[Congressional Record Volume 153, Number 175 (Tuesday, November 13, 2007)]
[Senate]
[Pages S14241-S14243]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         LAW OF THE SEA TREATY

  Mr. VITTER. Mr. President, I wish to address the Senate and, indeed, 
our fellow citizens around America today about a very important matter 
before the Senate, the Law of the Sea Treaty. We have been studying 
this treaty in great detail in the Foreign Relations Committee, and it 
is a matter that could eventually come before the entire Senate.
  I started this process, looked at the treaty, began to read it with a 
completely open mind. But as I got into the details of it--the 
significant details that would govern our laws, our activity--if we 
were to become a full participant in the treaty, many concerns began to 
mount in my mind. So I wish to come before the full Senate and before 
the American people to outline some of those concerns in great detail.
  To begin with, let me say there are many good, productive, positive 
provisions of the Law of the Sea Treaty. I strongly support the same 
provisions the U.S. Navy supports and that personnel and admirals from 
the Navy have testified in favor of. That is really not the issue. The 
issue is the treaty as a whole and all of the provisions taken together 
and whether we should pass the treaty as a whole because we have no 
choice but to consider the whole, not simply one provision or the 
other.

  This treaty has been around for many years--in fact, decades. It was 
negotiated decades ago. President Reagan, during his administration--
very correctly, I think--rejected the treaty as it stood then. Because 
of that bold rejection, negotiators went back to the bargaining table 
and changed some significant aspects of the treaty. Now, those were 
improvements, but they don't in any way affect the main concerns I have 
about the Law of the Sea Treaty, and that is the fundamental baseline 
threat that the United States would be ceding our autonomy, our control 
over our own future to other international organizations that often 
don't have our best interests in mind.
  So that is my fundamental concern. The renegotiation doesn't change 
that in any way. The testimony of the Navy doesn't even touch on that 
because it is about other provisions of the treaty. But my main concern 
with the Law of the Sea Treaty is the United States cedes autonomy to 
binding international tribunals--gives up American prerogatives, U.S. 
power, to binding international tribunals which, in the current 
international context, I do not think would often have our best 
interests in mind.
  So why do I say that? Well, it is very important to look at the 
specific provisions of the treaty. We have been debating and discussing 
this in the Foreign Relations Committee. We have had numerous so-called 
expert witnesses. I am constantly shocked about how many participants 
in this discussion, quite frankly, including many expert witnesses, 
clearly haven't read all of the significant and important provisions of 
the treaty.
  One of the most important provisions of the treaty has to do with 
these arbitral tribunals, these courts, if you will, that would have 
binding authority over all treaty participants, including the United 
States if the United States were to become a full treaty participant. 
So in other words, when disputes arise under the treaty, how do you 
resolve the dispute? You go to court. That court, if you will, that 
special tribunal, has binding authority over the parties to the 
dispute.
  There are different sorts of these tribunals. One sort is called a 
special arbitral tribunal. Under that, under Annex VIII, the United 
States, again, cedes binding authority to these special tribunals in 
disputes about fisheries, the marine environment, marine scientific 
research, and navigation.
  What is wrong with that? Well, I think what is wrong with it--or at 
least the threat it poses to the United States becomes clear when you 
look at the nature of this tribunal. It is a five-person body and 
simple majority rules. Now, who appoints the people? Well, both parties 
to a dispute pick two panelists. So if we were brought into court, if 
you will, by another country, that other country opposing our views, 
opposing our interests, would pick two panelists, and we would pick two 
panelists. What about the fifth panelist?

[[Page S14242]]

That is obviously important because it could well be the tie-breaking 
vote.
  Under the treaty, the parties are supposed to try to agree on that 
fifth panelist. But if the parties can't agree--and, of course, that is 
a distinct possibility--the party taking us into court, the other 
country, could then flatout refuse to agree with any of our suggestions 
and choices no matter how reasonable.
  Then what happens? Well, then the U.N. Secretary General picks the 
fifth panelist. He picks the tie-breaking vote.
  I will be very honest with my colleagues; I don't feel comfortable 
with that. In the current international context, when we have been 
opposed so often at the U.N., when countries gang up on us, quite 
frankly, so often in forums such as the U.N., I don't feel comfortable 
with the Secretary General of the U.N. picking the tie breaker and 
essentially determining our fate.
  There are other types of tribunals under the Law of the Sea Treaty. 
The next type is simply called a general arbitral tribunal. It is under 
Annex VII of the treaty. Again, the fundamental issue and the 
fundamental problem in my mind is, under that annex, under the 
provisions of the treaty, if the United States were to become a full 
partner in the treaty, the United States would cede, again, binding 
authority to these other sorts of tribunals regarding all other 
disputes.
  So, in other words, the first type of arbitral tribunal would cover 
the four issue areas that I mentioned a few minutes ago. This general 
tribunal would cover all other disputes.
  Now, how is this tribunal made up? Very similar, in fact, to the 
others. Again, a five-person body, simple majority rules. Both parties 
to the dispute, in this case, pick one panelist. So if we were hauled 
into international court, if you will, by another country, that other 
country would pick one panelist, and we would pick one panelist. Again, 
similar to the other tribunal. Then both parties together would try to 
agree on the other three panelists. Obviously, those three would 
compose a majority of the five. But if the parties can't agree--and, 
once again, if our opposing country, the country that has hauled us 
into court, doesn't want to agree to any of our ideas, any of our 
suggestions no matter how reasonable, it can just stand firm and not 
agree. In that case, those three members of the tribunal--a majority of 
the tribunal--would be chosen by the Law of the Sea lead bureaucrat, 
the head of the Law of the Sea under the treaty, an international 
bureaucrat similar in background and attitudes in many instances to the 
Secretary General of the U.N. Again, it is the same fundamental problem 
in my mind in that we are ceding our autonomy, we are ceding binding 
decisions that can be very significant in terms of our fate, our 
interests, our values, to this international court dominated by, 
controlled by, potentially, international bureaucrats.
  Why is this a threat? What sort of disputes could arise that could go 
to these binding courts, or binding tribunals, panels? Well, one area 
that is clearly covered by the treaty is pollution. One would think 
that could be reasonable and necessary and natural with regard to 
pollution in the open ocean--this is a Law of the Sea Treaty, after 
all--but it also applies to pollution from land-based sources, and that 
comes as a great surprise to most people when they find that out. But 
that is why it is useful to read the treaty because when you read the 
treaty you actually find out some of these things.
  Article 213 of the treaty is entitled--very frankly, very simply, 
very directly--``Enforcement With Respect to Pollution From Land-Based 
Sources.''

  That article says:

       States shall enforce their laws and regulations in 
     accordance with Article 207--

  That is fair enough. We pass our laws; we should enforce them--

     and shall adopt laws and regulations and take other measures 
     necessary to implement applicable international rules and 
     standards, to prevent, reduce, and control pollution of the 
     marine environment from land-based sources.

  Well, wait a minute. I thought Congress and other political bodies in 
the United States determine our domestic laws, including about 
pollution from land-based sources. This is a distinct departure from 
that. This is a mandate in an international treaty saying: We shall 
adopt other laws to enforce international notions, international 
standards about pollution.
  Another applicable article is Article 207, and under 207(1) it, 
again, says:

       States shall adopt laws and regulations to prevent, reduce 
     and control pollution of the marine environment from land-
     based sources, taking into account internationally agreed 
     upon rules, standards and recommended practices and 
     procedures.

  Once again, my reaction when I read that is, wait a minute. I thought 
Congress was in charge of environmental policy in the United States. I 
thought State legislatures, where appropriate, were in charge of that 
policy--bodies elected by the people. Isn't that what democracy is 
about? Well, this is a distinct departure. This is internationalizing 
many of those issues with mandates in the Law of the Sea Treaty that go 
beyond what we may think is the best law in these areas, and that we 
conform to certain international decisions.
  Again, the title of the article couldn't be clearer: ``Enforcement 
With Respect to Pollution From Land-Based Sources.'' Again, this is 
just one example of an issue area where the United States could well be 
ceding autonomy, ceding authority to other folks outside our borders 
who don't necessarily have our values, our notions, our best interests 
in mind.
  What sort of situation could arise from this? Well, I think the 
situation that would undoubtedly arise is an outbreak of international 
lawyering and litigation--trying to move decisions that are presently 
before elected political bodies in the United States to the 
international arena. Many folks who have studied this phenomenon call 
it ``lawfare.'' Again, not ``warfare'' but using international law to 
oppose us and battle our interests and move those decisions from the 
domestic political environment to an international tribunal, an 
international stage that very often doesn't have our best interests in 
mind. Again, U.S. autonomy gives way to international litigation.
  This isn't a wild conjecture on my part. This isn't something I am 
imagining or seeing in the future. This is something that many 
international lawyers and activists are actively licking their lips 
over and looking forward to. In fact, there was a Law Review article 
published several months ago that was very straightforward about this 
phenomenon that would occur if we become a party to the treaty. The 
author of this Law Review article said very clearly:

       Climate change litigation--

  One example of environmental issues, environmental litigation--

     in national and international fora is emerging as an 
     alternative means by which to hold States and private actors 
     accountable for climate change damages. The United Nations 
     convention on the Law of the Sea is a promising instrument 
     through which such action might be taken, given its broad 
     definition of pollution to the marine environment and the 
     dispute resolution mechanisms contained within its 
     provisions.

  That is exactly what I am talking about. That policy, that issue now 
is subject to our determination, and Congress is subject to the 
activity of other elected bodies in the United States, but under the 
Law of the Sea Treaty, it would be moved to an international forum, to 
international litigation, to lawfare, in many cases, against the values 
and interests of the United States.
  We have great disagreement and debate in this body about significant 
issues such as climate change. That is legitimate in a democracy; we 
should have those debates, and we should hash out those differences, 
and we should make the best determinations and policies we can on 
behalf of the American people. But that is something very different 
from pushing those issues and those decisions outside of the United 
States to international courts, to international tribunals over which 
we essentially have no control.
  There are other issue areas that could be the subject of this sort of 
international litigation, other countries hauling us into court to 
oppose our values and interests.
  Another topic where this could happen--and this gives me grave 
concern--has to do with military activities. I actively asked many of 
the expert witnesses in our hearings before the Senate Foreign 
Relations Committee about it. What would prevent another country from 
hauling us into international court--that court, that tribunal having 
binding authority over

[[Page S14243]]

us, if we become a part of the treaty--to try to stop, prevent, 
hamstring us with regard to military activity?
  The response was immediate: There is a clear exception in the Law of 
the Sea Treaty that excepts military activities. That is true. Article 
298 excludes ``military activities'' from the Law of the Sea Treaty's 
binding dispute resolution.
  The experts didn't have a good answer to my next question. It was 
logical. The next question is: OK, who determines what is a military 
activity and what is not a military activity? If there is an exclusion 
regarding military activities, then this term is pretty darn important. 
Who defines this term? Who applies this term on a case-by-case basis?
  When I asked that to the experts before the committee, there was a 
fair amount of silence. And then, after some consultation with the 
lawyers behind the experts, the answer came: Well, we believe we define 
what is a military activity--we, the United States.
  The next logical question: Where does the treaty say that? Where is 
that spelled out in the treaty? It is not. The treaty is completely 
silent on the issue. So the treaty excludes military activities, but it 
doesn't say what is military activity and what is not a military 
activity. The treaty doesn't determine who determines what is and is 
not a military activity.
  Here in the United States, when two parties go to court, there is 
often a dispute in the beginning of the lawsuit about whether that 
particular court has jurisdiction. Guess who decides whether that court 
has jurisdiction. That court decides if it has jurisdiction. If the 
same thing were to occur in the Law of the Sea Treaty, who decides 
that? The international court, the tribunal, would decide, and it would 
decide that crucial threshold issue against our opinion, against our 
interests; and there we are again before a binding international 
tribunal, which could have grave effects on what we consider our 
military activities.
  Another final area of concern I will highlight that could come up as 
a subject of this sort of international litigation is intelligence 
activities. Post-9/11, perhaps nothing is more important to our 
security, to the defense of our values and our way of life, than our 
necessary intelligence activities.
  That gave rise to an obvious question I asked the experts before the 
committee: Would intelligence activities be covered by the Law of the 
Sea Treaty? And could these international tribunals, with binding 
authority on us, have that binding authority over our intelligence 
activities?
  Once again, I would have thought this was a simple and obvious 
question, but it caused a long period of silence from the witnesses who 
were there to testify in favor of the treaty. Finally, after long 
periods of silence and much consultation with the lawyers behind them, 
the answer was: Well, we believe our intelligence activities fall under 
the military exemption. So we believe intelligence activities would not 
go to court, would not go to this international court with binding 
authority, because we believe it falls under the military exemption.
  Again, an obvious followup question: Great. Where in the treaty does 
it say that? Long silence. Long pause. Consultation with the lawyers 
behind the experts. Well, the treaty doesn't say that. Does the treaty 
say anything about intelligence? The treaty doesn't mention 
intelligence--whether it is covered under the military exemption.
  I have to tell you, that again gave me great pause and concern, 
because I immediately thought of this place--the Senate, the House, 
Capitol Hill--where intelligence is considered an entirely separate 
subject matter from military. When we are up here debating matters and 
sending matters to committees, there is an Intelligence Committee that 
handles intelligence. There is a completely separate Armed Services 
Committee that handles military matters. Intelligence isn't subsumed 
under military. Intelligence issues don't go to the Armed Services 
Committee. It is a completely separate category. So why should it 
necessarily be different in the Law of the Sea Treaty? I think an 
argument could be made--a very logical, forceful argument--that 
intelligence activities aren't excluded under the treaty.
  Intelligence activities are different from military activities, just 
as they are considered different up here on Capitol Hill. Guess what. 
Intelligence activities could make the subject of this international 
law against us--before countries calling us into international court, 
before the international tribunals that would have binding authority on 
us--very disconcerting, particularly in a post-9/11 world, where our 
intelligence activities are so absolutely crucial to our national 
defense and our activities necessary to preserve our values and way of 
life.
  Again, there are many significant issues that arise under the Law of 
the Sea Treaty debate. Hopefully, we will have a full opportunity to 
discuss these issues I brought up today, and more. But these issues I 
have discussed today are the heart of my concern with the treaty, and 
the heart of that concern is simply that the United States would be 
ceding our autonomy, our control over our own future and destiny to 
international bureaucrats, to international courts, who very often 
would not have our best interests in mind and would not share our 
perspectives or our values.
  That is something very serious to consider when you are talking about 
environmental policy, which has always been the subject of debate in 
elected bodies within the United States; when you are talking about 
military activities, which are so important, particularly in a post-9/
11 world; and when you are talking about intelligence activities, 
similarly crucial to our security, and defense of our way of life in a 
post-9/11 world.
  I hope the Senate takes a very long, very hard look at this treaty. I 
hope every individual Senator will do something quite unusual, which is 
read the treaty, open the book, look at the details, think for 
yourself. Once I began that process several months ago, the concerns 
over this treaty--particularly with regard to U.S. autonomy--began to 
mount and multiply in my own mind. Every Senator has an obligation to 
pick up the treaty itself, read it personally, and think through these 
concerns, because the results, if things proceed as I have outlined, 
could be disastrous.
  With that, I yield back my time and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Casey). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, what is the time situation?
  The PRESIDING OFFICER. The Democrats control the time until the hour 
of 12:30.
  Mr. KENNEDY. Mr. President, I yield myself such time as I might use.

                          ____________________