[Congressional Record Volume 141, Number 106 (Tuesday, June 27, 1995)]
[Senate]
[Pages S9195-S9198]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  U.S. RATIFICATION OF THE LAW OF THE SEA CONVENTION WILL ENHANCE OUR 
                      NATIONAL SECURITY INTERESTS

  Mr. PELL. Mr. President, in the past few months, I have taken the 
floor on several occasions to highlight how the U.N. Convention on the 
Law of the Sea would protect the national interests of the United 
States with regard to our fisheries and our economic activities. Today, 
I wish to address how U.S. ratification of the convention will enhance 
our most important interest: national security.
  The convention establishes as a matter of international law freedom 
of navigation rights that are critical to our military forces. This was 
highlighted by the President in his Message to Congress, transmitting 
the Convention 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. . . . Each succeeding U.S. Administration has recognized 
     this as the cornerstone of U.S. ocean policy. . . . 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. . . . 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 

[[Page S 9196]]
     and economic strength.'' (Treaty Doc. 103-39, p.iii-iv)

  Secretary of Defense William Perry and Secretary of State Warren 
Christopher emphasized in a joint letter to the Congress last year 
that:
  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 recent Department of Defense Report on National Security and the 
Convention on the Law of the Sea concluded that the United States

       . . . 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.'' (Hearing before the Committee on 
     Foreign Relations on the Current Status of the Convention on 
     the Law of the Sea, S. Hrg. 103-737, pp.61-75)

  In his letter to the Senate accompanying that report Secretary Perry 
declared that:

       . . . the Convention establishes a universal regime for 
     governance of the oceans which is needed to safeguard United 
     States security and economic interests, as well as to defuse 
     those situations in which competing uses of the oceans are 
     likely to result in conflict. . . . Historically, this 
     nation's security has depended upon the ability to conduct 
     military operations over, under and on the oceans. . . . 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.
  I ask unanimous consent that Secretary Perry's letter be printed in 
the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit 1.)
  Mr. PELL. With the end of the cold war, both our vital interests and 
our ability to defend them have shifted. In these fiscally difficult 
times, the convention allows us to concentrate our resources on the 
most strategic points of our national security. Illustrations of this 
phenomenon can be found in the provisions of the Law of the Sea 
Convention that provide for innocent passage, transit passage, and 
archipelagic passage.
  The convention allows a coastal State to claim a territorial sea that 
shall not exceed 12 nautical miles measured from the baseline. While 
this provision recognizes the special rights of the coastal state in 
the area immediately adjacent to its coastline, it also provides 
specifically for the right of innocent passage for ships, including 
warships and submarines, to transit through the territorial sea.
  Likewise, in some areas, archipelagic states have been allowed to 
enclose waters located between the various islands of an archipelago, 
and to claim them as national waters. Unfortunately, some of these 
instances involve islands located in international straits or along 
routes used for international navigation and overflight of the highest 
strategic importance. Here again, the convention strikes the perfect 
balance by guaranteeing to all ships and aircraft, including warships, 
submarines, and military aircraft a right of passage on, over and under 
international straits and archipelagic sea lanes.
  The need to protect freedom of navigation is not merely a theoretical 
issue. There have been recent situations where even U.S. allies denied 
our Armed Forces transit rights in times of need. Such an instance was 
the 1973 Yom Kippur war when our ability to resupply Israel was 
critically dependent on transit rights through the Strait of Gibraltar. 
Again, in 1986, United States aircraft passed through the Strait to 
strike Libyan targets in response to that government's acts of 
terrorism directed against the United States, after some of our allies 
had denied us the right to transit through their airspace.
  In April 1992, Peruvian fighters strafed a United States C-130 
aircraft that was 60 nautical miles off the Peruvian coast, well within 
Peru's claimed 200-nautical-mile territorial sea, but well outside the 
12-nautical-mile limit recognized by the Law of the Sea Convention and 
the United States. This incident resulted in the death of one U.S. 
service member and the wounding of several others, as well as the loss 
of the aircraft. Peru continues to challenge United States aircraft 
flying over its claimed territorial sea.
  There are a number of other situations where having the Law of the 
Sea in effect might have made a difference. I ask unanimous consent 
that a summary of such instances be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit 2.)
  Mr. PELL. Another way in which the convention protects our national 
security interests is by bringing an incredible amount of stability and 
certainty with regard to multiple and sometimes divergent ocean uses. 
Most importantly the convention provides the most effective brake on 
excessive coastal state maritime claims in ocean areas adjacent to 
their coasts.
  If the United States is not a party to the convention, preserving our 
navigational rights in nonwartime situations becomes increasingly 
costly. The Law of the Sea provides very clear rules and circumstances 
according to which these claims need to be recognized. In addition, if 
the rights of a transiting nation are impeded, the Law of the Sea 
provides all parties with a very clear set of rules for the peaceful 
settlement of disputes.
  Only a few weeks ago, a potential conflict threatened to erupt over 
Greek territorial claims around its islands in the Aegean Sea. Turkey 
has warned against the transformation of this area into a ``Greek 
Lake'' and many have warned of the possibility of conflict over this 
issue. The Law of the Sea specifically calls for peaceful resolution of 
such disputes and, when the Hamburg Tribunal on the Law of the Sea is 
convened, it could be seized to address disputes such as this one.
  Another potential point of conflict is to be found in the South China 
Sea, where conflicting claims have been staked over the Spratly 
Islands. These islands have been claimed by the People's Republic of 
China, Taiwan, Vietnam, the Philippines, Malaysia, and Brunei. 
Recently, some of those claimants have engaged in aggressive 
activities. The location of the Spratlys is
 of paramount importance, as the islands lie along strategic sea lanes 
that connect the Indian Ocean and the Persian Gulf to the Pacific 
Ocean. Seventy percent of Japan's oil imports travel through this route 
and both the United States and its allies would stand to lose if armed 
conflict erupted as a result of these conflicting claims. The 
administration recently advised the various claimants that the United 
States would view with serious concern any maritime claim or 
restriction on maritime activity in the South China Sea that was not 
consistent with the Law of the Sea Convention.

  In that regard, on June 20, 1995, the Committee on Foreign Relations 
reported, and on June 22 the Senate agreed to, Senate Resolution 97, 
introduced by Senator Thomas and Senator Robb, which I cosponsored. 
This resolution calls on the parties involved in this dispute to solve 
their differences in a manner that is consistent with international 
law.
  I would like to bring to the attention of my colleagues an op ed 
piece that was published on May 26, 1995 in the Washington Times and I 
ask unanimous consent that it be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mr. PELL. In it, Keith Eirinberg, a Fellow in the Asian Studies 
Program at the Center for Strategic and International Studies, calls 
the Law of the Sea Convention perhaps the world's greatest diplomatic 
achievement for having established internationally accepted laws for 
three fourths of the earth's surface. He also clearly demonstrates that 
excessive claims have no standing under the Convention and that the 
U.S. ability to influence a peaceful settlement of the dispute over the 
Spratly Islands would be enhanced by U.S. ratification of the treaty.
  In addition, on June 22, 1995, Rear Adm. Lloyd R. Vasey (Ret.), a 
senior strategist specializing in Asia-Pacific security, wrote in the 
Christian Science Monitor that the claims over the Spratly Islands 
should be resolved through international law and the UN 

[[Page S 9197]]
Convention on the Law of the Sea. He added that for its own credibility 
the U.S. needs to complete ratification of the Law of the Sea Treaty. I 
ask unanimous consent that this article be printed in the Record at the 
end of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 4.)
  Mr. PELL. There are scores of other instances where maritime boundary 
disputes were solved in a peaceful manner, precisely because the Law of 
the Sea establishes such clear rules and limitations. If it does not 
ratify the Convention, the United
 States will stand at risk of being left out of the enforcement of this 
Constitution for the Oceans, and will be subject to the uncertainties 
of customary international law.

  I have heard arguments that the Convention's provisions on freedom of 
navigation are not really important because they reflect customary 
international law. I disagree with that argument.
  Customary international law is inherently unstable. Governments can 
be less scrupulous about flouting the precedents of customary law than 
they would be if such actions were seen as a violation of their treaty 
obligations.
  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.
  The concordant judgment of those charged with responsibility for the 
national security of our Nation is reflected in the report of the 
Department of Defense on National Security and the Law of the Sea, 
which states:

       Our principal judgement 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. ... 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 in 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.

  Mr. President, this is not merely my opinion but that of the 
professionals whose job it is to protect our Nation's security. We must 
not ignore their advice: United States ratification of the Law of the 
Sea Convention will enhance our national security interests.
                               Exhibit 1


                                     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.
                                                                    ____

                               Exhibit 2

 Particular Cases Where Having the Law of the Sea Convention in Effect 
                     Might Have Made a Difference:

       Between 1961 and 1970, Peru seized 74 U.S. fishing vessels 
     over disputed tuna fisheries.
       In 1986, Ecuador interfered with a USAF aircraft flight 
     over the high seas 175 miles from the Ecuadorian coast.
       Since 1986, Peru has repeatedly challenged U.S. aircraft 
     flying over its claimed 200 nautical mile territorial sea. 
     During several of these challenges, the Peruvian aircraft 
     operated in a manner that unnecessarily and intentionally 
     endangered the safety of the transiting U.S. aircraft and its 
     crew. This includes an incident where a U.S. C-130 was fired 
     upon and a U.S. service member was killed.
       In 1986, two Cuban MIG-21 aircraft intercepted a USCG HU-
     25A Falcon flying outside of its 12 nautical mile territorial 
     sea, claiming it had entered Cuban Flight Information Region 
     (FIR) without permission.
       In 1988, Soviet warships intentionally ``bumped'' two U.S. 
     warships engaged in innoncent passage south of Sevastopol in 
     the Black Sea.
       In 1984, Mexican Navy vessels approached U.S. Coast Guard 
     vessels operating outside Mexican territorial waters and 
     interfered with valid USCG law enforcement activities.
       Libyan claims to the Gulf of Sidra have resulted in 
     repeated challenges and hostile action against U.S. forces 
     operating in high seas.
       During the 1980's, transits of the Northwest Passage by the 
     USCG POLAR SEA and POLAR STAR were challenged by the Canadian 
     Government.
                                                                    ____

                               Exhibit 3

               [From the Washington Times, May 26, 1995]

       U.N. Maritime Pact Could Produce South China Sea Solution

                        (By Keith W. Eirinberg)

       The recent Clinton administration statement on the Spratly 
     Islands dispute, urging negotiations instead of force, is the 
     strongest declaration yet of U.S. interests in the South 
     China Sea.
       While critics of the administration argue that the United 
     States should ``draw a line in the sand'' against Chinese 
     aggression in the Spratlys, U.S. interests are better served 
     by efforts to persuade the contesting parties to follow 
     international law, including the newly effective 1982 U.N. 
     Convention on the Law of the Sea, and find a diplomatic 
     solution.
       The Republican-controlled Senate can help America's efforts 
     to protect these interests by ratifying the Law of the Sea 
     accord, giving this country greater standing as it encourages 
     a peaceful resolution of the dispute.
       The Spratly Islands imbroglio is essentially a maritime 
     controversy centered on the question of sovereignty and 
     jurisdiction over geologic features and adjacent waters in 
     the South China Sea.
       Six nations claim part or all of the Spratlys: the People's 
     Republic of China, Taiwan, Vietnam, the Philippines, Malaysia 
     and Brunei. The dispute has direct implications for U.S. 
     interests: freedom of navigation and overflight and the 
     maintenance of peace and stability in Southeast Asia.
       The sovereignty issue appears intractable, so many of the 
     parties have voiced a desire to shelve this point and look to 
     joint development of the area's resources. China, in a 
     ``divide and conquer'' strategy, insists on negotiating 
     bilaterally and rejects a regional or international approach. 
     The Association of Southeast Asian Nations, which includes 
     some of the claimants, is interested in a regional solution.
       The parties to the dispute, except Brunei, claim ownership 
     over islands, reefs, atolls, rocks and cays in the Spratlys. 
     The Spratlys are important because they lie along strategic 
     sea lanes and lines of communication that connect the Indian 
     and Pacific oceans. More than 70 percent of Japan's oil 
     imports and a large volume of global commerce travel along 
     this maritime route. The Spratlys are domestically important 
     to the claimants 

[[Page S 9198]]
     because of the politics and patriotism reflected in ownership.
       It is the potential of vast hydrocarbon resources beneath 
     the seabed that has caused this dispute to become a flash 
     point in East Asia. The energy needs of the developing 
     claimants have made the exploitation of oil and gas beneath 
     the South China Sea especially attractive.
       The U.N. Convention on the Law of the Sea--perhaps the 
     world's greatest diplomatic achievement for having 
     established internationally accepted laws for three-fourths 
     of the earth's surface--can provide the framework for a 
     diplomatic solution. For example, it prescribes the methods 
     for determining boundaries. Of the claimants, the Philippines 
     and Vietnam have ratified the convention.
       To Beijing, however, ownership is nine-tenths of the law. 
     While advocating a diplomatic solution, it has aggressively 
     placed encampments and markers in contested areas of the 
     Spratlys. This ``talk and take'' pattern was most recently 
     illustrated in China's occupation of Mischief Reef in 
     Philippine-claimed territory.
       China's cavalier attitude to international law is also 
     shown by its 1992 territorial sea law. This declares Chinese 
     jurisdiction over virtually all of the South China Sea--a 
     claim that has no basis in modern international law.
       China must play by the rules. Washington encourages Beijing 
     to join the international community in many different areas, 
     from nuclear proliferation to human rights. But Washington 
     finds itself in a poor position to persuade Beijing to ratify 
     the Law of the Sea accord without having done so itself.
       U.S. administrations had resisted ratification because of 
     inequities in the deep-seabed-mining provisions. But changes 
     to the convention have addressed U.S. objections.
       Last year, with strong Defense Department backing, the 
     White House signed the amended Convention on the Law of the 
     Sea and sent it to the Senate for ratification.
       America's ability to influence a peaceful settlement of the 
     Spratly Islands dispute would be enhanced by U.S. 
     ratification of the treaty. In light of the tensions in the 
     South China Sea, this step should be taken soon.
                                                                    ____

                               Exhibit 4

          [From The Christian Science Monitor, June 22, 1995]

 Collision in the China Sea--World Oil and Shipping Lanes at Stake in 
                          Multination Dispute

                          (By Lloyd R. Vasey)

       East Asia's economic momentum may grind to a premature halt 
     unless political leaders find a way to defuse tensions over 
     territorial disputes in the South China Sea. With several 
     countries on a collision course, a major regional crisis is 
     waiting to happen.
       At issue are claims of sovereignty over the Spratly and 
     Paracel Islands--hundreds of islets and reefs and surrounding 
     seas believed to be rich in oil, gas, and other resources. 
     China, which urgently needs new energy sources, is the 
     central disputant; others include Vietnam, Brunei, Malaysia, 
     the Philippines, and Taiwan. China's claims are historically 
     based, going back several centuries when the South China Sea 
     was an area of preeminent Chinese influence and power. 
     Currently they have no basis in international law, and claims 
     of some of the other countries are also questionable.
       The prevailing view in Asia is that China is deliberately 
     expanding its geopolitical influence in the region. This 
     perception was dramatically reinforced in 1992 when the 
     Chinese People's Congress declared ownership of the waters 
     around the Spratlys and Paracels and readiness to use 
     military power to defend its interests. The claim would make 
     the South China Sea a virtual Chinese lake straddling 
     shipping lanes carrying huge volumes of global trade, 
     including the oil lifelines of Japan and South Korea.
       Indonesia and other countries of the Association of 
     Southeast Asian Nations (ASEAN) have convened unofficial 
     forums seeking to resolve the disputes, but progress on the 
     issues has stalled.
       Regional tensions escalated last month when Philippine 
     president Fidel Ramos challenged China's ``illegal'' 
     occupation of a small atoll in the Spratlys aptly named 
     Mischief Reef.
       It lies well within the Philippine's 200 mile Exclusive 
     Economic Zone but also within the area claimed by Beijing.
       China hasn't hesitated to use force in asserting 
     territorial claims. In 1974 it seized most of the Paracel 
     islands east of Vietnam. In 1988, the two engaged in bloody 
     clashes over the Spratlys.
       Indonesians are deeply suspicious of China's revision of a 
     map that now depicts part of the maritime area around Natuna 
     island, hundreds of miles south of the Spratlys, to be under 
     Chinese jurisdiction. Indonesia's military leaders have 
     announced that they will defend their national interests by 
     force if necessary. What makes the issue particularly irksome 
     to Indonesia is that a $35 billion deal involving a United 
     States oil company was signed last year to help develop the 
     Natuna gas field, possibly one of the world's largest.
       Such colliding claims ought to alert Washington to pay much 
     closer attention to this high-stakes strategic game. The 
     implications for American interests are disturbing: future 
     access to resources, freedom of the seas, the balance of 
     power, and regional stability are all involved.
       The US should now revamp its policy of relying on ASEAN 
     even when important American interests are involved. Instead, 
     the US should volunteer to act as honest broker to work out 
     production-sharing agreements for joint development of 
     resources in contested areas, and request disputants to put 
     sovereignty claims on hold. These claims should be resolved 
     through international law and the UN Convention on the Law of 
     the Sea. For its own credibility the US needs to complete 
     ratification of the Law of the Sea Treaty, now in the Senate. 
     Leadership won't cost Washington an extra dime, nor will it 
     require any troops. Crisis prevention is what it's all about.
     

                          ____________________