[Congressional Record Volume 140, Number 101 (Thursday, July 28, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 28, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           NOW IS THE TIME FOR THE LAW OF THE SEA CONVENTION

  Mr. PELL. Mr. President, tomorrow, July 29, will be a historic day. 
In New York, the U.S. Ambassador to the United Nations--Madeleine 
Albright--will sign an Agreement that will bring our country closer to 
a major bipartisan foreign policy goal: the conclusion of a widely 
acceptable Convention on the Law of the Sea. The Agreement was adopted 
today in the General Assembly by a vote of 121 nations in favor, none 
opposed; 7 countries abstained.
  The signing of the Agreement also brings me a large measure of 
personal satisfaction; U.S. oceans policy has been a major interest of 
mine throughout my Senate career. In September 1967, I introduced the 
first in a series of resolutions related to oceans policy issues. That 
resolution, Senate Resolution 172, called for the negotiation of a 
treaty that would extend the international legal order for the oceans 
beyond the then-existing international regime. At the time, I was 
particularly concerned about the possible appropriation of the 
resources of the seabed floor by other nations or groups of nations as 
well as the possible deployment of weapons of mass destruction on the 
seabed floor.
  I amplified these views further in November of the same year in 
Senate Resolution 186. That resolution laid out specific principles to 
govern the activities of states in the exploration and exploitation of 
ocean space.
  In addition to presaging the Law of the Sea Convention, these 
resolutions, and related measures that I introduced, led to the 
negotiation of the Seabed Weapons Convention which forbids the 
emplacement of weapons of mass destruction on the seabed floor. In 
essence, this reversed the normal treaty making process by instructing 
the executive branch on the parameters of a treaty to be negotiated. 
Although little known, I believe that this Convention was 
extraordinarily significant, shutting down one potential avenue for the 
U.S.-Soviet arms race which in the late 1960's and early 1970's was 
particularly intense.

  When formal negotiations on a new Law of the Sea Convention began in 
1973, I participated as frequent Senate observer, following them 
through their conclusion in 1982 and the Reagan administration's 
announcement that the United States would not sign the Convention 
because of concerns over part XI of the Convention relating to deep 
seabed mining.
  Now, more than a decade later, the Convention will enter into force 
on November 16, 1994, since the requisite 60 countries have already 
ratified. With the signing of the Agreement modifying the deep seabed 
mining provisions of part XI in New York, our country is in a position 
to reap the many benefits offered in the Convention. Without this 
Agreement, the Convention would enter into force in November, leaving 
the United States and other industrialized countries outside of this 
important regime. With this Agreement, the principles of the Law of the 
Sea Convention will be universally applied by developed and developing 
countries alike.

  This is fully consistent with past U.S. policy. In 1980 in the Deep 
Seabed Hard Minerals Act, the Congress stated that:

       (I)t is in the national interest of the United States and 
     other nations to encourage a widely acceptable Law of the Sea 
     Treaty, which will provide a new legal order for the oceans 
     covering a broad range of ocean interests, including 
     exploration for and commercial recovery of hard mineral 
     resources of the deep seabed.

  In 1982, the Reagan administration announced that it was prepared to 
support ratification of the Convention, provided that its concerns with 
part XI could be resolved. Unfortunately, the administration was not 
able to achieve the changes that it had sought in time for the United 
States to sign the Convention. As a result, neither the United States 
nor the other industrialized countries signed the Convention.
  During the Bush administration, with the prospect that the Law of the 
Sea Convention would enter into force, however, informal consultations 
were begun at the United Nations with the aim of resolving concerns 
with part XI.
  This aim appears to have been achieved. Indeed, a large number of 
developed countries have indicated their intention to sign the 
agreement as have a number of developing countries. The way should now 
be open for the United States to become a party to the Law of the Sea 
Convention. I ask unanimous consent that a paper describing the manner 
in which the objections of the United States to the original provisions 
of part XI pertaining to the deep seabed mining regime be included in 
the Record at the conclusion of my remarks.

  There are numerous benefits for the United States in the Convention.
  First and foremost, the Convention will enhance our national 
security. The Convention establishes as a matter of international law 
freedom of navigation rights that are critical to our military forces. 
A letter from Secretary of Defense William Perry and Secretary of State 
Warren Christopher states:

       As one of the world's major maritime powers, the United 
     States has a manifest national security interest in the 
     ability to navigate and overfly the oceans freely.

  A study by the Department of Defense and the Joint Chiefs of Staff 
found that U.S.:

       * * * national security interests in having a stable oceans 
     regime are, if anything, even more important today than in 
     1982 when the world had a roughly bipolar political dimension 
     and the U.S. had more abundant forces to project power to 
     wherever it was needed.

  I would emphasize that these are not my judgments, but the judgments 
of the professionals whose job it is to ensure our Nation's security.
  I have heard some arguments that the Convention's provisions on 
freedom of navigation are not really important because they already 
reflect customary international law. I strongly disagree with that 
argument. It rests our national security on the shifting sands of 
customary international law.

  Customary international law is inherently unstable. Governments are 
likely to be less scrupulous about avoiding new precedents under 
customary law than they are about avoiding such actions in violation of 
a treaty. Moreover, not all governments and scholars agree that all of 
the critical navigation rights protected by the Convention are also 
protected by customary law. They regard many of those rights as 
contractual and, as such, available only to parties to the Convention.
  I would note for example, that it was not long ago that the United 
States claimed a territorial sea of only 3 miles. Now it is 12. I am 
certain there are countries that would like to expand their territorial 
sea even further. Only the Convention establishes limits on countries, 
claims to territorial seas and for that matter exclusive economic zones 
or EEZ's as a matter of international law.
  These navigational rights are of very real importance to our Armed 
Forces. There have been recent situations where even U.S. allies denied 
our Forces transit rights in times of need. For example, during the 
1973 Yom Kippur war our ability to resupply Israel was critically 
dependent on transit rights through the Strait of Gibraltar. Again, in 
1986, U.S. aircraft passed through the strait to strike Libyan targets 
in response to that government's acts of terrorism directed against the 
United States.

  I do not doubt that, if necessary, the U.S. Navy will sail where it 
needs to to protect U.S. interests. But, if we reject the Convention, 
preservation of these rights in nonwartime situations will carry an 
increasingly heavy price for the United States. By remaining outside of 
the Convention, the United States will have to challenge excessive 
jurisdictional claims of states not only diplomatically, but also 
through conduct that opposes these claims. A widely ratified Convention 
would significantly reduce the need for such expensive operations. It 
would also afford us a strong and durable platform of principle to 
ensure support from the American people and our allies when we have no 
choice but to confront claims we regard as illegal.
  The Convention's provisions on freedom of navigation are also vitally 
important to the U.S. economy and the thousands of U.S. workers whose 
jobs are dependent in some way on exports and imports. We live in an 
interdependent world and 80 percent of trade between nations in this 
interdependent world is carried by ship.
  Oil is one example of this. In 1993, 44 percent of U.S. petroleum 
products supplied came from imported oil. This oil was carried on 
tankers that pass through straits, territorial waters, and exclusive 
economic zones of other nations on a daily basis. The United States has 
a vital interest in the stability of the international legal order that 
serves as the basis for this commerce. It also has an interest in 
avoiding higher prices for consumers and job losses that can result 
from costly coastal state restrictions on navigation. Universal 
adherence to the Law of the Sea Convention would provide the 
predictability and stability which international shippers and insurers 
depend upon in establishing routes and rates for global movement of 
commercial cargo.

  The benefits of the Convention extend to many other areas. Protection 
of submarine cables is one example. The new fiber optic cables that 
connect the United States to other countries are crucial for 
international communications and our increasingly information-based 
economy. These cables are enormously expensive. A new fiber optic cable 
connecting the United States to Japan can carry up to one million 
simultaneous telephone calls, and is valued at $1.3 billion. The total 
value of existing cables is measured in the many billions of dollars. 
When these cables are broken, U.S. companies, and ultimately U.S. 
consumers, incur huge repair costs. The Convention contains new 
provisions that strengthen the obligation of all states to take 
measures to protect the cables and cable owners.
  The Convention also provides a framework within which to address many 
of the pressing fisheries and marine environmental challenges we face 
today. It establishes firm and enforceable duties to protect the marine 
environment and to ensure the conservation of living resources, 
including marine mammals and high seas fisheries.

  Mr. President, the Convention contains many other benefits. I hope 
that the Convention and the Agreement will be transmitted to the Senate 
for its advice and consent this fall and that we can have hearings in 
the Committee on Foreign Relations early next year. Those hearings will 
provide an opportunity to explore the Convention in depth.
  Mr. President, I would like to turn for a moment to an issue that is 
of importance to the Senate as an institution. Since there is 
insufficient time before November 16, 1994--the date the Convention 
enters into force--to bring the Agreement into force, the Agreement 
states that it shall be applied provisionally from November 16, 1994, 
until its entry into force. Provisional application shall terminate on 
November 16, 1998, if it has not entered into force by that date.
  Concern has been raised that provisional application undercuts Senate 
prerogatives. This is obviously an issue of great importance for the 
Senate and one to which I have devoted some thought. Certainly I do not 
want to see the prerogatives of this institution encroached upon, even 
if it is for a cause that I support.
  That being said, I believe that provisional application of the 
Agreement in acceptable in this instance.
  I would note at the outset, that the concept of provisional 
application of an agreement is not new. There is precedent for 
provisional application of agreements in the United States. Moreover, 
article 25 of the Vienna Convention on the Law of Treaties specifically 
provides for provisional application of agreements.
  Most important in this instance is that the United States will apply 
the Agreement in accordance with existing laws and regulations. I want 
to emphasize that point. Existing legislation provides sufficient 
authority to implement likely U.S. obligations under the Agreement 
during the period of provisional application. No new obligations will 
be assumed by the United States beyond those authorized by U.S. law. 
Only the Agreement will be provisionally applied, not the Convention as 
a whole.
  The fundamental purpose for provisional application is to prevent the 
older more onerous version of part XI from automatically entering into 
force on November 16, 1994, with the rest of the Convention.
  Provisional application will allow the United States to advance its 
seabed mining interests by participating in the International Seabed 
Authority from its inception. The new Agreement gives the United States 
considerable influence over such decisions, which will be lost if the 
United States cannot participate.
  Further, without provisional application, the modifications made by 
the Agreement could only come into force in accordance with the 
cumbersome amendment procedures contained in the Convention itself. 
Those procedures could prevent those modifications from ever from 
coming into force.
  Mr. President, this has been a rather lengthy presentation, but this 
is an issue about which I feel very strongly. I believe this Agreement 
and the underlying Convention--both the culmination of efforts by 
Democratic and Republican administrations--contains substantial 
benefits for our country. We stand on the threshold of a new era in 
oceans policy. In that era U.S. national interests in the world's 
oceans will be protected as a matter of law. This is a success of U.S. 
foreign policy that will redound to our Nation's benefit--and to the 
world--in the decades to come.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Modification of the Deep Seabed Mining Provisions of the Law of the Sea 
                               Convention

       Part XI of the Law of the Sea Convention--relating to deep 
     seabed mining on the high sea--was one of the most 
     contentious issues discussed during the negotiations of the 
     Law of the Sea Convention and the issue that ultimately led 
     the Reagan Administration to decide not to sign the 
     convention. The Bush and Clinton Administrations shared the 
     Reagan Administration's concerns with Part XI. However, in 
     1989, then-U.S. Ambassador to the United Nations, Thomas 
     Pickering was authorized by the Bush Administration to 
     investigate developing countries' willingness to discuss 
     changes to Part XI. This began a series of informal 
     consultations under the auspices of the U.N. Secretary 
     General.
       The consultations, which concluded on June 3, 1994 in New 
     York, made significant progress in meeting United States 
     objections, as well as those of other industrialized 
     countries, with respect to the deep seabed mining provisions 
     of Part XI of the Convention. It is anticipated that an 
     agreement modifying Part XI will be adopted by the United 
     Nations General Assembly on July 27-28 and open for signature 
     on July 29, 1994. Secretary Christopher has informed the 
     Senate that the United States will sign this Agreement on 
     July 29 and transmit it and the Convention to the Senate for 
     its advice and consent at the end of the 103rd Congress.


          previous objections to the deep seabed mining regime

       The 1982 seabed mining regime of the Convention failed to 
     provide the United States, and other states with major 
     economic interests that would be affected by deep seabed 
     mining, a voice commensurate with those interests. It was 
     based on principles for the organization of economic activity 
     that would have interfered with market forces and effectively 
     preempted private investment in deep seabed mining. 
     Consequently the 1982 regime would have impeded access to 
     deep seabed resources when market conditions warranted their 
     development.
       In order to carry out Part XI, the Convention established 
     the International Sea Bed Authority (the ``Authority'') as 
     the international body chartered to organize and control 
     seabed mining. The Authority included the following 
     subsidiary bodies: an Assembly, made up of all States Parties 
     to the Convention, to establish general policies for the 
     Authority, a 36 member Council as the executive organization, 
     a Secretariat to support the operation of the Convention; and 
     ``the Enterprise'' to be the commercial operating arm of the 
     Authority. The Authority, through the Council, had broad 
     powers to regulate deep-sea bed mining.
       The specific problems with the 1982 seabed mining regime 
     identified by the Reagan, Bush and Clinton Administrations 
     fell into two broad categories: institutional issues; and 
     economic and commercial issues. Institutionally the U.S. had 
     objected to the fact that it was not guaranteed a seat on the 
     Council of the International Seabed Authority. It also 
     objected that developing countries would dominate the 
     organization by virtue of their numbers and the voting rules, 
     including the relationship between the Council and the 
     Assembly.
       On the economic and commercial front, the U.S. objected to 
     the requirement that commercial enterprises, as a condition 
     to the awarding of mining rights, had to transfer their 
     mining technology to either a competing operating arm of the 
     seabed authority known as the Enterprise, or possibly to 
     developing countries. The U.S. also objected to the 
     Enterprise benefiting from discriminatory and competitive 
     advantages over other commercial enterprises through funding 
     of its initial operations by state parties via loans and loan 
     guarantees, and by a 10-year holiday from paying royalties. 
     Additionally, objections were raised to the regime's 
     production control arrangements which limited the level of 
     the production from the seabed in order to protect land-based 
     producers of the minerals that would be produced from the 
     seabed. Finally, the U.S. objected to the regime's onerous 
     system of financial payments that would be owned by 
     commercial miners, in particular a U.S. $1 million annual fee 
     payable beginning with the exploration stage.
       In addition the U.S. objected to the fact that the 
     Convention's provisions could be amended thereby binding the 
     U.S. without its consent. The U.S. also objected to the 
     possibility that future revenues from deep seabed mining 
     might be distributed to liberation movements.


            How United States Objections Have Been Resolved

       The Agreement concluded in the Secretary General's 
     consultations in New York on June 3, 1994 will provide the 
     United States and other industrialized countries influence 
     commensurate with their interests: it will ensure that free 
     market principles govern the administration of the resources 
     of the deep seabed; it will recognize claims to seabed mine 
     sites established on the basis of exploration work already 
     conducted by U.S. and other companies; and, it will provide 
     for study of the potential environmental impacts of deep 
     seabed mining.
       United States negotiators have stated that in response to 
     the specific objections of the United States, the agreement 
     to modify the deep seabed provisions of Part XI will:
       Recognize free market principles in the administration of 
     the regime.
       Increase the influence of the United States and other 
     industrialized countries within the Authority by: (1) 
     guaranteeing a United States seat in the Council; (2) 
     allowing the United States and two other industrialized 
     countries, acting in concert, to block decisions in the 
     Council; (3) preventing the Assembly from acting 
     independently of Council recommendations; and (4) 
     establishing a finance committee, including the five largest 
     contributors to the organization's budget, which must make 
     decisions by consensus;
       Ensure that future amendments to the regime could not be 
     adopted over United States objections;
       Eliminate provisions compelling the transfer of seabed 
     mining technology;
       Allow the U.S. acting alone to veto any plan to distribute 
     revenues to states or other entities, such as national 
     liberation movements;
       Eliminate the power of the organization to limit production 
     from the deep seabed to protect the interests of land-based 
     producers and, in its place, establish restrictions on 
     subsidization of seabed mining based on GATT provisions;
       Grandfather in seabed mine site claims by three U.S.-led 
     multinational consortia on terms ``no less favorable than'' 
     the best granted to Japanese, French, Russian, Indian or 
     Chinese claimants, which have already been registered;
       Eliminate the U.S. $1,000,000 annual fee miners would have 
     had to pay prior to commercial production; and
       Constrain the Enterprise by: (1) requiring a future 
     decision by the Council (which the U.S. and a few allies 
     could block) to make it operational; (2) subjecting it to the 
     same requirements as other commercial enterprises; (3) 
     eliminating the requirement that parties to the convention 
     fund its mining activities; (4) providing that it operate 
     through voluntary joint ventures with other commercial 
     enterprises; and (5) eliminating provisions that would compel 
     other commercial enterprises to provide it with technology.
       In addition to responding to the specific U.S. objections, 
     the new seabed mining regime will streamline the Authority 
     and emphasize the need to ensure an efficient organization in 
     keeping with the recognition that commercial mining is not 
     imminent.
  Mr. DURENBERGER. Mr. President, I understand that I may proceed as in 
morning business.
  The PRESIDING OFFICER. The Senator is correct.

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