[Congressional Record Volume 142, Number 117 (Friday, August 2, 1996)]
[Senate]
[Pages S9473-S9475]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  RATIFICATION OF THE LAW OF THE SEA CONVENTION IS AN URGENT NECESSITY

  Mr. PELL. Mr. President, the United States will shortly become one of 
the first and perhaps the first Nation to ratify the Straddling Fish 
Stocks Agreement. This agreement was approved by the Senate on June 27. 
I am very pleased that prompt Senate action on the Agreement enabled 
the United States to continue its leadership on international fisheries 
issues. The agreement will significantly advance our efforts to improve 
fisheries management. In effect, it endorses the U.S. approach to 
fisheries management and reflects the acceptance by other nations of 
the need to manage fisheries in a precautionary and sustainable manner.
  That being said, Mr. President, in advising and consenting to 
ratification of the Straddling Stocks Agreement, the Senate's work is 
only partially done. Having approved the Straddling Stocks Agreement, 
the next logical step for this body is to consider and pass the treaty 
which provides the foundation for the agreement, namely the United 
Nations Convention on the Law of the Sea. My purpose today is to 
highlight the connections between the two and to underscore the many 
benefits that will accrue to the United States if the Senate grants its 
advice and consent to ratification of the Law of the Sea Convention, a 
step that should have been taken long since, and I hope will come about 
shortly.
  Prima facia evidence for the tight linkage between the Law of the Sea 
Convention and Straddling Stocks Agreement is found in the latter's 
title, the ``Agreement for the Implementation of the United Nations 
Convention on the Law of the Sea of 10 December 1982 Relating to Fish 
Stocks.'' Clearly, the Agreement was negotiated on the foundation 
established in the Law of the Sea Convention. The connection between 
the two is made explicit in Article 4 of the agreement which stipulates 
that the agreement ``shall be interpreted and applied in the context of 
and in a manner consistent with the Convention.'' Further, Part VIII of 
the agreement provides that disputes arising under the agreement be 
settled through the convention's dispute settlement provisions. Indeed, 
the Law of the Sea Convention establishes a framework to govern the use 
of the world's oceans that reflects almost entirely U.S. views on ocean 
policy.
  Can the United States become a party to the agreement, but remain 
outside the Law of the Sea Convention? The answer is yes. The more 
important question is: Does this best serve U.S. interests? The answer 
to that question is no. Only by becoming a party to the Law of the Sea 
Convention can the United States maximize its potential gain from the 
agreement and protect its fisheries interests.
  One way to do this is to ensure that U.S. views on fisheries 
management are represented on the Law the Sea Tribunal. That is the 
body which settles disputes arising under the agreement, and it is 
established in the Law of the Sea Convention. Not surprisingly, in 
order to nominate a judge to the tribunal, the United States must 
become a party to the Law of the Sea Convention.

  A second way to ensure that U.S. gains are maximized is to ensure 
that our country's views on fisheries management are well represented 
in the convention processes themselves. To do this, we must be a party 
to the convention. The Straddling Stocks Agreement's provisions are to 
be applied in light of the convention. As the convention itself is an 
evolving, living document, the United States must be part of the 
dialogue that will affect not only the Straddling Stocks Agreement, but 
other oceans management policy.

[[Page S9474]]

  Mr. President, there are sound reasons for the United States to 
become a party to the Law of the Sea Convention in order to enhance the 
benefits of the Straddling Stocks Agreement. There are, however, 
reasons to become a party to the Law of the Sea Convention far beyond 
the connection with the Straddling Stocks Agreement.
  Indeed, I have always held the view that the strength of the Law of 
the Sea Convention lies in the multiplicity of interests that it 
protects and enhances for the United States. It is precisely because 
the convention addresses our Nation's broad range of interests so 
comprehensively that the United States has so much to gain by becoming 
a party. Indeed, I believe there is no action that the Senate can take 
before the end of this session that would have greater long term 
benefits for the world as a whole than to ratify the Law of the Sea 
Convention.
  The implications for world peace are enormous; the potential for 
trade and development is equally far-reaching. I hope this will not be 
caught up in a spate of politics as usual, but will be seen in the 
framework of a renewed commitment to bipartisanship in foreign policy.
  The old saying was that ``politics stops at the water's edge.'' That 
would be an apt motto for our consideration of Law of the Sea, since 
its scope begins precisely at the water's edge.
  Perhaps more than any other nation, the United States has a broad 
range of interests in the oceans and their uses. We are the world's 
predominant sea power. The United States Navy operates on a global 
scale and has vital interests in seeing the convention's provisions on 
freedom of navigation implemented. The Air Force too shares many of 
these interests. We are also a maritime nation, Mr. President. Fully 95 
percent of U.S. export and import trade tonnage moves by sea, with 
direct repercussions for American workers' jobs. The United States is 
also a coastal nation--we have one of the longest coastlines in the 
world--with strong interests in the sound use of resources on our 
continental shelf.

  Mr. President, I think it is useful to remind my colleagues that, 
more than 20 years ago, the United States was a driving force in 
initiating the negotiations that produced the Law of the Sea 
Convention. At that time, the Navy in particular was concerned about 
other nations' ever increasing maritime jurisdictional claims. To 
address this problem, the Department of Defense sought a treaty that 
would set out as a matter of international law a regime to govern such 
claims. Given this history, it is more than a little ironic that the 
United States ultimately led efforts to block adoption of the 
convention upon conclusion of negotiations in 1982.
  In my view, while the convention's critics raised some legitimate 
concerns regarding provisions related to deep seabed mining, they 
allowed these concerns to blind them to the overriding benefits the 
convention would confer on the United States. Moreover, all of these 
concerns have now been addressed in the recently negotiated agreement 
on deep seabed mining. I would like to recount those benefits for my 
colleagues' information.
  First and foremost, the convention enhances U.S. national security. 
Remember, Mr. President, that this was the original driving force 
behind U.S. participation in the convention. The convention 
establishes, as a matter of international law, freedom of navigation 
rights that are critical to our military forces. In testimony before 
the Foreign Relations Committee, Admiral Center stated,

       The Convention strongly underpins the worldwide mobility 
     America's forces need. It provides a more stable legal basis 
     for governing the world's oceans. It reduces the need to fall 
     back on potentially volatile mixture of customary practice 
     and gunboat diplomacy.

  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, U.S. aircraft passed through the Strait to strike Libyan 
targets in response to that government's acts of terrorism directed 
against the United States, after some of our allies had denied us the 
right to transit through their airspace.
  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. 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 violating a treaty.
  Moreover, not all governments and scholars agree that all of the 
critical navigation rights which are protected by the convention are 
also protected by customary law. They regard many of those rights as 
contractual; that is, only available to parties to the convention. For 
example, it was not long ago that our country claimed a territorial sea 
of only 3 miles. This zone now extends to 12 miles, as allowed by the 
convention. But other countries have claimed territorial sea zones that 
extend to 200 miles, in direct violation of the convention. Currently, 
the United States routinely challenge such excessive jurisdictional 
claims through the Freedom of Navigation Program.
  I do not doubt that, if necessary, the U.S. Navy will sail where it 
needs to to protect U.S. interests. But, if we reject the convention, 
preservation of these rights in nonwartime situations will carry an 
increasingly heavy price for the United States. By remaining outside of 
the convention, the United States will have to challenge excessive 
jurisdictional claims of states not only diplomatically, but also 
through conduct that opposes these claims. Each time we conduct an 
operation in contested waters we are sending our young men and women 
into harms way. Mr. President, we don't need to do that. A widely 
ratified convention would significantly reduce the need for such 
operations. A widely ratified convention would also afford us a strong 
and durable platform of principle to ensure support from the American 
people and our allies when we have no choice but to confront claims we 
regard as illegal.
  Now I would like to turn to the issue of the Law of the Sea 
Convention and U.S. economic interests. The convention promotes these 
interests in a number of ways. It provides the U.S. with exclusive 
rights over marine living resources within our 200 miles exclusive 
economic zone; exclusive rights over mineral, oil, and gas resources 
over a wide continental shelf that is recognized internationally; the 
right for our communications industry to place its cables on the sea 
floor and the continental shelves of other countries without cost; a 
much greater certainty with regard to marine scientific research, and a 
ground breaking regime for the protection of the marine environment.
  Mr. President, seaborne commerce represents 80 percent of trade among 
nations and is a lifeline for U.S. imports and exports. As I noted 
earlier, 95 percent of U.S. export and import trade tonnage moves by 
sea. With continuing economic liberalization occurring globally, 
exports are likely to continue to grow as a percentage of our economic 
output. In addition, in some sectors, such as oil, our dependence on 
imports will continue to grow. Thus our economic well being--economic 
growth and jobs--will increasingly depend on foreign trade. Without the 
stability and uniformity in rules provided by the convention, we would 
see an increase in the cost of transport and a corresponding reduction 
of the economic benefits currently realized from an increasingly large 
part of our economy.

  Consequently, the United States would stand to lose a great deal if 
it was no longer assured of the freedom of navigation: trade would be 
impaired, ports communities would be impacted and our whole maritime 
industry could be put in jeopardy. The convention addressees the 
concerns and failure of the United States to ratify would impose a 
tremendous burden on this industry.
  Within its EEZ, the United States has exclusive rights over its 
living marine resources. Foreign fleets fishing in our waters can be 
controlled or even excluded, and our regional management councils are 
in a position to adopt the best management plans available for each of 
the fisheries on which our industries depend. The settlement of 
disputes provisions of the convention do not apply to the measures 
taken by the coastal State within its EEZ. Consequently, the United

[[Page S9475]]

States has discretionary powers for determining the total allowable 
catch, its harvesting capacity, the allocation of surpluses to other 
States and the terms and conditions established in its conservation and 
management measures.
  Indeed, the Law of the Sea Convention will play a paramount role in 
the implementation of the important international agreements to which 
the United States is already a party. These include: the 1992 
Convention for the Conservation of Anadromous Stocks in the North 
Pacific Ocean, approved by the Senate on August 11, 1992; the U.N. 
General Assembly Resolution on Large-Scale High Seas Driftnet Fishing, 
approved by the Senate on November 26, 1991; the Convention on the 
Conservation and Management of Pollock Resources in the Central Bering 
Sea, approved by the Senate on October 6, 1994; and the FAO Agreement 
to Promote Compliance with International Conservation and Management 
Measures by Fishing Vessels on the High Seas, approved by the Senate on 
October 6, 1994.
  In approving these treaties, the Senate spoke to the importance of 
these issues to our Nation; however, the long-term benefits of these 
fishery agreements will only be realized and mutual enforcement ensured 
if the underlying principles of the Law of the Sea Convention--the new 
constitution of the oceans--are ratified by the United States.
  Mr. President, in 1982, the Reagan administration was prepared to 
sign the convention on behalf of the United States, but for part XI. 
Part XI dealt with deep seabed mining and contained a number of 
provisions that the United States found objectionable. Unfortunately, 
at the time, the administration was not able to secure the changes it 
sought in time for the United States to sign the convention. As a 
result, neither the United States nor the other industrialized 
countries signed the convention.

  During the Bush administration, with the prospect that the convention 
would actually enter into force, informal consultations were begun at 
the United Nations with the aim of resolving concerns with part XI. 
That goal was achieved in an agreement that, in effect, amends part XI 
of the convention in a manner that meets all of the concerns first 
articulated under President Reagan and carried forward through to the 
Clinton Administration. The modification of part XI is a bipartisan 
foreign policy success and is the culmination of three decades of U.S. 
oceans policy efforts.
  I feel qualified to say this Mr. President, since I have closely 
followed the Law of the Sea negotiations from their early days to the 
present. The initial support for this idea was put forth by Arvid 
Pardo, Malta's delegate to the United Nations, with his famous ``Common 
Heritage of Mankind'' speech before the U.N. General Assembly in 1967. 
The convention then became the product of visionaries. I remember 
particularly the ``Pacem in Maribus''--Peace on the Seas--meetings 
organized by Elizabeth Mann Borgese, the daughter of Germany's great 
writer, Thomas Mann. Her book, The Ocean Regime, published in 1968, 
gave written expression to the ideas that were to gain a wider audience 
through Pacem in Maribus, on their way to being embodied in the 
negotiated texts of the Law of the Sea Convention.
  For me the dream began even earlier, during my service in the U.S. 
Coast Guard during World War II. Why not declare the oceans a zone of 
peace, open to all peoples and nations, to be free forever from the 
ravages of warfare? My service on the staff of the San Francisco 
Convention that prepared the U.N. Charter, just 51 years ago this 
summer, further confirmed me in my belief that ways could be found to 
create a working peace system.
  The Law of the Sea Convention is the product of one of the more 
protracted negotiations in diplomatic history. When the process began, 
the Vietnam war was nearing its peak; the cold war was at its height; 
it had been only 5 years since the construction of the Berlin Wall.
  I was proud to serve as a delegate to those early Law of the Sea 
negotiations, one of the few who had also attended a Pacem in Maribus 
meeting. My enthusiasm led me in 1967 to introduce the first Senate 
resolution calling on the President to negotiate a Law of the Sea 
Convention.
  That resolution and a draft treaty that I proposed in 1969 led to 
the Seabed Arms Control treaty, which was ratified by the Senate in 
1972. This little-known treaty has permanently removed nuclear weapons 
and other weapons of mass destruction from the ocean floor, which is 70 
percent of the Earth's surface. It has been signed by nearly 100 
countries, it works, and it provides a good precedent for the 
Convention on the Law of the Sea. With the Seabed Arms Control Treaty 
as my model, you can appreciate my enthusiasm for the Law of the Sea 
Convention.

  Now, Mr. President, we must look to the future and U.S. oceans policy 
for the 21st century. Our interests in the Convention lie not only in 
what it is today, but in what it may become. Just as form and substance 
have been given our Constitution by the courts, so too will future uses 
of the oceans be influenced and shaped by decisions made under the 
convention. With the convention's entry into force, the United States 
stands on the threshold of a new era of oceans policy. Under the 
Convention, U.S. national interests in the world's oceans would be 
protected as a matter of law. This is a success of U.S. foreign policy 
that will work to our benefit in the decades to come.
  Mr. President, the United States was a leader in initiating the 
negotiations of the Law of the Sea Convention because our national 
security interests were at stake. We have also played a widely 
recognized leadership role in the Straddling Stock Agreement 
negotiations because our fisheries interests were threatened. Indeed, 
the United States will be among the very first parties to ratify this 
very important agreement. It is time for the United States to regain 
its leadership role by ratifying promptly the United Nations Convention 
on the Law of the Sea and thus protecting the entirety of our oceans 
interests.
  I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER (Mr. Frist). The Senator from California.
  Mrs. BOXER. Mr. President, I understand we are working back and 
forth. If the Senator from Iowa wishes to be recognized for 5 or 10 
minutes, I will be happy to yield to him.
  Mr. GRASSLEY. Three minutes.
  Mrs. BOXER. Mr. President, I ask unanimous consent that the Senator 
from Iowa be recognized for 5 minutes, and the Senator from California 
for 10 minutes immediately following his remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Iowa is recognized.
  Mr. GRASSLEY. I thank the Senator from California for her kindness.

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