[Congressional Record Volume 140, Number 144 (Thursday, October 6, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 6, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            ARRIVAL OF THE CONVENTION ON THE LAW OF THE SEA

  Mr. PELL. Mr. President, I am very pleased to inform my colleagues 
that today, the President transmitted to the Senate for its advice and 
consent, the United Nations Convention on the Law of the Sea and the 
Agreement Relating to the Implementation of Part XI of the Convention. 
I ask unanimous consent that the President's Letter of Transmittal and 
the Secretary of State's Letter of Submittal appear immediately 
following my remarks in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. PELL. Next year, Mr. President, this body will be called upon to 
decide if the Convention and Agreement serve our national interest. In 
my view, the answer to that question is an emphatic yes. In essence, 
the Convention is a constitution to guide the use of the world's 
oceans. As a coastal and maritime nation, the United States has a vital 
interest in such a constitution.
  From a national security perspective, the Convention establishes as a 
matter of international law, navigational freedoms that are fundamental 
to the effective operation of our military forces. As a representative 
from the Department of Defense testified before the Foreign Relations 
Committee, the Department ``considers the legal framework which the 
Convention establishes to be essential to its mission.''
  I ask unanimous consent that a Department of Defense study of the 
Convention entitled ``National Security and the Convention on the Law 
of the Sea'' appear following my remarks in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. PELL. From an economic perspective, the Convention helps 
guarantee American jobs and economic growth. Seaborne commerce accounts 
for 80 percent of trade among nations, and a tremendous percentage of 
U.S. imports and exports. This commerce is critically dependent on the 
navigational freedoms formally established in the Convention. The 
United States has a vital interest in the stability of the 
international legal order that serves as the basis for this commerce. 
Universal adherence to the Law of the Sea Convention provides that 
stability.

  From an environmental perspective, the Convention provides a 
foundation for addressing such challenges as the depletion of many of 
the world's major fisheries. Just last week, the Committee on Foreign 
Relations reported favorably the Convention on the Conservation and 
Management of Pollock Resources in the Central Bering Sea, commonly 
known as the Donut Hole Convention. By establishing a management regime 
to preserve Pollock resources, the Convention will help ensure the 
livelihood of thousands of U.S. fishermen in Alaska and the Pacific 
Northwest. The foundation for the Donut Hole Convention lies in the Law 
of the Sea Convention, and in particular the latter's provisions 
coupling the right to fish on the high seas with the responsibility to 
conserve high seas fishery resources. As Ambassador David Colson noted 
in his testimony the Donut Hole Convention is precisely the sort of 
agreement envisioned in the Law of the Sea Convention.
  Mr. President, these are just a few examples of the benefits of the 
Law of the Sea Convention to the United States. We must recognize, 
however, that the Convention will not be a static document. Just as 
form and substance have been given our Constitution by the courts, so 
too will future uses of the oceans by influenced and shaped by 
decisions made under the Convention. As much as for what is in the 
Convention now, our country has an interest in participating in the 
Convention for what it may become. To be part of that process, the 
United States must become a party to the Convention.
  Mr. President, the Convention and the Agreement transmitted to the 
Senate today are the culmination of over two decades of effort by 
Democratic and Republican Administrations. They are a triumph for 
American foreign policy, and I will make their consideration one of my 
highest priorities for the Committee on Foreign Relations, in the 104th 
Congress.
  I yield the floor.
To the Senate of the United States:
  I transmit herewith, for the advice and consent of the Senate to 
accession, the United Nations Convention on the Law of the Sea, with 
Annexes, done at Montego Bay, December 10, 1982 (the ``Convention''), 
and, for the advice and consent of the Senate to ratification, the 
Agreement Relating to the Implementation of Part XI of the United 
Nations Convention on the Law of the Sea of 10 December 1982, with 
Annex, adopted at New York, July 28, 1994 (the ``Agreement''), and 
signed by the United States, subject to ratification, on July 29, 1994. 
Also transmitted for the information of the Senate is the report of the 
Department of State with respect to the Convention and Agreement, as 
well as Resolution II of Annex I and Annex II of the Final Act of the 
Third United Nations Conference on the Law of the Sea.
  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. Since the late 1960s, the basic 
U.S. strategy has been to conclude a comprehensive treaty on the law of 
the sea that will be respected by all countries. Each succeeding U.S. 
Administration has recognized this as the cornerstone of U.S. oceans 
policy. 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 in 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 by 
    securing our rights regarding 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 
    coastal 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.
  Notwithstanding these beneficial provisions of the Convention and 
bipartisan support for them, the United States decided not to sign the 
Convention in 1982 because of flaws in the regime it would have 
established for managing the development of mineral resources of the 
seabed beyond national jurisdiction (Part XI). It has been the 
consistent view of successive U.S. Administrations that this deep 
seabed mining regime was inadequate and in need of reform if the United 
States was ever to become a Party to the Convention.
  Such reform has now been achieved. The Agreement, signed by the 
United States on July 29, 1994, fundamentally changes the deep seabed 
mining regime of the Convention. As described in the report of the 
Secretary of State, the Agreement meets the objections the United 
States and other industrialized nations previously expressed to Part 
XI. It promises to provide a stable and internationally recognized 
framework for mining to proceed in response to future demand for 
minerals.
  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.
  I therefore recommend that the Senate give early and favorable 
consideration to the Convention and to the Agreement and give its 
advice and consent to accession to the Convention and to ratification 
of the Agreement. Should the Senate give such advice and consent, I 
intend to exercise the options concerning dispute settlement 
recommended in the accompanying report of the Secretary of State.
                                                  William J. Clinton.  
  The White House, October 6, 1994.
                                  ____



                                          Department of State,

                                   Washington, September 23, 1994.
     The President,
     The White House.
       The President: I have the honor to submit to you the United 
     Nations Convention on the Law of the Sea, with Annexes, done 
     at Montego Bay, December 10, 1982 (the Convention) and the 
     Agreement Relating to the Implementation of Part XI of the 
     United Nations Convention on the Law of the Sea of 10 
     December 1982, with Annex, adopted at New York, July 28, 1994 
     (the Agreement), and signed by the United States on July 29, 
     1994, subject to ratification. I recommend that the 
     Convention and the Agreement be transmitted by the Senate for 
     its advice and consent to accession and ratification, 
     respectively.
       The Convention sets forth a comprehensive framework 
     governing uses of the oceans. It was adopted by the Third 
     United Nations Conference on the Law of the Sea (the 
     Conference), which met between 1973 and 1982 to negotiate a 
     comprehensive treaty relating to the law of the sea.
       The Agreement, adopted by United Nations General Assembly 
     Resolution A/RES/48/263 on July 28, 1994, contains legally 
     binding changes to that part of the Convention dealing with 
     the mining of the seabed beyond the limits of national 
     jurisdiction (Part XI and related Annexes) and is to be 
     applied and interpreted together with the Convention as a 
     single instrument. The Agreement promotes universal adherence 
     to the Convention by removing obstacles to acceptance of the 
     Convention by industrialized nations, including the United 
     States.
       I also recommend that Resolution II of Annex I, governing 
     preparatory investment in pioneer activities relating to 
     polymetallic nodules, and Annex II, a statement of 
     understanding concerning a specific method to be used in 
     establishing the outer edge of the continental margin, of the 
     Final Act of the Third United Nations Conference on the Law 
     of the Sea be transmitted to the Senate for its information.


                             the convention

       The Convention provides a comprehensive framework with 
     respect to uses of the oceans. It creates a structure for the 
     governance and protection of all marine areas, including the 
     airspace above and the seabed and subsoil below. After 
     decades of dispute and negotiation, the Convention reflects 
     consensus on the extent of jurisdiction that States may 
     exercise off their coasts and allocates rights and duties 
     among States.
       The Convention provides for a territorial sea of a maximum 
     breadth of 12 nautical miles and coastal State sovereign 
     rights over fisheries and other natural resources in an 
     Exclusive Economic Zone (EEZ) that may extend to 200 nautical 
     miles from the coast. In so doing, the Convention brings most 
     fisheries under the jurisdiction of coastal States. (Some 90 
     percent of living marine resources are harvested within 200 
     nautical miles of the coast.) The Convention imposes on 
     coastal States a duty to conserve these resources, as well 
     as obligations upon all States to cooperate in the 
     conservation of fisheries populations on the high seas and 
     such populations that are found both on the high seas and 
     within the EEZ (highly migratory stocks, such as tuna, as 
     well as ``straddling stocks''). In addition, it provides 
     for special protective measures for anadromous species, 
     such as salmon, and for marine mammals, such as whales.
       The Convention also accords the coastal State sovereign 
     rights over the exploration and development of non-living 
     resources, including oil and gas, found in the seabed and 
     subsoil of the continental shelf, which is defined to extend 
     to 200 nautical miles from the coast or, where the 
     continental margin extends beyond that limit, to the outer 
     edge of the geological continental margin. It lays down 
     specific criteria and procedures for determining the outer 
     limit of the margin.
       The Convention carefully balances the interests of States 
     in controlling activities off their own coasts with those of 
     all States in protecting the freedom to use ocean spaces 
     without undue interference. It specifically preserves and 
     elaborates the rights of military and commercial navigation 
     and overflight in areas under coastal State jurisdictional 
     and on the high seas beyond. It guarantees passage for all 
     ships and aircraft through, under and over straits used for 
     international navigation and archipelagos. It also guarantees 
     the high seas freedoms of navigation, overflight and the 
     laying and maintenance of submarine cables and pipelines in 
     the EEZ and on the continental shelf.
       For the non-living resources of the seabed beyond the 
     limits of national jurisdictional (i.e., beyond the EEZ or 
     continental margin, whichever is further seaward), the 
     Convention establishes an international regime to govern 
     exploration and exploitation of such resources. It defines 
     the general conditions for access to deep seabed minerals by 
     commercial entities and provides for the establishment of an 
     international organization, the International Seabed 
     Authority, to grant title to mine sites and establish 
     necessary ground rules. The system was substantially modified 
     by the 1994 Agreement, discussed below.
       The Convention sets forth a comprehensive legal framework 
     and basic obligations for protecting the marine environment 
     from all sources of pollution, including pollution from 
     vessels, from dumping, from seabed activities and from land-
     based activities. It creates a positive and unprecedented 
     regime for marine environmental protection that will compel 
     parties to come together to address issues of common and 
     pressing concern. As such, the Convention is the strongest 
     comprehensive environmental treaty now in existence or likely 
     to emerge for quite some time.
       The essential role of marine scientific research in 
     understanding and managing the oceans is also secured. The 
     Convention affirms the right of all States to conduct marine 
     scientific research and sets forth obligations to promote 
     and cooperate in such research. It confirms the rights of 
     coastal States to require consent for such research 
     undertaken in marine areas under their jurisdiction. These 
     rights are balanced by specific criteria to ensure that 
     coastal States exercise the consent authority in a 
     predictable and reasonable fashion to promote maximum 
     access for research activities.
       The Convention establishes a dispute settlement system to 
     promote compliance with its provisions and the peaceful 
     settlement of disputes. These procedures are flexible, in 
     providing options as to the appropriate means and fora for 
     resolution of disputes, and comprehensive, in subjecting the 
     bulk of the Convention's provisions to enforcement through 
     binding mechanisms. The system also provides Parties the 
     means of excluding from binding dispute settlement certain 
     sensitive political and defense matters.
       Further analysis of provisions of the Convention's 17 
     Parts, comprising 320 articles and nine Annexes, is set forth 
     in the Commentary that is enclosed as part of this Report.


                             The Agreement

       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 past quarter century. However, the 
     United States decided not to sign the Convention upon its 
     adoption in 1982 because of objections to the regime it would 
     have established for managing the development of seabed 
     mineral resources beyond national jurisdiction. While the 
     other Parts of the Convention were judged beneficial for U.S. 
     ocean policy interests, the United States determined the deep 
     seabed regime of Part XI to be inadequate and in need of 
     reform before the United States could consider becoming Party 
     to the Convention.
       Similar objections to Part XI also deterred all other major 
     industrialized nations from adhering to the Convention. 
     However, as a result of the important international political 
     and economic changes of the last decade--including the end of 
     the Cold War and growing reliance on free market principles--
     widespread recognition emerged that the seabed mining regime 
     of the Convention required basic change in order to make it 
     generally acceptable. As a result, informal negotiations were 
     launched in 1990, under the auspices of the United Nations 
     Secretary-General, that resulted in adoption of the Agreement 
     on July 28, 1994.
       The legally binding changes set forth in the Agreement meet 
     the objections of the United States to Part XI of the 
     Convention. The United States and all other major 
     industrialized nations have signed the Agreement.
       The provisions of the Agreement overhaul the decision-
     making procedures of Part XI to accord the United States, and 
     others with major economic interests at stake, adequate 
     influence over future decisions on possible deep seabed 
     mining. The Agreement guarantee a seat for the United 
     States on the critical executive body and requires a 
     consensus of major contributors for financial decisions.
       The Agreement restructures the deep seabed mining regime 
     along free market principles and meets the U.S. goal of 
     guaranteed access by U.S. firms to deep seabed minerals on 
     the basis of reasonable terms and conditions. It eliminates 
     mandatory transfer of technology and production controls. It 
     scales back the structure of the organization to administer 
     the mining regime and links the activation and operation of 
     institutions to the actual development of concrete commercial 
     interest in seabed mining. A future decision, which the 
     United States and a few of its allies can block, is required 
     before the organization's potential operating arm (the 
     Enterprise) may be activated, and any activities on its part 
     are subject to the same requirements that apply to private 
     mining companies. States have no obligation to finance the 
     Enterprise, and subsidies inconsistent with GATT are 
     prohibited.
       The Agreement provides for grandfathering the seabed mine 
     site claims established on the basis of the exploration work 
     already conducted by companies holding U.S. licenses on the 
     basis of arrangements ``similar to and no less favorable 
     than'' the best terms granted to previous claimants; further, 
     it strengthens the provisions requiring consideration of the 
     potential environmental impacts of deep seabed mining.
       The Agreement provides for its provisional application from 
     November 16, 1994, pending its entry into force. Without such 
     a provision, the Convention would enter into force on that 
     date with its objectionable seabed mining provisions 
     unchanged. Provisional application may continue only for a 
     limited period, pending entry into force. Provisional 
     application would terminate on November 16, 1998, if the 
     Agreement has not entered into force due to failure of a 
     sufficient number of industrialized States to become Parties. 
     Further, the Agreement provides flexibility in allowing 
     States to apply it provisionally in accordance with their 
     domestic laws and regulations.
       In signing the agreement on July 29, 1994, the United 
     States indicated that it intends to apply the agreement 
     provisionally pending ratification. Provisional application 
     by the United States will permit the advancement of U.S. 
     seabed mining interests by U.S. participation in the 
     International Seabed Authority from the outset to ensure that 
     the implementation of the regime is consistent with those 
     interests, while doing so consistent with existing laws and 
     regulations.
       Further analysis of the Agreement and its Annex, including 
     analysis of the provisions of Part XI of the Convention as 
     modified by the Agreement, is also set forth in the 
     Commentary that follows.


               status of the convention and the agreement

       One hundred and fifty-two States signed the Convention 
     during the two years it was open for signature. As of 
     September 8, 1994, 65 States had deposited their instruments 
     of ratification, accession or succession to the 
     Convention. The Convention will enter into force for these 
     States on November 16, 1994, and thereafter for other 
     States 30 days after deposit of their instruments of 
     ratification or accession.
       The United States joined 120 other States in voting for 
     adoption of the Agreement on July 28, 1994; there were no 
     negative votes and seven abstentions. As of September 8, 
     1994, 50 States and the European Community have signed the 
     Agreement, of which 19 had previously ratified the 
     Convention. Eighteen developed States have signed the 
     Agreement, including the United States, all the members of 
     the European Community, Japan, Canada and Australia, as well 
     as major developing countries, such as Brazil, China and 
     India.


                relation to the 1958 geneva conventions

       Article 311(1) of the LOS Convention provides that the 
     Convention will prevail, as between States Parties, over the 
     four Geneva Conventions on the Law of the Sea of April 29, 
     1958, which are currently in force for the United States: the 
     Convention on the Territorial Sea and the Contiguous Zone, 15 
     U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205 (entered 
     into force September 10, 1964); the Convention on the High 
     Seas, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82 
     (entered into force September 30, 1962); Convention on the 
     Continental Shelf, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 
     U.N.T.S. 311 (entered into force June 10, 1964); and the 
     Convention on Fishing and Conservation of Living Resources of 
     the High Seas, 17 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 
     285 (entered into force March 20, 1966). Virtually all of the 
     provisions of these Conventions are either repeated, 
     modified, or replaced by the provisions of the LOS 
     Convention.


                           dispute settlement

       The Convention identifies four potential fora for binding 
     dispute settlement:
       The International Tribunal for the Law of the Sea 
     constituted under Annex VI;
       The International Court of Justice;
       An arbitral tribunal constituted in accordance with Annex 
     VII; and
       A special arbitral tribunal constituted in accordance with 
     Annex VIII for specified categories of disputes.
       A State, when adhering to the Convention, or at any time 
     thereafter, is able to choose, by written declaration, one or 
     more of these means for the settlement of disputes under the 
     Convention. If the parties to a dispute have not accepted the 
     same procedure for the settlement of the dispute, it may be 
     submitted only to arbitration in accordance with Annex VII, 
     unless the parties otherwise agree. If a Party has failed to 
     announce its choice of forum, it is deemed to have accepted 
     arbitration in accordance with Annex VII.
       I recommend that the United States choose special 
     arbitration for all the categories of disputes to which it 
     may be applied and Annex VII arbitration for disputes not 
     covered by the above, and thus that the United States make 
     the following declaration:
       The Government of the United States of America declares, in 
     accordance with paragraph 1 of Article 287, that it chooses 
     the following means for the settlement of disputes concerning 
     the interpretation or application of the Convention:
       (A) a special arbitral tribunal constituted in accordance 
     with Annex VIII for the settlement of disputes concerning the 
     interpretation or application of the articles of the 
     Convention relating to (1) fisheries, (2) protection and 
     preservation of the marine environment, (3) marine scientific 
     research, and (4) navigation, including pollution from 
     vessels and by dumping, and
       (B) an arbitral tribunal constituted in accordance with 
     Annex VII for the settlement of disputes not covered by the 
     declaration in (A) above.
       Subject to limited exceptions, the Convention excludes from 
     binding dispute settlement disputes relating to the sovereign 
     rights of coastal States with respect to the living resources 
     in their EEZs. In addition, the Convention permits a State to 
     opt out of binding dispute settlement procedures with respect 
     to one ore more enumerated categories of disputes, namely 
     disputes regarding maritime boundaries between neighboring 
     States, disputes concerning military activities and certain 
     law enforcement activities, and disputes in respect of which 
     the United Nations Security Council is exercising the 
     functions assigned to it by the Charter of the United 
     Nations.
       I recommend that the United States elect to exclude all 
     three of these categories of disputes from binding dispute 
     settlement, and thus that the United States make the 
     following declaration:
       The Government of the United States of America declares, in 
     accordance with paragraph 1 of Article 298, that it does not 
     accept the procedures provided for in section 2 of Part XV 
     with respect to the categories of disputes set forth in 
     subparagraphs (a), (b) and (c) of that paragraph.


                             Recommendation

       The interested Federal agencies and departments of the 
     United States have unanimously concluded that our interests 
     would be best served by the United States becoming a Party to 
     the Convention and the Agreement.
       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 in 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 EEZ 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 EEZ out to 200 nautical miles from shore and 
     by securing our rights regarding 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 coastal 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 which 
     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.
       The Agreement fundamentally changes the deep seabed mining 
     regime of the Convention. It meets the objections the United 
     States and other industrialized nations previously expressed 
     to Part XI. It promises to provide a stable and 
     internationally recognized framework for mining to proceed in 
     response to future demand for minerals.
       The United States has been a leader in the international 
     community's effort to develop a widely accepted international 
     framework governing uses of the seas. As a Party to the 
     Convention, the United States will be in a position to 
     continue its role in this evolution and ensure solutions that 
     respect our interests.
       All interested agencies and departments, therefore, join 
     the Department of State in unanimously recommending that the 
     Convention and Agreement be transmitted to the Senate for its 
     advice and consent to accession and ratification 
     respectively. They further recommend that they be transmitted 
     before the Senate adjourns sine die this fall.
       The Department of State, along with other concerned 
     agencies, stands ready to work with Congress toward enactment 
     of legislation necessary to carry out the obligations assumed 
     under the Convention and Agreement and to permit the United 
     States to exercise rights granted by the Convention.
           Respectfully submitted,
                                               Warren Christopher.

                               Exhibit 2


                                     The Secretary of Defense,

                                    Washington, DC, July 29, 1994.
     Hon. Claiborne Pell,
     Chairman, Committee on Foreign Relations, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: In 1982, the United States made a 
     decision that it would not become a party to the United 
     Nations Convention on the Law of the Sea because of its 
     concerns about the deep seabed mining provisions, contained 
     in Part XI of the Convention. The Convention is due to enter 
     into force on November 16, 1994, now that the requisite 
     number of other states (60) have ratified it. However, 
     consultations were recently concluded which resulted in an 
     Agreement to correct what the United States has long viewed 
     as the Convention's flawed deep seabed mining provisions. The 
     United States now intends to sign the Agreement at the United 
     Nations on July 29, 1994. Accordingly, the Convention as 
     modified will be transmitted to the Senate for its advice and 
     consent at the end of the 103rd Congress.
       The Department of Defense fully supports U.S. signature of 
     the Agreement, and ratification of the Convention as modified 
     by the Agreement. In the Administration's view, the new 
     Agreement satisfactorily resolves the issues that the U.S. 
     Government and ocean mining interests raised in the early 
     1980's during deliberations over whether the United States 
     should sign the Law of the Sea Convention. The new Agreement 
     meets these objections by correcting the serious 
     institutional and free market deficiencies in the original 
     Convention. We have received indications from other 
     industrialized nations that, with adoption of the new 
     Agreement, they will soon accede to the modified Convention.
       The Convention establishes a universal regime for 
     governance of the oceans which is needed to safeguard U.S. 
     security and economic interests, as well as to defuse those 
     situations in which competing uses of the oceans are likely 
     to result in conflict. In addition to strongly supporting our 
     interests in freedom of navigation, the Convention provides 
     an effective framework for serious efforts to address land 
     and sea-based sources of pollution and overfishing. Moreover, 
     the Agreement provides us with an opportunity to participate 
     with other industrialized nations in a widely accepted 
     international order to regulate and safeguard the many 
     diverse activities, interests, and resources in the world's 
     oceans. Historically, this nation's security has depended 
     upon the ability to conduct military operations over, under, 
     and on the oceans. The best guarantee that this free and 
     unfettered access to the high seas will continue in the years 
     ahead is for the U.S. to become a party to the Convention, as 
     modified by the Agreement, at the earliest possible time.
       In the coming months, we anticipate heightened public 
     debate of the merits of the Law of the Sea Convention. To put 
     that debate into perspective, you will find enclosed a paper 
     which briefly outlines the history of the original 
     Convention, the steps leading to the formalization of the 
     Part XI Agreement, and the nation's vital national security 
     and other interests in becoming bound by the modified 
     Convention.
       To send a strong signal that the United States is committed 
     to an ocean regulatory regime that is guided by the rule of 
     law, General Shalikashvili and I urge your support in 
     securing early advice and consent of the United Nations 
     Convention on the Law of the Sea and implementing Agreement.
           Sincerely,
                                                 William J. Perry.

 National Security and the United Nations Convention on the Law of the 
                                  Sea


                           Executive Summary

       This position paper analyzes the Department of Defense's 
     interests in having the United States become a party to the 
     1982 UN Law of the Sea Convention (Convention), as modified 
     by the recently negotiated Part XI Implementation Agreement 
     (Agreement). This new Agreement corrects the flaws identified 
     by the United States in the deep seabed mining regime set out 
     in the Convention.
       Our principal judgment is that public order of the oceans 
     is best established by a universally accepted law of the sea 
     treaty that is in the U.S. national interest. We believe the 
     opportunity created by the new Agreement meets this test. 
     Reliance upon customary international law in the absence of 
     the modified Convention would represent a necessarily 
     imprecise approach to the problem as well as one which 
     requires the United States to put forces into harm's way when 
     principles of law are not universally understood or accepted. 
     A universal Convention is the best guarantee of avoiding 
     situations in which U.S. forces must be used to assert 
     navigational freedoms, as well as the best method of 
     fostering the growth and use of various conflict avoidance 
     schemes which are contained in the Convention.
       The Convention, as modified, is not a perfect solution to 
     all oceans policy issues. However, the compromises embodied 
     in the Agreement and the Convention as a whole establish an 
     ocean regulatory regime that is, on balance, in the national 
     security interest of the United States. We now have before us 
     a rare window of opportunity to resolve favorably the deep 
     seabed mining issues, as well as to solidify the vital 
     navigation and other resources issues which are addressed by 
     the Convention.
       The Department of Defense's key conclusions are:
       DOD has long been a major proponent of achieving a 
     comprehensive and stable legal regime with respect to 
     traditional uses of the oceans. A universally accepted 
     Convention, as modified by the Agreement, would promote our 
     strategic goals of free access to and public order on the 
     oceans and in the superjacent airspace.
       Over 150 States, including the U.S., participated in the 
     negotiation of the Convention between 1973 and 1982. Save for 
     Part XI, we achieved our fundamental objectives of 
     solidifying and defining the nature of maritime claims, 
     restraining the growth of excessive maritime claims, and 
     codifying key legal provisions in the areas of environment, 
     fisheries, and sovereign immunity which balance the vital 
     interests of maritime and coastal states.
       Since 1979 DOD and the Department of State have been 
     actively involved in countering excessive maritime claims 
     through the Freedom of Navigation (FON) program. This 
     combination of diplomatic and operational challenges is less 
     desirable than establishment through the Convention of 
     universal norms of behavior and conflict resolution 
     mechanisms.
       With 62 States now having ratified, the Convention will 
     enter into force in November 1994. Under the sponsorship of 
     the UN Secretary General, the United States and other states 
     have worked hard on a comprehensive set of modifications to 
     Part XI. An Agreement has been finalized and will be offered 
     for adoption by the UN General Assembly in late July. 
     Negotiators of the Agreement were guided by the specified 
     objections to Part XI articulated by President Reagan in 
     1982.
       Correction of the Part XI flaws now allows the United 
     States to take advantage of the opportunity to adhere to the 
     modified Convention so as to realize its national security 
     benefits, and permit us to ensure those rights from within 
     the structure of the Convention.


                     u.s. oceans policy: 1973-1994

       Between 1973 and 1982, over 150 states participated in the 
     negotiation of the Third United Nations Convention on the Law 
     of the Sea (Convention). Save for the provisions dealing with 
     deep seabed mining, the Convention was a success from the 
     U.S. perspective.It secured much needed agreement on the 
     breadth of the territorial sea (12 nautical miles (NM)) in 
     the face of a large number of nations seeking to establish 
     territorial sea claims of up to 200 NM or more, and struck a 
     positive balance between coastal states and maritime states 
     on issues such as marine pollution, fisheries, and mineral 
     resource exploitation, and navigational freedoms through the 
     waters and airspace of exclusive economic zones (EEZs), 
     territorial seas, straits, and archipelagic waters.
       However, while United States maritime interests were 
     significantly preserved in the balance struck between coastal 
     state interests in security and resource protection, the 
     provisions dealing with deep seabed mining in Part XI of the 
     Convention were not satisfactory. As a result, on July 9, 
     1982,\1\ President Reagan announced that eleven sessions of 
     negotiations had failed to produce a universal agreement 
     which accommodated the diverse interests represented at the 
     conference on the full range of oceans use. Of particular 
     concern to the U.S. and other developed countries were those 
     seabed mining provisions that deterred development, did not 
     guarantee a decision-making role for the U.S. which fairly 
     reflected its interests, permitted amendments to the regime 
     without state party consent, mandated transfers of privately 
     owned technology, permitted sharing of benefits by national 
     liberation movements, and failed to assure access for those 
     pioneer investors who sought to develop deep seabed resources 
     privately.\2\ Virtually all major maritime and industrialized 
     nations have declined to become parties to the Convention in 
     its original form. However, 62 other states have agreed to be 
     bound by the Convention and it will enter into force on 
     November 16, 1994.
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     Footnotes at end of article.
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       In 1983, President Reagan issued the U.S. Ocean Policy 
     Statement\3\ which declared, in essence, that the United 
     States would follow the non-seabed-mining provisions of the 
     Convention because they reflected ``traditional uses of the 
     oceans'' and ``generally confirm existing maritime law and 
     practice.'' In that same 1983 statement, President Reagan 
     asserted a 200 NM EEZ on behalf of the United States, in 
     addition to confirming the United States exercise of 
     sovereign jurisdiction over the resources of the continental 
     shelf.
       In addition to the 1983 declaration of the 200 NM EEZ, 
     President Reagan also announced that the United States would 
     ``exercise and assert its navigation and overflight rights 
     and freedoms on a worldwide basis consistent with . . . the 
     Convention [but not] . . . acquiesce in unilateral acts of 
     other states designed to restrict the rights and freedoms of 
     the international community in navigation and overflight and 
     other related high seas uses.'' President Reagan's statement 
     reaffirmed the ongoing U.S. practice since 1979 of 
     challenging, through diplomatic and navigational assertions, 
     maritime claims which were inconsistent with the Convention. 
     In excess of 110 diplomatic protests, as well as 35-40 
     operational challenges per year, have been made since 1979 
     under the Freedom of Navigation (FON) Program\4\ challenging 
     excessive coastal claims. Finally, to extend the breadth of 
     the United States territorial sea (3 NM) to that authorized 
     by the Convention, President Reagan issued a Proclamation on 
     December 27, 1988\5\ extending the Territorial Sea of the 
     United States and its possessions to 12 NM.


                        scope of the convention

       The text of the Convention is the result of nine years of 
     negotiations in which the United States was an active 
     participant. The Convention opened for signature on 10 
     December 1982. It consists of 320 articles and nine annexes, 
     covering virtually every topic of importance to coastal and 
     maritime states. Among the topics covered: breadth of the 
     territorial sea, exclusive economic zone (EEZ), contiguous 
     zones, and continental shelf; freedom of navigation and 
     overflight; the laying of cables and pipelines; rights of 
     transit, innocent and archipelagic sea lanes passage; right 
     of states to conduct marine scientific research; a balancing 
     of rights between fishing states and coastal states 
     concerning management of fish stocks, as well as empowerment 
     of regional fishing compacts; creation of special regimes for 
     the management and protection of marine mammals, anadromous, 
     and highly migratory fish species; apportionment of 
     responsibility between the coastal states and flag states to 
     take measures to protect the marine environment; and 
     establishment of a broad range of dispute settlement options 
     so that universal participation would be reasonably assured. 
     However, as noted above, Part XI of the Convention 
     established both a regime and institutions to administer 
     mining of the deep seabed which were objectionable to the 
     United States and most other industrialized countries.


    efforts to reform the convention and the reaction of our allies

       In 1990, then UN Secretary-General Javier Perez de Cuellar 
     convened informal meetings in New York to begin negotiation 
     of a multilateral instrument which would correct the 
     objectionable portions of Part XI. The object was universal 
     adherence to the Convention. Approximately 30 developing and 
     developed countries participated in the discussions which 
     resulted, in early 1994, in a Draft UN General Assembly 
     Resolution and Draft Agreement Relating to Implementation of 
     Part XI of the 1982 United Nations Convention on the Law of 
     the Sea (hereinafter Agreement).
       The Part XI Agreement and Draft General Assembly Resolution 
     have been crafted so as to incorporate by reference the 
     provisions of the Convention which are not objectionable (the 
     entire Convention less specified provisions in Part XI). Most 
     parties and non-parties to the Convention are expected to 
     sign the Agreement, including most industrialized nations. 
     Since the Convention will enter into force for over 60 states 
     in November 1994, those states which have agreed to be bound 
     by the Convention may signal their assent to the Agreement 
     through, in essence, silent consent procedures. The legal 
     significance of the draft UN General Assembly Resolution 
     is that it eliminates the requirement to amend the 
     Convention through the convening of an entirely new Law of 
     the Sea Conference or by use of the Convention's \2/3\ 
     vote amendment procedures. For the Agreement to formally 
     enter into force, 40 states must register their approval 
     of the Agreement by either signing it or failing (in the 
     case of states which have already ratified the Convention) 
     to ``opt out'' within one year after the Agreement 
     provisionally applies. While the Agreement will not 
     formally enter into force until there are 40 state 
     parties, it will be provisionally applied to signatory 
     states from November 16, 1994, when the Convention enters 
     into force.
       There is consensus among all Federal agencies that 
     accession to the Law of the Sea Convention is a priority. 
     Following extensive interagency coordination in conjunction 
     with Presidential Review Directive-12, an Executive Branch 
     policy decision was formulated in May 1993 that: (a) the U.S. 
     should provide leadership to find solutions to the Part XI 
     dilemma; (b) the non-seabed provisions of the Convention are 
     the appropriate legal framework for governance of the oceans; 
     and (c) the U.S. should, as a matter of high priority, become 
     an active participant in efforts to reform the Convention.


  vital national security interests are advanced by the united states 
      becoming a party to the convention via the part xi agreement

       National security interests have been a critical component 
     over the 25 years spent in seeking a comprehensive 
     Convention. They were at the heart of the Clinton 
     Administration's policy of finding a satisfactory solution to 
     the Part XI problem so that the United States could sign the 
     Convention. The national security interests in having a 
     stable oceans regime are, if anything, even more important 
     today then in 1982 when the work had a roughly bipolar 
     political dimension and the U.S. had more abundant forces to 
     project power to wherever it was needed.
       The navigational rights and freedoms embodied in the 
     Convention are in daily use by the navel and air forces of 
     the United States and its allies. The core rights assured by 
     the Convention include the following:


                     the right of innocent passage

       This right of ships to continuous and expeditious passage 
     which is not prejudicial to the peace, good order, or 
     security of coastal states is a primary right of nations in 
     foreign territorial seas. Naval vessels need this right to be 
     able to conduct their passage expeditiously and effectively. 
     The Convention plays a special role in codifying the 
     customary right of innocent passage and contains an 
     exhaustive list of the types of shipboard activities which 
     are forbidden while a ship is engaged in innocent passage.


                     the right of transit passage.

       The Convention codifies the historic regime permitting free 
     transit through and over international straits while 
     upholding the needs of major maritime states who could not 
     accept the extension of territorial seas to 12 NM without a 
     corresponding guarantee of an unimpeded right of transit 
     through and over international straits. Over 135 straits, 
     which would have been closed as a result of the extension of 
     the territorial seas to 12 NM, are open to free passage under 
     the regime of transit passage. Less restrictive than innocent 
     passage, ships and aircraft under the passage regime may pass 
     through straits continuously and expeditiously in their 
     normal mode. Accordingly, submarines may pass through straits 
     submerged, naval task forces may conduct formation steaming, 
     aircraft carriers may engage in flight operations, and 
     military aircraft can transit unchallenged. In three 
     significant conflicts the regime of transit passage would 
     have and has played a critical role:
       During the 1973 Yom Kippur War, overflight of the Strait of 
     Gibraltar enabled U.S. military aircraft to conduct emergency 
     resupply of Israel following the denial of overflight of land 
     territory by certain NATO Allies.\6\
       Following the state-sponsored terrorist attack on U.S. 
     armed forces in Berlin, U.S. military aircraft overflew the 
     Strait of Gibraltar to conduct a raid on Libya on April 14, 
     1986, after certain NATO Allied denied the U.S. permission to 
     overfly their land territory.
       In the recent Persian Gulf War, the exercise of the right 
     of transit passage enabled U.S. and other coalition naval and 
     air forces to traverse through the critical choke points of 
     Hormuz and Bab el Mandeb.


                     archipelagic sea lanes passage

       The right of transit by ships and aircraft through 
     archipelagos, such as the Philippines, the Bahamas, and 
     Indonesia, can have a significant impact on the ability of 
     military forces to proceed to an area of operations in a 
     timely and secure manner. Archipelagic sea lanes passage 
     permits transits in the normal mode between one part of the 
     high seas or EEZ and another through the normal routes used 
     for international navigation or through International 
     Maritime Organization approved sea lanes. To date, there has 
     been a general compliance with the Convention by national 
     claiming archipelagic status.\7\


                           high seas freedoms

       The Convention makes an important contribution in defining 
     the types of activities which are permissible on and over the 
     high seas. Under the principle of ``due regard'' to the 
     rights of other high seas users, U.S. forces remain free to 
     engage in task force maneuvering, flight operations, military 
     exercises, surveillance and intelligence activities, and 
     ordnance testing and firing.


  sovereign immunity of warships and other public vessels and aircraft

       The concept of sovereign immunity of warships and other 
     public vessels has come under increasing assault by coastal 
     states wishing to circumscribe this historic right on the 
     basis of security or pollution control concerns. Article 236 
     of the Convention contains a vitally important codification 
     of the customary principle that naval auxiliaries are 
     entitled to the same immunity from enforcement by other than 
     the flag state as warships enjoy. To support military 
     operations around the globe, there must be the assurance that 
     military vessels and their cargoes can move freely without 
     being subject to levy or interference by coastal states.
       Recent events in Korea, Haiti and the former Yugoslavia are 
     important reminders that we still live in an uncertain and 
     dangerous world. Threats to world order and U.S. interests in 
     the post-Cold war era include:
       Ethnic rivalry and separatist violence within and outside 
     of national borders;
       Regional tensions in areas such as the Middle East and 
     Northeast Asia;
       Humanitarian crises of natural or other origin resulting in 
     starvation, strife or mass migration patterns;
       Conflict over resources including those that straddle 
     territorial or maritime zones;
       Terrorist and pirate attacks against U.S. persons, 
     property, or shipping overseas or on the high seas.
       These challenges are considerably different than those 
     which dominated thinking in the era following World War II. 
     What has not changed, however, is that many U.S. economic, 
     political, and military interests are located far away from 
     the United States. The United States has always been a 
     maritime nation and we must have substantial air and sealift 
     capabilities to enable our forces to be where and when 
     needed. Assurance that key sea and air lines of communication 
     will remain open as a matter of international legal right and 
     not contingent upon approval by coastal or island nations is 
     a fundamental premise in our defense posture.
       The Convention continues to serve an important function in 
     safeguarding our national security interests. Because the 
     Convention is regarded as authoritative, it guides the 
     behavior of states, promoting stability of expectations and 
     providing clear benchmarks for issue resolution. For example, 
     provisions in the Convention have been invaluable in 
     resolving the following issues which have strong national 
     security implications:
       Bilateral discussions with the former Soviet Union 
     following the Black Sea ``bumping'' incident, resulting in 
     the U.S.-USSR Uniform Interpretation of the Rules of 
     International Law Governing Innocent Passage Through the 
     Territorial Sea signed at Jackson Hole, Wyoming on September 
     23, 1989; and
       Technical level discussions between U.S. and Indonesian 
     representatives concerning archipelagic sea lanes passage 
     through the Indonesian archipelago.
       A universal convention offers considerable promise because 
     of the flexibility which it provides to states to resolve 
     disputes over conflicting uses of the sea through the 
     employment of any of four dispute resolution mechanisms. Even 
     though the United States and other powers will not submit to 
     compulsory jurisdiction for military matters, a mechanism for 
     resolving lesser disputes provides an additional method of 
     managing conflict. The large number of ``hot spots'' on the 
     glove (Haiti, Korea, Somalia, Rwanda, the Middle East, the 
     Persian Gulf, the former Soviet Union, and the former 
     Yugoslavia) underscore the need for additional non-military 
     methods of resolving conflicts.
       Without international respect for the freedoms of 
     navigation and overflight set forth in the Convention, 
     exercise of our forces' mobility rights could be jeopardized. 
     Disputes with littoral states could delay action and be 
     resolved only by protracted political discussions. The 
     response time for U.S. and allied/coalition forces based away 
     from potential areas of conflict could lengthen. Deterrence 
     could be weakened--particularly when our coalition allies do 
     not have sufficient power projection capacity to resist 
     illegal claims. Forces may arrive on the scene too late to 
     make a difference, affecting our ability to influence the 
     course of events consistent with our interests and treaty 
     obligations.


international trade and business interests of the united states depend 
           upon the navigational provisions of the convention

       To be secure and influential in the political arena, the 
     United States must maintain its economic viability. In the 12 
     years since the United States rejected the Convention's 
     seabed mining regime, our country has become more 
     economically interdependent than ever upon access to global 
     markets. U.S. economic growth is closely linked to the world 
     economy as a whole and the majority of that trade is carried 
     on and over the world's oceans. Seaborne commerce exceeds 3.5 
     billion tons annually and accounts for 80 percent of trade 
     among nations. Universal adherence to the 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. Increased 
     costs of goods and services resulting from coastal state 
     restrictions on navigation and communications would adversely 
     impact our entire economy.
       The reality that U.S. economic interests are global in 
     nature underscores the need to uphold the transit rights 
     under a widely accepted and comprehensive international legal 
     regime. The Convention's dispute resolution provisions, its 
     fixed rules for determining the breadth and access to 
     maritime resources in the EEZ and continental shelf, and its 
     provisions which preserve ``flag state'' control over vessel-
     source pollution all support the ``stability of expectations 
     of investment bankers, insurance companies and others who 
     underwrite and support shipping, offshore exploration and 
     drilling and many other activities at sea.''\8\


 THE LOS CONVENTION PROVIDES CLEAR AND CONCRETE RULES FOR DETERMINING 
                    THE LEGALITY OF MARITIME CLAIMS

       One of the principal accomplishments of the LOS Convention 
     is the establishment of a clear set of maritime zones: the 
     territorial sea, contiguous zone, EEZ, and continental shelf, 
     which uphold the security and resource interests of coastal 
     states, balanced against the interest of maritime nations to 
     have relatively open access to the oceans for navigation, 
     overflight, and telecommunications. This careful balance of 
     maritime zones reverses a disturbing trend in jurisdictional 
     creep in which some states claimed territorial seas of up to 
     200 NM in order to create a monopoly over coastal resources 
     or for purposes of security. Excessive maritime claims may 
     not disappear altogether if the United States signs the 
     Agreement; however, as an insider, the U.S. would be in a 
     stronger position to assert the Convention's clear rules for 
     establishing the baseline from which the territorial sea is 
     measured, as well as the unambiguous rules for determining 
     the existence of bays.
       As a party to the Convention, the United States also will 
     be entitled to make use of the dispute resolution apparatus 
     to contest those excessive claims. Since 1979, the United 
     States has unilaterally contested excessive coastal claims 
     diplomatically and operationally through the FON Program. 
     Those actions may still be required to enforce the norms of 
     the Convention; however, to the extent we can decrease 
     reliance upon FON challenges, the United States avoids 
     political and military risks and other costs. Also, because 
     the Convention provides explicit rules for fixing maritime 
     boundaries, there should be a corresponding lessening in 
     tension over the normative rules to be applied. In addition, 
     from the perspective of the smaller coastal states, our 
     becoming party to the Convention would create less perceived 
     pressure on those states to assert excessive claims to 
     achieve parity with the U.S. and other major maritime 
     nations.


THE LOS CONVENTION ESTABLISHES IMPORTANT BENCHMARKS FOR PROTECTING THE 
        MARINE ENVIRONMENT WHILE PRESERVING OPERATIONAL FREEDOMS

       The Department of Defense in committed as a matter of 
     policy to the norm established by Part XII of the Convention, 
     which affirms that ``States have the obligation to protect 
     and preserve the marine environment.'' Although the 
     Convention provides a framework for retaining navigational 
     access to the world's oceans, the practical abilities of 
     naval forces to gain access to foreign ports and bases for 
     distant operations and to resist some types of coastal state 
     claims are heavily influenced by the perceptions of coastal 
     states that the U.S. warships and other public vessels are 
     being operated in an environmentally responsible manner. The 
     goal of our environmental program is to ensure that our shore 
     installations and operational commands worldwide are able to 
     accomplish their assigned missions while meeting our 
     environmental obligations.\9\ To meet this overall goal of 
     environmental compliance and to maintain credibility with the 
     world community at large, the military Departments have made 
     a heavy commitment of resources to:
       Actively participate in the international fora (such as the 
     International Maritime Organization) which adopt and 
     promulgate realistic procedural and substantive environmental 
     standards affecting maritime operations;
       Modify our operational practices or, as appropriate, 
     acquire waste processing equipment, to mitigate the 
     environmental impacts of military operations;
       Conduct extensive research to develop technical solutions 
     to the problems of processing shipboard wastes and 
     development of special coatings and industrial processes to 
     further limit sources of pollution from ship hulls.
       The Department will continue to be proactive in the area of 
     environmental protection as a matter of national law and 
     policy. Nevertheless, to resist excessive maritime claims and 
     to maintain the principle of sovereign immunity (guaranteed 
     in Article 236 of the Convention) requires both a legal 
     commitment to environmental protection as well as a history 
     of sound management of environmental hazards. In the latter 
     respect, the United States has a solid record. But failing to 
     become committed to the comprehensive environmental norms in 
     the Convention would inevitably hamper our ability to 
     maintain diplomatically the balance between our interests in 
     freedom of navigation and protection of the marine 
     environment.
       The Convention establishes a delicate balance between the 
     rights of coastal states to adopt certain measures to protect 
     the marine environment close to their shores and the general 
     right of a flag state to exercise prescriptive and 
     enforcement jurisdiction over incidents as sea, routine 
     operational practices, design, and training of crewmembers. 
     The Convention establishes a similar balance between the 
     responsibility of states to curb all sources of marine 
     pollution and the rights of maritime states to exercise their 
     high seas freedoms. Since the Convention and most states take 
     the position that states cannot avoid their overarching 
     responsibilities under the Convention (or customary 
     international law) to protect the marine environment through 
     a claim of sovereign immunity, the U.S. has worked hard to 
     maintain a leadership position in the International Maritime 
     Organization (IMO), based in London.\10\ The United States 
     and all major maritime powers have refused to sign the 1982 
     Convention, yet all actively participate in the IMO, the 
     institutional sponsor for a number of other related 
     conventions, including:
       The 1973 Convention and 1978 Protocol for the Prevention of 
     Pollution from Ships (MARPOL);\11\
       The 1972 Convention on Prevention of Collisions at Sea 
     (COLREGS);\12\ and
       The 1972 Convention on the Prevention of Marine Pollution 
     (London Dumping Convention).\13\
       The common frame of reference for all three of these IMO-
     sponsored conventions is the law of the Sea Convention. In 
     the IMO context, the United States has successfully urged 
     positions which tend to hold those flag states accountable 
     for failing to uphold applicable environmental protection 
     norms. By the same token, the United States over the years 
     has been successful in urging realistic and practical 
     methods of dealing with unilateral restrictions on 
     navigation or the rights of sovereign immune vessels which 
     would potentially impair our operational freedoms in the 
     name of environmental protection.
       Once again, the Convention is the glue that holds together 
     diverse maritime interests in the environmental field. By 
     becoming a party to the Convention, the United States will be 
     in a better position to influence events in forums like the 
     IMO. Moreover, our general ability to curtail the growth of 
     unilateral claims which restrict navigation also will be 
     strengthened.
       From the standpoint of promoting international peace and 
     stability, the Department strongly supports the Convention 
     because it is one of the few comprehensive legally binding 
     instruments committed to global environmental security. As 
     noted above, DOD has made a significant policy and fiscal 
     commitment to operate in an environmentally responsible 
     manner to assure itself access to foreign ports, bases, and 
     airfields, as well as to set a standard which other nations 
     will follow. In examining the factors which precipitated the 
     current and past instabilities in Haiti, Ethiopia, Somalia, 
     the Sudan and elsewhere among developing and undeveloped 
     states, it is clear that environmental mismanagement played a 
     significant role. The Convention requires: states to ensure 
     that activities under their jurisdiction do not cause 
     environmental damage to other states or result in the spread 
     of pollution beyond their own offshore zones; to minimize the 
     release of harmful substances into the marine environment 
     from land-based sources; to protect fragile ecosystems; and 
     to conserve living resources.
       Since over 80% of marine pollution emanates from land-based 
     sources, it serves U.S. national security interests to 
     promote universal accession to the Convention as a method of 
     addressing conflicts which arise out of the transboundary 
     movement of pollutants.


 The Convention Provides an Important Foundation for future efforts to 
   Improve the legal regime affecting management of fish stocks and 
                      resolving resource conflicts

       The management of fish stocks is becoming an increasingly 
     contentious issue for those states which rely upon fishing to 
     feed their populations. Even though DOD's mission does not 
     include fisheries management, the Department has a legitimate 
     interest in encouraging solutions or mechanisms to resolve 
     conflict between coastal states and/or among fishing states 
     competing for diminishing fish stocks which are beyond the 
     scope of a nation's management jurisdiction.
       The Convention provides a legal baseline which sanctions 
     the actions of regional fishing organizations to deal with 
     conservation issues. The Convention also levies important 
     duties on coastal states to manage their fishery resources to 
     the limits of their maximum sustainable yield. These 
     principles are the legal cornerstones for the UN-sponsored 
     Conference on Straddling Fish Stocks and High Migratory Fish 
     Stocks, as well as the upcoming UN-sponsored Conference on 
     High Seas Fishing. Until such time as there is international 
     agreement on the regime for managing fish stocks beyond a 
     coastal state's EEZ, the fisheries management precepts of the 
     Convention, together with its encouragement to fishing states 
     to enter into regional agreements, are fundamental to 
     maintaining order between fishing and coastal states. 
     Finally, if current efforts to conclude a universal agreement 
     on straddling stocks and high seas fishing do not meet with 
     success, the dispute resolution provisions of the Convention 
     (which authorize application of provisional measures to 
     prevent serious harm to the marine environment) provide 
     parties with a non-military method of constructively 
     resolving disputes.
       The United States has played an important role in promoting 
     workable solutions to fisheries management problems. By 
     acceding to the Convention, the U.S. will be in a much 
     stronger position to exercise influence in efforts to achieve 
     moderate solutions to fisheries management problems. The 
     Convention provides the U.S. government with the tools to 
     formulate workable diplomatic solutions.
       The trend towards greater coastal state control over fish 
     stocks and living resources beyond 200 NM is indicative of a 
     general trend by coastal states to also exercise greater 
     dominion and control over maritime activities in the water 
     column of its EEZ or over its continental shelf. Like the 
     current trend in fishing disputes, states have proposed 
     measures which encroach upon navigational freedoms because of 
     perceptions that navigation is harmful to the living marine 
     resources or that navigation will interfere with exploitation 
     of the resources of the continental shelf. Coral reef 
     ecosystems are coming under tremendous pressures because of 
     population growth (3.5 billion of the 5.6 billion people on 
     earth now live in coastal areas), poor resource management, 
     and land-based sources of pollution. World attention has only 
     recently been focused on this problem. Certain states have 
     reacted by proposing high seas zones--particularly in coral 
     reef or polar areas--which could restrict or place ``off-
     limits'' navigation because of these areas' special 
     ecological sensitivity or importance to coastal fish stocks. 
     DOD's perspective, of course, is that navigation is an 
     environmentally benign activity if flag states properly 
     regulate their flag vessels. Also, additional regulation of 
     navigation is an ineffective method of addressing the root 
     cause of most marine pollution--land-based sources.
       Continued offshore development of areas of the continental 
     shelf for fish farming and oil and gas extraction 
     (particularly in critical navigational choke points) will 
     inevitably impact on the navigational freedoms which DOD must 
     preserve to meet its operational commitments worldwide. At 
     the widely attended ``Strait of Malacca Conference'' on June 
     14-15. 1994, it was argued that:
       The coastal state's right to explore for oil and use the 
     Strait for economic development is greater than the 
     international community's right to use the Strait; and
       The newness of the transit passage regime lends uncertainty 
     as to whether the regime has become a customary practice of 
     international law
       As noted in Figures 2 and 4, the Strait of Malacca is a 
     strategic waterway which DOD uses to move forces from Pacific 
     bases to the Indian Ocean and Persian Gulf. These 
     arguments, coupled with the trend towards special zones 
     which restrict or prohibit navigation, reinforce the basic 
     theme that the Convention provides the best structural and 
     normative framework for the United States to attack 
     objectionable claims as well as channel conflicts between 
     competing ocean users.


     SINCE THE UNITED STATES ALREADY REGARDS THE NON-SEABED MINING 
 PROVISIONS OF THE CONVENTION TO BE CUSTOMARY INTERNATIONAL LAW, DOES 
   THE UNITED STATES DERIVE ANY BENEFIT BY SIGNING THE NEW AGREEMENT?

       In the view of the Department of Defense, significant 
     interests of the United States are advanced by becoming a 
     party to the Convention.
       Negotiations of the Agreement were late in coming in part 
     because many nations regarded the Convention to be a 
     ``package deal'' and states had to accept the good with the 
     bad to maintain balance between the various groups of states 
     which participated in the negotiation: developing vs. 
     developed states; mineral producing vs. non-mineral producing 
     states; coastal vs. maritime states. Consequently, states 
     like Yemen, Iran, Morocco, Egypt, Greece, Indonesia, 
     Malaysia, Iran, Spain and the Philippines, at one time or 
     another, have asserted that key navigational principles 
     (particularly the regime of transit passage) are not 
     customary international law but a benefit flowing from the 
     Convention. Remaining outside of the Convention tends to 
     reinforce those arguments. There is also general 
     acknowledgement by the maritime powers that rejection of a 
     ``reasonable'' Convention by them could create a highly 
     unstable situation vis-a-vis those states which have already 
     ratified the Convention.
       In addition to potential for ``backlash'' if the United 
     States continues to refuse to become party to the Convention 
     as modified, accession will enable the United States to avoid 
     arguments by states that Convention rights are contractual 
     and only available to parties to the Convention.
       From the standpoint of promoting global stability, 
     universal accession to the Convention, as modified by the 
     Agreement, will stabilize and fix the customary rules which 
     states now argue do or do not exist. Unlike the 1958 Geneva 
     Convention on the High Seas, which, according to the 
     preamble, is a codification of ``the rules of international 
     law of the high seas,'' many international legal scholars 
     view the LOS Convention as containing numerous provisions 
     that codify customary international law, as well as a number 
     of provisions that represent progressive development of the 
     law. Since the United States is committed to international 
     order determined by the rule of law, accession will put 
     doubts to rest as to the legal underpinnings of U.S. policy 
     towards the Convention. Moreover, since many important 
     provisions that protect our national security interests are 
     to be found in the very carefully drafted details of the 
     text. Customary international law is unlikely to incorporate 
     such detail and nuance.
       It is inevitable through the passage of time that change to 
     the Convention will be necessary to adapt it to new 
     conditions. If the United States were to remain a non-party 
     to the Convention, the only way that it could seek to 
     influence changes in the LOS regime would be through 
     unilateral action, which could lead to increased 
     international friction. The U.S. does not seek a static 
     system, and welcomes the gradual adaptation of the Convention 
     to new circumstances, by agreement among states.


                               CONCLUSION

       A universal regime for governance of the oceans is needed 
     to safeguard U.S. security and economic interests, as well as 
     to defuse those situations in which competing uses of the 
     oceans are likely to result in conflict. In addition to 
     strongly supporting our interests in freedom of navigation, 
     the Convention provides an effective framework for serious 
     efforts to address pressures upon the oceans resulting from 
     land and sea-based sources of pollution and overfishing. 
     Moreover, the Agreement provides us with a near-term 
     opportunity to join with other industrialized nations in a 
     widely accepted international order to regulate and safeguard 
     the many diverse activities, interests, and resources in the 
     world's oceans. Historically, this nation's security has 
     depended upon the ability to conduct military operations 
     over, under, and on the oceans. The best guarantee that this 
     free and unfettered access to the high seas will continue in 
     the years ahead is for the U.S. to become a party to the 
     Convention, as modified by the Agreement, at the earliest 
     possible time.


          RESTRICTIONS ON FREEDOM OF NAVIGATION AND OVERFLIGHT

       While U.S. military forces are generally free to navigate, 
     consistent with international law as reflected in the 1982 
     LOS Convention, there have been many instances where our 
     rights have been challenged. Some examples:
       In 1967 the Soviet Union denied passage through the 
     Northeast Passage in the Arctic to two U.S. Coast Guard 
     icebreakers. As a result, they were unable to complete their 
     mission. This route has been denied to U.S. surface vessels 
     since then.
       In 1973, Libya enclosed a huge area of water in the Gulf of 
     Sidra as an ``historic bay.'' Although the world has largely 
     rejected the claim, Libya's willingness to use force (``line 
     of death'') has deterred many from exercising their rights.
       In 1982 and 1987, Soviet forces interfered with the 
     operations of U.S. naval frigates near Peter the Great Bay. 
     The Soviets claim the bay is ``historic'' and the waters as 
     internal. The United States considers these to be 
     international waters.
       After the August 1985 transit of the U.S. Coast Guard 
     icebreaker Polar Sea through the Northwest Passage, public 
     opinion resulted in a restrictive Canadian law claiming high 
     seas areas as internal waters and closing international 
     straits. To maintain our access to the Northwest Passage, the 
     United States agreed not to transit with Coast Guard 
     icebreakers without Canada's consent to the conduct of marine 
     scientific research during the passage.
       In January 1988, two Soviet border guard vessels ``bumped'' 
     the USS Caron and USS Yorktown engaged in innocent passage in 
     the territorial sea off the Crimean Peninsula. [see figure 7, 
     page 19]
       Having claimed a 200 NM territorial sea since 1947, Peru 
     regularly intercepts U.S. planes far off the coast of Peru. 
     After an incident in 1989, the Chief of Staff of the Air 
     Force, a passenger on an intercepted aircraft, demanded that 
     the U.S. file a diplomatic protest. Later, in April 1992, a 
     Peruvian fighter aircraft intercepted and shot at a USAF C-
     130 aircraft, killing one crewmember and wounding two others. 
     Peru attempted to justify its action asserting that the U.S. 
     aircraft was within its illegal 200 NM territorial sea/
     airspace.
       Other States' forces are even more constrained than the 
     United States, often acquiescing in excessive maritime 
     claims, because they do not have the naval resources to 
     support operational challenges.


                               FOOTNOTES

     \1\18 Weekly Comp. Pres. Doc. 877 (July 9, 1982).
     \2\Id. See also, James L. Malone, The United States and the 
     Law of the Sea, 24 VA. J. Int'l Law 785 (1984).
     \3\19 Weekly Comp. Pres. Doc. 383-385 (Mar. 10, 1983).
     \4\Dept. of State, Limits in the Seas No. 112, United States 
     Responses to Excessive National Maritime Claims (March 9, 
     1992). Illegal claims which have been challenged include: 
     improper straight baseline claims, excessive territorial sea 
     claims, and claims which restrict the right of transit 
     passage or innocent passage by all ships (including warships) 
     without prior notice or permission.
     \5\24 Weekly Comp. Pres. Docs. 52 (Dec. 27, 1989).
     \6\John Norton Moore, The Regime of Straits and UNCLOS, 74 
     AM. J. Int'l Law 77, 81 (1980).
     \7\William L. Schachte (Rear Adm., USN ret.), Remarks before 
     the 25th Annual Law of the Sea Conference, Law of the Sea 
     Institute, University of Hawaii, 6-9 August 1991, Malmo, 
     Sweden (Manuscript Available in DOD REPOPA Files).
     \8\John R. Stevenson & Bernard H. Oxman, The Future of the 
     United Nations Convention on the Law of the Sea, 88 AM. J. 
     Int'l Law 488 (1994).
     \9\See. e.g., Sherri Wasserman Goodman, Deputy Undersecretary 
     of Defense for Environmental Security, DoD's New Vision for 
     Environmental Security, Defense Issues, Vol. 9, No. 24.
     \10\The IMO is expressly recognized in Article 211 as the 
     ``competent'' international organization to decide questions 
     relating to vessel design and construction as well as 
     restrictive navigational schemes to protect the environment 
     (e.g., traffic separation schemes in straits and archipelagic 
     waters).
     \11\Protocol of 1978 Relating to the International Convention 
     for the Prevention of Pollution from Ships of 1973, Done at 
     London February 17, 1978. (Protocol incorporates, with 
     modifications, the provisions of the 1973 convention, 
     including its annexes and protocol.)
     \12\Convention on the International Regulations for 
     Preventing Collisions at Sea, Done at London October 20, 
     1972, 28 UST 3459, TIAS 8587.
     \13\Convention on the Prevention of Maine Pollution by 
     Dumping of Wastes and Other Matter, Done at Washington, 
     London, Mexico City and Moscow December 29, 1972, 26 UST 
     2403, TIAS 8165, 1046 UNTS 120.
                                  ____


                  [From the USA Today, June 15, 1994]

                 U.S. Reeling Over Canada Fishing Toll

                          (By Deeann Glamser)

       Seattle.--A plan by Canada to charge U.S. fishermen a 
     $1,100 toll to travel its waters to fish in Alaska is 
     threatening to start an economic war between the two 
     countries.
       The toll--charged each way starting today on boats 
     traveling the 650-mile Inside Passage between Washington and 
     Alaska--comes from the countries' failure to renew a salmon-
     fishing treaty.
       ``It's extortion,'' says commercial fisherman Mike Health.
       The move has prompted the State Department and Northwest 
     legislators to call for a new law to reimburse hundreds of 
     fishermen who will have to make a port of call to pay the 
     toll in cash or money orders. The State Department would then 
     be authorized to make claims against Canada for toll money.
       U.S. Rep. Jolene Unsoleld, D-Wash, is expected to propose 
     the short-term relief measure to Congress today.
       The United States is sending a letter of protest to Canada; 
     some in Congress are asking President Clinton to intervene.
       The two countries have been haggling over fishing rights 
     for years. Big bucks are at stake: Average commercial salmon 
     catchers are worth $140 million a year off Washington, Oregon 
     and California, and another $575 million in Alaska.
       Canada claims fishermen off Alaska are intercepting 
     millions of fish that would be headed for its waters. 
     Canadian officials estimate that 52% of the region's salmon 
     spawn in British Columbia; 31% in Alaska; and 17% in 
     Washington and Oregon.
       U.S. fishermen are frustrated by U.S. law, which protects 
     several types of threatened salmon in U.S. waterways, but has 
     no reach once the migratory fish hit Canadian waters.
       Washington and Oregon officials, frantically trying to save 
     an industry that is an economic mainstay in the region, want 
     Canada to reduce catchers too.
       Those states already closed salmon fishing off their coasts 
     this year because of record-low stocks. Many fishermen 
     planned to go to Alaska's abundant waters, but now say they 
     can't afford the toll.
       ``Normally that pays all our insurance, fuel and groceries 
     (for Alaska),'' says Howard Winnem, 53. ``Now we start with 
     nothing.''
       Winnem, like many others, plans to take a more dangerous 
     open-sea route to Alaska to avoid paying the toll. ``We don't 
     have the money, so we have to take a chance.''
       But other boat owners say that's too risky.
       Stan Bell and his wife, Deanna, are making only critical 
     repairs on their weathered troller so they can afford the 
     sheltered route. Vows Deanna; ``I won't eat anything Canadian 
     or buy Canadian.''
       Bud Graham, Canada's Pacific Region fisheries management 
     director, says Canada has the legal right to impose the too, 
     or commercial license fee.
       U.S. officials don't agree.
       ``The claims the Canadians are making are clearly and 
     patently illegal,'' Ambassador David Colson, chief U.S. fish 
     negotiator, told the Seattle Post-Intellegencer.
       Graham says the toll is just ``one in a series of measures 
     Canada will introduce'' to break the stalemate over fishing 
     rights and restore talks.
       Ultimately, many feel the problem won't be resolved until 
     the two countries agree on restrictions to avoid overfishing 
     salmon.
       Which is why Sen. Patty Murray, D-Wash., says the 
     reimbursement proposal provides only short-term relief.
       ``We can't be thinking this is a solution,'' Murray says. 
     ``The problem with our fisheries is much bigger.''
  Mr. FORD. Mr. President, I ask for a division vote on the resolutions 
of ratification.
  The PRESIDING OFFICER. All those in favor of ratifications, please 
stand and be counted.
  All those opposed to ratification, please stand and be counted.
  Two-thirds of the Senators present and voting having voted in the 
affirmative, the resolutions of ratification are agreed to, as follows:

       Resolved, (two-thirds of the Senators present concurring 
     therein), That the Senate advise and consent to the 
     ratification of the Agreement to Promote Compliance with 
     International Conservation and Management Measures by Fishing 
     Vessels on the High seas, Which Was Adopted at Rome by 
     Consensus by the Conference of the United Nations Food and 
     Agriculture Organization on November 24, 1993.
                                  ____

       Resolved, (two-thirds of the Senators present concurring 
     therein), That the Senate advise and consent to the 
     ratification of the Convention (No. 150) Concerning Labor 
     Administration: Role, Functions and Organization, Adopted by 
     the International Labor Conference at its 64th Session in 
     Geneva on June 7, 1978.
                                  ____

       Resolved (two-thirds of the Senators present concurring 
     therein), That the Senate advise and consent to the 
     ratification of Two Treaties Between the Government of the 
     United States of America and the Government of the United 
     Kingdom of Great Britain and Northern Ireland, both signed at 
     London, November 5, 1993, on the Delimitation in the 
     Caribbean of a Maritime Boundary Relating to: (A) the U.S. 
     Virgin Islands and Anguilla; and (B) Puerto Rico/U.S. Virgin 
     Islands and the British Virgin Islands, with Annex.
                                  ____

       Resolved (two-thirds of the Senators present concurring 
     therein), That the Senate advise and consent to the 
     ratification of the Convention on the Conservation and 
     Management of Pollock Reserves in the Central Bering Sea, 
     with Annex, done at Washington on June 16, 1994.
                                  ____

       Resolved (two-thirds of the Senators present concurring 
     therein), That the Senate advise and consent to the 
     ratification of the Headquarters Agreement Between the 
     Government of the United States of America and the 
     Organization of American States, signed at Washington on May 
     14, 1992.

                          ____________________