[Congressional Record Volume 140, Number 86 (Thursday, June 30, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
     UNITED STATES TO MOVE AHEAD WITH THE LAW OF THE SEA CONVENTION

  Mr. PELL. Mr. President, I would like to inform my colleagues of a 
significant announcement made this morning by Secretary Christopher 
during his appearance before the Foreign Relations Committee. At the 
committee's hearing, he announced that the United States will sign a 
key Agreement that should enable us to become a Party to the United 
Nations Convention on the Law of the Sea.
  I am delighted by this news.
  My involvement with and belief in the Convention has been extensive. 
In the 1960's I introduced resolutions in the Senate calling for 
negotiation of such an agreement. I was a delegate to some of the 
negotiating sessions. I have looked forward to this moment for almost 
30 years.
  Negotiation of an agreement to modify Part XI of the Law of the Sea 
Convention, which modifies the deep seabed mining provisions of the 
Convention, should make the Convention as a whole acceptable to the 
United States. This significant accomplishment has been a bipartisan 
policy goal of three administrations.
  The Law Sea Convention contains many tangible and significant 
benefits for the United States. The Convention's provisions on freedom 
of navigation are especially important for our national security. The 
Persian Gulf War, conflicts in Bosnia and other regions of the world, 
together with excessive claims to jurisdiction by coastal states, 
underscore the United States' security interest in unimpeded military 
and commercial sea and air traffic.
  The Convention has many other benefits. In particular, its provisions 
on the marine environment and fisheries provide a sound basis to 
address many of the problems faced in these areas.
  I believe the United States and the world community will benefit from 
a regime that brings the rule of international law to the oceans.
  The LOS Convention will enter into force in November of this year, so 
U.S. ratification is urgent. As Chairman of the Foreign Relations 
Committee, I will give my highest priority to securing Senate advice 
and consent to ratification of the Convention and the modifying 
Agreement.
  Mr. President, I ask unanimous consent that a letter from the 
Secretary regarding his decision on the Convention as well as 
accompanying background material addressing the importance of the 
Convention for the United States be included in the Record immediately 
following my remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                       The Secretary of State,

                                        Washington, June 30, 1994.
     Hon. Claiborne Pell,
     Chairman, Committee on Foreign Relations, U.S. Senate.
       Dear Mr. Chairman: Thank you for your letter of June 10 
     commending the Department's efforts to solve our outstanding 
     difficulties with the deep seabed mining provisions of the 
     United Nations Convention on the Law of the Sea of 1982. I am 
     pleased to inform you, and through you, your colleagues in 
     the Senate, of the Administration's decision to sign an 
     Agreement on July 29 that will modify the deep seabed mining 
     provisions of the Convention to meet United States 
     objections.
       As you know, a comprehensive and widely accepted Law of the 
     Sea Convention has been an objective pursued by Democratic 
     and Republican Administrations for more than two decades. 
     Unfortunately, the pursuit of that objective was interrupted 
     in 1982 by the adoption of a Convention that contained 
     seriously flawed provisions on deep seabed mining.
       Since that time, the other parts of the Law of the Sea 
     Convention have provided the basic framework for United 
     States oceans policy. With the entry into force of the 
     Convention on November 16 of this year, it is now possible 
     for the United States to pursue its policy objectives as an 
     active party to the Convention. Indeed, in the aftermath of 
     the cold war, it is imperative from the standpoint of our 
     security and economic interests that the United States become 
     a party to the Convention.
       The Convention guarantees United States control of economic 
     activities in adjacent offshore areas and enhances our 
     ability to protect the marine environment. At the same time, 
     it preserves and reinforces the freedoms of navigation and 
     overflight essential to our strategic and commercial 
     interests as the preeminent global power. Its strategic 
     importance can not be overstated as our changing defense 
     policy places greater emphasis on our ability to project our 
     military forces and less on forward basing.
       The ``Agreement relating to the implementation of Part XI 
     of the United Nations Convention on the Law of the Sea of 10 
     December 1982'' modifies the seabed mining provisions of the 
     convention to respond to the United States objections. The 
     process that led to this Agreement was initiated during the 
     Bush Administration and our participation has continued under 
     the Clinton Administration. The result is a regime that is 
     consistent with our free market principles and provides the 
     United States with influence over decisions on deep seabed 
     mining commensurate with our interests.
       As a treaty, the Agreement will be signed subject to Senate 
     advice and consent to its ratification. By the terms of the 
     Agreement the United States may only become party to it if we 
     become party to the Law of the Sea Convention at the same 
     time; the two instruments are to be interpreted and applied 
     together as a single instrument. Accordingly, it will be 
     necessary to submit the Agreement and the Convention together 
     for Senate consideration, and following the United States 
     signature of the Agreement on July 29, we will immediately 
     begin preparation for their submission to the Senate for 
     advice and consent.
       Enclosed you will find a copy of the Agreement and 
     additional background material addressing the importance of 
     the Convention for the United States and the means by which 
     the Agreement addresses our principal objections to the 
     seabed mining provisions of the Convention.
       Be assured of the Department's full cooperation as we seek 
     to bring this longstanding bipartisan undertaking to a 
     successful conclusion.
           Sincerely,
                                                Warren Christopher
                                  ____

       Enclosure:
       As Stated.

            Oceans Policy and the Law of the Sea Convention

       On July 29, 1994, the United Nations General Assembly will 
     reconvene in special session for the purpose of adopting and 
     opening for signature the ``Agreement Relating to the 
     Implementation of Part XI of the United Nations Convention on 
     the Law of the Sea of 10 December 1982'' (Agreement). The 
     Agreement will fundamentally change the provisions of the 
     Convention (Part XI) that establish a regime to manage deep 
     seabed mining beyond national jurisdiction. In so doing, it 
     removes the obstacles that have prevented the United States 
     and other industrialized countries from becoming parties to 
     the Convention.
       The Administration believes that the Agreement 
     satisfactorily addresses long-held objections to the 
     Convention's seabed mining provisions. Therefore, based on a 
     unanimous interagency recommendation, the Administration has 
     decided to sign the Agreement on the date it is open for 
     signature. With the conclusion of this Agreement, it will now 
     be possible for the United States to consider accession to 
     the Convention. This action places the United States on the 
     threshold of achieving an objective that has been pursued by 
     successive United States Administrations for over a quarter 
     century--that is, a comprehensive and widely ratified law of 
     the Sea convention.


               background: United States oceans interests

       The United States has important and diverse interests in 
     the oceans. As the world's pre-eminent naval power, the U.S. 
     has a strong national security interest in the ability, as a 
     widely accepted matter of right, to navigate freely and 
     overfly the oceans of the world. The end of the Cold War has, 
     if anything, highlighted this need in view of our deceasing 
     reliance on forward basing and the corresponding growing 
     reliance on our ability to project our military power. 
     Ensuring the free flow of commercial navigation is likewise a 
     basic concern for the United States. As a major trading 
     power, our economic growth is inextricably linked to a robust 
     and growing export sector that is heavily dependent upon 
     maritime transport.
       At the same time, the U.S., with one of the longest 
     coastlines of any nation in the world, has basic resource and 
     environmental interests in the oceans. The seabed of the deep 
     oceans offers the potential for economically and 
     strategically important mineral resources. Inshore and 
     coastal waters generate vital economic activities--fisheries, 
     offshore minerals.
       The health and well-being of coastal populations--the 
     majority of Americans live in coastal areas--are intimately 
     linked to the quality of the coastal marine environment.
       Understanding the oceans, including their role in global 
     processes, is one of the frontiers of human scientific 
     investigation. The U.S. is a leader in the conduct of marine 
     scientific research. Further, such research is essential for 
     understanding and addressing problems associated with the use 
     and protection of the marine environment, including marine 
     pollution, conservation of fish and other marine living 
     species and forecasting of weather and climate variability.
       Pursuit of these objectives, however, requires careful and 
     often difficult balancing of interests. As a coastal nation, 
     for example, we naturally tend to seek maximum control over 
     the waters off our shores. Equally, as a major maritime 
     power, we often view such efforts on the part of others as 
     unwarranted limitations on legitimate rights of navigation.
       Moreover, traditional perceptions of the inexhaustibility 
     of marine resources and of the capacity of the oceans to 
     neutralize wastes have changed as marine species have been 
     progressively depleted by harvesting and their habitats 
     damaged or threatened by pollution and a variety of other 
     human activities. Maintaining the health and productive 
     capacity of the oceans while seeking to meet the economic 
     aspirations of growing populations also requires difficult 
     choices.
       Striking the balances necessary to implement U.S. oceans 
     policy must be viewed in an international context. Living 
     resources migrate. Likewise, marine ecosystems and ocean 
     currents, which transport pollutants and otherwise affect 
     environmental interests, extend across maritime boundaries 
     and jurisdictional limits. National security and commercial 
     shipping interests are also international in scope. Access to 
     mineral resources beyond national jurisdiction will be 
     difficult without a basic international consensus. 
     Achievement of oceans policy objectives thus requires 
     international cooperation at the bilateral, regional and 
     global level. The alternative is increased competition and 
     conflict over control of the oceans and marine resources to 
     the detriment of United States strategic, economic, 
     scientific and environmental interests.


          the united nations convention on the law of the sea

       United States oceans policy has always had as a basic 
     objective the application of the rule of law to the use and 
     conservation of the oceans. The United States was a leader in 
     the international community's effort to develop an overall 
     legal framework for the oceans in the Third United Nations 
     Conference on the Law of the Sea, which began its substantive 
     work in 1974.
       The resulting United Nations Convention on the Law of the 
     Sea (UNCLOS), concluded in 1982, provides a comprehensive 
     legal framework governing uses of the oceans and the rights 
     and obligations of States relating thereto. It achieved 
     consensus on the nature and extent of jurisdiction that 
     States may exercise off their coasts: a territorial sea of a 
     maximum breadth of 12 nautical miles and coastal State 
     jurisdiction over fisheries and other resources (e.g., oil 
     and gas) in a 200 nautical-mile Exclusive Economic Zone (EEZ) 
     and on the continental shelf here it extends beyond the EEZ. 
     It balances extended coastal State jurisdiction with 
     provision for preservation and elaboration of rights of 
     navigation and overflight in these areas and guarantees of 
     passage through and over straits used for international 
     navigation and archipelagoes.
       In addition to the nature and extent of maritime 
     jurisdiction, UNCLOS sets forth rights and obligations of 
     States with respect to:
       Conserving marine living resources, including coastal 
     fisheries populations, straddling stocks (fisheries 
     populations whose range includes both areas of the EEZ and 
     the high seas); and highly migratory species and marine 
     mammals, such as whales;
       Protecting the marine environment from all sources of 
     pollution, including from vessels, dumping, seabed activities 
     and land-based activities; and
       The conduct of marine scientific research, including 
     procedures for coastal State exercise of the right to require 
     consent for research in coastal waters and for promoting and 
     facilitating access by researchers to such areas.
       The agreements reached in these areas well serve U.S. 
     interests. Nonetheless, the provisions of UNCLOS on the deep 
     seabed posed fundamental difficulties. Negotiations on these 
     provisions were designed to give effect to the generally 
     accepted principle that the resources of the seabed beyond 
     national jurisdiction are the common heritage of mankind and 
     that an international regime should be established to 
     administer these resources. The essence of this principle is 
     that the international community as a whole has an interest 
     in the utilization of resources beyond the limits of national 
     jurisdiction. Before the principle was incorporated into a 
     United Nations Resolution in 1971, it had been endorsed in a 
     statement by President Johnson in somewhat different terms 
     (the ``legacy of all human beings'') and supported by the 
     Nixon Administration. Subsequently, this principle was 
     affirmed in the deep seabed mining legislation of the United 
     States enacted in 1980.
       Unfortunately efforts to negotiate an international regime 
     took place against the backdrop of deep ideological divisions 
     between developing and industrialized nations over how the 
     principle should be translated into a concrete regime. 
     The result from the United States perspective was a 
     fundamentally flawed seabed mining regime.
       U.S. objections, shared by other industrialized States, 
     fell into two categories: institutional issues and economic 
     and commercial issues. On the institutional front, we 
     objected to inadequate influence for the United States and 
     other industrialized countries within the seabed 
     organization. On the economic and commercial front, we sought 
     a more market-oriented regime. Therefore, we objected to 
     mandatory technology transfer, production limitations from 
     the seabed, onerous financial obligations on miners and the 
     establishment of a subsidized international public enterprise 
     that would compete unfairly with other commercial 
     enterprises.
       Because of basic objections to the seabed mining provisions 
     of UNCLOS, the United States decided that it could not accept 
     the Convention as a whole and did not sign it.


                 Implementation of United States Policy

       In 1983, the United States issued a presidential statement 
     on oceans policy. It restated the objections to Part XI, 
     reiterated our commitment to the objective of a universally 
     acceptable convention and indicated that the United States 
     would accept and act in accordance with the Convention's 
     balance of interests relating to traditional uses of the 
     oceans. This policy has been reaffirmed by successive United 
     States Administrations. On this basis, the United States 
     promoted international acceptance of the non-seabed 
     provisions of UNCLOS, but continued to take the position that 
     the deep seabed regime of Part XI required fundamental reform 
     for the United States to consider accession to the 
     Convention.
       In the late 1980's, other nations increasingly began to 
     recognize difficulties in the seabed mining regime contained 
     in UNCLOS. This shift in attitude reflected general changes 
     in the international political environment: the waning of the 
     Cold War and the explosion of interest in free market reforms 
     in developing countries and within Eastern Europe and the 
     States of the former Soviet Union. It also reflected the 
     decline in commercial interest in deep seabed mining as a 
     result of relatively low metals prices and growing 
     convergence of view among industrialized countries on the 
     need for changes in Part XI of the sort consistently 
     advocated by the United States. The views of industrialized 
     nations were matched by expressions of interest in an 
     accommodation by developing countries--the primary defenders 
     of Part XI.
       These developments led the United Nations Secretary General 
     in 1990 to launch a process of consultations aimed at 
     resolving the objections that had caused the United States 
     and others to reject the deep seabed mining regime. 
     Initially, the United States took a cautious approach to 
     these talks based on uncertainty regarding the likelihood 
     that they could produce fundamental reform. However, in light 
     of our longstanding commitment to a universally acceptable 
     Convention, we participated to better evaluate the 
     opportunities that might exist.
       As they evolved, the Secretary General's consultations 
     revealed growing international support for finding a solution 
     to the problems of Part XI. The prospect of entry into force 
     of the Convention (now definitely to take place on November 
     16, 1994) added momentum. Other industrialized nations saw a 
     window of opportunity for fundamental change and argued that 
     it would be more difficult to effect such change once the 
     Convention had entered into force and its institutions had 
     been established. Likewise, key developing countries shared 
     concerns about entry into force of Part XI with little or no 
     industrialized country participation.
       In early 1993, the Clinton Administration undertook a 
     detailed review of United States oceans policy. It endorsed 
     the basic elements of that policy as they had been 
     consistently articulated by past Administrations. It 
     concluded that the prospects of reforming Part XI of UNCLOS 
     to address our longstanding difficulties had improved to the 
     point that U.S. oceans policy would be best served by taking 
     a more active role in the reform effort.
       This conclusion was also based on an assessment, which has 
     been shared by all United States administrations since 
     negotiations began on the Law of the Sea Convention, that a 
     comprehensive and widely ratified Convention best serves 
     United States interests. The merit of the Convention in this 
     regard is not that it provides an answer to every future 
     question regarding the uses of the oceans, but that it frames 
     and channels discussions of new issues along lines favorable 
     to our interests. Therefore, a Convention acceptable to us 
     offers a legal framework within which to pursue and protect 
     our oceans interests with greater predictability and at less 
     political and economic cost than through other alternatives.
       The United States has demonstrated that it can successfully 
     assert its oceans interests without treaty relations with 
     other States and that it could continue to do so if our 
     objections to Part XI are not met. The costs of this 
     approach, however, would grow over time, and long-term United 
     States interests in stable and predictable rules concerning 
     uses of the oceans would be best served by entry into force 
     of a widely acceptable convention.


 The Agreement Relating to the Implementation of Part XI of the United 
                Nations Convention on the Law of the Sea

       Progress in the United Nations Secretary General's 
     consultations has been rapid since the April, 1993 
     announcement by the United States that it would actively 
     engage in the reform effort. Negotiations concluded June 3rd 
     of this year on the Agreement, which will fundamentally 
     change Part XI.
       The ``Agreement Relating to the Implementation of Part XI 
     of the United Nations Convention on the Law of the Sea of 10 
     December 1982'' (Agreement), avoids establishing a 
     detailed regime anticipating all phases of potential 
     activity associated commitment with mining of the deep 
     seabed. Rather, it sets forth economic and commercial 
     principles that are consistent with our free market 
     philosophy and which form the basis for developing rules 
     and regulations establishing a management regime when 
     interest in commercial mining emerges.
       The Agreement retains the institutional outlines of Part XI 
     but scales back the structure and links the activation and 
     operation of institutions to the actual development of 
     concrete interest in seabed mining. Of fundamental 
     importance, it alters Part XI to provide the United States, 
     and other states with major economic interests, a voice in 
     decisionmaking commensurate with those interests. The United 
     States, acting alone, can block decision on issues of major 
     financial or budgetary significance in a Finance Committee. 
     Acting alone, the United States can block decisions to 
     distribute revenues from mining (e.g., to liberation 
     movements) in the executive Council. Other substantive 
     decisions can be blocked in the Council by the United States 
     and two of our allies acting in concert.
       The mandatory technology transfer provisions are replaced 
     by provisions for the promotion of technology transfer 
     through cooperative arrangements (e.g., joint ventures) and 
     through procurement on the open market. Importantly, such 
     initiatives are to be based on ``fair and reasonable 
     commercial terms and conditions, including effective 
     protection of intellectual property rights.'' Although the 
     prospective operating arm (the Enterprise) is retained, the 
     executive Council must decide whether and when it is to 
     become operational. Moreover, the Agreement subjects the 
     Enterprise to the same obligations as other miners and 
     removes the obligation of developed States to finance it.
       The Agreement limits assistance to land-based producers of 
     minerals to adjustment assistance financed out of a portion 
     of royalties from future seabed mining. It also replaces the 
     production control regime of Part XI by the application of 
     GATT principles on subsidization. The Agreement further 
     replaces the detailed and burdensome financial obligations 
     imposed on miners by a future system for recovering economic 
     rents based on systems applicable to land-based mining and 
     provides that it be designed to avoid competitive incentives 
     or disincentives for seabed mining. The Agreement provides 
     for grandfathering in the mining consortia licensed under 
     U.S. law on the basis of terms and conditions ``similar to 
     and no less favorable than'' those granted to French, 
     Japanese, Russian, Indian and Chinese companies whose mine 
     site claims have already been registered by the Law of the 
     Sea Preparatory Committee. Finally, substantial financial 
     obligations at the exploration stage are eliminated.
       In short, the Agreement achieves a restructuring of Part XI 
     of the Convention which is consistent with our economic 
     principles as well as our need to ensure adequate United 
     States influence over decisions made by the institutions of 
     the regime. In doing so, it achieves the fundamental United 
     States objective of guaranteed the United States access to 
     deep seabed resources on the basis of reasonable terms and 
     conditions.

                          ____________________