupted on two international submarine cables in
Southeast Asia on which AT&T and other U.S. carriers hold ownership
interests, when large sections of the Asia Pacific Cable Network (APCN)
and the Thailand-Vietnam-Hong Kong (TVH) cable were removed from the
seabed by local fishermen seeking to sell cable and optical equipment
(67 kilometers of APCN and 98 kilometers of TVH). Operation of both
cables was disrupted for several months, causing significant financial
harm.
The Law of the Sea Convention significantly improves protections
for international submarine cables against damage by other parties, and
in so doing, protects the interest of U.S. owners of submarine cable
systems such as AT&T. Article 113 requires that all states must adopt
laws that make damage to submarine cable, done willfully or through
culpable negligence, a punishable offense. Article 114 requires
submarine cable owners that damage other cables in laying or repairing
their cables to bear the cost of repairs. Article 115 provides that
vessel owners, who can prove they sacrificed an anchor or fishing gear
to avoid damaging a cable, can recover their loss against the cable
owner, provided the vessel took reasonable precautionary measures
beforehand.
Additionally, Article 297 provides parties to the Treaty with
compulsory dispute resolution procedures for the provisions concerning
submarine cables. Having rights to this dispute resolution process is a
key benefit of U.S. accession to the Convention, and one that does not
exist for the U.S. presently. Although the U.S. already benefits to
some extent from aspects of the Convention as customary international
law, it cannot take action under the important dispute resolution
provisions until the U.S. accedes to the Convention.
The Convention also expands the right to lay and maintain submarine
cables in the oceans of the world. Articles 58, 79 and 112 establish
the rights of nations and private parties to lay and maintain submarine
cables on the continental shelf, in the Exclusive Economic Zone and on
the bed of the high seas. These articles--when supplemented by the
compulsory dispute resolution procedures available to parties to the
Convention under Article 297--provide important recourse for AT&T and
other U.S. submarine cable operators against onerous and unreasonable
permitting requirements by coastal states that may impede the timely
repair and maintenance of undersea cables, or delay the construction of
new cables.
In conclusion, it has never been more important to our U.S.
economic infrastructure to strengthen the protection and reliability of
international submarine cables. The Law of the Sea Convention,
particularly as assisted by the enforcement mechanisms available to
parties under Article 297, is a critical element of this protection.
AT&T therefore urges the United States Senate to give its advice and
consent to accede to the Law of the Sea Convention and to ratify the
Agreement Relating to the Implementation of Part Xl of the Convention.
We would be more than happy, at your convenience, to brief you or
your staff on the matters raised in this letter or to answer any
questions that you or your staff may have.
Sincerely,
Kevin R. Peters,
Senior Vice President,
Global Network Operations.
______
Tyco Telecommunications,
Morristown, NJ, October 3, 2007.
Re U.S. Accession to the United Nations Convention on the Law of the
Sea
Senator Joseph R. Biden, Jr.,
Chairman, Senate Foreign Relations Committee, Dirksen Senate Office
Building, Washington, DC.
Senator Richard G. Lugar,
Ranking Minority Member, Senate Foreign Relations Committee, Dirksen
Senate Office Building, Washington, DC.
Dear Senators Biden and Lugar: Tyco Telecommunications (US) Inc.
(``Tyco Telecom'') urges the Senate to give its advice and consent to
U.S. accession to the United Nations Convention on the Law of the Sea
(``LOS Convention'') and U.S. ratification of the 1994 Implementing
Agreement modifying Part XI of the LOS Convention (``1994 Implementing
Agreement''). As one of the leading manufacturers, suppliers, and
maintainers of undersea telecommunications networks for commercial and
government customers--and the only such supplier based in the United
States--Tyco Telecom has a keen interest in ensuring unfettered and
timely access to the seas, with clearly defined and enforceable rights
and responsibilities, as guaranteed by the LOS Convention. Tyco Telecom
strongly believes that that LOS Accession would ensure unquestioned
international acceptance of existing U.S. policy and thereby further
U.S. economic, diplomatic, and security interests as they pertain to
undersea telecommunications networks.
Tyco Telecom is headquartered in Morristown, New Jersey. It owns
research and development facilities--once part of Bell Laboratories--in
New Jersey and manufacturing facilities in New Hampshire and New
Jersey. It also operates a fleet of 8 cable ships, with global fleet
operations headquartered in Baltimore, Maryland. To date, Tyco Telecom
has completed more than 120 projects around the world involving more
than 400,000 kilometers of installed cable, and Tyco Telecom has
constructed a substantial percentage of the undersea telecommunications
cables currently serving the United States.
Contrary to popular perception, undersea telecommunications cables
(and not satellites) carry more than 95 percent of voice, data, and
Internet traffic between the United States and foreign countries, not
to mention most of the traffic between the continental United States,
Alaska, Hawaii, and various U.S. possessions and territories, including
Guam, Puerto Rico, and the U.S. Virgin Islands, and also internally in
Alaska, Hawaii, and the U.S. Virgin Islands. Commercial cables carry
commercial, government, and military communications. Undersea
telecommunications cables also support U.S. military installations in
remote parts of the world.
To install, maintain, and operate undersea telecommunications
cables, suppliers of installation and maintenance services--such as
Tyco Telecom--and cable operators rely heavily on international treaty
protections, which guarantee freedoms to install and maintain undersea
cables, and also provide for compensation to cable owners in the event
of damage to undersea cables.
Tyco Telecom and its customers regularly confront situations where
a foreign country makes a jurisdictional assertion far beyond the
limits established by the LOS Convention, and where a foreign country
seeks to impose unilateral or unreasonable restrictions on installation
and maintenance operations. These actions, left unchecked, impose
substantial costs and delays on Tyco Telecom and its customers. Given
booming demand for installation and maintenance services, this problem
is only becoming more acute.
President Reagan announced in 1983 that the United States would, as
a matter of policy, abide by the LOS Convention except those provisions
(later modified) regarding deep seabed mining--a policy continued by
all subsequent administrations. But the absence of formal U.S.
accession to the LOS Convention has created doubts regarding the nature
of U.S. policy.
It is therefore critical that the United States ensure unquestioned
international acceptance of existing U.S. policy. By acceding to the
LOS Convention, the United States would clarify that providers of
installation and maintenance services and cable operators have the
unfettered and timely access to the seas, as guaranteed by the LOS
Convention, and that the United States will not tolerate other
countries' excessive jurisdictional claims over undersea cable
operations or imposition of overly burdensome conditions on
installation and maintenance operations. The relevant guarantees in the
LOS Convention include:
The freedom to install and maintain undersea
telecommunications cables on the high seas beyond the
continental shelf (LOS Convention art. 112(2));
The freedom to install and maintain undersea
telecommunications cables on the continental shelf and provides
that subject to the right to take reasonable measures for the
exploration of the continental shelf and the exploitation of
its natural resources, the coastal State may not impede the
laying or maintenance of such cables (LOS Convention art.
79(2));
The ability to install undersea telecommunications cables in
a State's territory or territorial sea subject to conditions
(LOS Convention art. 79(4));
The freedom to repair existing undersea telecommunications
cables on the continental shelf (LOS Convention art. 79(5));
The freedom to install and maintain undersea
telecommunications cables in the exclusive economic zone of all
States (LOS Convention art. 58(1)); and
The freedom to maintain existing undersea telecommunications
cables passing through the waters of an archipelagic State
without making landfall (LOS Convention art. 51(2)).
U.S. accession to the LOS Convention would also better protect
undersea telecommunications cables from disruption and damage by
clarifying the liability rules and requiring the United States to
update its existing statutory protections for damage to undersea cables
(LOS Convention arts. 113-115).
By giving advice and consent to U.S. accession to the LOS
Convention, the Senate would help to clarify U.S. policy and reinforce
access rights and responsibilities for undersea cable installation and
maintenance operations. In doing so, the Senate would support
significant U.S. economic activity, research and development, and
employment relating to undersea telecommunications and thereby further
U.S. economic, diplomatic, and security interests.
Tyco Telecom would be pleased to brief you and your staff members
regarding any of the matters discussed in this letter, and
representatives of Tyco Telecom would be pleased to testify before your
committee at any hearings scheduled on the subject of the LOS
Convention.
Yours sincerely,
David Coughlan,
President.
______
Letter and Prepared Statement of Patricia Forhan, President, Humane
Society International
Humane Society International,
Washington, DC, October 3, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Foreign Relations Committee,
U.S. Senate, Washington, DC.
Dear Chairman Biden: The Humane Society of the United States (HSUS)
and our international arm, Humane Society International (HSI),
appreciate your leadership in convening hearings on the U.N. Law of the
Sea Convention. We believe that the United States involvement in this
Convention is crucial and urge the Senate to act by supporting
accession to UNCLOS as quickly as possible. This action is long
overdue.
HSUS/HSI has a long history working to help protect marine mammals
and the marine environment. We were instrumental in passage of the U.S.
Marine Mammal Protection, Act in 1972, and played a significant role in
the LOS negotiations regarding marine mammals. In fact, our work on
behalf of marine mammals resulted in the adoption of Article 65 within
the LOS Convention which carved out a special category for marine
mammals.
Article 65, inter alia allows coastal states to fully protect all
marine mammals. It does not require the optimum utilization test
required for other living marine resources, As a result, a number of
coastal states (including the USA) have set up special marine reserves
and protected areas for marine mammals. Article 65 has provided the
legal basis for doing so. The International Whaling Commission has
established two sanctuaries which encompass both high seas and coastal
areas for whales in the Indian Ocean and the Antarctic (Southern Ocean
Sanctuary). Again, Article 65 provides the legal basis for establishing
these protected areas.
Another important element of Article 65 is that it requires States
to cooperate in the conservation of marine mammals and in the case of
cetaceans requires States to work through the ``appropriate
international organizations.'' It is the latter reference to
international organizations that concerns the bulk of our written
submission. We are concerned that the U.S. has not been at the table to
defend the proper interpretation of that terminology and that whaling
nations have had a free hand to ``spin'' it in a way to benefit their
own interests. We need to participate and work to ensure the original
intent of the article is carried out.
I had the pleasure of working with Ambassador Elliot Richardson
during his tenure representing the USA on this important treaty. He
felt strongly that U.S. citizens would want our country to support this
cutting edge language on behalf of beloved animals like whales,
dolphins and polar bears. He personally worked to obtain the best
language possible for Article 65.
With your permission, I am attaching a detailed legislative history
of the genesis and ultimate meaning intended for Article 65, and
request that you include this cover letter and the attached history in
the committee's record of hearings.
Thank you on behalf of our more than 10 million members and
constituents.
Sincerely,
Patricia A. Forkan,
President.
Attachment.
Prepared Statement of Patricia Forkan Submitted on Behalf of the Humane
Society of the United States/Humane Society International
THE LEGISLATIVE HISTORY AND INTERPRETATION OF ARTICLE 65 OF THE LAW OF
THE SEA CONVENTION
Nothing in this Part restricts the right of a coastal state or the
competence of an international organization, as appropriate, to
prohibit, limit or regulate the exploitation of marine mammals more
strictly than provided for in this Part. States shall co-operate with a
view to the conservation of marine mammals and in the case of cetaceans
shall in particular work through the appropriate international
organizations for their conservation, management and study.\1\
---------------------------------------------------------------------------
\1\ www.globelaw.com/LawSea/Is82_2.htm#article_65_marine_mammals.
---------------------------------------------------------------------------
Introduction
The 1970s were a turning point for cetaceans in general and whales
in particular, with attitudes shifting away from the exploitation of a
resource towards conservation and protection of a unique creature. I
have been attending meetings of the International Whaling Commission
(IWC) since 1973, and have also had the privilege of being appointed in
1977 to the Marine Environment Sub-Committee of the Law of the Sea
Advisory Committee which was involved in the negotiations leading up to
the adoption of the final version of Article 65 of the United Nations
Convention on the Law of the Sea (UNCLOS). Thus I have seen the
evolution of both the IWC and the UNCLOS as parallel systems, one
driving the other, and one influencing the other.
As the 1982 U.N. Convention on the Law of the Sea is largely
considered a ``constitution for the oceans,'' \2\ its role in the
conservation of marine mammals is of vast importance, and needs to be
accurately understood and interpreted. This report therefore seeks to
clarify the meaning of Article 65, and in particular its relation to
the IWC.
---------------------------------------------------------------------------
\2\ John Temple Swing, ``What Future for the Oceans?'', Foreign
Affairs, September-October 2003, p. 139.
---------------------------------------------------------------------------
History of the Drafting of Article 65, UNCLOS
The marine mammal article of UNCLOS is considered a significant
advance in our common efforts to stop the over-exploitation of marine
mammals, especially whales and dolphins, and to conserve them.\3\
Nevertheless, it has been argued that potential ambiguity arises in
relation to the second sentence of the final version of Article 65
which reads: ``States shall co-operate with a view to the conservation
of marine mammals and in the case of cetaceans shall in particular work
through the appropriate international organizations for their
conservation, management and study.'' Therefore, the historical
background that follows will go towards clarifying the meaning in
particular of the appropriate international organizations referred to
in the second sentence of Article 65, UNCLOS.
---------------------------------------------------------------------------
\3\ The 12th J. Seward Johnson Lecture in Marine Policy, ``Should
the United States Ratify the New Law of the Sea Treaty?'' by Ambassador
T T B Koh of Singapore at the Woods Hole Oceanographic Institution,
Woods Hole, MA, 6/4/1980.
---------------------------------------------------------------------------
During the mid-seventies, there had been almost single-minded
concentration on improving the IWC with regard to whale conservation,
and the UNCLOS went largely ignored. In 1977 a meeting was convened to
discuss the problem of the weak UNCLOS Marine Mammal article. This
resulted in a new coalition of environmental and animal welfare groups
being formed to urge the U.S. to work for improved protection of marine
mammals in general and cetaceans in particular within UNCLOS.\4\
---------------------------------------------------------------------------
\4\ This new coalition and effort was led by Dr. Robbins Barstow of
the Connecticut Cetacean Society. He brought together Members of
Congress, NOAA, NMFS, Marine Mammal Commission and NGOs to strengthen
whale protective provisions in the LOS Treaty.
In a 6/18/1979 Letter to the Honorable John B. Breaux, Chairman of
the Subcommittee of Fish and Wildlife Conservation and the Environment,
House Committee on Merchant Marine and Fisheries, the National Wildlife
Federation suggested that the U.S. should propose language at the next
Law of the Sea meeting that would among other things make clear that
``management of at least the large whales and direct catches of small
cetaceans should be regulated by a single international organization,
the International Whaling Commission.''
---------------------------------------------------------------------------
The U.S. spearheaded the movement to clarify the marine mammal
conservation provisions of UNCLOS. An informal negotiating group, to
which I was appointed by Ambassador Elliot Richardson, was established
in the late seventies to consider revising the Informal Composite
Negotiating Text (ICNT) provisions. The states were clearly aware of
the need to conserve and protect marine mammals.\5\
---------------------------------------------------------------------------
\5\ U.S. General Accounting Office, ``The Law of the Sea
Conference--Status of the Issues, 1978,'' March 9, 1978.
---------------------------------------------------------------------------
Initially, the agreed upon language, for the second sentence of
Article 65, referred to ``the appropriate international organization.''
At a meeting of the informal negotiating group, the representative from
Japan requested that the group consider changing the word organization
from singular to plural. He explained that since this article covered
all cetaceans, it would be better to leave the issue of cetacean by-
catch associated with regional fisheries in the hands of those various
entities. In order to be responsive to Japan, it was agreed that the
word organization would be plural. Thereby, allowing by-catch to remain
a regional fisheries responsibility.
Over many months of ongoing negotiations, progress was clearly made
as UNCLOS agreed to recognize marine mammals as unique and separate
from other living resources, and as such not subject to ``optimum
utilization.'' The provisions for other living resources under UNCLOS
require coastal states to determine allowable catch, and if the coastal
state cannot harvest the entire catch, they must give other states
access to take the surplus. In the case of marine mammals this does not
apply, and coastal states can be more restrictive than the
international standard and can even protect marine mammals totally.
In addition, there was also a growing global demand from NGOs that
the IWC move away from a strictly quota setting whale killing operation
to one of conservation, protection and humanness towards these
creatures. Thus UNCLOS and the IWC in the mid and late seventies were
developing as parallel systems, and in order to accurately interpret
Article 65 of UNCLOS, the changes being discussed at the time in
relation to the IWC need to be examined. In 1978 the IWC held a
Preparatory Meeting on the Revision of the International Convention for
the Regulation of Whaling (ICRW), the culmination of years of work to
change the thrust and general character of the IWC. The U.S. began to
push for a renegotiation of the ICRW to make an International Cetacean
Convention. The NGO community also strongly supported renegotiating the
treaty calling for an International Cetacean Commission (ICC)--not only
changing the emphasis from whaling to the whales themselves but to
broaden jurisdiction to small cetaceans such as dolphins and porpoises.
The future ICC was to be primarily a scientific research and study
organization aimed at protecting cetaceans, not killing them, with
jurisdiction on a global basis.\6\
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\6\ On April 19, 1978, a ``Briefing Seminar on Potential Options in
the Pending Renegotiation of the IWC Treaty'' was conducted at the
National Headquarters of The Humane Society of the United States in
Washington, DC. It was cosponsored by The HSUS and the American
Cetacean Society. The seminar was attended by representatives of more
than a dozen different whale and conservation organizations, and the
program included background briefing presentations by a distinguished
panel of experts from the United States Department of State, Department
of Commerce (NOAA and NMFS), Marine Mammal Commission, and Council on
Environmental Quality. As a result of the day's deliberations,
including the study of extensive background information documents
provided each participant, a positive consensus was reached by NGO
representatives in support of a statement of ``Objectives for
International Cetacean Conservation.''
---------------------------------------------------------------------------
In a letter to Ambassador Richardson,\7\ one of the participants in
the renegotiation of Article 65 listed one of the objectives as being
to clearly establish the authority of a single international
conservation organization to set the standards for protection and
conservation of cetaceans throughout their range.
---------------------------------------------------------------------------
\7\ The Honorable Elliot L. Richardson was Ambassador at Large, and
Special Representative of the President to the Law of the Sea
Conference, U.S. Mission to the United Nations.
At the present time such an organization exists (the IWC)
although the United States has sought to strengthen it as an
International Cetacean Commission, aimed less at ``whaling''
and more at ``cetacean protection.'' The recent moratorium
within the IWC suggests that the organization can be
strengthened substantially along these lines and that within
the next few years the time may be right for favorable
international consideration of efforts for a strengthened
ICC.\8\
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\8\ Letter by John Norton Moore, Walter L. Brown Professor of Law
and Director of the Center for Ocean Law and Policy, University of
Virginia to the Honorable Elliot L. Richardson, August 15, 1979.
This clearly demonstrates that the U.S. position during the
drafting of Article 65 was that the ``appropriate international
organization'' for the conservation of cetaceans was the IWC, though
the plural of the word ``organization'' leaves open the additional
possibility for a successor organization such as an ICC to qualify as
such. As another nongovernmental organization succinctly stated:
``While the text implies there is more than one organization for the
conservation of cetaceans, the reference is intended to apply to the
International Whaling Commission or a successor organization.'' \9\
This was of course in addition to the role of regional fisheries in
cetacean by-catch issues.
---------------------------------------------------------------------------
\9\ Sierra Club, International Report, Volume VIII, Number eight,
April 28, 1980.
---------------------------------------------------------------------------
In 1979 at the same time as a partial moratorium passed at the
annual IWC meeting, and votes for a total moratorium continued to
increase, the proposed U.S. text for a new strengthened marine mammal
article was accepted as a working document in Committee II of the Law
of the Sea Conference. Finally, on March 21, 1980, the revised Article
65 was successfully adopted. Crucial to any interpretation of the
article are Ambassador Elliot Richardson's comments upon the occasion
of its adoption:
The text that was incorporated into the ICNT, Rev. 2 was the
product of lengthy negotiations with approximately 25 States of
all persuasions and geographical regions. It was supported (or
not objected to) at an informal meeting of Committee II and in
Plenary. In fact, several speakers represented States which
were not part of the representative group. It was particularly
gratifying that speakers included representatives of the major
whaling nations as well as those States primarily interested in
the protection and conservation of marine mammals.
The new provision establishes a sound framework for the
protection of whales and other marine mammals with critical
emphasis on international cooperation. It exempts marine
mammals from the optimum utilization requirements of other
provisions of the ICNT Rev. 2 and permits States and competent
international organizations to establish more stringent
conservation regulations than otherwise mandated by ICNT, Rev.
2. Indeed, it explicitly permits States and international
organizations to prohibit the taking of marine mammals. The
text also preserves and enhances the role of the International
Whaling Commission (or a successor organization) (emphasis
added). It recognizes the role of regional organizations in the
protection of marine mammals, which are often taken incidental
to fishing operations. In sum, the article is a basic and sound
framework with which States and international organizations may
pursue the future protection of these wonderful creatures for
generations to come.'' \10\
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\10\ Letter from Ambassador Elliot L. Richardson to Patricia
Forkan, 4/29/1980.
As Ambassador Richardson indicated, the revised Article 65 received
ample support in the Committee from non-whaling \11\ and whaling
nations alike. In floor statements in Committee II on the Deliberations
on the Article 65 Amendment
(3/21/1980), Japan, a strongly pro-whaling nation, for example raised
some concerns about Article 65, but made no mention of the possibility
of an organization other than the IWC fulfilling the ``appropriate
international organization'' role. The floor statements of Japan were
as follows: ``My delegation continues to consider that the concept of
optimum utilization also applies to marine mammals. Consequently, there
is no need to single out marine mammals in a special provision, or to
focus on cetaceans in such a provision. As a practical matter, however,
we can support this text on the understanding, with regard to the
second sentence, that these activities do not necessarily need to be
undertaken simultaneously with the first sentence, but on an individual
(per species) basis when appropriate with consultations with other
nations.'' \12\
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\11\ Netherlands, a country favor of conservation stated: ``We
acknowledge the great importance of marine mammal conservation,
particularly through the IWC. This proposal is a contribution and we
support it.'' Committee II, Deliberations on Article 65 amendment,
Floor statements,
3/21/1980.
\12\ Committee II, Deliberations on Article 65 amendment, Floor
Statements, 3/21/1980.
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Norway and Iceland, also pro-whaling nations, merely stated their
support for Article 65 without any further comments.\13\ Fast-forward
12 years to 1992 when Iceland withdrew from the IWC and tried to
establish a new organization to manage whales. Iceland, Norway,
Greenland, and the Faroe Islands formed a group called, NAMMCO, North
Atlantic Marine Mammal Commission. The purpose of NAMMCO was to unseat
the IWC as the organization with jurisdiction over whale conservation
and management. For numerous reasons, NAMMCO has never been recognized
as the organization managing whale stocks. By 2002 even Iceland
realized that NAMMCO was not going to replace the IWC, and in that
year, the country rejoined the IWC.
---------------------------------------------------------------------------
\13\ Ibid.
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Neither Japan nor any other country has ever joined NAMMCO.
However, 23 years after Japan agreed to the language and interpretation
of Article 65 they announced a change in plans. Japan is now arguing
that the ``appropriate international organizations'' clause of Article
65 means that it is possible to have several organizations managing
cetaceans under UNCLOS. In a recent statement Japan claims that they
are considering setting up a rival organization to the IWC or joining
NAMMCO because they are displeased with the recently adopted
conservation measures at the IWC.\14\
---------------------------------------------------------------------------
\14\ Japan Plans to Create Rival Organization of International
Whaling Commission (IWC) From Atuma.com, Japan, October 10, 2003.
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The United States, both then and now has not wavered in their
support of the language or the interpretation of Article 65. The U.S.'s
interpretation of Article 65 was clearly outlined in a statement
prepared by the State Department in 1980 to be used as clarifying
language on Article 65: ``The appropriate/primary international
organization referred to in Article 65 is the International Whaling
Commission or a successor organization. Certain regional organizations,
which are concerned with the regulation of fishing, may also
appropriately play a role as cetaceans are occasionally taken as
incidental catch to fishing activities. It is further understood that
the minimum international standards for the protection of cetaceans
apply throughout the migratory range of such cetaceans whether within
or beyond the exclusive economic zone.'' \15\
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\15\ Drafted by George Taft (State Department) et al. at the last
session of the Law of the Sea Conference, 8/22/1980.
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The protection and conservation afforded to marine mammals in the
exclusive economic zone \16\ of coastal states by Article 65 was
expanded by Article 120 of UNCLOS to apply to the high seas as well.
This expansion of coverage to the high seas also lends support to the
interpretation that the IWC (or its successor) is the ``appropriate
international organization'' for the conservation of cetaceans.
---------------------------------------------------------------------------
\16\ The exclusive economic zone is a 200-mile zone in which
coastal states have sovereign rights over resources and other
activities related to economic exploration and exploitation.
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U.S. Position on Marine Mammal Conservation
Since the wording of Article 65 of UNCLOS originated with a United
States proposal, an accurate interpretation of this provision
necessitates an understanding of the U.S. position towards marine
mammal conservation in general and whaling in particular.
Setting the scene for the U.S. position on marine mammals was the
passage in 1972 of the far-reaching Marine Mammal Protection Act
(MMPA). The MMPA was amended in 1977 to forbid commercial whaling
within the U.S.'s 200-mile zone. This, in effect, recognized that
coastal states have the right to take action more restrictive than that
agreed upon in the international body, but not less restrictive action
which would weaken internationally accepted conservation measures. The
MMPA also required the renegotiation of relevant treaties to reflect
its standards. The MMPA was therefore an important impetus for the U.S.
position within UNCLOS that coastal states could be more protective of
whales than the IWC, but not less.
The U.S. Government began in the early 1990s to oppose more
forcefully all commercial whaling,\17\ and in 1993 both Houses of
Congress unanimously adopted a resolution, H. Con. Res. 34 (103rd
Congress), calling for the U.S. to oppose ``any resumption of
commercial whaling.''
---------------------------------------------------------------------------
\17\ CRS Report 97-55, ``Norwegian Commercial Whaling: Issues for
Congress,'' Carl Elk, December 31, 1996.
---------------------------------------------------------------------------
The U.S. has also relied upon the threat of unilateral sanctions to
induce whaling nations to give greater consideration to whale
conservation.\18\ It has done this mainly through the 1971 Pelly
Amendment \19\ to the 1954 Fishermen's Protective Act, which allows
fishery product imports to be prohibited from nations acting to
diminish the effectiveness of international fishery (including whaling)
ageements. Presidential authority under the Pelly Amendment was
expanded to impose sanctions against non-fishery imports from nations
acting contrary to IWC guidelines in the 102nd Congress.\20\ In
addition, the 1979 Packwood-Magnuson Amendment \21\ to the Fishery
Conservation and Management Act of 1976 allows the U.S. to reduce or
suspend fishing privileges in U.S. waters for nations acting contrary
to IWC guidelines.\22\ Although Pelly amendment sanctions have never
been imposed for whaling, the U.S. has used its certification process
to obtain some concessions from offending nations to improve whale
conservation and has influenced whaling nations to join the IWC.\23\
Norway, Japan, and Canada have all been certified under the Pelly
amendment in the past for undermining the IWC.
---------------------------------------------------------------------------
\18\ CRS Report 97-588, ``Whale Conservation and Whaling,'' Eugene
H. Buck.
\19\ 22 U.S.C. 1978.
\20\ Section 201 of P.L. 102-582.
\21\ 16 U.S.C. 1821.
\22\ The threat of Packwood-Magnuson sanctions is no longer
influential, since no foreign whaling nation currently fishes in U.S.
waters.
\23\ Supra n. 17.
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The strong position of the U.S. that the IWC is the ``appropriate
international organization'' under Article 65 of UNCLOS was reinforced
in 1996, when Canada permitted the harvesting by Inuit of two bowhead
whales. The U.S supports aboriginal whaling when it is managed through
the IWC, the global body charged with responsibility for the
international conservation and management of whale stocks and the
regulation of whaling.\24\ Although Canada was not a member of the IWC
at the time, the U.S. still certified Canada under the Pelly amendment,
taking the view that the bowhead whale harvest had undermined the
effectiveness of the IWC. In a message to Congress, President Clinton
stated that, under international law, Canada was obligated to work
through the IWC with regard to any whaling activities.\25\
---------------------------------------------------------------------------
\24\ NOAA Press Release, 12/18/1996, ``Commerce Department
Certifies Canada Under Pelly Amendment for Whaling,'' at
www.publicaffairs.noaa.gov/pr96/dec96/noaa96-r194.html.
\25\ President William J. Clinton, Message to Congress on Canadian
Whaling Activities, 2/10/1997, 33 Weekly Comp. Pres. Doc. 175 (1997).
---------------------------------------------------------------------------
As recently as 2004, members of the Senate reaffirmed that at the
Annual Meeting of the IWC the U.S. should ``remain firmly opposed to
commercial whaling.'' \26\
---------------------------------------------------------------------------
\26\ S. Con. Res. 55 (108th Congress), 6/12/2003.
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International Reinforcement of the IWC's Role in Relation to Article 65
Apart from the very clear position of the United States both during
the negotiation process and in subsequent years that Article 65 of
UNCLOS is to be interpreted so that the IWC (or an even stronger
conservation-oriented successor organization such as International
Cetacean Commission) is understood to be the ``appropriate
international organization,'' there is also international support for
this interpretation.\27\
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\27\ There even appears to be support for this interpretation from
pro-whaling nations. One commentator notes that Iceland, a pro-whaling
nation, interpreted Article 65 of UNCLOS to mean that the IWC is the
appropriate international organization with jurisdiction over whale
management. ``In 1991, Iceland, a party to the 1982 Law of the Sea
Convention, was contemplating withdrawing from the IWC. It appears that
Iceland took the view that Article 65 required it to adhere to IWC
quota regulations irrespective of its membership in the IWC.'' Ted L.
McDorman, ``Canada and Whaling: An Analysis of Article 65 of the Law of
the Sea Convention,'' Ocean Development & International Law, 29: p.
183-184 (1998).
A commentator from Norway, also a pro-whaling nation, has stated:
``However poorly the IWC may be seen to function, as measured against
what it was intended to be, or could have been, it is a fact that by
the large majority of member states it is seen as the only legitimate
international body for dealing with the whaling issue. These nations
include the U.S., all the main EU (European Union) states, most major
western countries, including most Nordic countries.'' Steinar Andresen,
The Fridtjof Nansen Institute, Oslo Norway, ``NAMMCO, IWC and the
Nordic Countries'' from Whaling in the North Atlantic--Economic and
Political Perspectives, Ed. Gudrun Petursdottir, University of Iceland,
1997. Proceedings of a conference held in Reykjavik on March 1, 1997,
organized by the Fisheries Research Institute and the High North
Alliance, at www.highnorth.no/Library/Publications/Iceland/na-iw-
an.htm.
---------------------------------------------------------------------------
International organizations recognize IWC's primacy for the
conservation of whales. Most notably, Chapter 17 of Agenda 21, the
environmental action plan endorsed by the 1992 United Nations
Conference on Environment and Development adopts Article 65 of UNCLOS,
and provides that states recognize:
(a) The responsibility of the International Whaling
Commission for the conservation and management of whale stocks
and the regulation of whaling pursuant to the 1946
International Convention for the Regulation of Whaling;
(b) The work of the International Whaling Commission
Scientific Committee in carrying out studies of large whales in
particular, as well as of other cetaceans.\28\
---------------------------------------------------------------------------
\28\ Agenda 21, para. 17.61 at www.on.org/esa/sustdev/documents/
agenda2l/english/agenda21
chapter17.htm.
This position was bolstered by language in an IWC Resolution on the
interaction of fish stocks and whales that was passed by consensus. The
parties acknowledged at the outset of the Resolution that ``the IWC is
the universally recognized international organization with competence
for the management of whale stocks.'' \29\
---------------------------------------------------------------------------
\29\ IWC, Proposed Resolution on Interactions Between Whales and
Fish Stocks, Resolution 2001-9 (2001).
---------------------------------------------------------------------------
The Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) has always recognized IWC primacy over whale
management and conservation, In 1986, in deference to the IWC's
commercial whaling moratorium, all great whales were placed on Appendix
1 (meaning whales and whale products cannot be traded internationally).
Moreover, CITES has adopted several resolutions that relate to whales
and the IWC that were consolidated in 2000 in Resolution 11.4 on
``Conservation of cetaceans, trade in cetacean specimens and the
relationship with the International Whaling Commission.'' This
resolution recognizes the primacy of the IWC over whale management and
conservation.
The Evolution of the IWC
Finally, it needs to be said that the evolution of the IWC itself
into a more conservation and welfare oriented organization reinforces
the interpretation that the IWC is the appropriate international
organization as envisioned by the negotiators of Article 65 of UNCLOS.
Some commentators have argued that Article 65 reflects a trend in the
protection of cetaceans beyond economic value, to include
considerations of a moral and ethical nature.\30\
---------------------------------------------------------------------------
\30\ Maffei, M.C., 1992, The Protection of Endangered Species of
Animals in the Mediterranean Sea in The Law of the Sea: New Worlds, New
Discoveries, Proceedings of the 26th Annual Conference of the Law of
the Sea Institute, Edited by Miles & Treves, Law of the Sea Institute,
Honolulu.
---------------------------------------------------------------------------
Since the IWC implemented a commercial whaling moratorium in 1986,
it has placed greater emphasis on conservation of whales than
regulating their exploitation. For example, it has designated
established sanctuaries in the Southern and Indian Oceans. Today, a
majority of IWC members are more concerned with protecting and
conserving whales (and small cetaceans) than promoting and defending an
industry that previously decimated whale stocks and proved impossible
to regulate.\31\ The IWC has also taken on a welfare mandate, advancing
``humane killing'' and discussing associated welfare issues in various
committees.
---------------------------------------------------------------------------
\31\ Kitty Block and Sue Fisher, ``Legal Precedents for Whale
Protection.''
---------------------------------------------------------------------------
In addition, the IWC has adopted numerous resolutions whose purpose
is to improve the welfare of whales, and at the 2003 meeting of the
World Parks Congress it was agreed that marine species require
``protection'' and that their habitat needs ``conservation'' through
domestic and high seas protected area systems.\32\
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\32\ World Parks Congress, 2003, The Durban Accord and
Recommendation 5.22 Building a Global System of Marine and Coastal
Protected Area Networks and Recommendation 5.23 Protecting Marine
Biodiversity and Ecosystem Processes Through Marine Protected Areas
Beyond National Jurisdictions, Vth IUCN World Parks Congress, World
Conservation Union and World Commission on Protected Areas, Durban,
South Africa.
---------------------------------------------------------------------------
The IWC adopted the Berlin Initiative which strengthened the IWC's
conservation agenda by forming an official committee to deal with such
issues as by-catch and pollution. The initiative established a
conservation committee to draft a ``Conservation Agenda'' as well as
the means to implement it. This has helped to bring the IWC into the
21st century. Unfortunately the three remaining whaling nations have
yet to adhere to either a moratorium or accept a more conservation-
oriented IWC.
An International Cetacean Commission, as envisioned by the U.S. at
the time of the drafting of Article 65 in the late 1970s never
materialized. Nonetheless, in accordance with its objective of
``providing for the proper conservation of whale stocks,'' the IWC has
become increasingly focused on the conservation of cetaceans. A clear
majority of IWC members now oppose the commercial exploitation of
whales and support whale conservation and protection. Since Article 65
reflects a worldwide interest in and the belief that marine mammals in
general and cetaceans in particular are unique, and must be protected
on a global basis, the only accurate interpretation is that the IWC is
the ``appropriate international organization'' to conserve, manage and
study whales. A few whaling nations who for whatever misguided belief
that they must continue to ``utilize'' the resource cannot now alter or
rewrite the history of Article 65 simply because they do not wish to
honor the conservation measures adopted at the IWC. The commercial
whaling moratorium adopted at the IWC in 1982, and still in place
today, reflects the will of nations and civil society.\33\ We must not
allow the purpose and meaning of Article 65 to be distorted and become
the excuse or justification for whaling nations to ignore their
conservation obligations at IWC and form a new organization that
endorses the resumption of commercial whaling.
---------------------------------------------------------------------------
\33\ In Stockholm in 1972, delegates to the United Nations
Conference on the Human Environment called for a moratorium on
commercial whaling. The resolution proposed by the United States called
for a ten-year moratorium on commercial whaling. It passed by fifty-
three votes to zero (Japan, Brazil and South Africa abstained).
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As someone who spent 5 years working on Article 65 and over 30
years at the IWC, I ask that the U.S. Senate act by supporting
accession to the Convention on the Law of the Sea. I thank you on
behalf of our more than 10 million members and constituents for the
opportunity to speak on this very important issue and to clarify on the
record the correct meaning of Article 65.
______
Letters Submitted for the Record by Frank Gaffney From the Coalition to
Preserve American Sovereignty to Eight Senate Committees
Washington, DC,
September 24, 2007.
Hon. Carl Levin,
Chairman, Senate Committee on Armed Services,
Russell Senate Office Building, Washington, DC.
Hon. John McCain,
Ranking Minority Member, Senate Committee on Armed Services,
Russell Senate Office Building, Washington, DC.
Dear Mr. Chairman and Ranking Member McCain: We understand that the
Senate Foreign Relations Committee will convene the first of several
hearings this week in connection with possible U.S. ratification of the
United Nations Law of the Sea Treaty (LOST). It is our view that this
accord is seriously defective in a number of respects--including
several with adverse implications for matters within your committee's
jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Armed Services Committee promptly conduct
its own hearings on LOST, so the individuals listed below may be
afforded an opportunity to testify in connection with, among other
things, the following negative implications of the Treaty for the
United States military and national security.
First, ratification of LOST would commit the United States to
submit to mandatory dispute resolution with respect--among other
things--to its compliance with a number of obligations that would, on
their face, interfere with vital U.S. military and intelligence
operations. These include: Article 88 which ``reserves'' the oceans for
peaceful purposes; Article 301 which dictates that states parties must
refrain from ``the threat or use of force against the territorial
integrity or political independence of any state''; Article 19 which
proscribes the use of territorial waters to collect intelligence and
conduct other operations; Article 20, which obliges submarines to
travel on the surface and show their flag in territorial waters; and
Article 110 which enumerates the circumstances under which ships can be
intercepted at sea--piracy, slavery, narcotics trafficking, and
unauthorized broadcasting.
Senior military and intelligence officials are on record as stating
that these provisions will not impede their operations on, under, or
above the world's oceans. These assurances appear to rely, however, on
interpretations of LOST that may prove unwarranted, or at least
unsustainable over time, given the complexion of the various panels
that would adjudicate disputes. The stakes are sufficiently high that
we can afford no misapprehensions on such points.
For instance, LOST proponents argue that the United States will
choose available arbitration mechanisms to avoid legal decisions from
the International Court of Justice (ICJ) or the International Tribunal
for the Law of the Sea (ITLOS). Such arbitration panels are no less
perilous for U.S. interests, however, since the decisive, ``swing''
arbiters would be appointed by generally unfriendly U.N.-affiliated
bureaucrats. The arbitration panels can also be relied upon to look to
rulings by the ICJ or ITLOS to inform their own decisions.
Furthermore, while there is a LOST provision exempting ``military
activity'' from such dispute resolution mechanisms, the Treaty makes no
attempt to define ``military activity.'' This virtually guarantees that
such matters will be litigated--in all likelihood to our detriment--
before one or another of LOST's arbitration mechanisms. And the rulings
of such arbitrators cannot be appealed.
Second, even if the military's own activities were able to be
exempted from the Treaty's provisions, it is far from clear that
exemption would also apply to all of the companies that comprise the
Navy and Coast Guard's civilian technology and logistical supply
chains. These supply chains would certainly not be spared exposure to
dispute resolution demanded by other treaty parties or activist groups
alleging violations of the LOST-imposed obligation to protect the
marine environment. This sort of ``Lawfare'' has become a highly
effective, asymmetric weapon in the arsenal of America's far less
powerful enemies and cannot be safely discounted. Neither can we credit
the proposition offered by some LOST supporters that the United States
will simply abrogate the Treaty if it proves to be as deeply
problematic for our maritime forces as its critics predict.
Third, the Law of the Sea Treaty contains provisions that risk
putting sensitive, militarily useful information and technology in the
hands of America's adversaries and its companies' commercial
competitors. LOST's proponents would have you believe that there is no
problem with technology transfer since the Treaty's relevant mandates
were eliminated by a 1994 agreement relating to the implementation of
LOST's Part XI. Unfortunately, this is another area that cries out for
close examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and
was amended by the '94 Agreement. For another, a number of provisions
obligating the transfer of potentially sensitive technology and data
were not addressed in the Agreement. For example, LOST arbitration
procedures specify that parties to a dispute would be required to
provide an arbitral tribunal with ``all relevant documents, facilities
and information''--a potential avenue for compelling such transfers.
Finally, the ratification of LOST--a treaty that seeks to establish
a legal regime for the world's oceans--will make it difficult for the
United States to argue against binding arrangements for other
``international commons,'' including areas critical to American
military operations such as outer space. President Reagan's Ambassador
to the U.N., the late Jeane Kirkpatrick, warned the Senate in 2004 not
to consent to ratification of LOST, in part on the grounds that
American interests in outer space could be adversely affected by the
LOST precedent.
The Armed Services Committee last held a hearing about the Law of
the Sea Treaty in 2004. Since then: New members have joined the
Committee; the adverse implications of surrender of U.S. sovereignty to
supranational organizations with mandatory dispute resolution authority
(i.e., the World Trade Organization) have become clearer; the
phenomenon of ``Lawfare'' is more widely in evidence; the dangers
associated with militarily relevant technologies migrating into the
hands of our potential or actual adversaries are more evident; and the
perils for our vital security and economic interests should we cede
control of outer space have grown dramatically.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Armed Services Committee has an obligation to convene further hearings
on the Law of the Sea Treaty. We formally request that you and your
colleagues afford an opportunity to hear from a number of the following
individuals whose expertise in a wide variety of fields should be
available to the full Senate before it takes up an accord we are
convinced will be harmful to, not supportive of, our national security
interests:
Edwin Meese, Former Attorney General; William Middendorf, former
Secretary of the Navy; John F. Lehman, Jr., former Secretary of the
Navy; Frank J. Gaffney, Jr., former Assistant Secretary of Defense
(Acting); Peter Leitner, Author, ``Reforming the Law of the Sea
Treaty''; Jeremy Rabkin, George Mason University; Lawrence Kogan,
Institute for Trade, Standards and Sustainable Development; Cliff
Kincaid, America's Survival; John Fonte, Hudson Institute; David Keene,
American Conservative Union; Phyllis Schlafly, Eagle Forum; Fred Smith,
Competitive Enterprise Institute; John O'Sullivan, Hudson Institute;
Doug Bandow, American Conservative Defense Alliance; Baker Spring,
Heritage Foundation; Thomas P. Kilgannon, Freedom Alliance; Kevin
Kearns, U.S. Business & Industry Council.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. Daniel K. Inouye,
Chairman, Senate Committee on Commerce, Science and Transportation,
Dirksen Senate Office Building, Washington, DC.
Hon. Ted Stevens,
Ranking Minority Member, Senate Committee on Commerce, Science and
Transportation, Dirksen Senate Office Building, Washington, DC.
Dear Mr. Chairman and Ranking Member Stevens: We understand that
the Senate Foreign Relations Committee will convene the first of
several hearings this week in connection with possible U.S.
ratification of the United Nations Law of the Sea Treaty (LOST). It is
our view that this accord is seriously defective in a number of
respects--including several with adverse implications for matters
within your committee's jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Commerce, Science and Transportation
Committee promptly conduct its own hearings on LOST so that the
individuals listed below may be afforded an opportunity to testify in
connection with, among other things, the Treaty's negative implications
for the Coast Guard as well as oceans-related and even interstate
commerce.
First, ratification of LOST would commit the United States to
submit to mandatory dispute resolution with respect--among other
things--to its compliance with a number of obligations that would, on
their face, interfere with vital Coast Guard operations. These
provisions include Article 88 which ``reserves'' the oceans for
peaceful purposes and Article 301 which dictates that states parties
must refrain from ``the threat or use of force against the territorial
integrity or political independence of any state.'' Given the greatly
expanded role the Coast Guard has come to play in the War on Terror, it
is predictable that those who have adopted ``Lawfare''--the use of
treaties and other international legal mechanisms as a form of
asymmetric warfare against the United States--will seek to use LOST to
interfere with the Coast Guard's missions.
The same will probably be true of Article 110, which enumerates the
circumstances under which ships can be intercepted at sea. These are:
Piracy, slavery, narcotics-trafficking and unauthorized broadcasting.
Counterterrorism and preventing the proliferation of weapons of mass
destruction and their delivery systems are not legal grounds for such
intercepts. Should the U.S. become a party to the Law of the Sea
Treaty, opponents of the vital Proliferation Security Initiative (PSI)
will almost certainly seek to haul the Coast Guard before one or
another of LOST's dispute resolution mechanisms, knowing that the
membership of each of these arbitral panels is stacked against the
United States and their rulings are binding and cannot be appealed.
Second, ratification of LOST would provide a backdoor through which
the greenhouse gas emissions-limiting Kyoto Protocol could be imposed
on the United States, without the Protocol having been ratified by the
Senate. LOST Article 194 requires state parties to take all necessary
measures to ``prevent, reduce, and control pollution of the marine
environment from any source.'' These provisions would enable LOST's
mandatory dispute resolution mechanisms to become forums for legal
action against American companies and government entities for alleged
adverse effects on the marine environment through the greenhouse gas
emissions of ocean-going vessels, space-launch vehicles and even land-
based activities, irrespective of the fact that the U.S. is not a party
to the Kyoto Protocol.
Third, LOST tribunals have jurisdiction over any dispute dealing
with an international agreement related to the purposes of LOST,
including protection of the marine environment. LOST could therefore
also serve as a backdoor to the imposition of numerous other treaties
that the United States has not ratified, thereby imposing a costly and
unpredictable regulatory regime on American businesses and government
entities that engage in marine transport.
Fourth, the Law of the Sea Treaty recognizes the competence of
several international bodies that develop standards used by businesses
and in their regulation. The European Union has long understood the
competitive advantage associated with determining and imposing such
standards. It has dominated this field of activity and repeatedly
sought ways in which to compel the United States and its entities to
conform to European standards. Should the U.S. ratify LOST, the EU will
be afforded a formidable mechanism for this purpose insofar as such
standards can be expected to be employed to determine compliance with
the Treaty and in the adjudication of disputes.
Fifth, LOST itself, as well as regulations already issued by LOST
agencies, clearly apply the ``precautionary principle.'' This legal
tenet holds that a company or country must be able to assure that a
proposed action will not cause any harm before it can proceed. As a
practical matter, this means that a given commercial or sovereign
activity can be banned without any scientific proof of harm or cost-
benefit analysis--a standard that would have a devastating effect on
American business innovation and entrepreneurial activity.
Sixth, the Law of the Sea Treaty contains provisions that risk
putting sensitive, proprietary and--in some cases, at least--militarily
useful information and technology in the hands of U.S. companies'
competitors and our Nation's adversaries. LOST's proponents would have
you believe that there is no problem with technology transfer since the
Treaty's relevant mandates were eliminated by a 1994 agreement relating
to the implementation of LOST's Part XI. Unfortunately, this is another
area that cries out for close examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and
was amended by the '94 Agreement. For another, a number of provisions
obligating the transfer of potentially sensitive technology and data
were not addressed in the Agreement. For example, LOST arbitration
procedures specify that parties to a dispute would be required to
provide an arbitral tribunal with ``all relevant documents, facilities,
and information''--a potential avenue for compelling such transfers.
Seventh, U.S. ratification of LOST--a treaty that purports to
establish a legal regime for the world's oceans--will inevitably give
rise to precedential arrangements for governing other ``international
commons,'' including the Internet and outer space. Given the enormous
stakes for U.S. commerce and security associated with our dominant
position vis-a-vis not only the world's oceans but the Internet and
outer space, initiatives like LOST that could have the effect of
dramatically altering the status quo should be approached with the
utmost care.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Committee on Commerce, Science and Transportation has an obligation to
convene its own hearings on the Law of the Sea Treaty. We formally
request that you and your colleagues afford an opportunity to hear from
a number of the following individuals whose expertise in a wide variety
of fields should be available to the full Senate before it takes up an
accord we are convinced will be harmful to, not supportive of, our
Nation's economic as well as national security interests:
Edwin Meese, Heritage Foundation; Fred Smith, Competitive
Enterprise Institute; Peter Leitner, Author, ``Reforming the Law of the
Sea Treaty''; Lawrence Kogan, Institute for Trade, Standards and
Sustainable Development; Kevin Kearns, U.S. Business & Industry
Council; John Fonte, Hudson Institute; Jeremy Rabkin, Cornell
University; John O'Sullivan, Hudson Institute; William Middendorf,
Defense Forum Foundation; Frank J. Gaffney, Jr., Center for Security
Policy; Doug Bandow, American Conservative Defense Alliance; Baker
Spring, Heritage Foundation; David Keene, American Conservative Union.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources, Dirksen
Senate Office Building, Washington, DC.
Hon. Pete V. Domenici,
Ranking Minority Member, Senate Committee on Energy and Natural
Resources, Dirksen Senate Office Building, Washington, DC.
Dear Mr. Chairman and Ranking Member Domenici: We understand that
the Senate Foreign Relations Committee will convene the first of
several hearings this week in connection with possible U.S.
ratification of the United Nations Law of the Sea Treaty (LOST). It is
our view that this accord is seriously defective in a number of
respects--including several with adverse implications for matters
within your committee's jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Energy and Natural Resources Committee
promptly conduct its own hearings on LOST, so the individuals listed
below may be afforded an opportunity to testify in connection with,
among other things, the following negative implications of the Treaty
for the United States' energy security and related technologies,
policies, and programs.
First, ratification of LOST would provide a backdoor through which
the greenhouse gas emissions-limiting Kyoto Protocol could be imposed
on the United States, without the Protocol having been ratified by the
Senate. LOST Article 194 requires state parties to take all necessary
measures to ``prevent, reduce, and control pollution of the marine
environment from any source,'' including those from land-based sources.
The Treaty's Article 212 goes on to require states parties to
``adopt laws and regulations to prevent, reduce, and control pollution
of the marine environment from or through the atmosphere.'' This
obligation can be used to compel the adoption of far-reaching
implementing legislation--legislation whose impact and costs cannot be
assessed with confidence at this time, but are likely to be severe.
These provisions would, moreover, enable LOST's mandatory dispute
resolution mechanisms to become forums for legal action against
American companies, government entities and even the military for
alleged adverse effects on the marine environment through their
greenhouse gas emissions, even absent Senate ratification of the Kyoto
Protocol.
Second, LOST tribunals have jurisdiction over any dispute dealing
with an international agreement related to the purposes of LOST,
including protection of the marine environment. LOST could therefore
also serve as a vehicle for the imposition of numerous other
environmental treaties that the United States has also not ratified.
The effect could be to impose a costly and unpredictable environmental
regime on American mining, oil and other businesses and on official
entities--possibly wholly outside the ambit of our constitutional,
representative form of government.
Third, regulations already issued by LOST bodies clearly apply the
``precautionary principle''--a legal tenet according to which a company
or country must assure that a proposed action will not cause any harm
before it can proceed. As a practical matter, this means that a given
activity can be banned without any scientific proof of harm or cost-
benefit analysis. Through the application of this Luddite principle,
enforceable through LOST's dispute resolution mechanisms, the Treaty
would involve far more draconian and costly environmental requirements
than those currently enacted in the Clean Air Act or Clean Water Act.
Fourth, LOST enables one of its institutions, the International
Seabed Authority (ISA), to extract payments from countries seeking to
exploit resources on portions of their own continental shelves
extending beyond 200 miles from their coastlines. Additionally, LOST
would require American companies to make payments to the ISA for the
right to exploit resources in ``the Area'' (the portion of the ocean
floor and its subsoil that lies beyond the jurisdiction of any one
country)--a right already enjoyed by American companies without
requirement of such payment.
Fifth, the Law of the Sea Treaty contains provisions that risk
putting in the hands of America's adversaries and its companies'
competitors sensitive, proprietary technology related to the
exploration and recovery of deep-sea minerals and energy resources. At
least in some cases, such data and hardware has significant military
applications.
LOST's advocates would have you believe that there is no problem
with technology transfer since the Treaty's relevant mandates were
eliminated by a 1994 Agreement relating to the implementation of LOST's
Part XI. Unfortunately, this is another area that cries out for close
examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and
was amended by the '94 accord. For another, a number of provisions
obligating the transfer of potentially sensitive technology and data
were not addressed in the latter agreement. For example, LOST
arbitration procedures specify that parties to a dispute would be
required to provide an arbitral tribunal with ``all relevant documents,
facilities and information''--a potential avenue for compelling such
transfers.
Finally, it should be of concern to, among others, your committee
that LOST affords foreign entities an opportunity to use its arbitral
panels to hinder, and possibly hobble, America's Armed Forces by
determining that the latters' activities are harmful to the marine
environment in ways other than greenhouse-gas emission. For instance,
the transport of naval, transportation and jet fuels vital to our
military operations worldwide could be subjected to this sort of
``Lawfare''--the use of treaties and tribunals as an increasingly
effective, asymmetric weapon in the arsenal of America's far less
powerful enemies.
Although LOST exempts ``military activities'' from the Treaty's
dispute resolution mechanisms, it does not define such activities. This
ambiguity leaves the question of whether a given activity is
``military'' or ``environmental'' in nature subject to the
determination of the arbitral panels themselves. Given the composition
of those panels--which will allow them to be dominated by individuals
who may be at best unsympathetic to American interests--the outcome
will probably be not to our liking.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Committee on Energy and Natural Resources has an obligation to convene
its own hearings on the Law of the Sea Treaty. We formally request that
you and your colleagues afford an opportunity to hear from a number of
the following individuals whose expertise in a wide variety of fields
should be available to the full Senate before it takes up an accord we
are convinced will be harmful to, not supportive of, our national
security interests:
Edwin Meese, former Attorney General; John F. Lehman, Jr., former
Secretary of the Navy; William Middendorf, former Secretary of the
Navy; Fred Smith, Competitive Enterprise Institute; Doug Bandow,
American Conservative Defense Alliance; Peter Lehner, Author,
``Reforming the Law of the Sea Treaty''; Kevin Kearns, U.S. Business &
Industry Council; ADM James L. Lyons, USN (Ret.); VADM Robert M.
Monroe, USN (Ret.); Lawrence Kogan, Institute for Trade, Standards and
Sustainable Development; Jeremy Rabkin, American Enterprise Institute
and George Mason University; Frank J. Gaffney, Jr., former Assistant
Secretary of Defense (Acting); Cliff Kincaid, America's Survival; John
Fonte, Hudson Institute; David Keene, American Conservative Union;
Phyllis Schlafly, Eagle Forum; John O'Sullivan, Hudson Institute; Baker
Spring, Heritage Foundation; Thomas P. Kilgannon, Freedom Alliance.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. Barbara Boxer,
Chairwoman, Senate Committee on Environment and Public Works, Dirksen
Senate Office Building, Washington, DC.
Hon. James M. Inhofe,
Ranking Minority Member, Senate Committee on Environment and Public
Works, Dirksen Senate Office Building, Washington, DC.
Dear Madame Chairwoman and Ranking Member Inhofe: We understand
that the Senate Foreign Relations Committee will convene the first of
several hearings this week in connection with possible U.S.
ratification of the United Nations Law of the Sea Treaty (LOST). It is
our view that this accord is seriously defective in a number of
respects--including several with adverse implications for matters
within your committee's jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Environment and Public Works Committee
promptly conduct its own hearings on LOST, so the individuals listed
below may be afforded an opportunity to testify in connection with,
among other things, the Treaty's negative implications for your
committee's legislative responsibilities for matters concerning air and
water pollution, ocean dumping, environmental policy, and nonmilitary
environmental regulation and control of nuclear energy
Among the areas of concern of direct relevance to your committee's
jurisdiction are the following:
First, ratification of LOST would provide a backdoor through which
the greenhouse gas emissions-limiting Kyoto Protocol could be imposed
on the United States, without the Protocol having been ratified by the
Senate. LOST Article 194 requires state parties to take all necessary
measures to ``prevent, reduce, and control pollution of the marine
environment from any source,'' including those from land-based sources.
The Treaty's Article 212 goes on to require states parties to
``adopt laws and regulations to prevent, reduce and control pollution
of the marine environment from or through the atmosphere.'' This
obligation can be used to compel the adoption of far-reaching
implementing legislation--legislation whose impact and costs cannot be
assessed with confidence at this time, but are likely to be severe.
These provisions would, moreover, enable LOST's mandatory dispute
resolution mechanisms to become forums for legal action against
American companies, government entities and even the military for
alleged adverse effects on the marine environment through their
greenhouse gas emissions, even absent Senate ratification of the Kyoto
Protocol.
Second, LOST tribunals have jurisdiction over any dispute dealing
with an international agreement related to the purposes of LOST,
including protection of the marine environment. LOST could therefore
also serve as a vehicle for the imposition of numerous other
environmental treaties that the United States has also not ratified.
The effect could be to impose a costly and unpredictable environmental
regime on American businesses and official entities--possibly wholly
outside the ambit of our constitutional, representative form of
government.
Third, regulations already issued by LOST bodies clearly apply the
``precautionary principle''--a legal tenet according to which a company
or country must guarantee that a proposed action will not cause any
environmental harm before it can proceed. As a practical matter, this
means that a given business activity can be banned without any
scientific proof of harm or cost-benefit analysis. Through the
application of this Luddite principle, enforceable through LOST's
dispute resolution mechanisms, the Treaty would involve far more
draconian and costly environmental requirements than those currently
enacted in the Clean Air Act or Clean Water Act.
Finally, it should be of concern to, among others, your committee
that LOST affords foreign entities an opportunity to use international
tribunals to hinder, and possibly hobble, America's Armed Forces by
determining that such activities are harmful to the marine environment
in ways other than greenhouse gas emission. Although LOST exempts
``military activities'' from the Treaty's dispute resolution
mechanisms, it does not define such activities. This arrangement leaves
the question of whether a given activity is ``military'' or
``environmental'' in nature subject to the determination of the
arbitral panels themselves. Given the composition of those panels--
which will allow them to be dominated by individuals who may be at best
unsympathetic to American interests--the outcome will probably be not
to our liking.
The Environment and Public Works Committee last held a hearing
about the Law of the Sea Treaty in 2004. Since then: New members have
joined the Committee; the adverse implications of surrender of U.S.
sovereignty to a supranational organizations with mandatory dispute
resolution authority (i.e., the World Trade Organization) have become
clearer; and the deleterious impact of the ``precautionary principle''
on innovation and progress in Europe is more evident.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Environment and Public Works Committee has an obligation to convene
further hearings on the Law of the Sea Treaty. We formally request that
you and your colleagues afford an opportunity to hear from a number of
the following individuals whose expertise in a wide variety of fields
should be available to the full Senate before it takes up an accord we
are convinced will be harmful to, not supportive of, our Nation:
Edwin Meese, former Attorney General; William Middendorf, former
Secretary of the Navy; John F. Lehman, Jr., former Secretary of the
Navy; Frank J. Gaffney, Jr., former Assistant Secretary of Defense
(Acting); David Keene, American Conservative Union; Phyllis Schlafly,
Eagle Forum; Fred Smith, Competitive Enterprise Institute; Lawrence
Kogan, Institute for Trade, Standards and Sustainable Development; John
O'Sullivan, Hudson Institute; Doug Bandow, American Conservative
Defense Alliance; Baker Spring, Heritage Foundation; Thomas P.
Kilgannon, Freedom Alliance; Cliff Kincaid, America's Survival; Peter
Leitner, Author, ``Reforming the Law of the Sea Treaty''; Kevin Kearns,
U.S. Business & Industry Council; John Fonte, Hudson Institute; Jeremy
Rabkin, George Mason University.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. Max Baucus,
Chairman, Senate Committee on Finance,
Dirksen Senate Office Building, Washington, DC.
Hon. Charles E. Grassley,
Ranking Minority Member, Senate Committee on Finance,
Dirksen Senate Office Building, Washington, DC.
Dear Mr. Chairman and Ranking Member Grassley: We understand that
the Senate Foreign Relations Committee will convene the first of
several hearings this week in connection with possible U.S.
ratification of the United Nations Law of the Sea Treaty (LOST). It is
our view that this accord is seriously defective in a number of
respects--including several with adverse implications for matters
within your committee's jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Finance Committee promptly conduct its own
hearings on LOST, so the individuals listed below may be afforded an
opportunity to testify in connection with, among other things, the
following negative implications of the treaty for American tax policy
and U.S. economic interests more generally.
First, ratification of LOST would allow the American taxpayer to be
subjected for the first time to levies by an international
organization--taxation without representation. This would take place
through a LOST body known as the International Seabed Authority (ISA),
designed to regulate economic activities in the portion of the ocean
floor and its subsoil that lies beyond the jurisdiction or sovereignty
of any one country (dubbed ``the Area'').
A throwback to the Soviet/non-aligned nations' socialist-
redistributionist agenda known as the New International Economic Order,
LOST tasks the ISA with providing for the ``equitable sharing'' of
economic benefits derived from the Area. Under the Treaty, the revenue
to be equitably shared--as well as that for underwriting a portion of
the costs of the ISA itself--is to be obtained from country payments to
the organization. These will be made in the form of various fees, in
addition to profit-sharing or royalties arrangements. Additionally, the
ISA also obtains payments from countries seeking to exploit resources
on the portions of their own continental shelves extending beyond 200
miles from the coastline.
Were the United States to become a party to the Law of the Sea
Treaty, it would thus subject its citizens at least to what amounts to
indirect taxation through the removal of profits from the American
business revenue stream for a governmental purpose--namely, the payment
of ISA's own expenses and the distribution of revenue to developing
countries. In some cases, however, taxpayers may actually have to pick
up the tab in the event the U.S. Treasury is assessed fees owed by its
corporations and unable to obtain reimbursement from the companies in
question.
Proponents of LOST try to minimize the significance of this
departure from past practice by arguing that such royalties would not
go to the United Nations. Instead, they would be redistributed to
developing countries in accordance with a formula to which the United
States would have to agree.
The point, however, is not who would benefit from what amount to
the international taxes imposed by LOST. Whether the revenue flows into
international organizations, whose practices are notoriously
nontransparent and corrupt (e.g., the Oil for Food Program), or to
underdeveloped nations too often ruled by kleptocracies, both results
are undesirable. Either way, Americans whose resources are diverted to
one or both of these beneficiaries would be taxed without consent.
Second, the precedent the United States would be setting by
agreeing to become party to a treaty that institutionalizes
international taxes is extremely worrying. There is already intense
pressure in U.N. circles to design such new revenue streams, designed
to make supranational agencies more independent of member nations and
their support. This ambition will be greatly stoked by American
accession to one such arrangement, resulting inevitably in
international organizations that are less transparent, less
accountable, and still more hostile to the United States and its
interests.
Finally, U.S. ratification of LOST will likely also feed the
appetite of champions of supranational government determined to
establish similar binding arrangements--and international taxation
schemes--with respect to other so-called ``international commons.''
These would likely include the Internet and outer space. In light of
the enormous stakes for U.S. commerce and security associated with our
dominant position vis-a-vis not only the world's oceans but the
Internet and outer space, initiatives like LOST that could have the
effect of dramatically altering the status quo in these areas--
including ceding to others the right to determine fees and other taxes
for their use--should be approached with the utmost care.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Committee on Finance has an obligation to convene its own hearings on
the Law of the Sea Treaty. We formally request that you and your
colleagues afford an opportunity to hear from a number of the following
individuals. Their expertise in a wide variety of fields should be
available to the full Senate before it takes up an accord we are
convinced will be harmful to, not supportive of, our national
interests:
Edwin Meese, former Attorney General; Lawrence Kogan, Institute for
Trade, Standards and Sustainable Development; Doug Bandow, American
Conservative Defense Alliance; Fred Smith, Competitive Enterprise
Institute; David Keene, American Conservative Union; Phyllis Schlafly,
Eagle Forum; Kevin Kearns, U.S. Business & Industry Council; Peter
Leitner, Author, ``Reforming the Law of the Sea Treaty''; John Fonte,
Hudson Institute; Cliff Kincaid, America's Survival; John O'Sullivan,
Hudson Institute.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. Joseph I. Lieberman,
Chairman, Senate Committee on Homeland Security and Governmental
Affairs, Dirksen Senate Office Building, Washington, DC.
Hon. Susan Collins,
Ranking Member, Senate Committee on Homeland Security and Governmental
Affairs, Dirksen Senate Office Building, Washington, DC.
Dear Mr. Chairman and Ranking Member Collins: We understand that
the Senate Foreign Relations Committee will convene the first of
several hearings this week in connection with possible U.S.
ratification of the United Nations Law of the Sea Treaty (LOST). It is
our view that this accord is seriously defective in a number of
respects--including several with adverse implications for matters
within your committee's jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Homeland Security and Governmental Affairs
Committee promptly conduct its own hearings on LOST. We would ask that
the individuals listed below be afforded an opportunity to testify in
connection with, among other things, the following negative
implications of the treaty for the counterterrorism responsibilities
vested in the Department of Homeland Security, the effectiveness of
present national security methods and national disaster recovery
strategies.
First, ratification of LOST would commit the United States to
submit to mandatory dispute resolution with respect--among other
things--to its compliance with a number of obligations that would, on
their face, interfere with vital U.S. counterterrorism operations and
counterproliferation initiatives. These include: Article 88 which
``reserves'' the oceans for peaceful purposes; Article 301 which
dictates that states parties must refrain from ``the threat or use of
force against the territorial integrity or political independence of
any state''; and Article 19 which proscribes the use of territorial
waters to collect intelligence and conduct other operations.
Senior military and intelligence officials are on record as stating
that these provisions will not impede their operations on, under, or
above the world's oceans. These assurances appear to rely, however, on
interpretations of LOST that may prove unwarranted, or at least
unsustainable over time, given the complexion of the various panels
that would adjudicate disputes. The stakes are sufficiently high that
we can afford no misapprehensions on such points.
For instance, LOST proponents argue that the United States will
choose available arbitration mechanisms to avoid legal decisions from
the International Court of Justice (ICJ) or the International Tribunal
for the Law of the Sea (ITLOS). Such arbitration panels are no less
perilous for U.S. interests, however, as the decisive, ``swing''
arbiters would be appointed by generally unfriendly U.N.-affiliated
bureaucrats. The arbitration panels can also be relied upon to look to
rulings by the ICJ or ITLOS to inform their own decisions.
Furthermore, while there is a LOST provision exempting ``military
activity'' from such dispute resolution mechanisms, the Treaty makes no
attempt to define ``military activity.'' This ambiguity virtually
guarantees that such matters will be litigated--in all likelihood to
our detriment--before one or another of LOST's arbitration mechanisms.
And the rulings of such arbitrators cannot be appealed.
Of particular concern in this regard is the Law of the Sea Treaty's
Article 110 which identifies only four circumstances under which
vessels can be stopped on the high seas--namely, on suspicion of slave-
trading, piracy, drug trafficking, and illegal broadcasting. For states
parties to LOST, the transfer of weapons of mass destruction, shipping
of ballistic or other delivery systems or terrorism are not approved
reasons for performing such intercepts. While supporters of the Treaty
insist that it will not impede the vital Proliferation Security
Initiative, clearly if one or more of Article 110's conditions do not
apply, the Treaty will at the very least complicate PSI interceptions,
if not preclude them altogether.
Second, LOST involves unprecedented environmental obligations,
which can be used to interfere with U.S. sovereignty on the grounds
that what is being done on American soil or in its airspace will have
negative repercussions for the oceans. This could have direct bearing
on the ability of the United States to respond to natural and national
disasters. For instance, among the urgent steps aimed at resuscitating
New Orleans in the wake of Hurricane Katrina was the dumping of vast
quantities of toxic waste from Lake Pontchartrain into the Gulf of
Mexico. Were the United States a party to the Law of the Sea Treaty,
such a step would almost certainly have been prohibited by the ruling
of a LOST body. Such a ruling could then have been enforced by U.S.
Federal courts increasingly acting under the sway of international
tribunals and treaties.
Third, the Law of the Sea Treaty contains provisions that risk
putting sensitive, militarily useful information and technology in the
hands of America's adversaries and its companies' competitors. LOST's
advocates would have you believe that there is no problem with
technology transfer since the Treaty's relevant mandates were
eliminated by a 1994 Agreement relating to the implementation of LOST's
Part XI. Unfortunately, this is another area that cries out for close
examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and
was amended by the '94 accord. For another, a number of provisions
obligating the transfer of potentially sensitive technology and data
were not addressed in the latter agreement. For example, LOST
arbitration procedures specify that parties to a dispute would be
required to provide an arbitral tribunal with ``all relevant documents,
facilities, and information''--a potential avenue for compelling such
transfers.
Finally, U.S. ratification of LOST--a treaty that purports to
establish a legal regime for the world's oceans--will inevitably give
rise to precedential arrangements for governing other ``international
commons,'' including the Internet and outer space. In light of the
enormous stakes for U.S. commerce and security associated with our
dominant position vis-a-vis not only the world's oceans but the
Internet and outer space, initiatives like LOST that could have the
effect of dramatically altering the status quo should be approached
with the utmost care.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Committee on Homeland Security and Governmental Affairs has an
obligation to convene its own hearings on the Law of the Sea Treaty. We
formally request that you and your colleagues afford an opportunity to
hear from a number of the following individuals. Their expertise in a
wide variety of fields should be available to the full Senate before it
takes up an accord we are convinced will be harmful to, not supportive
of, our homeland and national security and other governmental
interests:
Edwin Meese, Former Attorney General; William Middendorf, former
Secretary of the Navy; John F. Lehman, Jr., former Secretary of the
Navy; Frank J. Gaffney, Jr., former Assistant Secretary of Defense
(Acting); Peter Leitner, Author, ``Reforming the Law of the Sea
Treaty''; Jeremy Rabkin, George Mason University; Lawrence Kogan,
Institute for Trade, Standards and Sustainable Development; Cliff
Kincaid, America's Survival; John Fonte, Hudson Institute; David Keene,
American Conservative Union; Phyllis Schlafly, Eagle Forum; Fred Smith,
Competitive Enterprise Institute; John O'Sullivan, Hudson Institute;
Doug Bandow, American Conservative Defense Alliance; Baker Spring,
Heritage Foundation; Thomas P. Kilgannon, Freedom Alliance; Kevin
Kearns, U.S. Business & Industry Council.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. John D. Rockefeller IV,
Chairman, Senate Select Committee on Intelligence,
Hart Senate Office Building, Washington, DC.
Hon. Christopher S. Bond,
Ranking Minority Member, Senate Select Committee on Intelligence,
Hart Senate Office Building, Washington, DC.
Dear Mr. Chairman and Ranking Member Bond: We understand that the
Senate Foreign Relations Committee will convene the first of several
hearings this week in connection with possible U.S. ratification of the
United Nations Law of the Sea Treaty (LOST). It is our view that this
accord is seriously defective in a number of respects--including
several with adverse implications for matters within your committee's
jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Select Committee on Intelligence promptly
conduct its own hearings on LOST, so the individuals listed below may
be afforded an opportunity to testify in connection with, among other
things, the following negative implications of the Treaty for American
intelligence activities and operations.
First, ratification of LOST would commit the United States to
submit to mandatory dispute resolution with respect--among other
things--to its compliance with a number of obligations that would, on
their face, interfere with vital U.S. intelligence operations. These
include: Article 88 which ``reserves'' the oceans for peaceful
purposes; Article 301 which dictates that states parties must refrain
from ``the threat or use of force against the territorial integrity or
political independence of any state''; Article 19 which proscribes the
use of territorial waters to collect intelligence and conduct other
operations; Article 20, which obliges submarines to travel on the
surface and show their flag in territorial waters; and Article 110
which enumerates the circumstances under which ships can be intercepted
at sea--piracy, slavery, narcotics trafficking and unauthorized
broadcasting.
Senior intelligence and military officials are on record as stating
that these provisions will not impede their operations on, under, or
above the world's oceans. These assurances appear to rely, however, on
interpretations of LOST that may prove unwarranted, or at least
unsustainable over time, given the complexion of the various panels
that would adjudicate disputes. The stakes are sufficiently high that
we can afford no misapprehensions on such points.
For instance, LOST proponents argue that the United States will
choose available arbitration mechanisms to avoid legal decisions from
the International Court of Justice (ICJ) or the International Tribunal
for the Law of the Sea (ITLOS). Unfortunately, such arbitration panels
are no less perilous for U.S. interests as the decisive, ``swing''
arbiters would be appointed by generally unfriendly U.N.-affiliated
bureaucrats. The arbitration panels can also be relied upon to look to
rulings by the ICJ or ITLOS to inform their own decisions.
Furthermore, while there is a LOST provision exempting ``military
activity'' from such dispute resolution mechanisms, the Treaty makes no
attempt to define ``military activity,'' virtually guaranteeing that
such matters will be litigated--in all likelihood to our detriment--
before one or another of LOST's arbitration mechanisms. And the rulings
of such arbitrators cannot be appealed.
Second, the Law of the Sea Treaty contains provisions that risk
putting sensitive, militarily useful information and technology in the
hands of America's adversaries and its companies' commercial
competitors. LOST's proponents would have you believe that there is no
problem with technology transfer since the Treaty's relevant mandates
were eliminated by a 1994 Agreement relating to the implementation of
LOST's Part XI. Unfortunately, this is another area that cries out for
close examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and
was amended by the '94 accord. For another, a number of provisions
obligating the transfer of potentially sensitive technology and data
were not addressed in the latter agreement. For example, LOST
arbitration procedures specify that parties to a dispute would be
required to provide an arbitral tribunal with ``all relevant documents,
facilities and information''--a potential avenue for compelling such
transfers.
Third, LOST identifies only four circumstances under which vessels
can be stopped on the high seas--namely, on suspicion of slave-trading,
piracy, drug trafficking and illegal broadcasting. If a vessel is
believed to be engaged in the transfer of weapons of mass destruction,
shipping ballistic or other delivery systems or terrorism, we would not
be allowed as a party to LOST to intercept it. While proponents of the
Treaty insist that it will not impede the vital Proliferation Security
Initiative, clearly if one or more of the foregoing conditions do not
apply, the Treaty will at the very least complicate PSI interceptions,
if not preclude them altogether.
Finally, the ratification of LOST--a treaty that seeks to establish
a legal regime for the world's oceans--will make it difficult for the
United States to argue against binding arrangements for other
``international commons,'' including areas critical to American
intelligence operations such as Outer Space. President Reagan's
Ambassador to the U.N., the late Jeane Kirkpatrick, warned the Senate
in 2004 not to consent to ratification of LOST, in part on the grounds
that American interests in outer space could be adversely affected by
the LOST precedent.
The Select Committee on Intelligence last held a hearing about the
Law of the Sea Treaty in 2004. Since then: New members have joined the
committee; the adverse implications of surrender of U.S. sovereignty to
supranational organizations with mandatory dispute resolution authority
(i.e., the World Trade Organization) have become clearer; the
phenomenon of ``Lawfare''--the use by foreign entities of international
treaties and other legal instruments as asymmetric weapons against the
United States--is more widely in evidence; the dangers associated with
militarily relevant technologies migrating into the hands of our
potential or actual adversaries abound; and the perils for our vital
security and economic interests should we cede control of outer space
have grown dramatically.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Select Committee on Intelligence has an obligation to convene further
hearings on the Law of the Sea Treaty. We formally request that you and
your colleagues afford an opportunity to hear from a number of the
following individuals whose expertise in a wide variety of fields
should be available to the full Senate before it takes up an accord we
are convinced will be harmful to, not supportive of, our intelligence
and other national security interests:
Edwin Meese, former Attorney General; William Middendorf, former
Secretary of the Navy; John F. Lehman, Jr., former Secretary of the
Navy; ADM James L. Lyons, USN (Ret.); VADM Robert M. Monroe, USN
(Ret.); Frank J. Gaffney, Jr., former Assistant Secretary of Defense
(Acting); Peter Leitner, Author, ``Reforming the Law of the Sea
Treaty''; Jeremy Rabkin, George Mason University; Lawrence Kogan,
Institute for Trade, Standards and Sustainable Development; Cliff
Kincaid, America's Survival; John Fonte, Hudson Institute; John
O'Sullivan, Hudson Institute; Doug Bandow, American Conservative
Defense Alliance; Baker Spring, Heritage Foundation; Thomas P.
Kilgannon, Freedom Alliance.
Sincerely,
Frank J. Gaffney, Jr.
______
Washington, DC,
September 24, 2007.
Hon. Patrick J. Leahy,
Chairman, Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Hon. Arlen Specter,
Ranking Minority Member, Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC
Dear Mr. Chairman and Ranking Member Specter: We understand that
the Senate Foreign Relations Committee will convene the first of
several hearings this week in connection with possible U.S.
ratification of the United Nations Law of the Sea Treaty (LOST). It is
our view that this accord is seriously defective in a number of
respects--including several with adverse implications for matters
within your committee's jurisdiction.
Accordingly, the Coalition to Preserve American Sovereignty
formally requests that the Judiciary Committee promptly conduct its own
hearings on LOST, so the individuals listed below may be afforded an
opportunity to testify in connection with, among other things, the
following negative implications of the Treaty for: The U.S.
Constitution; American jurisprudence; United States Government,
businesses and citizens' exposure to litigation; and the potential for
infringement of American intellectual property rights, patents,
copyrights and trademarks.
First, the Law of the Sea Treaty establishes a supranational,
global sovereign vested with exclusive responsibility for seven-tenths
of the world's surface: Its oceans. LOST entrusts to this entity--the
International Seabed Authority (ISA) and related agencies--authorities
which clearly would transgress various constitutional rights,
limitations, and responsibilities.
The International Tribunal on the Law of the Sea (ITLOS) and the
ISA have established the principle and practice of asserting their
authority over the internal waters, land and air of sovereign nations
on the grounds that activities in those areas can affect ``the marine
environment.'' Consequently, were the United States to become a party
to the Treaty, it would compromise the legislative responsibilities
vested exclusively by the Constitution in the Congress (Article I,
Section 1) and the executive powers vested exclusively in the President
(Article II, Section 1).
Such unconstitutional actions can result in the American people
being subjected to international taxation without representation and
high-cost regulations in the absence of accountable, representative
government (in violation of Article I, Sections 7 and 8 of the United
States Constitution, as well as amendment XVI of the Bill of Rights).
Second, matters would be made worse to the extent the Law of the
Sea Treaty gives encouragement to U.S. courts already inclined to allow
the dictates of international treaties and foreign tribunals to
supercede those of the United States Constitution. This so-called
``universal jurisprudence'' is contributing to the further erosion of
the checks and balances inherent in the Nation's founding documents,
not least, the authority of the Congress to legislate.
Under LOST a case in point would be the application of the
``precautionary principle''--a legal tenet according to which a company
or country must guarantee that a proposed action will not cause any
harm before it can proceed. As a practical matter, this means that a
given activity can be banned without any scientific proof of harm or
cost-benefit analysis. To date, the United States has wisely eschewed
this principle in World Trade Organization negotiations and other
venues, regarding it as utterly at odds with America's interest in
innovation and entrepreneurial activity.
American ratification of LOST, however, would assist significantly
in establishing the precautionary principle as universal international
law. Such a validation would expose the U.S. and its corporations to
lawsuits under the Alien Tort Claims Act, which as you know, allows
foreign nationals the right to sue in American courts for violations of
international law. Such a development would encourage American courts
to impose the dictates of nonrepresentative international bodies on
American defendants based on alleged violation of the precautionary
principle.
Second, the Law of the Sea Treaty contains provisions that risk
putting sensitive, proprietary and--in some cases, at least--militarily
useful information and technology in the hands of U.S. companies'
competitors and our Nation's adversaries. LOST's proponents would have
you believe that there is no problem with technology transfer since the
Treaty's relevant mandates were eliminated by a 1994 Agreement relating
to the implementation of LOST's Part XI. Unfortunately, this is another
area that cries out for close examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and
was amended by the '94 Agreement. For another, a number of provisions
obligating the transfer of potentially sensitive technology and data
were not addressed in the Agreement. For example, LOST arbitration
procedures specify that parties to a dispute would be required to
provide an arbitral tribunal with ``all relevant documents, facilities,
and information''--a potential avenue for compelling such transfers.
For these, among other reasons, the Coalition to Preserve American
Sovereignty respectfully suggests that, given its jurisdiction, the
Committee on the Judiciary has an obligation to convene its own
hearings on the Law of the Sea Treaty. We formally request that you and
your colleagues afford an opportunity to hear from a number of the
following individuals. Their expertise in a wide variety of fields
should be available to the full Senate before it takes up an accord we
are convinced will be harmful to, not supportive of, our national
interests:
Edwin Meese, former Attorney General; Lawrence Kogan, Institute for
Trade, Standards and Sustainable Development; Jeremy Rabkin, George
Mason University; Andrew McCarthy, Foundation for Defense of Democracy;
Jack Goldsmith, American Enterprise Institute, Harvard Law School;
Peter Leitner, Author, ``Reforming the Law of the Sea Treaty''; John
Fonte, Hudson Institute; Frank J. Gaffney, Jr., former Assistant
Secretary of Defense (Acting); Cliff Kincaid, America's Survival; David
Keene, American Conservative Union; Phyllis Schlafly, Eagle Forum; Fred
Smith, Competitive Enterprise Institute; John O'Sullivan, Hudson
Institute; Doug Bandow, American Conservative Defense Alliance; Baker
Spring, Heritage Foundation; Thomas P. Kilgannon, Freedom Alliance;
Kevin Kearns, U.S. Business & Industry Council.
Sincerely,
Frank J. Gaffney, Jr.
______
Letter From the Chamber of Commerce of the United States of America
To the Members of the United States Senate: The U.S. Chamber of
Commerce, the world's largest business federation representing more
than three million businesses and organizations of every size, sector,
and region, supports ratification of the United Nations Convention on
the Law of the Sea (``Law of the Sea Treaty'' or ``Treaty''). With
various nations claiming control of territory in the Arctic well beyond
those nations' natural borders, ratification of the Law of the Sea
Treaty will provide much-needed certainty and predictability.
In conjunction with ratification of the Treaty, the Chamber
endorses establishment of an Exclusive Economic Zone (EEZ) in which the
United States will exercise sovereign rights over living and non-living
resources and the marine environment within 200 nautical miles of the
coast. The Chamber favors extending the EEZ to the outer edge of the
continental margin (which is composed of the Continental Shelf, the
Continental Slope and the Continental Rise) where the continental
margin extends beyond 200 nautical miles; some estimates indicate that
the continental shelf of the United States extends 600 miles from the
coast of Alaska, north and east of the Bering Strait. Upon ratification
of the Treaty, the United States should promptly file a claim with
United Nations Commission on the Limits of the Continental Shelf to
establish that the United States undersea shelf extends beyond the 200-
mile EEZ.
The Chamber notes, however, that the Treaty's environmental
provisions are written in a very vague and overbroad fashion, and could
be interpreted in a way that conflicts with the nation's environmental
statutes, such as the Clean Air Act and Clean Water Act. The Chamber,
therefore, urges the Senate, in its advice and consent, to state
clearly that the Treaty's environmental provisions are not self-
executing, and that ratification of the Treaty does not create private
rights of action or domestic legal rights against the U.S. government
or its nationals.
Ratification of the Law of the Sea Treaty will protect the claims
of the United States to the vast natural resources contained on the
ocean floor, and will ensure that ships flying American flags will
travel safely and securely through international waters. Therefore, the
Chamber urges the Senate to ratify the Law of the Sea Treaty.
Sincerely,
R. Bruce Josten,
Executive Vice President,
Government Affairs.
______
Pacific Crossing Limited,
Dallas, TX, October 8, 2007.
Re U.S. Accession to the United Nations Convention on the Law of the
Sea.
Senator Joseph R. Biden, Jr.,
Chairman, Senate Foreign Relations Committee,
Dirksen Senate Office Building, Washington, DC.
Senator Richard G. Lugar,
Ranking Minority Member, Senate Foreign Relations Committee,
Dirksen Senate Office Building, Washington, DC.
Dear Senators Biden and Lugar: Pacific Crossing Limited and its
U.S. cable landing licensee, PC Landing Corp. (together, ``PCL''),
urges the Senate to give advice and consent to the U.S. accession to
the United Nations Convention on the Law of the Sea (``UNCLOS'') and
U.S. ratification of the 1994 Implementation Agreement modifying part
XI of UNCLOS (``1994 Agreement'') (collectively the ``Convention'').
PCL owns and operates PC-1, a 21,000 kilometer trans-Pacific fiber
optic network between the U.S. and Japan, with U.S. landing points in
California and Washington State, and is one of only a few major
submarine cables between the U.S. and Japan with available capacity.
Through its own network facilities and/or arrangements with other
telecommunications providers, the PC-1 system provides connectivity to
the major telecommunications interconnection centers in California and
Washington and major metropolitan areas in Japan, where it is
interconnected with other sub-sea networks serving other parts of Asia.
As a major link between the U.S. and Japan and a user of the
international seabed, PCL has a significant interest in the goals of
the Convention, namely protection and preservation of international
submarine cables, rights to lay and maintain cables, and clear
procedures for resolving international disputes. However, the
importance of undersea fiber optic cable networks extends far beyond
PCL's business interests. Undersea cable networks carry 95 percent of
all digital traffic from the U.S. to the rest of the world. U.S. cable
systems are responsible for more than 70 percent of U.S.
telecommunications international connections, including voice, data and
video services. If these cables were suddenly unavailable, only 7
percent of the U.S. communications infrastructure would be available
through the use of satellites. As for Internet capabilities, nearly 100
percent of the global Internet network flows through submarine cables.
As an undersea cable operator, PCL relies heavily on international
treaty protections, which guarantee freedoms to install and maintain
undersea cables, and also provide for compensation to cable owners in
the event of damage to undersea cables. PCL has confronted situations
where coastal states or their constituencies have made jurisdictional
assertions beyond the limits established by the Convention, and have
sought to impose unilateral and unreasonable restrictions on
installation and maintenance operations.
It is critical that the United States, by acceding to the
Convention, clarify that cable operators have the unfettered and timely
access to the seas, as guaranteed by the Convention, and that the
United States will not tolerate excessive jurisdictional claims over
undersea cable operations or imposition of overly burdensome conditions
on installation and maintenance operations. The Convention also
provides important recourse for cable operators against onerous and
unreasonable permitting requirements that may impede the timely repair
and maintenance of undersea cables or delay the construction of new
cables.
Together, Articles 58, 79, and 112 ensure the rights of nations and
private parties to install, maintain and repair cables in the oceans of
the world without interference from coastal states. These protections
extend to activities whether beyond or along the continental shelf, in
the Exclusive Economic Zone, or, subject to certain conditions, in the
territorial sea.
Significantly, fiber optic cable lines are routinely damaged by
fishing vessels and have also been targets of malicious, willful
activity, imposing large costs on operators and users, both in terms of
repair costs, and in extreme cases, where protective circuits are not
available and a cable is forced out of service pending repair. Indeed,
vessel costs alone, associated with a cable repair operation can easily
exceed $500,000, with substantial additional costs for equipment
replacement and repair.
The Convention protects these U.S. interests by holding violators
financially responsible for damage to submarine cables, clarifying the
liability rules applicable to disruption and damage to submarine
cables, and requiring the United States to update its existing
statutory provisions applicable to damage to submarine cables.
Specifically, Article 113 requires all states to implement laws making
it a punishable offense to willfully or negligently damage undersea
cables. Article 114 holds accountable submarine cable owners who damage
other cables inadvertently in installation or maintenance of their own
cables. Article 115 provides compensation for marine vessel owners who
took reasonable measures to avoid harm to cables and in turn suffered
damage to their own vessel or gear.
The Convention also offers a mechanism for international dispute
resolution. It is common for foreign countries to make unilateral and
unreasonable restrictions on repair and maintenance of cables, which
often leads to international lawsuits. These disputes are extremely
costly to private businesses. The Convention includes compulsory
dispute resolution procedures for such claims under Article 297.
By giving advice and consent to the U.S. accession to the
Convention, the Senate will help reinforce access rights and
responsibilities for submarine cable installation and maintenance
operations. This will help ensure the continued investment in and
development of this critical telecommunications infrastructure that is
so vital to our national economic and security interests, and help
preserve the position of the United States as a leader in international
telecommunications.
PCL would be happy to brief you and your staff members regarding
any of the matters mentioned in this letter and to answer any questions
you or your staff may have.
Sincerely,
Roderick Boss,
President and CEO,
Pacific Crossing Limited.
______
State Department Watch,
Woodland Hills, CA, September 17, 2007.
Re U.N. Law of the Sea Convention Hearing, Sept. 27.
Hon. Joseph Biden, Jr.,
Chair, Foreign Relations Committee,
U.S. Senate, Washington, DC.
Dear Chair Biden: This is a request that you include the attached
two-page statement in the record for the hearing on the United Nations
Convention on the Law of the Sea scheduled for September 27.
This is also a request that you invite me to testify at the
proposed October hearing on the same subject. You may remember that we
testified at the hearing on the U.S.-U.S.S.R. Maritime Boundary Treaty.
State Department Watch is a nonpartisan foreign policy watchdog
group. Please address all replies to our West Coast Office.
Sincerely,
Carl Olson,
Chairman,
State Department Watch.
Enclosure.
5 Top Reasons to Defeat LOST
Most of the two-thirds of our Earth's surface is open ocean and is
not under the rule of any government. Practices and disputes are
already handled very well by existing international law on a case-by-
case basis. Despite the lack of widespread government antagonisms over
the high seas, the United Nations wants to jump in and hold sway with
intricate regulations in 400-plus sections of the Law of the Sea
Treaty. The rejection of this misguided LOST by our lawmakers in
Congress would be a major safeguard for the rights and interests of
Americans. Nevertheless, the Bush Administration is plowing forward.
Here are five top reasons to reject LOST.
1. Right now individuals and companies can go into the open ocean
beyond the 200-mile exclusive economic zones and explore for resources.
If they find useful products for the publics of the world, there's
currently nothing stopping them or imposing extra bureaucratic costs.
Now comes the U.N. regime with its LOST Authority and Enterprise which
wants to impose regulations and fees on many of these resource
developers. These mandatory charges are a type of U.N. tax. Moreover,
such companies would then have to become officially sponsored by a
signatory government in order to develop those resources, inasmuch as
the U.N. is made up of governments, not people or companies. Unfair
favoritism by these government sponsors would undoubtedly be the norm,
and cartels could easily hold sway with their substantial political
power.
2. Americans are used to due process rights for all regulatory
activity. At the U.N., however, there are absolutely no rights for any
person or company. Individuals have no right to comment, to appear
before, or be informed for anything in the U.N. The LOST bureaucracy is
lodged in the U.N. Division for Ocean Affairs and the Law of the Sea in
the Office of Legal Affairs. its operations and deliberations are
insulated from the outside world. There is no Freedom of Information
Act for the U.N. Even Congress has a nearly impossible time to conduct
oversight.
3. Instead of addressing one or two subjects, LOST has over 400
sections, It is several times larger than the U.S. Constitution. As a
treaty, it would have the power of the supreme law of the land. Too
much power and authority could easily be surrendered to the U.N. under
LOST without any safeguards for American rights. We all have heard of
the ``devil in the details.'' There are thousands of ``details'' that
the Bush Administration has failed to tell Congress or the public. If
LOST is to be honestly considered, Congress should be considering an
implementation bill at the same time that explains how all the 400-plus
sections will create duties, enforcement responsibilities, appeal
rights, and so on. Such a bill would need to pass both the House and
Senate. The trouble is that the Bush Administration has not presented
such an implementation bill so we can see what it is really up to. We
should also be provided with complete transparency with all the U.N.
Enterprise and Authority proceedings.
4. The State Department would be the lead agency for any and all
activities of LOST at the U.N. Not the Commerce Department, not the
Interior Department, not the Energy Department, and not any other
agency with a primary resource and enterprise mission. Unfortunately
the State Department has been recently lagging in even the most
elemental aspects of ocean issues. For neighboring countries to
administer their 200-mile exclusive economic zones starting back as far
as 1976, the respective governments need to agree on maritime
boundaries. Inexplicably, the State Department has failed to establish
any maritime boundaries with Canada in the Arctic Ocean or the Pacific
Ocean. Even though the state legislature of Alaska complained loudly by
resolution in 1999, no negotiations have been opened up. The State
Department has also failed to assert the American EEZ's with maps for
about 60 American Guano Act islands in the Caribbean Sea and Pacific
Ocean--a lapse amounting to millions of square miles of neglected
resources. Finally, the State Department has not challenged the Russian
suspect claim to the North Pole under LOST provisions which is based on
contested sovereignty over five Arctic islands. If LOST is adopted by
the U.S., the Russians would expect the State Department to support the
process.
5. The International Court of Justice and the International
Tribunal for the Law of the Sea would be charged with adjudicating some
of LOST disputes. These agencies are not part of American jurisprudence
subject to the Bill of Rights, They would be an intrusion into American
law without any specific Congressional authorization. Even more
troubling is how they would attempt to enforce their rulings. Would
they have power over a United Nations Force against Americans? Would
the State Department be allowed and required to enforce the edicts with
the American military, with American spy agencies, with American civil
law enforcement, with U.S. marshals, with state National Guards, or
what? Would the enforcement be against Americans and other country
citizens? Congress should know before it acts.
The issues of the high seas are too important and valuable to leave
up to the chancy administration by the United Nations. The temptation
of corruption, as exemplified in the Iraq Food-For-Oil scandal, is
everpresent with the 180-member governments constantly jockeying for
position and favors with each other, A well-known disappointment is
trying to expect meaningful human rights out of the United Nation Human
Rights Commission which is dominated by infamous human rights abusers.
A better alternative to LOST would be for the U.S. to negotiate
specific topics about the open seas under individual treaties. That
would be the responsible avenue for real progress. The 400-plus
articles of the proposed LOST are too much and too dangerous for the
American public to be force fed.
______
Level 3 Communications
Broomfield, CO, October 15, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Hon. Richard G. Lugar,
Ranking Member, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Chairman Biden and Ranking Minority Member Lugar: As a United
States user of the international seabed, Level 3 Communications LLC,
(LVLT), supports U.S. accession to the Law of the Sea Convention. Level
3 supports the Law of the Sea because the Convention improves
protections for international submarine cables, provides dispute
resolution procedures, and expands the right to lay and maintain
undersea cables. Submarine cables are essential to the U.S. and global
economy given fundamental role of global communications.
Level 3 owns or leases capacity on over 15 international submarine
cables covering more than 350,000 fiber route miles. Our submarine
fiber optic cable capacity along with our 48,000 fiber route miles in
the United States and Europe connects our network and our customers to
North America, Europe, Southeast Asia and Australia. We have access to
85 percent of all the undersea cable system capacity connecting the
United States to the world.
Level 3 expects to increase its submarine capacity to meet the
exponentially increasing demand created by Internet usage. We depend on
the provisions of UNCLOS to work with our global partners who are also
under UNCLOS jurisdiction.
Like other U.S. telecommunications providers, Level 3 uses
international submarine cables to carry its Internet and voice traffic
outside North America. As the consequence of exploding Internet usage
and economic globalization, U.S. undersea cable circuit capacity has
increased by 27,000 percent from 1995 through 2007. These submarine
cables provide backbone international transmission facilities for the
global Internet, electronic commerce, voice and data communication
services that are the drivers of our global information-based economy.
It is essential to protect critically important global network
infrastructure from damage and disruption. The Law of the Sea
Convention significantly improves protections for international
submarine cables against damage by other parties, and protects U.S.
submarine cable owners.
Article 113 requires that all signatories must adopt laws that make
damage to submarine cable, done willfully or through culpable
negligence, a punishable offense. Article 114 requires submarine cable
owners that damage other cables in laying or repairing their cables to
bear the cost of repairs. Article 115 provides that vessel owners, who
can prove they sacrificed an anchor or fishing gear to avoid damaging a
cable, can recover their loss against the cable owner, provided the
vessel took reasonable precautionary measures beforehand.
Additionally, Article 297 provides parties to the Treaty with
compulsory dispute resolution procedures for the provisions concerning
submarine cables. Having rights to this dispute resolution process is a
key benefit of U.S. accession to the Convention, and one that does not
exist for the U.S. presently. Although the U.S. already benefits to
some extent from aspects of the Convention as customary international
law, it cannot take action under the important dispute resolution
provisions until the U.S. accedes to the Additionally, Article 297
provides parties to the Treaty with compulsory dispute resolution
procedures for the provisions concerning submarine cables. Having
rights to this dispute resolution process is a key benefit of U.S.
accession to the Convention, and one that does not exist for the U.S.
presently. Although the U.S. already benefits to some extent from
aspects of the Convention as customary international law, it cannot
take action under the important dispute resolution provisions until the
U.S. accedes to the Convention. The Convention also expands the right
to lay and maintain submarine cables in the oceans of the world.
Articles 58, 79 and 112 establish the rights of nations and private
parties to lay and maintain submarine cables on the continental shelf,
in the Exclusive Economic Zone and on the bed of the high seas.
These articles, supplemented by the compulsory dispute resolution
procedures available to parties to the Convention under Article 297
provide important recourse for Level 3 and other U.S. submarine cable
operators against onerous and unreasonable permitting requirements by
coastal states that may impede the timely repair and maintenance of
undersea cables or delay the construction of new cables.
The United States economy depends on reliability of international
submarine cables. The Law of the Sea Convention, particularly as
assisted by the enforcement mechanisms available to parties under
Article 297, is a critical element of this protection.
Level 3 Communications urges the United States Senate to give its
advice and consent to accede to the Law of the Sea Convention and to
ratify the Agreement Relating to the Implementation of Part X1 of the
Convention.
Please call if you or your staff has any questions.
Sincerely,
John M. Ryan,
Assistant Chief Legal Officer.
______
Military Officers Association of America,
Alexandria, VA, August 29, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I write on behalf of the Board of Directors and
the more than 360,000 members of the Military Officers Association of
America (MOAA), the nation's largest association of uniformed officers.
Although we are an Association of officers and their surviving spouses,
we represent the interests of all men and women in uniform, as well as
those of their families and survivors, through our dedication to
maintaining a strong national defense. It is in this capacity that I
write to urge you to complete favorable Committee action on the Law of
the Sea Convention and to bring it to the full Senate for consideration
and accession.
MOAA joins many others--organizations and individuals alike--who
recognize the critical national-defense implications that are addressed
by the Convention. With our Armed Forces now under inordinate stress
and facing greatly increased operational tempo, United States accession
to the Convention will support our maritime strategy today, and will
well serve our military and economic interests in the future.
We very much appreciate your tireless efforts, and those of Ranking
Member Senator Lugar, in bringing this important decision to the Senate
for its favorable consideration, which MOAA strongly endorses.
Sincerely,
Michael P.C. Carns,
General, U.S. Air Force, Retired,
Chairman of the Board.
______
August 15, 2007.
Hon. Joseph Biden,
Chirman, Foreign Relations Committee,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: As former Commandants of the U.S. Coast Guard,
we welcome the President's May 15th statement in support of Senate
approval of the Law of the Sea Convention during this session of
Congress, as well as the Senate Foreign Relations Committee's support
of moving the treaty forward. The Coast Guard has long been a proponent
of achieving a comprehensive and stable regime with respect to
traditional uses of the oceans. As the current Commandant noted in his
May 17th statement supporting the Convention, ``[f]rom the Coast
Guard's perspective, we can best maintain a public order of the oceans
through a universally accepted law of the sea treaty that preserves and
promotes critical U.S. national interests.''
National interests at stake include freedom of navigation, maritime
security, law enforcement, and protection of the marine environment. In
each respect, the Convention provides a legal and policy framework that
serves U.S. interests. As a global maritime power and a nation with one
of the longest coastlines, the United States has strong interests both
in preserving freedom of the seas and in protecting our own coastal
areas, including offshore marine resources. The Convention strikes the
right balance between these sets of interests.
The Coast Guard has multiple missions, each of which would benefit
from U.S. accession to the Convention. As part of the U.S. armed
forces, the Coast Guard relies on the Convention's freedom of
navigation on principles to use the oceans to meet national security
requirements. In this regard, the Convention secures the right of our
military and commercial vessels and aircraft to move through, under,
and over the world's oceans, including through the enjoyment of the
rights of innocent passage, transit passage, and archipelagic sea lanes
passage, as well as high seas freedoms. While the United States has to
date relied upon the Convention's navigational provisions by asserting
that they are reflective of customary international law, becoming a
part to the Convention would enhance our ability to invoke and enforce
these provisions. In other words, we should be putting these vital
navigational rights on the firmest possible legal footing.
As a law enforcement agency and lead Federal agency for maritime
security, the Coast Guard also relies on the Convention's framework.
The Convention limits a nation's territorial sea to 12 nautical miles,
beyond which all nations enjoy the freedom to engage in law enforcement
activities. The Coast Guard relies upon these freedoms to conduct
extensive maritime interdictions including of illicit drug traffickers
and other criminals. Many interdictions and seizures take place on
distant maritime transit routes far from our shores. As a party to the
Convention, we would undoubtedly be in a stronger position to engage in
such operations and refute excessive maritime claims of other countries
(which often have the effect of creating maritime safe havens).
Closer to our shores, and vital to our homeland security, the Coast
Guard benefits from other provisions of the Convention. By providing
for a 24-mile contiguous zone, the Convention enhances our ability to
interdict foreign flag vessels off the U.S. coast for violations of
customs, immigration, fiscal, and sanitary laws. The Convention also
supports our ability, as a port State, to condition entry into U.S.
ports and enforce U.S. laws therein. As just one example, the Coast
Guard conducts a wide-ranging port State control program to purge our
waters of substandard vessels,
The Coast Guard is actively involved in efforts at the
International Maritime Organization to develop international vessel
standards to improve marine safety (such as regarding safety of life at
sea) and protection of the marine environment (such as concerning oil
discharge). Becoming a party to the Convention would increase our
credibility and influence as the international community interprets and
applies the relevant provisions of the Convention.
For all these reasons, it is high time the United States got off
the sidelines and joined the Law of the Sea Convention. Joining would
not only increase the ability of the Coast Guard to carry out its
multiple maritime missions, but would also enhance the ability of the
United States to guarantee its national security and economic rights,
to challenge excessive maritime claims of other countries, and to
maximize its influence in the application of the Convention to real-
world situations.
Each of us has had opportunities to engage colleagues from around
the world on these issues over the years. To our understanding, all the
issues that have prevented ratification have been satisfactorily
solved. We each and together solicit committee and full Senate approval
during this congressional session.
ADM Thomas H. Collins,
USCG (Ret.).
ADM James M. Loy,
USCG (Ret.).
ADM Robert E. Kramek,
USCG (Ret.).
ADM Paul A. Yost,
USCG (Ret.).
______
United Nations Association of the USA
and the Business Council for the U.N.,
New York, NY, July 3, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Mr. Chairman: On behalf of the Board of Directors of the
United Nations Association of the USA (UNA-USA) and our members
throughout the country, I would like to offer our strong endorsement of
your efforts to achieve United States accession to the U.N. Convention
on the Law of the Sea. Our Association has supported this important
treaty since it was adopted by the U.N. General Assembly in 1982. UNA-
USA's institutional interest in the treaty stems, in large part, from
our late chairman, Ambassador Elliot L. Richardson, who represented the
United States at the international negotiations that produced the
treaty. Ambassador Richardson often referred to the successful outcome
of the negotiations as one of his greatest achievements.
It is a testament to the treaty's value to U.S. national interests
that all sectors of American civil society, industry, and government
with a direct stake in oceans issues strongly supports the Law of the
Sea Treaty. We agree with their expert analyses that U.S. accession
would provide crucial and wide-ranging benefits for U.S. national
security, commerce, and environmental conservation. For instance, the
treaty guarantees critical navigation and overflight rights through
strategic sea lanes for both commercial and military craft, codifies
U.S. control over extensive oil, gas, and fisheries resources up to 200
miles from shore, and establishes anti-pollution and marine
conservation obligations.
In addition to the benefits that would be derived from joining the
treaty, the case for ratification is bolstered by the dangers of
inaction. By failing to ratify the treaty, the United States is unable
to participate fully in decisions concerning amendments to the treaty
and in the deliberations of treaty bodies, such as the Commission on
the Limits of the Continental Shelf. The Commission's workload is
sharply increasing and it will be making important decisions on a
number of countries' claims to jurisdiction beyond the 200-mile
Exclusive Economic Zone.
In our view, the U.N. Convention on the Law of the Sea fulfills a
longstanding objective of U.S. policy--the creation of a widely
accepted comprehensive legal framework regulating the use of the
world's oceans. With extensive economic and political interests
spanning the globe, one of the world's longest coastlines, and some of
the earth's richest waters, the United States has more to gain from
joining this legal regime than any other country. Thank you for your
efforts to ensure that the United States does not lose out on these
important benefits.
Sincerely,
William H. Luers,
President.
______
National Ocean Industries Association,
Washington, DC, June 19, 2007.
Hon. Joe Biden,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Chairman Biden: The National Ocean Industries Association
(NOIA) is the only national trade association representing all segments
of the offshore energy industry. Our 300 member companies are engaged
in activities ranging from drilling to producing, engineering to marine
and air transport, offshore construction to equipment manufacture and
supply, and telecommunications to finance and insurance.
We strongly support U.S. ratification of the United Nations Law of
the Sea Convention. The convention offers a non-adversarial process.
for resolving potential disputes and conflicts over the precise limits
of the outer continental shelf where the margin extends beyond 200
miles. The assertion of jurisdiction over the development of natural
resources beyond 200 miles to the outer edge of the continental margin
is particularly important to the United States, because this is one of
the few nations in the world with broad continental margins. The legal
certainty provided by the convention with respect to control of these
resources is a critical component of industry's willingness to make the
investments needed to develop important energy resources.
By staying outside the treaty, the United States forfeits its
membership in institutions that will make decisions about the future of
the oceans and increases the risk that such decisions will be contrary
to U.S. interests.
NOIA requests that you take action on this matter in the Foreign
Relations Committee and urge your colleagues to ratify the convention.
Your leadership in this matter is greatly appreciated, and we thank you
for considering our views.
Sincerely,
Tom Fry,
President.
______
The Pew Charitable Trusts,
Philadelphia, PA, May 30, 2007.
Hon. Joseph R. Biden,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The United Nations Convention on the Law of the
Sea (Convention) has established a comprehensive, international
framework for coordinated cooperation by the global community of
nations to both protect the marine environment and promote its
sustainable development. We commend you for your leadership and welcome
the President's support for U.S. Senate ``advice and consent'' to
accession to the Convention. We urge the Members of the Senate to give
their early consent to such accession during this 1st Session of the
110th Congress.
In the Trusts' view, the benefits of the Convention far outweigh
any real or perceived drawbacks. Its basic obligations call upon all
states to protect and preserve the marine environment and conserve
marine living species, and to further develop global and regional rules
on these subjects--set within a framework of important, guiding
principles and objectives. It addresses existing rights and
responsibilities, on the one hand, while facilitating the further
development and implementation, on the other, of effective global,
regional, sub-regional and national measures for the protection,
conservation and sustainable use of the oceans.
The Convention defines the rights and obligations upon which other
international environmental and marine resource treaties are based,
necessitating cooperation in the conservation of marine resources in
international waters with those multi-lateral environmental agreements.
In addition, coastal states are also required to take measures to
preserve marine life in their own waters. The scope of conservation-
related issues covered by the Convention is deservedly far-ranging,
from fisheries management to vessel pollution, ocean dumping,
protection of marine mammals, and prevention of invasive species, inter
alia.
New issues related to global warming, including international
questions of access to oil and gas reserves beneath the polar ice cap,
have reawakened interest in the Convention among policymakers, ports,
and energy companies. Recent data on the melting of the Arctic ice cap
has both business and governments involved in a multi-billion-dollar
rush for virgin territory and natural resources. Yet it is unclear
where the rights to those resources lie, with similar access questions
raised for fishery resources.
As is evident from the new pressures confronting the Arctic, the
Convention's reach extends far beyond conservation measures, including
but not limited to navigation and over-flight, development of minerals
in offshore and deep seabed areas, commercial and sport fishing, marine
scientific research, maritime boundaries, laying of submarine cables
and pipelines, artificial islands and seabed installations, piracy,
illicit drug trafficking, and dispute settlement.
The Trusts are impressed by the depth and diversity of support for
U.S. accession to the Convention. It has been endorsed within the Bush
Administration by the Departments of Defense, State and Homeland
Security, the National Security Council, Joint Chiefs of Staff, and the
U.S. Navy; by diverse business sectors involving oil, gas and minerals
extraction, telecommunications, shipping, shipbuilding, fishing and
others; and by consortiums and coalitions, including the Joint Ocean
Commission Initiative, as well as the environmental and marine
communities.
At present, the United States largely complies with the obligations
set out in the treaty. U.S. accession, however, would give current and
future administrations enhanced credibility and leverage in calling
upon other nations to meet Convention responsibilities. With these
considerations in mind, The Pew Charitable Trusts urges that the U.S.
Senate convene the necessary hearings and give its ``advice and
consent'' to accession, enabling the United States to avail itself of
the full suite of Law of the Sea Convention rights and
responsibilities.
With special thanks, in advance, for your leadership on this
important undertaking.
Respectfully,
Joshua S. Reichert,
Managing Director,
Pew Environment Group.
______
Joint Ocean Commission Initiative,
Washington, DC, May 17, 2007.
President George W. Bush,
The White House,
Washington, DC.
Dear Mr. President: We commend you for your strong statement of
support for United States accession to the United Nations Convention on
the Law of the Sea and your continuing commitment to the nation's
leadership in international ocean governance. Accession to the
Convention will protect U.S. security and sovereignty, promote
international commerce, and further the conservation of ocean
resources, while also enhancing progress toward a coordinated and
comprehensive national ocean policy.
As co-chairs of the Joint Ocean Commission Initiative, a
collaborative and bipartisan effort to advance the pace of meaningful
ocean policy reform, we are deeply gratified by your robust
reaffirmation of the Convention as being vital to our national
interests. As you will recall, both the U.S. Commission on Ocean
Policy, to which you appointed all 16 members, and the privately funded
Pew Oceans Commission, unanimously recommended accession to the
Convention. In fact, the U.S. Commission's first official act was the
adoption of a policy resolution urging accession after its initial
organizational meeting in the fall of 2001.
Accession to the Convention will advance U.S. interests by
preserving the right to use the seas to meet national security
requirements and protect navigational freedom for commercial vessels to
operate around the world. It also secures our rights to natural
resources through the full extent of the continental shelf, even beyond
200 nautical miles. Additionally, the Convention promotes the
environmental health of the oceans by supporting scientific research
critical to understanding and managing the oceans. This is why the
Convention enjoys diverse and strong support from virtually every
sector, including national defense interests, ocean-dependent
industries, and the environmental and scientific communities.
The time is long overdue for the U.S. to regain a leadership role
in the governance of our world's oceans. The Joint Initiative remains
committed to working with your Administration to secure the Senate's
advice and consent to U.S. accession before the first session of the
110th Congress adjourns. We urge your continued and vigorous personal
support in this and related efforts to advance U.S. interests in the
world's oceans.
Sincerely,
James D. Watkins,
Admiral, U.S. Navy (Ret.),
Chairman, U.S.
Commission on Ocean
Policy.
Hon. Leon E. Panetta,
Chair, Pew Oceans
Commission.
______
University of Notre Dame,
Notre Dame, IN, February 28, 2007.
Hon. Richard G. Lugar,
Committee on Foreign Relations,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Lugar: The purpose of this letter is to prompt your
committee to reconsider the United Nations Convention on the Law of the
Sea. This Convention addresses important issues, among them: fisheries
management, pollution protection, continental shelf resources and the
rights of overflight aircraft. A favorable review and vote by your
committee would allow the full Senate to vote on ratification of this
Convention. The UNCLOS has long been shown to provide numerous national
and international advantages to the United States. I fully support
ratification.
Looking backward, the UNCLOS tent was negotiated by more than 120
nations over a period of 8 years. As a result, the Convention contains
many compromises. From a U.S. perspective, most U.S. interests. were
accommodated in the text. Certain flaws were rectified in the ocean
mining section and the revised version was forwarded to the Senate for
consideration in 1994. Ratification was supported by the U.S. Ocean
Commission in 2001 and the Senate Foreign Relations Committee in 2003.
At present, 151 nations have ratified the Convention, which came
into force in 1994, following ratification by 60 nations. Currently the
text is being implemented. The U.S. is not included in these decisions
as the operational procedures are developed. This situation is not
prudent and can only be rectified by our ratification.
Looking ahead, ratification will benefit our national security and
our private interests along our coastline, offshore and overseas.
Ratification will also result in the U.S. to having a full voice in all
UNCLOS deliberations.
In closing, I strongly suggest that Committee take action and that
your leadership will in turn lead to ratification by the Senate of the
United Nations Convention on the Law of the Sea.
Very sincerely yours,
(Rev.) Theodore M. Hesburgh, C.S.C.,
President Emeritus.
______
February 6, 2007.
Hon. Joseph R. Biden, Jr., Chairman,
Hon. Richard G. Lugar, Ranking Member,
Foreign Relations Committee, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Senators Biden and Lugar: On behalf of our organizations, we
write to urge you to expeditiously report a Resolution of Ratification
calling upon the full Senate to give its advice and consent to U.S.
accession to the United Nations Convention on the Law of the Sea
(UNCLOS).
Our organizations together represent more than a million members,
supporters and activists concerned with the conservation of marine
resources both here in the United States and on the high seas. We
believe prompt U.S. accession to the Convention is essential to the
ability of the United States to exercise leadership in key upcoming
debates and decisions on international fisheries policy, biodiversity
conservation, and appropriate management of rapidly expanding human
activity on the high seas.
The Convention establishes an important foundation for the further
development and implementation of effective ocean-related international
law and policy at global, regional, sub-regional levels, as well as
nationally, for protection, conservation, and sustainable use of the
ocean. Its basic obligations for all states to protect and preserve the
marine environment and to conserve marine living species, its call for
the further development of global and regional rules on these subjects,
and the principles and objectives it establishes for that development
represent significant steps forward.
All major U.S. ocean industries, including the offshore oil and
gas, maritime transportation and commerce, fishing and shipbuilding
support U.S. accession to the Convention. The fact that our community
and a diverse set of industry interests all support swift ratification
is testament to the importance of moving forward quickly.
We look forward to working with you to achieve this important goal.
Sincerely,
Frances G. Beinecke, President, Natural Resources
Defense Council; William M. Eichbaum, Vice
President, World Wildlife Fund, Marine
Portfolio; Scott Hajost, Executive
Director, IUCN-U.S.; Jimmie Powell,
Director of Government Relations, The
Nature Conservancy; Robert Irvin, Senior
Vice President for Conservation Programs,
Defenders of Wildlife; Phil Clapp,
President, National Environmental Trust;
Sylvia Earle, President, Deep Search
International, Chairman, Deep Ocean
Exploration, National Geographic Explorer-
in-Residence; John F. Calvelli, Senior Vice
President for Public Affairs, Wildlife
Conservation Society; Vikki Spruill,
President and CEO, The Ocean Conservency;
Elliott Norse, Ph.D., President, Marine
Conservation Biology Institute; and Michael
F. Hirshfield, Ph.D., Senior Vice
President, North America, Chief Scientist,
Oceana.
______
November 26, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Hon. Richard G. Lugar,
Ranking Member, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Chairman Biden and Ranking Member Lugar: At the Committee
business meeting on October 31st, during discussions preceding the
Committee's vote on the Law of the Sea Convention, two members of the
Committee raised questions concerning the military activities exemption
to compulsory dispute resolution. Given the importance of this issue,
we would like to take this opportunity to review the compulsory dispute
resolution procedures contained in Part XV, Section 2, of the
Convention, and explain, in detail, how Article 298 of the Convention,
under its express terms, will permit the United States to completely
exempt its military activities from dispute resolution, and prevent any
court or tribunal from reviewing our determination that an activity is
an exempted military activity.
Part XV, Section 2, of the Convention is titled, ``Compulsory
Procedures Entailing Binding Decisions.'' Section 2 is comprised of a
number of Articles which contain the compulsory dispute resolution
procedures that some are concerned could be used to effect a review of
our military activities.
Section 2 begins with Article 286, which provides that, ``[s]ubject
to section 3, any dispute concerning the interpretation or application
of this Convention shall, where no settlement has been reached by
recourse to Section 1, be submitted at the request of any party to the
dispute to the court or tribunal having jurisdiction under this
section.'' That is, the limitations and exceptions to jurisdiction set
out in Section 3 of Part XV are regarded as sufficiently central to
this entire Section 2 as to begin the first sentence of the first
article of the section.
Article 287 then provides the choice of tribunal election. The
proposed Senate advice and consent resolution, at the President's
request, rejects the first two choices available (i.e. the
International Court of Justice and the International Tribunal for the
Law of the Sea) and instead chooses arbitration (referred to formally
as arbitral tribunals).
The other procedures established in Section 2 include Article 288,
which provides that a court or tribunal has authority to determine its
own jurisdiction, Article 290, which empowers a court or tribunal to
impose provisional measures, and Article 292, which empowers a court or
tribunal to order the prompt release of a vessel or crew detained only
for illegally fishing or committing an act of marine pollution (in
accordance with Articles 73 or 230 of the Convention).
The military activities exemption is then contained in Part XV,
Section 3, Article 298, as was cross-referenced as an exception in the
very first sentence of Section 2 which sets up the compulsory dispute
settlement procedures. It provides in pertinent part:
When signing, ratifying or acceding to this Convention or at
any time thereafter, a State may . . . declare in writing that
it does not accept any one or more of the procedures provided
for in section 2 with respect to one or more of the following
categories of disputes. (emphasis added)
There then follow three categories of disputes: maritime boundary
disputes, disputes concerning military activities, and disputes
involving matters before the United Nations Security Council. The
President has asked the Senate to exempt all three categories and this
blanket exemption is in the proposed Senate resolution of advice and
consent.
The key language in Article 298 is: ``A State may . . . not accept
any one or more of the procedures provided for in section 2.'' Thus,
under this provision a State has the right when adhering to the
Convention to preemptively and completely reject any or all of the
dispute resolution procedures in Section 2, including the procedures
set out in Articles 286, 287 and 288. It is those very procedures that
a court or tribunal would have to rely upon to seek to assert
authority. That is, by ``not accepting'' for military activities the
obligation itself to submit to dispute settlement procedures under
article 286, not accepting any of the tribunals under Article 287, and
not accepting the jurisdiction of any court or tribunal even to
determine its own jurisdiction under Article 288, there is not even an
initial acceptance of the principal of dispute settlement, or a
tribunal for any purpose, with respect to military activities. That is,
no tribunal, or even agreement over dispute resolution, exists for
military activities following U.S. exemption of such activities as
permitted by Article 298.
Thus, the Convention itself makes clear that a State party can
completely reject all the dispute resolution procedures in Section 2
for disputes involving maritime boundaries, military activities, and
matters before the Security Council. There would be no processes or
procedures available to an opposing State or court or tribunal to
attempt to review the State's determination that an activity is a
military activity. Military officers serving as members of the United
States delegation that negotiated the Convention, and one of us as
Presidents Nixon's and Ford's Deputy Special Representative for the Law
of the Sea Negotiations, ensured that the military activities exemption
is ironclad.
All permanent members of the United Nations Security Council
(except, as yet, the United States) and numerous other countries have
invoked the military activities exemption when adhering to the
Convention. They, like us, would never accept a court or tribunal
acting ultra vires--beyond the limits of the Convention itself.
We note also that the Convention provides for complete sovereign
immunity for warships. Thus, Article 32 provides in relevant part
``nothing in this Convention affects the immunities of warships and
other government ships operated for non-commercial purposes.'' It would
be a mistake to attempt to define the phrase ``military activities.''
It is unnecessary and unwise to try to capture, in a definition today,
future military activities and technologies that are yet to be
imagined.
Finally, so that no one could mistake the United States non-
acceptance under Article 298, the proposed Senate Resolution of Advice
and Consent provides ``The United States further declares that its
consent to accession to the Convention is conditioned upon the
understanding that, under article 298(l)(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.'' Clearly under this provision ultra vires actions of any
tribunal which were taken despite the clear language of the Convention
would simply not be followed by the United States.
The language of the Convention and of the Senate Resolution of
Advice and Consent matters. It cannot simply be ignored. That language
makes it clear that military activities are completely exempted from
dispute settlement and that warships have complete sovereign immunity.
Sincerely,
John Norton Moore,
Director, Center for Oceans
Law & Policy and
Professor of Law,
University of Virginia,
former Chairman of the
National Security
Council Interagency Task
Force on Law of the Sea,
and U.S. Ambassador and
Deputy Special
Representative of the
President for the Law of
the Sea negotiations.
William L. Schachte, Jr.,
RADM, JAGC, USN (Ret.),
Member of the U.S.
Delegation to the Law of
the Sea Convention under
President Reagan, Former
DOD Representative for
Ocean Policy Affairs.
Edwin D. Williamson,
Senior Counsel, Sullivan &
Cromwell LLP Former
State Department Legal
Adviser.
______
New York City Bar,
Committee on International Environmental Law,
New York, NY, November 16, 2007.
Re United Nations Convention on the Law of the Sea.
Hon. Joseph R. Biden, Jr.,
Chairman, U.S. Senate, Committee on Foreign Relations,
Hart Senate Office Building, Washington, DC.
Hon. Richard G. Lugar,
Ranking Minority Member, U.S. Senate, Committee on Foreign Relations,
Russell Senate Office Building, Washington, DC.
Dear Senators Biden and Lugar: The New York City Bar Committee on
International Environmental Law urges the United States Senate to give
its prompt consent to the ratification of the United Nations Convention
on the Law of the Sea (``UNCLOS'') and to the ratification of the
Agreement Relating to the Implementation of Part XI of the Convention.
The New York City Bar was founded in 1870 and has grown to more
than 23,000 members. The Committee on International Environmental Law
is comprised of attorneys working in the private, public and non-profit
sectors and specializing in environmental law, commercial litigation,
corporate law, land use law and admiralty law. The Committee studies
and makes recommendations with regard to international environmental
issues in order, to promote the development, enforcement and
harmonization of international law for the protection of the
environment.
In the past several years, the state of our oceans has received
increasing public attention. In 2003 and 2004, the Pew Oceans
Commission and the U.S. Ocean Commission conducted the first
comprehensive reviews of the state of the oceans since the Stratton
Commission of 1969. Their findings noted ongoing serious and chronic
overfishing, wasteful and excessive bycatch, and serious declines in
both coastal and offshore marine habitats due to pollution and
destructive fishing practices. In addition, both commissions
highlighted major threats from the spread of invasive species, global
climate change, recreational and commercial marine transport, and
population growth.
In 2006, Congress took action to strengthen its federal fisheries
law, the Magnuson-Stevens Fishery Management and Conservation Act, in
ways generally consistent with the recommendations of both commissions
to stop overfishing, protect marine habitats and to regulate and reduce
bycatch. Similarly, this Congress has maintained provisions of other
federal environmental laws, such as NEPA, the Endangered Species Act,
and the Marine Mammal Protection Act, that are protective of the marine
environment. As the nation with the largest Exclusive Economic Zone in
the world, our actions in our own waters invariably affect the
condition of the global oceans. Therefore, the Committee commends such
domestic actions as the first crucial step toward reversing the
declining health of our oceans.
However, the declining health of the oceans is truly a global
concern that requires coordination and cooperation at the international
level. UNCLOS is the legal foundation upon which international ocean
resource use and protection is built. With more than 150 signatories,
it is aptly described as a ``constitution for the oceans,'' and
provides for a comprehensive framework for navigating and managing the
world's oceans. Ratification of UNCLOS will:
(1) Promote Pollution Prevention--UNCLOS encourages nations
to prevent pollution of their own territorial waters and to
prevent the transfer of pollution to other nations. By
improving marine safety, UNCLOS serves to reduce the risk of
catastrophic accidents that can harm marine environments.
(2) Promote Fishery Conservation--UNCLOS codifies the
establishment of Exclusive Economic Zones and unquestionably
affirms the jurisdiction of states to enact and enforce
appropriate fishery conservation and management measures within
their Exclusive Economic Zones. This allows states to protect
their fisheries, as well as endangered species, marine mammals
and other biota of special concern.
(3) Strengthen Security--UNCLOS improves the safety and
security of worldwide navigation. It encourages states to
establish vessel traffic separation schemes and requires states
to insure that vessels flying their flags or registered with
their registry comply with applicable international rules and
standards (see Article 217).
As a nation that has consistently led efforts to conserve and
protect marine resources within our Exclusive Economic Zone, it is only
to the benefit of the United States to ratify UNCLOS. It will
perpetuate our nation's leadership in conserving marine resources at
home and abroad.
For the above reasons, the Committee recommends that the Senate
take immediate action to consent to the ratification of UNCLOS.
The Committee appreciates the opportunity to comment on this
important matter.
Sincerely,
John Rousakis,
Chair.
______
California Western School of Law,
San Diego, CA, November 15, 2007.
Re Law of the Sea Convention.
Senator Joseph Biden,
Chair, Senate Foreign Relations Committee,
Russell Senate Office Building, Washington, DC.
Dear Senator Biden: I urge you to support U.S. accession to the Law
of the Sea Convention. This is an issue I have followed closely for
over twenty years, and I strongly believe that U.S. acceptance of the
Convention, which 155 other nations have accepted, will greatly enhance
U.S. national security interests and other U.S. interests.
The strongest reason for U.S. acceptance is that the Convention's
navigation provisions, including especially transit passage through
straits, are essential to U.S. national security. The Foreign Relations
Committee heard striking testimony from U.S. military leaders about how
practically important U.S. acceptance of the Convention is for our
navy's safety and for U.S. ability effectively to resist creeping
jurisdictional claims by coastal nations. In these dangerous times, for
the Senate to reject or postpone consideration of a treaty that
President Bush and the Joint Chiefs of Staff support as integral to our
national security would be irresponsible. Commercial interests also of
course benefit from the Convention's navigation provisions. In
addition, the Convention creates a mechanism that allows recognition of
stable outer boundaries to the continental shelf, something that oil
companies know to be essential if they are ever to exploit the oil and
gas resources of the continental shelf beyond 200 miles from U.S.
baselines. U.S. negotiators, in my view, did a magnificent job of
assuring, in the Convention, navigational freedoms in international
common space owned by no state, and at the same time giving the United
States rights over resources in an offshore area (the exclusive
economic zone) that is larger than that of any other country. The
Convention also is important in the day-to-day conduct of international
relations. U.S. acceptance of the Convention will signal, in a forceful
way, U.S. respect for the rule of law in international commerce and
other matters.
I have been struck by statements of the few vocal opponents of the
Law of the Sea Convention that, frankly, are simply incorrect:
--It is not true, as opponents suggest, that the Convention
enmeshes this country in United Nations organizations: It does
not. This is a treaty among states, not a United Nations
initiative. The treaty does create a Commission on the Limits
of the Continental Shelf and an International Seabed Authority
(ISA), each with a narrow, technical mandate. Neither body is a
U.N. organization. U.S. participation in these bodies will
allow us to resist expansive claims by other states (e.g., the
Russian claim to the Arctic continental shelf) and resist any
effort within the ISA to broaden its mandate (e.g., to
encompass deep sea vent resources that are important to the
multi-billion dollar biotechnology industry).
--It is not true, as opponents suggest, that the Convention
allows the ISA to adopt, over U.S. objections, significant
financial measures related to mining the seabed beyond the
limits of national jurisdiction with which the United States
disagrees. The original 1982 Convention provisions on seabed
mining, which led to President Reagan's refusal to sign the
Convention, were fixed by the 1994 Agreement, which legally is
an integral part of the Convention. This Agreement met every
one of President Reagan's objections, and it gives the United
States a veto over substantive measures being considered by the
ISA. All seabed mining beyond the limits of national
jurisdiction (which remains far in the future) will be
conducted through this revised international regime; no
commercial U.S. exploitation of deep seabed minerals will be
viable outside this regime.
--It is not true, as opponents suggest, that the Convention
will undercut U.S. security interests by, for example, impeding
efforts under the Proliferation Security Initiative. As State
Department officials, U.S. military officials, and Ambassador
Bolton have testified, this assertion is simply false. Indeed,
if we refuse to accept the Convention, some states with which
we would like to cooperate on PSI efforts may well be reluctant
to cooperate. As the Joint Chiefs have made clear, the
Convention strengthens U.S. security.
--It is not true, as opponents suggest, that the Convention
will force changes in U.S. law or allow private U.S. lawsuits
based on the Convention alone. The U.S. understandings and
declarations (as proposed in 2004), and particularly the U.S.
provision that Convention articles will not be self-executing,
assure that no changes will be made in U.S. law unless they are
implemented by legislation. Should the United States not accept
the Convention and this non-self-executing declaration, the
chances actually increase over time that some U.S. courts may
directly apply Convention provisions as customary international
law.
--It is not true, as opponents suggest, that the Law of the Sea
Convention will undercut U.S. sovereignty. This assertion is
puzzling. One hallmark of a sovereign state is its ability to
accept treaties and to participate in international
organizations. Entities that are not sovereign do not have this
ability. And again, the Convention provides the United States
with extensive legal rights in the oceans, an international
common space that is not owned by any country; the Convention,
rather than restricting our sovereignty, expands our rights. I
gather that the ``sovereignty'' concern of opponents is really
based on the Convention's third-party dispute settlement
provisions, The United States strongly sought these provisions
during the negotiation of the Convention, in order to help
solidify the navigational and other rules specified in the
Convention, and similar dispute settlement provisions are
standard features of many U.S. treaties. Indeed, the Law of the
Sea Convention's dispute settlement provisions are the exact
same provisions that the United States itself has already
accepted, for they are incorporated in the 1995 Fish Stocks.
Agreement (a treaty that the Senate approved and the United
States ratified when the Foreign Relations Committee was under
the leadership of Senator Jesse Helms). The Law of the Sea
Convention's dispute settlement provisions exempt military
matters and other sensitive disputes from the scope of third-
party jurisdiction. The merits of any dispute involving the
United States would be heard by a technical or an arbitral body
rather than by the International Tribunal on the Law of the
Sea. (I note in passing that the ITLOS's jurisprudence has in
any event been conservative. For example, in the Saiga case the
tribunal reinforced traditional understandings of navigation
rights in the exclusive economic zone.) In sum, the
Convention's dispute settlement provisions help to reinforce
Convention rules important to the United States, cannot
threaten any vital U.S. interests, and, indeed, have already
been accepted as treaty law by the United States.
I strongly urge you to support. U.S. acceptance of the Law of the
Sea Convention.
Sincerely,
John E. Noyes,
Professor of Law.
______
Citizens for Global Solutions,
Washington, DC, November 5, 2007.
Hon. Joseph R. Biden,
U.S. Senate, Russell Senate Office Building,
Washington, DC.
Dear Senator Biden: I write to thank you for your principled
leadership in the Foreign Relations Committee to send the Law of the
Sea Convention to the full Senate. Citizens for Global Solutions
believes that U.S. accession to the treaty will help restore our
international leadership role and advance our security, economic, and
environmental interests. Along with the Bush administration, military
leaders, environmental groups, ocean industries and research societies,
we are grateful for your support and look forward to your continued
leadership on this important issue to quickly obtain the advice and
consent of the full Senate on U.S. accession to the Law of the Sea.
Sincerely,
Don Kraus,
Executive Vice President.
______
Center for Oceans Law and Policy,
University of Virginia School of Law,
Charlottesville, VA, October 29, 2007.
Hon. Richard G. Lugar,
Ranking Minority Member, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Senator Lugar: The Minority Staff Director of the Senate
Foreign Relations Committee suggested that I share with you my views
regarding the legal effects of the Law of the Sea Convention in United
States courts as well as the state-to-state dispute resolution
provisions of that Convention. Let me begin by noting that I have the
background experience and knowledge to answer this question, having
served as the Chairman of the National Security Council Interagency
Task Force on Law of the Sea (which coordinated eighteen U.S.
Government agencies in developing U.S. oceans policy) and Deputy
Special Representative of the President for the Law of the Sea under
the Republican Presidents, Nixon and Ford, was appointed as an
Ambassador for the negotiations by President Ford (and in that capacity
was a U.S. Representative and Deputy Head of the U.S. Delegation during
the negotiations of the dispute resolution provisions of the
Convention), and was appointed by President Ronald Reagan to the
National Advisory Committee on Oceans and Atmosphere. I also served in
the Reagan Administration as the Chairman of the Board of the United
States Institute of Peace and in that capacity set up and ran the
Institute, then the newest federal agency, for its first five years.
Perhaps also of relevance, I am a former four-term chairman of the
American Bar Association Standing Committee on National Security Law,
and currently direct the Center for Oceans Law & Policy of the
University of Virginia, which has published the definitive six-volume
article-by-article analysis of the Law of the Sea Convention used by
governments all over the world.
First, let me address the legal effects of the Law of the Sea
Convention in United States Courts. If the United States ratifies the
Convention pursuant to the stipulations contained in the ``Resolution
of Advice and Consent to Ratification'' and the Committee Report of
March 11, 2004, the Convention will not create private rights of action
or other enforceable legal rights in United States courts. Section
3(24) of the U.S. ``Declarations and Understandings'' in the proposed
Senate Resolution clearly provides that all provisions of the
Convention other than those providing the usual diplomatic privileges
and immunities ``are not self-executing.'' Quite simply this is legally
definitive under the foreign relations law now in force in the United
States in establishing, as the accompanying Committee Report states,
that ``the Convention . . . do[es] not create private rights of action
or other enforceable legal rights in U.S. courts. . . .'' Indeed, it is
useful to look more fully at the statement made in the 2004 Committee
Report, which provides as follows:
The twenty-fourth declaration relates to the question of
whether the Convention and Agreement are self-executing in the
United States. The committee has included a declaration that
the Convention and Agreement, including amendments thereto and
rules, regulations, and procedures thereunder, are not self-
executing for the United States, with the exception of
provisions related to privileges and immunities (articles 177-
183, article 13 of Annex IV, and article 10 of Annex VI).
Consistent with the view of both the committee and the
Executive Branch, this declaration states that the Convention
and Agreement do not create private rights of action or other
enforceable legal rights in U.S. courts (e.g., for persons
accused of criminal violations of U.S. laws, including
environmental pollution and general criminal laws).
``United Nations Convention on the Law of the Sea,'' Report of the
Senate Committee on Foreign Relations, 108th Congress, 2nd Sess. (March
11, 2004), at 14.
This statement is an accurate statement of the foreign relations
law of the United States as set out in Sec. 111 of ``The Restatement of
the Foreign Relations Law of the United States.'' That section clearly
provides `` `a non-self-executing' agreement will not be given effect
as law in the absence of necessary implementation.'' That is, absent a
subsequent act of the Government of the United States, typically an Act
of Congress, to create private rights through the normal law-making
process of the United States, the Convention will not be given effect
as law in U.S. courts. See ``Restatement of the Law Third of the
Foreign Relations Law of the United States'' Sec. 111 (1987). This
Restatement is an authoritative statement of the foreign relations law
of the United States.
Further, even if the Senate did not attach this clear statement
that the Convention will be regarded as non-self-executing in United
States courts, most Conventions are viewed by the courts as creating
state-to-state, rather than state-to-individual, obligations. Thus,
Comment A to Sec. 907 of the Restatement provides: ``International
Agreements, even those directly benefiting private persons, generally
do not create private rights or provide for a cause of action in
domestic courts.'' Nevertheless, in the absence of Senate advice and
consent to the Convention, declaring the Convention, which would
supersede customary international law of the sea in our courts, as non-
self-executing in U.S. courts, there is some risk that from time to
time a national court may hold a provision of the Convention as self-
executing and as creating rights for private parties. Indeed, that is
precisely one reason the Justice Department would prefer the Convention
to customary international law and why Justice insisted on a clear
statement that the Convention would be non-self executing. Finally, it
should be noted that since declaration 24 concerns United States
national law in courts of the United States, it is fully permissible
under the Law of the Sea Convention.
The summary conclusion on this first point is that Senate Advice and
Consent under the proposed resolution would definitively prevent any
use of the Convention, or the customary international law of the sea
which it embodies, to create private causes of action or rights in U.S.
courts. And, to the contrary, absent such action by the Senate pursuant
to its proposed resolution, there is continuing risk that courts may in
rare cases find that the customary international law of the sea creates
private rights of action in U S. national courts.
Second, let me address the state-to-state dispute resolution
provisions of the Convention; provisions which have been a routine part
of United States efforts in international negotiations since the
presidency of George Washington. Indeed, President Washington viewed
the 1794 Jay Treaty with Britain, with its submission to arbitration of
boundary and property disputes between the United States and Britain,
as an important achievement of his presidency. Continuing that
tradition of the usefulness of state-to-state arbitration, also a
common feature of the commercial world, at present the United States is
party to at least 16 multilateral and a plethora of bilateral
agreements requiring dispute settlement through arbitration in support
of our long-standing national goals of peaceful resolution of disputes
and the rule of law. Examples include the Convention on International
Civil Aviation, eight terrorism treaties, the International Convention
for the Prevention of Pollution from Ships, and the Antarctic
Environmental Protection Protocol. Indeed, the Senate recently approved
the ``Agreement for the Implementation of the Provisions . . . [of the
Law of the Sea Convention] Relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks,'' which
adopts the dispute resolution procedures of the Law of the Sea
Convention itself. While these dispute resolution mechanisms are
helpful for general reasons going beyond the substance of the
agreements, for the law of the sea such mechanisms have a special
importance for the United States that is rooted in the substance of
long-standing United States oceans policy. A core struggle of the
United States has been to protect the sovereign rights and freedoms of
United States vessels on the World's oceans; a struggle fought against
illegal claims by coastal nations to control our commercial and naval
shipping. In that context, even the former Soviet Union, a traditional
opponent of third party dispute resolution, was persuaded of the
importance of such provisions for the law of the sea. It is naive in
the extreme to believe that the United States, or any other nation, can
simply shoot its way around the ocean to resolve these disputes, many
of which are with our NATO and RIO Treaty partners.
Despite these important reasons why the dispute resolution
provisions of the Convention are solidly in the national interest of
the United States, the provisions of the Convention are carefully
cabined to protect U.S. interests and in no way impinge upon United
States sovereignty. Thus:
Article 287(1) of the Convention permits states to choose
from a variety of mechanisms for dispute resolution. The
proposed Senate Resolution of Advice and Consent makes it clear
that the United States will chose arbitration, a staple of
existing United States international agreements, and not the
International Court of Justice;
The principal arbitration mechanism chosen, ``special
arbitration'' under Annex VIII of the Convention, embodies a
very ordinary arbitration process by which both parties select
two arbitrators and then the four arbitrators initially chosen
select the fifth and final arbitrator. In the highly unlikely
event that the arbitrators are unable to agree on a fifth
arbitrator the parties then have an opportunity to simply agree
on any third party to name the fifth arbitrator. And just to
close the loop, if no agreement is reached even then, the
Secretary General of the United Nations, who becomes Secretary
General only upon the recommendation of the Security Council of
which the United States is a crucially important permanent
member, appoints the fifth arbitrator;
Moreover, Article 298(1) of the Convention specifically
permits nations when ratifying or acceding to the Convention to
opt out of the dispute settlement procedures of the Convention
with respect to ``disputes concerning military activities,
including military activities by government vessels and
aircraft engaged in non-commercial service.'' This provision
was welcomed, not just by the United States, but by navies
large and small the world over who understand the sensitivity
of military activities. Already Argentina, Belarus, Canada,
Cape Verde, Chile, China, France, Mexico, Portugal, Republic of
Korea, the Russian Federation, Slovenia, Tunisia, Ukraine and
the United Kingdom of Great Britain and Northern Ireland have
made declarations under this article opting out of the dispute
settlement provisions with respect to military activities.
The proposed Declaration of the United States under Section 2(2)
of the Senate Resolution of Advice and Consent would
definitively opt out of the dispute resolution mechanisms set
out in Section 2 of the ``Settlement of Disputes'' chapter of
the Convention for disputes concerning military activities just
as have all of these nations, including all of our fellow
permanent members of the Security Council. Moreover, to ensure
no misinterpretation of our intent the Senate Resolution of
Advice and Consent even goes on to provide: ``The United States
further declares that its consent to accession to the
Convention is conditioned upon the understanding that, under
Article 298(1)(b), each State Party has the exclusive right to
determine whether its activities are or were `military
activities' and that such determinations are not subject to
review.'' Since the Convention itself permits any state when
ratifying or acceding to the Convention to completely opt out
of dispute settlement with respect to disputes concerning
military activities this clear statement that the United States
is opting out with respect to such ``military activities'' is a
permissible declaration under the Convention. Following such a
declaration, which has the effect of removing not only the
jurisdiction of the tribunal, but the selection of the tribunal
itself, over any such activity, any effort by any tribunal to
review ``military activities'' of the United States or any
other nation with such a provision would be ultra vires, that
is, beyond the power of the tribunal. Moreover, under
international law, decisions of an international tribunal
exceeding its jurisdiction are simply void; and may be
disregarded.
Finally, under the well established foreign relations law of
the United States, no Convention can set aside the sovereignty
of the United States. Thus, it is settled constitutional law of
the United States that no Convention will be able to trump any
provision of the Constitution of the United States (Reid v.
Covert, 354 U.S. 1, 16-17 (1957)), and that the Congress of the
United States always reserves the power to override any treaty
obligation of the United States for purposes of our national
law (See, e.g., Whitney v. Robertson, 124 U.S. 190 (1888)).
The summary conclusion on this second point is that the carefully
cabined dispute settlement procedures of the Law of the Sea Convention
are quite ordinary dispute settlement provisions as are in force under
many U.S. international agreements. They would definitively prevent any
submission of military activities to external review; they are in the
national interest of the United States as a check on illegal efforts by
other nations to interfere with United States sovereign rights over
American flag vessels; and, as with all such arbitration procedures,
they can in no sense remove the sovereignty of the United States.
Thank you for your important work to fully inform Members of the
Senate about this Convention.
Sincerely,
John Norton Moore,
Director and
Walter L. Brown Professor of Law.
Enclosure.
ANNEX
Multilateral Treaties to Which the United States is Party Containing
Compulsory Dispute Settlement Provisions
ANTARCTICA
Antarctic Protocol on environmental protection, signed at Madrid
October 4, 1991, entered into force January 14, 1998, articles
18-20 (arbitration)
CIVIL AVIATION
Convention on International Civil Aviation, 1944, article 84
(arbitration or ICJ)
COFFEE
International Coffee Agreement, 2001, article 42 (Council)
FISHERIES
Straddling Fish Stocks Agreement, 1995, article 30 (special
arbitration)
MARINE POLLUTION
MARPOL 1973/1978, article 10 & Protocol I (arbitration)
TERRORISM
Offenses on aircraft, Tokyo, 1963 article 24(1) (arbitration; ICJ as
default)
Seizure of aircraft, The Hague, 1970, article 12(1) (arbitration; ICJ
as default)
Safety of civil aviation, Montreal, 1971, article 14(1) (arbitration;
ICJ as default)
Internationally Protected Persons, 1973, article 13 (arbitration; ICJ
as default)
Taking of Hostages, 1979, article 61(1) (arbitration; ICJ as default)
Physical Protection of Nuclear Material, 1979, article 17(2)
(arbitration; ICJ as default)
SUA 1988, article 16 (arbitration; ICJ as default)
Marking of Plastic Explosives, 1991, article XI(1) (arbitration; ICJ as
default)
TIMBER
International Timber Agreement, 1994, article 31 (Council)
TRADE
NAFTA, 1992, chapter 20, sections B & C (arbitration)
WTO, 1994, annex 2 (arbitration)
______
Commander, U.S. European Command,
23 October 2007.
Hon. Joseph Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: As the world's preeminent maritime and naval
power, it is in our national interest that the United States becomes a
party to the Law of the Sea Convention as soon as possible. Maritime
governance and public order over the world's oceans is a critical
factor in the War on Terrorism, and directly impacts the mission
success of our armed forces across the European Command area of
operations. Joining the Convention will ensure our leadership role in
the continuing development of oceans law and policy.
The Convention codifies navigation and over flight rights and high
seas freedoms that are essential for the global mobility of our Armed
Forces. In this regard, the Convention secures the right of our
military and commercial vessels and aircraft to move through, under,
and over the world's oceans, including the enjoyment of the rights of
innocent passage, transit passage, and archipelagic sea lanes passage,
as well as high seas freedoms. While to date the United States has
relied upon the Convention's navigational provisions by asserting that
they are reflective of customary international law, becoming a party to
the Convention would enhance our ability to invoke and enforce these
provisions.
National interests at stake include freedom of navigation, maritime
security, law enforcement, and protection of the marine environment. In
each respect, the Convention provides a legal and policy framework that
serves U.S. interests. The Navy and Coast Guard have testified that
joining the Convention will strengthen our ability to defend these and
other important maritime rights and will enhance our national and
homeland security efforts. I concur with this assessment.
Thank you for your efforts to bring this important Convention to
the Senate for consideration.
Very Respectfully,
Bantz J. Craddock,
General, U.S. Army.
______
Department of the Interior,
Department of Commerce,
Washington, DC, September 23, 2007.
Hon. Joseph Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Since the earliest days of the Republic, this
Nation has been committed to the underlying tenets of freedom of the
seas to guarantee the economic and national security of the United
States and the freedom of our people. In fact, one of the earliest
treaties signed by the United States by then-Minister to France Thomas
Jefferson, the Treaty of Peace and Friendship with Morocco, addressed
the same concerns as we discuss today, the free flow of international
commerce and the securing of navigational rights. Today, with one of
the world's longest coastlines, some of its busiest ports, and the
largest exclusive economic zone of any country, the United States has
economic and environmental stewardship interests in the oceans that are
second to none. These interests underscore the importance of U.S.
accession to the Convention on the Law of the Sea.
The Convention creates a comprehensive and balanced legal framework
designed to protect ocean resources while preserving navigational
rights. It affirms the exclusive U.S. right to manage fisheries and
oil, gas and mineral resources out to 200 miles from shore, allows us
to maximize our sovereign rights over the valuable resources of the
continental shelf beyond 200 miles, guarantees the right to lay
telecommunication cables and pipelines, protects and promotes access on
the high seas and in coastal areas throughout the world for marine
scientific research, and assures navigational rights for merchant
vessels upon which the vast majority of our international trade
depends.
The Departments of Commerce and the Interior, along with other
federal agencies, work to manage our ocean resources and the commerce
they support. The Department of Commerce, which is responsible for
promoting our nation's economic development, expanding international
trade and commerce, and protecting and understanding our oceans, and
the Department of the Interior, which is responsible for managing outer
continental shelf mineral and energy resources, believe it is
imperative that the United States accede to the Convention on the Law
of the Sea. Our two Departments work together to map coastal lands and
the oceans and to manage and protect an integrated coastal ecosystem,
and together, as stewards of our nation's oceans, coasts, and the
continental shelf, we urge favorable Senate action on U.S. accession
during this session of Congress.
Sincerely,
Dirk Kempthorne,
Secretary of the Interior.
Carlos M. Gutierrez,
Secretary of Commerce.
______
September 19, 2007.
Senator Joseph Biden,
Chairman, Senate Foreign Relations Committee,
Dirkscn Senate Office Building, Washington, DC.
Dear Mr. Chairman: I am writing in support of Senate consent to
ratification of the 1982 Convention on the Law of the Sea. I have noted
your personal commitment to the Convention and hope that your Committee
will do all in its power to secure positive action by the Senate at
large during this session of Congress.
As a retired naval officer I am acutely aware of the advantages
that ratification of the Convention will bring to the mobility of our
naval and air forces and the defense posture of the United States in
general. Its provisions on transit passage through international
straits and archipelagic sea lanes passage through archipelagos are
major enhancements of existing, more limited rights. The stabilization
of the limits of the territorial sea at 12 miles is a significant
achievement, and its codification into a written agreement is a vital
step in stopping the seaward creep of states' jurisdictional claims.
I am familiar with the current arguments being put forth by the
opponents of the Convention and believe they are without validity. Most
of them use distortions or actual misrepresentations of the text in
order to create a ``straw man'' which they proceed to tear down.
Contrary to the opponents' allegations, the 1994 supplementary
Agreement fixed the flaws in Part XI of the Convention identified by
President Reagan in 1982. At that time he stated that if these flaws
were corrected, he would support adherence to the Convention by the
United Stales. The international community responded affirmatively to
his invitation, and the 1994 Agreement was the product. It would be a
blow to the credibility of the United States if it now rejected the
Convention.
Thank you for your past efforts on behalf of the Convention, and I
hope you will be able to obtain adoption of your views by the Senate as
a whole.
Sincerely,
Horace B. Robertson, Jr.,
Rear Admiral, U.S. Navy (Ret.).
______
September 18, 2007.
Dear Mr. Charman: I am writing in support of Senate consent to
ratification of the 1982 Convention on the Law of the Sea. I sincerely
hope your Committee will do all in its power to insure a favorable vote
by the Senate at large during this session of Congress.
As a retired naval officer with operational experience in
commanding ships, battle groups and a fleet, I can attest to the
advantages that ratification will bring to the mobility, access and
reach of our naval and air forces and the national security of the
United States. Specifically, the Convention will stabilize and
strengthen the following essential provisions that I relied on in
deploying our naval and air forces to protect U.S. national interests:
--Preserving freedoms of navigation and overflight on the high seas.
--Maintaining these high seas freedoms in the 200-mile Exclusive
Economic Zone.
--Limiting the width of the territorial sea to twelve nautical miles.
--Guaranteeing freedom of navigation and overflight through
international straits and archipelagic sea lanes.
The Navy and the Coast Guard, as well as all U.S. industries,
including offshore energy, maritime transportation and commerce,
underwater cable communications, and shipbuilding support ratification
of the Convention.
The current arguments against the Convention are specious and are
largely advanced by those with no operational experience in defending
U.S. national interests.
Thank you for your past efforts on behalf of the Convention, and I
hope the Senate as a whole will adopt your views.
Sincerely,
James H. Doyle, Jr.,
Vice Admiral, U.S. Navy (Ret.).
______
United Oil and Gas Consortium
Management Corp. (Nevada),
Beverly Hills, CA, August 15, 2007.
Senator Joseph Biden,
Chairman, U.S. Senate, Committee on Foreign Relations,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Biden: On behalf of the United Oil and Gas Consortium
Management Corporation and the Oceanic Strategic Metals Corp., U.S.-
based companies, we respectfully request an opportunity to testify on
the matter of U.S. Senate ratification of the U.N. Convention on the
Law of the Sea (UNCLOS). We are concerned that ratification of this
treaty could jeopardize our valid legal claims and detailed proposals
relating to responsible oil and gas resource development in the Arctic
Ocean and polymetallic nodules in the Pacific Ocean.
We want to warn the Senate against getting the U.S. entangled in a
global bureaucracy, together with an international tribunal, that could
frustrate and defeat the ability of private U.S. companies to compete
in the international arena and harvest these resources for the benefit
of the American people and the world. We believe the Senate should want
to respect and protect the rights of U.S. companies and to serve the
national interest.
The fact is that the United States--and U.S. companies--currently
have complete freedom of action in regard to making such claims and
acting in our own interests. We can pursue these claims under what is
called customary international law. All that is required is that the
United States protect the claims that have been made, in accordance
with U.S. law, for development of these resources. Ratification of
UNCLOS could negate these claims, leaving our companies at the mercy of
international commissions, agencies and tribunals dominated by
socialist anti-American foreign interests and judges.
The establishment under UNCLOS of the International Seabed
Authority, (``ISA'') known as the Authority, with control over the
``area'' beyond national jurisdiction, is an unnecessary and major
impediment to the functioning of our free enterprise system. The
Authority is given the absolute power to collect onerous imposts and
taxes or revenue from private companies such as ours seeking to develop
oceanic natural resources for the common good. The ``Enterprise'' of
the Authority is authorized to channel a large part of this revenue and
even technology used by private companies to other countries which had
no role in developing it.
History already shows the International Seabed Authority of UNCLOS
to be a slow and unwieldy international bureaucracy with not one single
accomplishment to date.
The lSA officially came into existence in 1994 but its first
Secretary-General, Satya Nandan of Fiji, wasn't elected until March
1996. The Authority didn't become fully operational until June 1996. It
wasn't until 2000 that the Assembly of the Authority issued regulations
on prospecting and exploration for polymetallic nodules. It was in 2001
that the Authority entered into the first 15-year contracts for
exploration-only for them. This is the only ``legblativve''
accomplishment to date of the Authority. No rules are available for
actually mining polymetallic nodules and none are being recovered
commercially nor are they ever likely to be under the ill-conceived ISA
regime.
The world has been waiting for ISA regulations for years on such
matters as prospecting and exploration of seabed sulfides. The
Authority has been working very slowly on these regulations for five
years now. Regulations on prospecting and exploration for oil-gas and
methane-hydrates are still to come. But nobody knows how long those
will take. The world could well have run out of reserves by the time
the ISA comes up with rules.
It just doesn't make any practical sense to subject U.S. companies
to the proposed onerous imposts, taxes, dictates and bureaucratic
inertia of the International Seabed Authority.
The evidence makes it clear that it was extremely wise for the U.S.
to wait on ratification on UNCLOS. We can now see that it wiIl operate
like a typical and bloated U.N. bureaucracy. We should not want or have
any part of it.
This is especially true given LOST's other huge liabilities:
1. Its overreaching environmental obligations placed on
operators;
2. It is unaccountable to anyone but itself;
3. A collection of socialist bureaucracies with an abysmal
track record of anti ``Free Enterprise'' behavior;
4. Absurd new onerous international taxes and imposts on
commercial operations on the high seas has massive implications
for global shipping, cruise liners, etc.;
5. Potential for interfering with U.S. and Allied military
operations; and
6. Demands for transfers of sensitive technologies.
We believe that President Reagan rightly declined to subject the
United States to LOST. The so called ``Fixes'' putatively made since
then have not altered the treaty's fundamental unacceptability and it's
fundamentally ``bad bargain.''
Despite Russia's flimsy attempt at Arctic blackmail, the U.S.
answer on LOST should be a decisive Nyet!
At the very least the U.S. should force the U.N. to restructure
LOST rules to become more ``free-enterprise'' friendly before signing
on.
In light of the recent controversy over the Russian claim to part
of the North Pole region, and whether the U.N. will play a role in
resolving it, we should make the additional point that our claim to
explore and drill for hydrocarbon resources in the Arctic Ocean is
entirely consistent with American claims in the area and, therefore,
should be protected along with them. Even the Russians have recognized
that American explorers, one of them U.S. Navy Commander Robert E.
Peary, discovered the North Pole and claimed it for the U.S. in 1909.
On top of that, the USS Nautilus traveled under the Pole in 1958 and
restated America's claim to the region ``for the United States and the
United States Navy,'' as recounted by Nautilus commander William R.
Anderson in his book, ``First Under the North Pole.''
The U.S. already has a strong legal claim to the resources of the
Arctic Commons and Pacific Abyssal without requiring any LOST
participation.
We believe that, under no circumstances, should the United States
abandon these claims.
We look forward to the opportunity to testify.
Sincerely yours,
Peter Sterling,
President.
______
The Maritime Law Association
of the United States,
New York, NY, July 5, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Foreign Relations Committee,
Russell Senate Office Building, Washington, DC.
Dear Mr. Chairman: I am writing as President of The Maritime Law
Association of the United States (``MLA'') to urge the Senate Foreign
Relations Committee to recommend to the Senate that it give its advice
and consent to the United States accession to the Law of the Sea
Convention.
The MLA is a 108-year-old bar association comprising about 3,200
admiralty lawyers and other professionals in maritime commerce. Because
of the international nature of marine trade, the Association was
concerned from its founding with international as well as domestic
maritime law, having been established in order to be a constituent
member of the Comite Maritime International.\1\ The MLA's continuing
concern with international maritime law is reflected in the recitation
of our objectives in our Articles of Incorporation:
---------------------------------------------------------------------------
\1\ The CMI is a nongovernmental organization formed in 1898 and
composed of the national maritime law associations of several
countries.
to advance reforms in the Maritime Law of the United States, to
facilitate justice in its administration, to promote uniformity
in its enactment and interpretation, . . . to participate as a
constituent member of the Comite Maritime International . . .,
and to act with other associations in efforts to bring about a
greater harmony in the shipping laws, regulations and practices
---------------------------------------------------------------------------
of different nations.
Many of our members, including practicing attorneys, judges,
academics, and business people, work within and are affected by
international laws, standards, and customs. Accordingly, the MLA takes
a strong interest in the Law of the Sea Convention.
The Convention is an important articulation of established and
customary international law of the sea. On March 10, 1983, shortly
after the Convention was opened for signature, President Reagan
recognized that the Convention expresses ``traditional uses of the
oceans which generally confirm existing maritime law and practice and
fairly balance the interests of all states.'' Accordingly, he announced
three policy decisions that would give effect to U.S. recognition of
the Convention's principles:
(1) The United States would ``recognize the rights of other
states in the waters off their coasts, as reflected in the
Convention,'' so long as those states also recognize the rights
and freedoms of other nations under international law;
(2) The United States would exercise ``its navigation and
overflight rights and freedoms . . . in a manner that is
consistent with the balance of interests reflected in the
Convention''; and
(3) An Exclusive Economic Zone was established ``in which the
United States will exercise sovereign rights in living and
nonliving resources within 200 nautical miles of its coasts.''
Each succeeding administration has implemented the policy and law
proclaimed by President Reagan.
Since President Reagan's announcement, the Law of the Sea Treaty
has been modified to provide further benefits desired by our nation.
Even though not a party, the United States negotiated amendments to the
Law of the Sea Treaty to remove flaws that would have affected the
development of seabed mineral resources beyond national jurisdiction
(Part XI). That reform also was recognized by each succeeding
administration and was effectuated by the July 29, 1994, Agreement
which President Clinton noted, in his transmittal letter, ``meets the
objection of the United States and other industrialized nations
previously expressed to Part XI.''
President Clinton's letter of Transmittal to the Senate noted that
the Law of the Sea Treaty protects and promotes the well-being of our
country in many essential respects:
The United States has basic and enduring national interests
in the oceans and has consistently taken the view that the full
range of these interests is best protected through a widely
accepted international framework governing uses of the sea. . .
. Following adoption of the Convention in 1982, it has been the
policy of the United States to act in a manner consistent with
its provisions relating to traditional uses of the oceans and
to encourage other countries to do likewise.
The primary benefits of the Convention to the United States
include the following:
The Convention advances the interests of the
United States as a global maritime power. It preserves the
right of the U.S. military to use the world's oceans to meet
national security requirements and of commercial vessels to
carry sea-going cargoes. It achieves this, inter alia, by
stabilizing the breadth of the territorial sea at 12 nautical
miles; by setting forth navigation regimes of innocent passage
to the territorial sea, transit passage in straits used for
international navigation, and archipelagic sea lanes passage;
and by reaffirming the traditional freedoms of navigation and
overflight in the exclusive economic zone and the high seas
beyond.
The Convention advances the interests of the
United States as a coastal State. It achieves this, inter alia,
by providing for an exclusive economic zone out to 200 nautical
miles from shore and by securing our rights regarding the
resources and artificial islands, installations and structures
for economic purposes over the full extent of the continental
shelf. These provisions fully comport with U.S. oil and gas
leasing practices, domestic management of costal fishery
resources, and international fisheries agreements.
As a far-reaching environmental accord addressing
vessel source pollution, pollution from seabed activities,
ocean dumping, and land-based sources of marine pollution, the
Convention promotes continuing improvement in the health of the
world's oceans.
In light of the essential role of marine
scientific research in understanding and managing the oceans,
the Convention sets forth criteria and procedures to promote
access to marine areas, including coastal waters, for research
activities.
The Convention facilitates solutions to the
increasingly complex problems of the uses of the ocean--
solutions that respect the essential balance between our
interests as both a coastal and a maritime nation.
Through its dispute settlement provisions, the
Convention provides for mechanisms to enhance compliance by
Parties with the Convention's provisions.
* * * * *
Early adherence by the United States to the Convention and
the Agreement is important to maintain a stable legal regime
for all uses of the sea, which covers more than 70 percent of
the surface of the globe. Maintenance of such stability is
vital to U.S. national security and economic strength.
(Emphasis added.)
The Convention's benefits and virtues remain unchanged, and the
events of recent years make the need for accession even more compelling
as our nation relies more and more on the high seas as our first line
of defense. The Proliferation Security Initiative, begun by the current
Administration to combat attempts by rogue nations to spread weapons of
mass destruction, is dependent on the application of international law
to the high seas. The Convention will also enhance, not harm, the
international legal efforts led by the United States to suppress the
illegal proliferation of nuclear weapons and other weapons of mass
destruction in a manner similar to the joint anti-slavery patrol off
the coast of West Africa established by the Royal Navy and the U.S.
Navy in the 1840s.
In addition to security interests, the United States also looks
more and more to the world oceans for their wealth of essential
resources--from food to energy sources, both present and future--as
well as a highway of trade providing access to the materials and
products of other nations. The Convention would promote the kind of
international stability that would protect our access to this wealth.
Uniformity of the law of the sea is essential to the recognition of
the rights of states, their ships, and their citizens, and crucial to
economic prosperity. Accession to the Law of the Sea Convention will
further establish that the world's territorial seas and high seas are
not lawless, but are instead subject, respectively, to carefully
crafted bodies of domestic laws and to a regime of international laws
that ensure right of law-abiding individuals and nations to enjoy the
many benefits of the world's waters. The Courts of the United States.
as well as courts of foreign states and the tribunal created under the
Law of the Sea Convention, will benefit greatly from the accession of
the United States to this Convention as an emblem of world accord on
the principles that govern the peaceful use of the high seas.
The current Chief of Naval Operations, Admiral Mike Mullen, who has
been nominated to become the next Chairman of the Joint Chiefs of
Staff, has eloquently described the vast importance of the world's
oceans to the economic and military well-being of the United States.
Our historical and continuing role as a maritime nation has led the
Joint Chiefs of Staff and all living former Chiefs of Naval Operations
to speak in favor of ratification of a Treaty that is especially
important to the interests of the United States.
Accession to the Law of the Sea Convention will be a major step
forward to protect and ensure the rights of the United States and its
citizens around the world and to promote uniformity of the law of the
sea. Accordingly, the Maritime Law Association of the United States
strongly urges the Senate to give its advice and consent in favor of
accession to the Law of the Sea Convention.
Respectfully submitted,
Lizabeth L. Burrell,
President.
______
Hoover Institution,
Stanford University,
Stanford, Ca, June 28, 2007.
Hon. Richard Lugar,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Lugar: I understand that the Law of the Sea Treaty is
once again likely to be considered by the Senate for consent to
ratification.
I am writing to let you know that I support ratification, I have
had a long history with this treaty. When I was Secretary of the
Treasury in 1973, we got word of this negotiation and discovered the
language on control of mining in the deep sea-beds. We blew every
whistle we could find to call attention to the undesirable features of
what was being negotiated. Nevertheless, negotiations proceeded.
The question of ratification arose once again during the Reagan
administration. President Reagan, fully aware of the many desirable
aspects of the treaty, nevertheless opposed ratification, fundamentally
on the same grounds that led us to blow the whistle in the early 1970s.
The treaty has been changed in such a way with respect to the deep
sea-beds that it is now acceptable, in my judgment. Under these
circumstances, and given the many desirable aspects of the treaty on
other grounds, I believe it is time to proceed with ratification.
It surprises me to learn that opponents of the treaty are invoking
President Reagan's name, arguing that he would have opposed
ratification despite having succeeded on the deep sea-bed issue. During
his administration, with full clearance and support from President
Reagan, we made it very clear that we would support ratification if our
position on the sea-bed issue were accepted.
With my respect and admiration for the sustained high quality of
your public service,
Sincerely yours,
George P. Shultz.
______
October 29, 2007.
Hon. Joseph R. Biden, Jr.,
U.S. Senate,
Washington, DC.
Dear Senator Biden: This letter is written to convey to you my
recollections of the attitude of former President Reagan regarding the
Law of the Sea Treaty, which I am informed has garnered important
support throughout the Executive Branch, especially from those
departments and agencies bearing security responsibilities. I am also
aware of a controversy that has arisen between former members of the
Reagan Administration and former Secretary of State George Shultz. I
understand that at the time Mr. Shultz was Secretary of State he
recalls that the President's objection involved the deep-sea bed issue.
This was also my interpretation of the key objection President Reagan
had to the Treaty during our discussion of its possible ratification.
Like Secretary Shultz, and as one who preceded him from 1981 until I
resigned July 1982, I was surprised to learn that opponents of the
Treaty are invoking President Reagan's name, arguing that he would
oppose ratification despite the fact that he had succeeded in modifying
the deep-sea bed issue.
As one who proudly served President Reagan I can assure you that in
my experience it was not a rare event for the former President, when
properly informed by his staff, to ponder such important issues and to
change his point of view when exposed to additional complications or
relevant considerations.
Best wishes,
Alexander M. Haig, Jr.,
General, USA (Ret.),
59th U.S. Secretary of State.
______
U.S. Senate,
Washington, DC, October 30, 2007.
Hon. Condoleezza Rice,
U.S. Department of State,
Washington, DC.
Dear Secretary Rice: The Senate Committee on Foreign Relations has
recently held hearings on the 1982 Convention on the Law of the Sea and
the Agreement relating to the Implementation of Part XI of the
Convention on the Law of the Sea, which was adopted in 1994. The
Committee will consider the Convention at its Business Meeting on
October 31, 2007.
As you know, P.L. 109-432, the Gulf of Mexico Energy Security Act
0f 2006, establishes a moratorium on oil and gas leasing until June
2022 in the following areas of the Gulf of Mexico:
(1) any area east of the Military Mission Line in the Gulf of
Mexico;
(2) any area in the Eastern Planning Area that is within 125
miles of the coastline of the State of Florida; or
(3) any area in the Central Planning Area that is--
(A) within--
(i) the 181 Area; and
(ii) 100 miles of the coastline of the State
of Florida; or
(B)(i) outside the 181 Area:
(ii) east of the western edge of the Pensacola
Official Protraction Diagram (UTM X coordinate
1,393,920 (NAD27 feet)); and
(iii) within 100 miles of the coastline of the State
of Florida.
The moratorium on oil and gas leasing is vital to the protection of
the Gulf of Mexico. As the Committee prepares to vote on the
Convention, I would be grateful if you could answer the following
question: Would U.S. accession to the Convention have any effect on the
moratorium generally, and these boundaries specifically?
I am also interested in knowing whether joining the convention
would have any effect on the maritime boundary between the United
States and Cuba. This boundary is established by the Maritime Boundary
Agreement between the United States and Cuba. The Agreement establishes
the maritime boundary in the Straits of Florida and in the eastern Gulf
of Mexico where the countries' 200 nautical mile zones overlap. The
United States has never ratified this instrument, and it is implemented
provisionally through an exchange of diplomatic notes every other year.
I do not support this Agreement, nor the boundary it establishes. Would
accession to the Convention on the Law of the Sea affect the Maritime
Boundary Agreement or alter the maritime boundary between the United
States and Cuba?
Thank you for your prompt attention to these matters.
Sincerely,
Bill Nelson.
______
U.S. Department of State,
Washington, DC, October 31, 2007.
Hon. Bill Nelson,
U.S. Senate,
Washington, DC.
Dear Senator Nelson: Thank you for your letter of October 30
regarding the 1982 Convention on the Law of the Sea and the Agreement
relating to the implementation of Part XI of the Convention on the Law
of the Sea. You expressed concern about United States accession to the
convention and the effect on the maritime boundary between the U.S. and
Cuba.
The Department of State and the Interior Department's Minerals
Management Service have worked closely on this important issue. We can
assure you that U.S. accession to the Convention would not affect the
moratoria or boundaries in the Gulf of Mexico Energy Security Act of
2006. It would also not affect either the maritime boundary with Cuba
or the agreement currently being applied provisionally.
We hope this infbrmation is useful to you. Please do not hesitate
to contact us if we can be of further assistance.
Sincerely,
Jeffrey T. Bergner,
Assistant Secretary,
Legislative Affairs.
______
Concerned Women for America,
October 29, 2007.
Hon. Joseph Biden,
U.S. Senate,
Washington, DC.
Dear Senator Biden: During a time of war, the overarching
implications of the United Nations Convention on the Law of the Sea
bring up red flags. Knowing the history of the United Nations and other
international bodies, we should not subject ourselves increasingly to
international conventions and laws. As our elected representatives, a
primary interest for the Senate should be ensuring the fundamental
rights of American citizens. Foremost among them is the right to
determine our laws and policies, not relinquishing this right to
international bodies made up of members that are hostile to America.
The Law of the Sea Treaty encroaches upon American interests and
liberties. On behalf of the 500,000 members of Concerned Women for
America, I ask that you vote ``no'' on this treaty's ratification in
the Foreign Relations Committee on Wednesday.
This treaty would creep dangerously close to U.S. interests and
becoming a signatory would mandate U.S. policy on energy, the
environment, taxation in the form of fees and technology transfer
(which includes property rights).
The treaty creates a commission to oversee the rights and access
that all signatory countries have in regard to international waters:
the International Seabed Authority. Those sitting on the board of the
International Seabed Authority would decide which countries can gain
access to which waters. Given the anti-American sentiment already
prevalent at the United Nations, a second governing body would likely
fare no better.
Ratification of this treaty would also subject the U.S. to a
foreign tribunal with unaccountable, unelected judges: The Law of the
Sea Tribunal. One signatory country can bring a complaint to the
tribunal against another signatory country for its resolution. This
would undermine U.S. diplomacy and subject ourselves to a ``middle
man'' that does not have our best interest at heart. One can assume the
court would not favorably judge U.S. interests such as military
activity and business developments when it has expressed its dedication
to giving preference to developing countries.
As Senator David Vitter (R-Louisiana) addressed in the Committee
hearing on September 27, definitions of military activity and
intelligence activity under this convention are also subject to The Law
of Sea Tribunal and the International Seabed Authority. Military
intelligence is necessary to protect U.S. borders and prevent terrorist
attacks, yet if the governing bodies of the treaty decide otherwise,
U.S. military operations could be severely hindered. The convention is
also designed to promote industry in developing countries by forcing
developed countries to give them access to previously unavailable
technology. Our military abilities would be compromised and freely
given to developing and potentially hostile countries that could then
use our technologies against us.
Senator, with the United States already contributing $1.26 billion
American taxpayer dollars in mandatory dues to the U.N., while
receiving little to no positive result, we should not subject ourselves
to more funding of another inadequate and harmful bureaucracy. This
treaty would create serious repercussions for private American business
interests worldwide and would severely hinder our military
capabilities. Our members ask that you consider these points before the
markup of the Convention on Wednesday.
Sincerely,
Wendy Wright,
President,
Concerned Women for America.
______
Advocacy Committee, Bucks County Chapter,
United Nations Association of the USA,
Newtown, PA, October 15, 2007.
Re United Nations Convention on the Law of the Sea.
Senator Joseph R. Biden, Jr.,
Chair, Senate Foreign Relations Committee, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Biden: After studying the United Nations Convention on
the Law of the Sea, we recommend that the Senate advise and consent to
the accession to the treaty, and to the ratification of the Agreement
Relating to the Implementation of Part XI of the treaty.
This treaty provides greater certainty and security for the seabeds
and the surface of the oceans. Its broad support by the Administration,
military, business and environmental groups demonstrates that it is in
the bests interests of our nation. It has been accepted by 155 nations
and has been in effect for thirteen years with no significant adverse
consequences. Without ratifying the treaty, the United States will have
no voice in the important decisions regarding its implementation and
interpretation in the Arctic and elsewhere.
Thank you for your consideration of this important matter.
Sincerely,
Bruce B. VanDusen,
Chair.
Joseph S. Gottlieb.
Philip J. Greven.
Donald S. Grubbs, Jr.
Jennifer Hollingshead.
Charles F. Peterson.
______
U.S. Department of State,
Washington, DC, October 10, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I want to thank you and the Foreign Relations
Committee for holding hearings on the Law of the Sea Convention. I
think these series of hearings, with both government and private
witnesses, provided Committee Members with a wide range of views. In
our view, it remains clear that it is strongly in the U.S. interest to
join the Convention.
During the course of almost two full days of hearings, the question
was raised whether intelligence activities would be considered military
activities for purposes of dispute settlement. The Convention
recognizes the potential sensitivity of subjecting a State's military
activities to third-party scrutiny. As such, Article 298 of the
Convention permits a State to completely exclude ``disputes concerning
military activities'' from the dispute settlement procedures. As
provided in the draft resolution of advice and consent, the United
States would elect this exclusion.
The United States would determine whether particular U.S.
activities were ``military activities'' for purposes of the exclusion
from dispute settlement procedures, just as other Parties that have
opted to exclude military activities would make such determinations
with respect to their activities. The draft resolution of advice and
consent reflects this point by conditioning U.S. accession 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.
As DOD and CIA testified in 2004 regarding the Convention,
intelligence activities at sea are military activities for purposes of
the U.S. dispute settlement exclusion under Article 298. Thus, the
dispute settlement procedures under the Convention would not apply to
U.S. intelligence activities at sea.
Again, I want to thank you and your Committee staff for the support
and hard work you have provided on the Law of the Sea Convention.
Sincerely,
Jeffrey T. Bergner,
Assistant Secretary,
Legislative Affairs.
______
The White House,
Washington, DC, February 8, 2007.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Recognizing the historic bipartisan support for
the Law of the Sea Convention, I anticipate our shared interest in
moving it forward. As the President believes, and many members of this
Administration and others have stated, the Convention protects and
advances the national security, economic, and environmental interests
of the United States. In particular, the Convention supports
navigational rights critical to military operations and essential to
the formulation and implementation of the President's National Security
Strategy, as well as the National Strategy for Maritime Security. I
appreciate your efforts as Chairman in bringing this important
Convention to the Senate for consideration and look forward to its
approval as early as possible during the 110th Congress.
Sincerely,
Stephen J. Hadley,
Assistant to the President
for National Security Affairs.
______