[Senate Executive Report 108-10]
[From the U.S. Government Publishing Office]



108th Congress                                               Exec. Rpt.
                                 SENATE
 2nd Session                                                     108-10

======================================================================
 
                  UNITED NATIONS CONVENTION ON THE LAW
                               OF THE SEA

                                _______
                                

                             March 11, 2004

                                _______
                                

           Mr. Lugar from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                   [To accompany Treaty Doc. 103-39]

    The Committee on Foreign Relations, to which was referred 
the United Nations Convention on the Law of the Sea and the 
Agreement Relating to the Implementation of Part XI on the 
United Nations Convention on the Law of the Sea, with Annex 
(Treaty Doc. 103-39), having considered the same reports 
favorably thereon with declarations and understandings as 
indicated in the resolution of advice and consent, and 
recommends that the Senate give its advice and consent to 
accession to the Convention and ratification of the Agreement 
as set forth in this report and the accompanying resolution of 
advice and consent to ratification.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions of the Convention and Implementing 
     Agreement........................................................2
 IV. Implementing Legislation.........................................6
  V. Committee Action.................................................6
 VI. Committee Recommendation and Comments............................6
VII. Text of Resolution of Advice and Consent to Ratification........16
VIII.Annex I--Letter from State Department Legal Adviser William H. 
     Taft, IV to Chairman Lugar, dated March 1, 2004.................22
 IX. Annex II--Hearings on the U.N. Convention on the Law of the Sea 
     (Treaty Doc. 103-39), October 14 and 21, 2003...................23

                               I. Purpose

    The Convention, together with the related Agreement on 
Implementing Part XI of the Convention, establishes a 
comprehensive set of rules governing the uses of the world's 
oceans, including the airspace above and the seabed and subsoil 
below. It provides for jurisdiction, rights, and duties among 
States that carefully balance the interests of States in 
controlling activities off their own coasts and the interests 
of all States in protecting the freedom to use the oceans 
without undue interference. Among the central issues addressed 
by the Convention and Implementing Agreement are navigation and 
overflight of the oceans, exploitation and conservation of 
ocean-based resources, protection of the marine environment, 
and marine scientific research.

                             II. Background

    The Convention and Implementing Agreement are the product 
of over two decades of effort, led by the United States, to 
conclude a universally accepted treaty on the law of the sea. A 
widely ratified comprehensive law of the sea treaty has been a 
bipartisan goal of successive U.S. administrations for decades; 
the Congress endorsed this goal in the 1980 Deep Seabed Hard 
Mineral Resources Act. The Convention was negotiated under the 
auspices on the Third United Nations Conference on the Law of 
the Sea, which opened in 1973 and closed in December 1982 with 
the conclusion of the Convention.
    Upon the adoption of the Convention in 1982, the United 
States and other industrialized nations declined to sign or to 
ratify the Convention, though they supported most of its 
provisions, because they could not accept the regime it 
established to govern deep seabed mining in areas beyond 
national jurisdiction. Notwithstanding his decision that the 
United States would not sign the Convention, President Reagan 
issued a statement of United States oceans policy in March 1983 
indicating that the United States would accept and act in 
accordance with the Convention's balance of interests relating 
to the traditional uses of the oceans, and this has remained 
U.S. policy since that time.
    In the early 1990s, efforts were made to renegotiate the 
deep seabed mining provisions of the Convention that had 
prevented the United States and others from becoming parties to 
the Convention. These efforts culminated in the 1994 
Implementing Agreement. That agreement restructured the 
Convention's deep seabed mining regime in ways that met the 
objections of the United States and other industrialized 
nations. The United States signed the Implementing Agreement on 
July 29, 1994, and President Clinton submitted it together with 
the Convention to the Senate for its advice and consent on 
October 7, 1994. At present, 145 countries are parties to the 
Convention and 114 countries are parties to the Implementing 
Agreement.

   III. Summary of Key Provisions of the Convention and Implementing 
                               Agreement

    A detailed article-by-article discussion of the Convention 
and Implementing Agreement may be found in the September 23, 
1994 Letter of Submittal from the Secretary of State to the 
President, which is reprinted in full in Senate Treaty Document 
No. 103-39. The Bush administration has confirmed its view 
that, generally, the Letter of Submittal appropriately analyzes 
and interprets the Convention, noting that the declarations and 
understandings in the resolution of advice and consent reported 
by the committee and endorsed by the administration further 
refine the analysis and interpretation contained in the Letter 
of Submittal, and that these declarations and understandings 
will prevail in the case of any inconsistency with the Letter 
of Submittal. The Executive Branch's views on particular 
provisions of the Convention and the Agreement are also found 
in testimony and responses to questions for the record at the 
committee's October 21, 2003 hearing. These are contained in 
the hearing record included as part of this report.
    In general, the Convention reflects a careful balance 
between the interests of the international community in 
maintaining freedom of navigation and those of coastal States 
in their offshore areas. The United States has important 
interests in both respects. As the world's preeminent maritime 
power, the United States has a vital interest in freedom of 
navigation to ensure that our military has the mobility it 
needs to protect U.S. security interests worldwide, as well as 
to facilitate the transport of goods in international trade. In 
2003, over 28 percent of U.S. exports were shipped on the 
oceans, amounting to over $200 billion in exports. As a major 
coastal State, the United States has substantial interests in 
developing, conserving, and managing the vast resources of the 
oceans off our coasts, in protecting the marine environment, 
and in preventing activity off our coasts that threatens the 
safety and security of Americans. Preserving the careful 
balance the Convention strikes ensuring protection of these 
various interests is of great importance to the United States.
    A summary of the key provisions of the Convention and 
Implementing Agreement is set forth below.

                             MARITIME ZONES

    The Convention establishes a jurisdictional regime for the 
world's oceans based on a series of zones defined by reference 
to distance from a State's coast. Under Part II of the 
Convention, a State may claim as its territorial sea an area up 
to 12 nautical miles (nm) from its coast. A State's territorial 
sea is subject to the State's sovereignty. Beyond 12 nm and up 
to 24 nm from its coast, a State may claim a contiguous zone in 
which the coastal State may exercise the limited control 
necessary to prevent or punish infringement of its customs, 
fiscal, immigration, or sanitary laws and regulations in its 
territory or territorial sea. Beyond its territorial sea, Part 
V of the Convention provides that a State may claim an area up 
to 200 nm from its coast as an exclusive economic zone (EEZ) in 
which it enjoys sovereign rights for the purpose of exploring, 
exploiting, conserving and managing living and non-living 
natural resources, as well as jurisdiction as provided for in 
the Convention with respect to, inter alia, marine scientific 
research and the protection and preservation of the marine 
environment. Areas beyond 200 nm from a State's coastline are 
open to all uses and are not subject to the jurisdiction of any 
State. The Convention establishes rules for drawing baselines 
to be used in measuring the distances from a State's coast that 
define these various zones.

                           CONTINENTAL SHELF

    Part VI of the Convention provides that a coastal State 
exercises sovereign rights for the purpose of exploring and 
exploiting the natural resources of its continental shelf, 
which comprises the seabed and subsoil of the submarine areas 
that extend beyond the territorial sea throughout the natural 
prolongation of its land territory to the outer edge of the 
continental margin, or to a distance of 200 nm from the 
baselines where the outer edge of the continental margin does 
not extend to that distance. The natural resources of the shelf 
consist of the mineral and other non-living resources of the 
seabed and subsoil, together with the living organisms 
belonging to sedentary species. The Convention establishes 
rules defining the continental shelf, as well as an expert 
body, the Commission on the Limits of the Continental Shelf, to 
consider and make recommendations to coastal States on matters 
related to the establishment of the outer limit of their 
continental shelf beyond 200 nm. If the coastal State agrees, 
the shelf limits set by that State on the basis of the 
recommendations are final and binding, thus providing important 
stability and certainty to these claims. Under Part XI of the 
Convention (see below), the seabed and ocean floor and subsoil 
thereof beyond national jurisdiction are governed by an 
international authority established by the Convention, and no 
State may claim or exercise sovereignty over the resources 
thereof, though States or individuals may exercise certain 
rights with regard to minerals in accordance with Part XI and 
the Implementing Agreement.

                  FREEDOM OF NAVIGATION AND OVERFLIGHT

    The Convention provides protections for critical freedoms 
of navigation and overflight of the world's oceans. These 
include the prohibition of territorial sea claims beyond 12 nm 
and the express protection for and accommodation of passage 
rights through the territorial sea and archipelagic waters, 
including transit passage through straits and archipelagic 
sealanes passage. They also include the express protection for 
and accommodation of the high seas freedoms of navigation, 
overflight, laying of submarine cables and pipelines, and 
related uses beyond the territorial sea, including areas where 
there are coastal State sovereign rights and jurisdiction, such 
as the EEZ and the continental shelf. United States Armed 
Forces rely on these navigation and overflight rights daily, 
and their protection is of paramount importance to U.S. 
national security.

         PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT

    The Convention includes numerous provisions related to 
protection of the marine environment. For example, Part XII 
addresses multiple sources of marine pollution, including, for 
example, pollution from vessels, seabed activities, ocean 
dumping, and land-based sources, and promotes continuing 
improvement in the health of the world's oceans. Depending upon 
the source of marine pollution and the particular maritime zone 
in question, Part XII sets forth various obligations and 
authorizations relating to coastal States, flag States, and/or 
all States (such as to develop international standards). The 
provisions encourage Parties to work together to address issues 
of common and pressing concern. Another example is Article 21 
which includes important rights for coastal States with regard 
to protection of the environment and natural resources in the 
territorial sea.

                        LIVING MARINE RESOURCES

    Most living marine resources of importance to coastal 
States are located within 200 nm from coasts. The Convention's 
authorization of the establishment of EEZs, and provision for 
the sovereign rights and management authority of coastal States 
over living resources within such EEZs, bring such living 
marine resources under the jurisdiction of coastal States. The 
Convention provides that each coastal State has the sovereign 
right to make determinations under the Convention related to 
utilization, conservation and management of living resources 
within its EEZ. The Convention also includes specific 
provisions for the conservation of marine mammals. While the 
Convention preserves the freedom to fish on the high seas, it 
makes that freedom subject to certain obligations, including 
the duty to cooperate in the conservation and management of the 
living resources in high seas areas.

                       MARINE SCIENTIFIC RESEARCH

    Part XIII of the Convention recognizes the critical role of 
marine scientific research in understanding oceanic processes 
and in informed decisionmaking about uses of the oceans. 
Following a maritime zone approach, it provides coastal States 
with greater rights to regulate marine scientific research in 
their territorial seas than in the EEZ and on the continental 
shelf. All States have the right to conduct such research 
freely in high seas areas. Part XIII also provides for 
international cooperation to promote marine scientific 
research.

                           DEEP SEABED MINING

    Part XI of the Convention, as fundamentally modified by the 
Agreement Relating to the Implementation of the Convention, 
establishes a regime governing the exploration and exploitation 
of the seabed, ocean floor and subsoil thereof beyond the 
limits of national jurisdiction. As modified, Part XI meets the 
objections raised by the United States and other industrialized 
countries concerning the original Convention. It is expected to 
provide a stable and internationally recognized framework in 
which mining can proceed in response to demand in the future 
for deep seabed minerals. It establishes an international 
organization, the International Seabed Authority, to administer 
the regime. The Authority includes a Council, which acts as its 
principal executive body; an Assembly, made up of all of States 
that are members of the Authority; and a Secretariat. The 
Council has primary responsibility for supervising the 
implementation of the seabed mining regime, including approving 
plans of work for exploration and exploitation of mineral 
resources and overseeing compliance with such plans. The 
Assembly has responsibility, on the basis of recommendations 
made by other Assembly bodies, to assess contributions, give 
final approval to rules and regulations and to the budget, and 
to decide on the sharing of revenues to the Authority from 
mining.
    Responding to a principal U.S. objection to the Convention 
as it was originally concluded in 1982, the Agreement provides 
for a decisionmaking structure for the Authority that protects 
U.S. interests. Under Section 3(15)(a) of the Annex to the 
Implementing Agreement, the United States is guaranteed a seat 
on the Council in perpetuity. As a general rule, the Council 
and Assembly take all decisions by consensus, though provisions 
are made for voting in the event consensus cannot be reached. 
Relevant voting rules prevent the Authority from adopting 
substantive decisions governing the administration of the deep 
seabed mining regime, or decisions having financial or 
budgetary implications, over the objection of the United 
States. In response to other U.S. objections, the Agreement 
also eliminates mandatory technology transfer provisions and 
non-market based controls on the levels of mineral production 
from the deep seabed that were part of the Convention as 
originally concluded.

                      IV. Implementing Legislation

    The United States has acted in accordance with the 
Convention's balance of interests relating to the traditional 
uses of the oceans since a 1983 statement issued by President 
Reagan making this U.S. policy. As explained in the March 1, 
2004 letter from State Department Legal Adviser William H. 
Taft, IV to Chairman Lugar attached as an annex to this report, 
U.S. law and practice are already generally compatible with the 
Convention and the United States does not need to enact new 
legislation upon accession to supplement or modify existing 
U.S. law. The one area in which implementing legislation would 
be necessary at some point after U.S. accession is legislation 
to enforce decisions of the Sea-Bed Disputes Chamber, which is 
addressed below in connection with understanding 22 of the 
resolution of advice and consent.

                          V. Committee Action

    The committee held public hearings on the Convention and 
the Implementing Agreement on October 14, 2003 and October 21, 
2003, where it heard testimony from experts on oceans law and 
policy, former U.S. negotiators of the Convention, 
representatives of the Departments of State, Defense, and the 
U.S. Coast Guard, and representatives of organizations 
interested in oceans issues. (A transcript of this hearing and 
questions and answers for the record may be found in Annex II 
to this report.) On February 25, the committee considered the 
Convention and Implementing Agreement and ordered them 
favorably reported by a vote of 19-0, with the recommendation 
that the Senate give its advice and consent to accession to the 
Convention and ratification of the Implementing Agreement, 
subject to declarations and understandings contained in the 
resolution of advice and consent.

               VI. Committee Recommendation and Comments

    The committee recommends that the Senate advise and consent 
to accession to the Convention and ratification of the 
Implementing Agreement. The committee believes that the 
Convention advances important U.S. interests in a number of 
areas. It advances U.S. national security interests by 
preserving the rights of navigation and overflight across the 
world's oceans, on which our military relies to protect U.S. 
interests around the world, and it enhances the protection of 
these rights by providing binding mechanisms to enforce them. 
It advances U.S. economic interests by enshrining the right of 
the United States to explore and exploit the vast natural 
resources of the oceans out to 200 miles from our coastline, 
and of our continental shelf beyond 200 miles, and by 
protecting freedom of navigation on the oceans over which more 
than 28 percent of all U.S. exports and 48 percent of all U.S. 
imports are transported. It advances U.S. interests in the 
protection of the environment by creating obligations binding 
on all States to protect and preserve the marine environment 
from pollution from a variety of sources, and by establishing a 
framework for further international action to combat pollution. 
Becoming party to the Convention also advances the ability of 
the United States to play a leadership role in global oceans 
issues, including by allowing the United States to participate 
fully in institutions created by the Convention such as the 
International Seabed Authority, the Commission on the Limits of 
the Continental Shelf, and the International Tribunal for the 
Law of the Sea.
    The committee also believes it important that U.S. 
accession to the Convention be completed promptly. The 
Convention comes open for amendment for the first time in 
November 2004. As noted above, in negotiating the Convention, 
the United States was successful in achieving a regime that 
struck a careful balance in ensuring protection of many 
important U.S. interests. If the United States is not party to 
the Convention when it comes open for amendment, our ability to 
protect the critically important balance of rights that we 
fought hard to achieve in the Convention will be significantly 
diminished. In addition, the Convention's Commission on the 
Limits of the Continental Shelf will soon begin making 
decisions on claims to continental shelf areas that could 
affect the United States' own claims. Full U.S. participation 
in this process requires us to be party to the Convention.
    The Bush administration has expressed its strong support 
for ratification of the Convention, as did the Clinton 
administration before it. The committee has also received 
statements in support of U.S. accession to the Convention from, 
inter alia, the U.S. Commission on Oceans Policy (an official 
body established by Congress), the American Petroleum 
Institute, the International Association of Drilling 
Contractors, the National Oceans Industries Association, the 
National Marine Manufacturers Association, the Chamber of 
Shipping of America, the U.S. Tuna Foundation, the Ocean 
Conservancy, the World Wildlife Fund, the Humane Society of the 
United States, the American Bar Association, the Council on 
Ocean Law, and the U.S. Arctic Research Commission.
    The committee has included a number of declarations, 
understandings, and conditions in the resolution of advice and 
consent. Article 309 of the Convention provides that no 
reservations or exceptions may be made to the Convention unless 
expressly permitted by other articles (such as with respect to 
disputes settlement, see below). Article 310 provides that a 
State may, however, make declarations or statements, however 
phrased or named, with a view, inter alia, to the harmonization 
of its laws and regulations with the provisions of the 
Convention, provided they do not purport to modify the effect 
of the Convention in their application to that State.
    Section two of the resolution contains two declarations 
relating to the dispute settlement procedures under the 
Convention. The first declaration concerns the forum for 
dispute settlement. A State, when adhering to the Convention or 
thereafter, is able to choose, by written declaration, one or 
more of the means for the settlement of disputes (i.e., the 
International Tribunal for the Law of the Sea, the 
International Court of Justice, arbitration under Annex VII, or 
special arbitration under Annex VIII for certain disputes, such 
as fisheries and marine scientific research). The declaration 
states that the United States chooses special arbitration for 
all the categories of disputes to which it may be applied and 
arbitration for other disputes.
    The second declaration concerns the exclusion of certain 
categories of disputes from dispute settlement procedures. The 
Convention permits a State to opt out of binding dispute 
settlement procedures with respect to one or 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 UN Security Council is 
exercising the functions assigned to it by the UN Charter. The 
declaration states that the United States elects to exclude all 
three of these categories of disputes from binding dispute 
settlement. With respect to disputes concerning military 
activities, the declaration further states that U.S. consent to 
accession is conditioned upon the understanding that, under 
article 298(1)(b), each State Party has the exclusive right to 
determine whether its activities are or were ``military 
activities,'' and that such determinations are not subject to 
review.
    Section three of the resolution contains a series of 
understandings and declarations addressing specific issues 
raised by the Convention. The first five understandings relate 
principally to freedoms of navigation and overflight and 
related uses of the sea under the Convention. As noted above, 
these rights and freedoms are of critical importance to the 
U.S. military, and in particular its need for global mobility.
    The first understanding states that nothing in the 
Convention impairs the inherent right of self-defense or rights 
during armed conflict, including any Convention provisions 
referring to ``peaceful uses'' or ``peaceful purposes.'' This 
understanding underscores the importance the United States 
attaches to its right under international law to take 
appropriate actions in self-defense or in times of armed 
conflict, including, where necessary, the use of force.
    The second, third, and fourth understandings address 
navigational rights and freedoms in various maritime zones 
under the Convention. The second understanding focuses on 
innocent passage in the territorial sea, the third focuses on 
transit passage and archipelagic sea lanes passage under Parts 
III and IV of the Convention, and the fourth focuses on high 
seas freedoms of navigation and overflight in the exclusive 
economic zone. Collectively, these understandings confirm that 
various activities historically undertaken by the U.S. Armed 
Forces in these zones are consistent with the rights and 
freedoms set forth in the Convention.
    Several points are worth noting in particular in connection 
with the second understanding regarding innocent passage.

   Paragraph 2(B) states that article 19(2) of the 
        Convention contains an exhaustive list of activities 
        that render passage non-innocent. The committee 
        understands that the list of activities in no way 
        narrows the right of innocent passage the United States 
        currently enjoys under the 1958 Territorial Sea 
        Convention and customary international law. On the 
        contrary, the Convention improves upon the 1958 
        Convention's innocent passage regime from the 
        perspective of U.S. navigational mobility by 
        establishing a more objective standard for the meaning 
        of ``innocent'' passage based on specifically 
        enumerated activities, and by setting forth an 
        exhaustive list of those activities that will render 
        passage not ``innocent.'' (Article 20 provides that 
        submarines and other underwater vehicles are required 
        to navigate on the surface and to show their flag in 
        order to enjoy the right of innocent passage; however, 
        failure to do so is not characterized as inherently not 
        ``innocent.'') The committee further understands that, 
        as in the case of the 1958 Convention, the innocent 
        passage provisions of the Convention set forth 
        conditions for the enjoyment of the right of innocent 
        passage in the territorial sea but do not prohibit or 
        otherwise affect activities that are not entitled to 
        that right.

   Paragraph 2(A) states the U.S. understanding that, 
        among other things, the ``purpose'' of a ship is not 
        relevant to the enjoyment of innocent passage, and 
        paragraph 2(C) states the U.S. understanding that a 
        determination of non-innocence cannot be made, among 
        other things, on the basis of a ship's ``purpose.'' The 
        reference to ``purpose'' is intended to make clear, for 
        example, that a ship navigating for the sole purpose of 
        exercising its right of innocent passage is entitled to 
        the right of innocent passage but that would not 
        preclude a ship's purpose from being taken into account 
        in assessing whether that ship posed a threat to use 
        force within the meaning of article 19(2)(a).

   Understanding 2(D) reiterates the longstanding U.S. 
        position that the Convention does not authorize a 
        coastal State to condition the exercise of the right of 
        innocent passage by any ships, including warships, on 
        the giving of prior notification to or the receipt of 
        prior permission from the coastal State. The 
        Convention, and this understanding, do not, however, 
        affect the ability of Parties to the Convention to 
        agree among themselves to a prior notification regime. 
        For example, such regimes have been negotiated under 
        the auspices of the International Maritime 
        Organization. In this regard, regulation V/11 (ship 
        reporting systems) and regulation V/19.2.4 (automatic 
        identification systems) of the regulations annexed to 
        the International Convention for the Safety of Life at 
        Sea, 1974, as amended should be noted.

    The fifth understanding concerns marine scientific 
research. Part XIII of the Convention addresses the rights of 
coastal States to require consent for marine scientific 
research undertaken in marine areas under their jurisdiction. 
The understanding indicates that the term ``marine scientific 
research'' does not include certain activities, such as 
military activities, including military surveys. It is an 
illustrative list; therefore, there are other activities, such 
as operational oceanography, that are also not considered 
marine scientific research.
    The sixth understanding expresses the U.S. view that those 
declarations and statements of other States Parties that 
purport to limit navigation, overflight, or other rights and 
freedoms in ways not permitted by the Convention (such as those 
not in conformity with the Convention's provisions relating to 
straits used for international navigation) contravene the 
Convention (specifically article 310, which does not permit 
such declarations and statements). While it is not legally 
necessary for the United States to comment on declarations and 
statements that are inconsistent with the Convention, given 
that reservations are not permitted under the Convention, the 
committee believes it appropriate and desirable to make clear 
the U.S. position on such declarations and statements.
    The resolution next contains a series of understandings 
addressing principally environment-related aspects of the 
Convention, including provisions of the Convention addressing 
marine pollution enforcement. Over the past decade or more, the 
Executive Branch has vigorously enforced U.S. marine pollution 
laws consistent with the Convention's provisions relevant to 
foreign flag vessels. In light of substantial experience 
gained, the Executive Branch has proposed, and the committee 
agrees, that it would be desirable to highlight certain aspects 
of the Convention's provisions, including to harmonize certain 
terminology as between the Convention and U.S. law.
    The seventh understanding addresses an unmeritorious 
assertion that has occasionally been made in relation to 
various U.S. laws that restrict the import of goods to promote 
observance of a particular environmental or conservation 
standard, such as the protection of dolphins or sea turtles. It 
confirms that the Convention in no way limits a State's ability 
to prohibit or restrict imports in order to, among other 
things, promote or require compliance with environmental and 
conservation laws, norms, and objectives.
    The eighth understanding states that certain Convention 
provisions apply only to a particular source of marine 
pollution (namely, pollution from vessels, as referred to in 
article 211) and not other sources of marine pollution, such as 
dumping. The ninth understanding harmonizes the Convention's 
``clear grounds'' standard in articles 220 and 226 with the 
U.S. ``reasonable suspicion'' standard. The tenth understanding 
concerns article 228(2), which provides for a three-year 
statute of limitations concerning certain marine pollution 
proceedings. The understanding sets forth the limits of the 
applicability of the provision. As under current U.S. law, 
fraudulent concealment from an officer of the United States of 
pertinent information tolls the statute of limitations.
    The eleventh understanding addresses the scope of article 
230, which governs the use of monetary penalties in cases 
involving pollution of the marine environment by foreign 
vessels. The understanding harmonizes aspects of article 230 
with U.S. law and practice for the enforcement of pollution 
laws. The reference to ``corporal punishment'' in the 
understanding is not addressed to any U.S. laws authorizing 
such punishment with regard to ship master and sailors (the 
committee is unaware of any such laws); rather it is aimed at 
other States that may provide for such punishment. The article 
thus provides certain protections for U.S. ship masters and 
sailors abroad.
    The twelfth understanding clarifies that the marine 
pollution provisions of the Convention, specifically sections 6 
and 7 of Part XII, do not limit a State's authority to impose 
penalties, among other things, for non-pollution offenses (such 
as false statement violations under 18 U.S.C. 1001) or for 
marine pollution violations that take place in a State's ports, 
rivers, harbors, or offshore terminals.
    The thirteenth understanding provides that the Convention 
confirms and does not constrain the longstanding right of a 
State to impose and enforce conditions for the entry of foreign 
vessels into its ports, rivers, harbors, or offshore terminals. 
This sovereign right enables States to address important 
concerns, such as security and pollution, regardless of whether 
action to address such concerns has been or will be taken at 
the international level and regardless of whether or not the 
condition is directly related to the ports, rivers, harbors, or 
offshore terminals. These conditions might also apply as a 
matter of port departure and compliance with such conditions 
can be considered in approving subsequent port entries. The 
understanding contains illustrative examples of an 
environmental nature, namely a requirement that ships exchange 
ballast water beyond 200 nautical miles from shore and a 
requirement that tank vessels carrying oil be constructed with 
double hulls. Another example of the U.S. exercise of this 
right is the requirement for prior notice of arrival in port of 
foreign vessels.
    The fourteenth understanding relates to article 21(2) of 
the Convention, which provides that the laws that a coastal 
State may adopt relating to innocent passage through the 
territorial sea shall not apply to the ``design, construction, 
manning or equipment'' of foreign ships unless they are giving 
effect to ``generally accepted international rules or 
standards.'' This understanding makes clear that certain types 
of measures would not constitute measures applying to ``design, 
construction, manning or equipment'' of foreign ships and would 
therefore not be limited by this provision. The list is 
illustrative, not exhaustive.
    The fifteenth understanding addresses the issue of 
potential marine pollution from industrial operations (such as 
seafood processing) on board a foreign vessel. This 
understanding makes clear that the Convention supports a 
coastal State's regulation of discharges into the marine 
environment resulting from such operations. A variety of 
provisions in the Convention might be applicable depending upon 
the circumstances. It should be noted that the United States 
currently regulates discharges from seafood processing 
operations on board foreign vessels in its territorial sea and 
EEZ.
    Similarly, the sixteenth understanding addresses the issue 
of invasive species, which is a major environmental issue 
facing many States in the United States. This understanding 
affirms that the Convention supports the ability of a coastal 
State, such as the United States, to exercise its domestic 
authority to regulate the introduction into the marine 
environment of alien or new species. A variety of Convention 
provisions might be applicable, depending upon the 
circumstances, for example, articles 21, 56, 196, or 211. The 
ability to rely on various authorities is important to assure 
that the United States and other coastal States have 
appropriate flexibility to fully address this problem.
    The seventeenth understanding addresses fisheries 
management issues. The United States implements the living 
marine resource provisions of the Convention through a variety 
of domestic laws. For fisheries issues, these provisions are 
implemented primarily through the Magnuson-Stevens Fishery 
Conservation and Management Act, 16 U.S.C. 1801 et seq. 
(Magnuson-Stevens Act). Article 56(1)(a) of the Convention 
establishes that, in the exclusive economic zone, a coastal 
State has sovereign rights for the purpose of exploring and 
exploiting, conserving and managing the natural resources, 
whether living or non-living. In the United States, such 
measures have included fisheries management pursuant to the 
Magnuson-Stevens Act, the establishment of no-anchoring areas 
to protect coral reefs, and the creation of marine sanctuaries 
under the National Marine Sanctuaries Act. This provision also 
provides authority to address such threats as ship strikes of 
cetaceans.
    The Magnuson-Stevens Act provides a national framework for 
conserving and managing marine fisheries within the U.S. EEZ. 
The Act is completely consistent with the Convention and 
enables the United States to exercise its rights and implement 
its fisheries conservation and management obligations under 
articles 61 and 62 of the Convention. The Magnuson-Stevens Act 
provides the United States with the authority to make 
determinations related to utilization, conservation and 
management of living resources within its EEZ, including 
defining optimum yield and allowable catch, considering effects 
on non-target species, and determining what, if any, surplus 
may exist. Articles 61 and 62 provide that the coastal State 
has the exclusive right to make these determinations. In 
particular, under both the Magnuson-Stevens Act and article 
62(2), the United States has no obligation to give another 
State access to fisheries in its EEZ unless, after determining 
the optimum yield and allowable catch under the Act, the United 
States has determined both that there is surplus over and above 
the allowable catch and that the coastal State does not or will 
not have the capacity to harvest that surplus. In such event, 
access may be provided under reasonable terms and conditions 
established by the coastal State. The Magnuson-Stevens Act and 
other legislation provide the United States with the authority 
to cooperate with other States in managing fisheries resources 
that are highly migratory or that straddle jurisdictional 
lines, in order to comply with obligations under articles 63, 
64, 118, and 119. Consistent with article 297(3), binding 
dispute settlement does not apply to disputes relating to a 
coastal State's discretionary powers for determining the 
allowable catch, its harvesting capacity, the allocation of 
surpluses to other States, and the terms and conditions 
established in its conservation and management laws and 
regulations.
    The eighteenth understanding concerns article 65, which 
addresses marine mammals. In part, article 65 provides that the 
Convention does not restrict the right of a coastal State or 
the competence of an international organization to take 
stricter measures than those provided in the Convention. With 
respect to this provision, the understanding notes that it lent 
direct support to the establishment of the international 
moratorium on commercial whaling that is in place and that it 
lends current support to the creation of sanctuaries and other 
conservation measures. Article 65 also provides that, in the 
case of cetaceans, States shall work through appropriate 
international organizations for their conservation, management 
and study. The understanding indicates, with respect to this 
provision, that such cooperation applies not only to large 
whales but to all cetaceans.
    The nineteenth understanding makes clear that the term 
``sanitary laws and regulations'' in article 33 is not limited 
to the transmittal of human illnesses, but may include, for 
example, laws and regulations to protect human health from 
pathogens being introduced into the territorial sea. This 
example is non-exhaustive.
    The next five understandings and declarations generally 
address procedural and constitutional matters.
    The twentieth understanding relates to decisionmaking in 
the Council, the executive organ of the International Sea-Bed 
Authority that has substantial decisionmaking authority. 
Article 161(8)(d) provides for certain decisions of the Council 
to be taken by consensus. The United States will, by virtue of 
the 1994 Agreement, have a permanent seat on the Council. As 
such, the United States will be in a position to block 
consensus in the Council on decisions subject to consensus 
decisionmaking. The Convention, as modified by the Agreement, 
is structured to ensure consensus decisionmaking for the most 
significant decisions, including decisions resulting in binding 
substantive obligations on States Parties. The understanding 
reinforces the negotiated agreement that decisions adopted by 
procedures other than the consensus procedure in article 
161(8)(d) will involve administrative, institutional or 
procedural matters and will not result in binding substantive 
obligations on the United States.
    The twenty-first understanding addresses certain decisions 
of the Assembly, the primary body of the International Sea-Bed 
Authority. Specifically, the Assembly, under article 160(2)(e), 
assesses the contributions of members to the administrative 
budget of the Authority until the Authority has sufficient 
income from other sources to meet its administrative expenses. 
Section 3(7) of the Annex to the 1994 Agreement provides that 
``[d]ecisions of the Assembly . . . having financial or 
budgetary implications shall be based on the recommendations of 
the Finance Committee.'' Under Section 9(3) of the Annex to the 
1994 Implementing Agreement seats are guaranteed on the Finance 
Committee for ``the five largest contributors to the 
administrative budget of the Authority'' until the Authority 
has sufficient funds other than assessed contributions to meet 
its administrative expenses. Because such contributions are 
based on the United Nations scale of assessments (and because 
the United States is the largest contributor on that scale), 
the United States will have a seat on the Finance Committee so 
long as the Authority supports itself through assessed 
contributions. The understanding ties these related provisions 
together to make clear that no assessed contributions could be 
decided by the Assembly without the agreement of the United 
States in the Finance Committee.
    The twenty-second declaration addresses article 39 of Annex 
VI of the Convention, which provides for decisions of the Sea-
Bed Disputes Chamber to be enforceable in the territories of 
the States Parties in the same manner as judgments or orders of 
the highest court of the State Party in whose territory the 
enforcement is sought. Because of potential constitutional 
concerns regarding direct enforceability of this provision in 
U.S. courts and because article 39 does not require any 
particular manner in which Chamber decisions must be made 
enforceable, the declaration provides that, for the United 
States, such decisions shall be enforceable only in accordance 
with procedures established by implementing legislation and 
that such decisions shall be subject to such legal and factual 
review as is constitutionally required and without precedential 
effect in any court of the United States. Given the current 
undeveloped state of deep seabed mining, such legislation would 
not be necessary before U.S. accession to the Convention.
    The twenty-third understanding focuses on the adoption of 
amendments to section 4 of Annex VI of the Convention, which 
relates to the Sea-Bed Disputes Chamber, which is established 
under the Convention to resolve certain disputes arising in 
connection with deep sea bed mining. The basic rules for 
amending Annex VI are set forth in section 5 of that Annex. It 
is clear from article 41 of that Annex, with respect to 
amendments to Annex VI other than to section 4, that the United 
States could block adoption of such an amendment (either 
through the ability to block afforded by article 313(2) or 
through the consensus procedure at a conference of the States 
Parties). Regarding amendments to section 4 of Annex VI, 
related to the Sea-Bed Disputes Chamber, article 41(2) of Annex 
VI provides that such amendments may be adopted only in 
accordance with article 314, which in turn requires that such 
amendments be approved by the Assembly following approval by 
the Council. Article 314 does not specify the decisionmaking 
rule by which the Council must approve the amendment before the 
Assembly may adopt it; article 161(8), which lists certain 
categories of decisions and their corresponding decisionmaking 
rules, also does not specifically address adoption of 
amendments to section 4 of Annex IV. Turning to article 
161(8)(f) to determine the default rule for decisions within 
the authority of the Council for which the decisionmaking rule 
is not specified, the Council is to decide ``by consensus'' 
which subparagraph of article 161(8) will apply. Section 3 of 
the Annex to the 1994 Agreement conflates subparagraphs (b) and 
(c) of article 161(8), but it does not affect situations where 
the Convention, as in the case of 161(8)(f), provides for 
decision by consensus in the Council. Because the analysis 
reaches the same result as, but is not as straightforward as, 
the case of amendments to section 4 of Annex VI as it is for 
other amendments to Annex VI, the committee agrees with the 
Executive Branch that an understanding on this point is 
desirable.
    The twenty-fourth declaration relates to the question of 
whether the Convention and Agreement are self-executing in the 
United States. The committee has included a declaration that 
the Convention and Agreement, including amendments thereto and 
rules, regulations, and procedures thereunder, are not self-
executing for the United States, with the exception of 
provisions related to privileges and immunities (articles 177-
183, article 13 of Annex IV, and article 10 of Annex VI). 
Consistent with the view of both the committee and the 
Executive Branch, this declaration states that the Convention 
and Agreement do not create private rights of action or other 
enforceable legal rights in U.S. courts (e.g., for persons 
accused of criminal violations of U.S. laws, including 
environmental pollution and general criminal laws). As stated 
in the March 1, 2004 letter from State Department Legal Adviser 
William H. Taft, IV to Chairman Lugar attached as an annex to 
this report, the United States, as a party, would be able to 
implement the Convention through existing laws, regulations, 
and practices (including enforcement practices), which are 
consistent with the Convention and which would not need to 
change in order for the United States to meet its Convention 
obligations. Except as noted in connection with declaration 
twenty-two above, the United States does not need to enact any 
new legislation to supplement or modify existing U.S. law.
    Section four of the resolution contains five conditions 
that relate to procedures within the United States for 
considering amendments proposed to be made to the Convention. 
The first three conditions provide for the President to inform 
and consult with the Foreign Relations Committee about proposed 
amendments to the Convention. The fourth condition provides 
that all amendments to the Convention, other than amendments 
under article 316(5) of the Convention of a technical or 
administrative nature, shall be submitted by the President to 
the Senate for its advice and consent. The committee expects 
that any such technical or administrative amendments would not 
impose substantive obligations upon the United States.
    The fifth condition relates to article 316(5) of the 
Convention, which provides for any amendment relating 
exclusively to activities in the Area (which is defined in 
article 1(1)(1)) and any amendment to Annex VI to enter into 
force for all States Parties one year following the deposit of 
instruments of ratification or accession by three fourths of 
the States Parties. There is thus a possibility that such an 
amendment, if adopted (which would require the consent or 
acquiescence of the U.S. Executive Branch via the U.S. 
representative on the Council), could enter into force for the 
United States without U.S. ratification. The declaration 
provides that the United States will take all necessary steps 
under the Convention to ensure that amendments subject to this 
procedure are adopted in conformity with the treaty clause in 
Article 2, Section 2 of the Constitution. This might involve 
not joining in consensus if an amendment were of such a nature 
that it was constitutionally imperative that it receive Senate 
advice and consent before binding the United States. The 
declaration highlights the amendment procedure but does not 
specifically address under what circumstances a constitutional 
issue might arise.

     VII. Text of Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND 
                    UNDERSTANDINGS.

    The Senate advises and consents to the accession to the 
United Nations Convention on the Law of the Sea, with annexes, 
adopted on December 10, 1982 (hereafter in this resolution 
referred to as the ``Convention''), and to the ratification of 
the Agreement Relating to the Implementation of Part XI of the 
United Nations Convention on the Law of the Sea, with annex, 
adopted on July 28, 1994 (hereafter in this resolution referred 
to as the ``Agreement'') (T.Doc.103-39), subject to the 
declarations of section 2, to be made under articles 287 and 
298 of the Convention, the declarations and understandings of 
section 3, to be made under article 310 of the Convention, and 
the conditions of section 4.

SEC. 2. DECLARATIONS UNDER ARTICLES 287 AND 298.

    The advice and consent of the Senate under section 1 is 
subject to the following declarations:
          (1) The Government of the United States of America 
        declares, in accordance with article 287(1), 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 
                subparagraph (A).
          (2) The Government of the United States of America 
        declares, in accordance with article 298(1), that it 
        does not accept any of the procedures provided for in 
        section 2 of Part XV (including, inter alia, the Sea-
        Bed Disputes Chamber procedure referred to in article 
        287(2)) with respect to the categories of disputes set 
        forth in subparagraphs (a), (b), and (c) of article 
        298(1). The United States further declares that its 
        consent to accession to the Convention is conditioned 
        upon the understanding that, under article 298(1)(b), 
        each State Party has the exclusive right to determine 
        whether its activities are or were ``military 
        activities'' and that such determinations are not 
        subject to review.

SEC. 3. OTHER DECLARATIONS AND UNDERSTANDINGS UNDER ARTICLE 310.

    The advice and consent of the Senate under section 1 is 
subject to the following declarations and understandings:
          (1) The United States understands that nothing in the 
        Convention, including any provisions referring to 
        ``peaceful uses'' or ``peaceful purposes,'' impairs the 
        inherent right of individual or collective self-defense 
        or rights during armed conflict.
          (2) The United States understands, with respect to 
        the right of innocent passage under the Convention, 
        that--
                  (A) all ships, including warships, regardless 
                of, for example, cargo, armament, means of 
                propulsion, flag, origin, destination, or 
                purpose, enjoy the right of innocent passage;
                  (B) article 19(2) contains an exhaustive list 
                of activities that render passage non-innocent;
                  (C) any determination of non-innocence of 
                passage by a ship must be made on the basis of 
                acts it commits while in the territorial sea, 
                and not on the basis of, for example, cargo, 
                armament, means of propulsion, flag, origin, 
                destination, or purpose; and
                  (D) the Convention does not authorize a 
                coastal State to condition the exercise of the 
                right of innocent passage by any ships, 
                including warships, on the giving of prior 
                notification to or the receipt of prior 
                permission from the coastal State.
          (3) The United States understands, concerning Parts 
        III and IV of the Convention, that--
                  (A) all ships and aircraft, including 
                warships and military aircraft, regardless of, 
                for example, cargo, armament, means of 
                propulsion, flag, origin, destination, or 
                purpose, are entitled to transit passage and 
                archipelagic sea lanes passage in their 
                ``normal mode'';
                  (B) ``normal mode'' includes, inter alia--
                          (i) submerged transit of submarines;
                          (ii) overflight by military aircraft, 
                        including in military formation;
                          (iii) activities necessary for the 
                        security of surface warships, such as 
                        formation steaming and other force 
                        protection measures;
                          (iv) underway replenishment; and
                          (v) the launching and recovery of 
                        aircraft;
                  (C) the words ``strait'' and ``straits'' are 
                not limited by geographic names or categories 
                and include all waters not subject to Part IV 
                that separate one part of the high seas or 
                exclusive economic zone from another part of 
                the high seas or exclusive economic zone or 
                other areas referred to in article 45;
                  (D) the term ``used for international 
                navigation'' includes all straits capable of 
                being used for international navigation; and
                  (E) the right of archipelagic sea lanes 
                passage is not dependent upon the designation 
                by archipelagic States of specific sea lanes 
                and/or air routes and, in the absence of such 
                designation or if there has been only a partial 
                designation, may be exercised through all 
                routes normally used for international 
                navigation.
          (4) The United States understands, with respect to 
        the exclusive economic zone, that--
                  (A) all States enjoy high seas freedoms of 
                navigation and overflight and all other 
                internationally lawful uses of the sea related 
                to these freedoms, including, inter alia, 
                military activities, such as anchoring, 
                launching and landing of aircraft and other 
                military devices, launching and recovering 
                water-borne craft, operating military devices, 
                intelligence collection, surveillance and 
                reconnaissance activities, exercises, 
                operations, and conducting military surveys; 
                and
                  (B) coastal State actions pertaining to these 
                freedoms and uses must be in accordance with 
                the Convention.
          (5) The United States understands that ``marine 
        scientific research'' does not include, inter alia--
                  (A) prospecting and exploration of natural 
                resources;
                  (B) hydrographic surveys;
                  (C) military activities, including military 
                surveys;
                  (D) environmental monitoring and assessment 
                pursuant to section 4 of Part XII; or
                  (E) activities related to submerged wrecks or 
                objects of an archaeological and historical 
                nature.
          (6) The United States understands that any 
        declaration or statement purporting to limit 
        navigation, overflight, or other rights and freedoms of 
        all States in ways not permitted by the Convention 
        contravenes the Convention. Lack of a response by the 
        United States to a particular declaration or statement 
        made under the Convention shall not be interpreted as 
        tacit acceptance by the United States of that 
        declaration or statement.
          (7) The United States understands that nothing in the 
        Convention limits the ability of a State to prohibit or 
        restrict imports of goods into its territory in order 
        to, inter alia, promote or require compliance with 
        environmental and conservation laws, norms, and 
        objectives.
          (8) The United States understands that articles 220, 
        228, and 230 apply only to pollution from vessels (as 
        referred to in article 211) and not, for example, to 
        pollution from dumping.
          (9) The United States understands, with respect to 
        articles 220 and 226, that the ``clear grounds'' 
        requirement set forth in those articles is equivalent 
        to the ``reasonable suspicion'' standard under United 
        States law.
          (10) The United States understands, with respect to 
        article 228(2), that--
                  (A) the ``proceedings'' referred to in that 
                paragraph are the same as those referred to in 
                article 228(1), namely those proceedings in 
                respect of any violation of applicable laws and 
                regulations or international rules and 
                standards relating to the prevention, reduction 
                and control of pollution from vessels committed 
                by a foreign vessel beyond the territorial sea 
                of the State instituting proceedings; and
                  (B) fraudulent concealment from an officer of 
                the United States of information concerning 
                such pollution would extend the three-year 
                period in which such proceedings may be 
                instituted.
          (11) The United States understands, with respect to 
        article 230, that--
                  (A) it applies only to natural persons aboard 
                the foreign vessels at the time of the act of 
                pollution;
                  (B) the references to ``monetary penalties 
                only'' exclude only imprisonment and corporal 
                punishment;
                  (C)  the requirement that an act of pollution 
                be ``wilful'' in order to impose non-monetary 
                penalties would not constrain the imposition of 
                such penalties for pollution caused by gross 
                negligence;
                  (D) in determining what constitutes a 
                ``serious'' act of pollution, a State may 
                consider, as appropriate, the cumulative or 
                aggregate impact on the marine environment of 
                repeated acts of pollution over time; and
                  (E) among the factors relevant to the 
                determination whether an act of pollution is 
                ``serious,'' a significant factor is non-
                compliance with a generally accepted 
                international rule or standard.
          (12) The United States understands that sections 6 
        and 7 of Part XII do not limit the authority of a State 
        to impose penalties, monetary or nonmonetary, for, 
        inter alia--
                  (A) non-pollution offenses, such as false 
                statements, obstruction of justice, and 
                obstruction of government or judicial 
                proceedings, wherever they occur; or
                  (B) any violation of national laws and 
                regulations or applicable international rules 
                and standards for the prevention, reduction and 
                control of pollution of the marine environment 
                that occurs while a foreign vessel is in any of 
                its ports, rivers, harbors, or offshore 
                terminals.
          (13) The United States understands that the 
        Convention recognizes and does not constrain the long-
        standing sovereign right of a State to impose and 
        enforce conditions for the entry of foreign vessels 
        into its ports, rivers, harbors, or offshore terminals, 
        such as a requirement that ships exchange ballast water 
        beyond 200 nautical miles from shore or a requirement 
        that tank vessels carrying oil be constructed with 
        double hulls.
          (14) The United States understands, with respect to 
        article 21(2), that measures applying to the ``design, 
        construction, equipment or manning'' do not include, 
        inter alia, measures such as traffic separation 
        schemes, ship routing measures, speed limits, 
        quantitative restrictions on discharge of substances, 
        restrictions on the discharge and/or uptake of ballast 
        water, reporting requirements, and record-keeping 
        requirements.
          (15) The United States understands that the 
        Convention supports a coastal State's exercise of its 
        domestic authority to regulate discharges into the 
        marine environment resulting from industrial operations 
        on board a foreign vessel.
          (16) The United States understands that the 
        Convention supports a coastal State's exercise of its 
        domestic authority to regulate the introduction into 
        the marine environment of alien or new species.
          (17) The United States understands that, with respect 
        to articles 61 and 62, a coastal State has the 
        exclusive right to determine the allowable catch of the 
        living resources in its exclusive economic zone, 
        whether it has the capacity to harvest the entire 
        allowable catch, whether any surplus exists for 
        allocation to other States, and to establish the terms 
        and conditions under which access may be granted. The 
        United States further understands that such 
        determinations are, by virtue of article 297(3)(a), not 
        subject to binding dispute resolution under the 
        Convention.
          (18) The United States understands that article 65 of 
        the Convention lent direct support to the establishment 
        of the moratorium on commercial whaling, supports the 
        creation of sanctuaries and other conservation 
        measures, and requires States to cooperate not only 
        with respect to large whales, but with respect to all 
        cetaceans.
          (19) The United States understands that, with respect 
        to article 33, the term ``sanitary laws and 
        regulations'' includes laws and regulations to protect 
        human health from, inter alia, pathogens being 
        introduced into the territorial sea.
          (20) The United States understands that decisions of 
        the Council pursuant to procedures other than those set 
        forth in article 161(8)(d) will involve administrative, 
        institutional, or procedural matters and will not 
        result in substantive obligations on the United States.
          (21) The United States understands that decisions of 
        the Assembly under article 160(2)(e) to assess the 
        contributions of members are to be taken pursuant to 
        section 3(7) of the Annex to the Agreement and that the 
        United States will, pursuant to section 9(3) of the 
        Annex to the Agreement, be guaranteed a seat on the 
        Finance Committee established by section 9(1) of the 
        Annex to the Agreement, so long as the Authority 
        supports itself through assessed contributions.
          (22) The United States declares, pursuant to article 
        39 of Annex VI, that decisions of the Seabed Disputes 
        Chamber shall be enforceable in the territory of the 
        United States only in accordance with procedures 
        established by implementing legislation and that such 
        decisions shall be subject to such legal and factual 
        review as is constitutionally required and without 
        precedential effect in any court of the United States.
          (23) The United States--
                  (A) understands that article 161(8)(f) 
                applies to the Council's approval of amendments 
                to section 4 of Annex VI;
                  (B) declares that, under that article, it 
                intends to accept only a procedure that 
                requires consensus for the adoption of 
                amendments to section 4 of Annex VI; and
                  (C) in the case of an amendment to section 4 
                of Annex VI that is adopted contrary to this 
                understanding, that is, by a procedure other 
                than consensus, will consider itself bound by 
                such an amendment only if it subsequently 
                ratifies such amendment pursuant to the advice 
                and consent of the Senate.
          (24) The United States declares that, with the 
        exception of articles 177-183, article 13 of Annex IV, 
        and article 10 of Annex VI, the provisions of the 
        Convention and the Agreement, including amendments 
        thereto and rules, regulations, and procedures 
        thereunder, are not self-executing.

SEC. 4. CONDITIONS.

    (a) In General.--The advice and consent of the Senate under 
section 1 is subject to the following conditions:
          (1) Not later than 15 days after the receipt by the 
        Secretary of State of a written communication from the 
        Secretary-General of the United Nations or the 
        Secretary-General of the Authority transmitting a 
        proposal to amend the Convention pursuant to article 
        312, 313, or 314, the President shall submit to the 
        Committee on Foreign Relations of the Senate a copy of 
        the proposed amendment.
          (2) Prior to the convening of a Conference to 
        consider amendments to the Convention proposed to be 
        adopted pursuant to article 312 of the Convention, the 
        President shall consult with the Committee on Foreign 
        Relations of the Senate on the amendments to be 
        considered at the Conference. The President shall also 
        consult with the Committee on Foreign Relations of the 
        Senate on any amendment proposed to be adopted pursuant 
        to article 313 of the Convention.
          (3) Not later than 15 days prior to any meeting--
                  (A) of the Council of the International 
                Seabed Authority to consider an amendment to 
                the Convention proposed to be adopted pursuant 
                to article 314 of the Convention, or
                  (B) of any other body under the Convention to 
                consider an amendment that would enter into 
                force pursuant to article 316(5) of the 
                Convention,
        the President shall consult with the Committee on 
        Foreign Relations of the Senate on the amendment and on 
        whether the United States should object to its 
        adoption.
          (4) All amendments to the Convention, other than 
        amendments under article 316(5) of a technical or 
        administrative nature, shall be submitted by the 
        President to the Senate for its advice and consent.
          (5) The United States declares that it shall take all 
        necessary steps under the Convention to ensure that 
        amendments under article 316(5) are adopted in 
        conformity with the treaty clause in article 2, section 
        2 of the United States Constitution.
    (b) Inclusion of Certain Conditions in Instrument of 
Ratification.--Conditions 4 and 5 shall be included in the 
United States instrument of ratification to the Convention.
                             VIII. Annex I


                                  The Legal Adviser
                                        Department of State
                                          Washington, March 1, 2004

The Honorable Richard G. Lugar,
Chairman,
Senate Committee on Foreign Relations,
United States Senate.

    Dear Mr. Chairman:

    I would like to take this opportunity to reiterate and 
elaborate upon some of the matters addressed in my testimony to 
the Committee regarding the 1982 Law of the Sea Convention 
(``the Convention'').
    Given that the United States is a party to the 1958 law of 
the sea conventions, that the United States heavily influenced 
the development of the Convention, and that U.S. policy since 
1983 has been to act in accordance with the Convention's 
provisions governing traditional uses of the oceans, U.S. law 
and practice are already generally compatible with the 
Convention. Except as noted below regarding deep sea-bed 
mining, the United States does not need to enact new 
legislation to supplement or modify existing U.S. law, whether 
related to protection of the marine environment, human health, 
safety, maritime security, the conservation of natural 
resources, or other topics within the scope of the Convention. 
The United States, as a party, would be able to implement the 
Convention through existing laws, regulations, and practices 
(including enforcement practices), which are consistent with 
the Convention and which would not need to change in order for 
the United States to meet its Convention obligations. For 
example, U.S. law and practice for managing its natural 
resources, including its fishery resources, are consistent with 
the Convention's provisions with respect to the exploration, 
utilization, conservation, and management of natural resources.
    The one area in which implementing legislation would be 
necessary at some point after U.S. accession is legislation to 
enforce decisions of the Sea-bed Disputes Chamber, with respect 
to which the Administration proposed a declaration for 
inclusions in the Senate's resolution.
    Finally, I note that, consistent with another declaration 
proposed by the Administration, the Convention would not create 
private rights of action or other enforceable rights in U.S. 
courts, apart from its provisions regarding privileges and 
immunities to be accorded to the Convention's institutions.

            Sincerely,
                                        William H. Taft, IV
                              IX. Annex II


                              HEARINGS ON


     THE U.N. CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-39)

                              ----------                              


                            C O N T E N T S


                       TUESDAY, OCTOBER 14, 2003

                                                                    Page

Department of Commerce, letter to Hon. Richard G. Lugar, Chairman, 
    Senate Foreign Relations Committee, from Theodore W. 
    Kassinger, General Counsel, providing Department views on 
    accession to the Law of the Sea Convention....................   148
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
    statement.....................................................    26
McCain, Hon. John, U.S. Senator from Arizona, Chairman, Senate 
    Commerce Committee, statement submitted for the record........    27
Moore, Prof. John Norton, director, Center for Oceans Law and 
    Policy, University of Virginia School of Law, Charlottesville, 
    VA............................................................    49
    Prepared statement............................................    53
Oxman, Prof. Bernard H., University of Miami School of Law, Coral 
    Gables, FL, statement submitted for the record................    35
Prueher, Admiral Joseph, USN (Ret.), former U.S. Commander-in-
    Chief Pacific and former U.S. Ambassador to China, Virginia 
    Beach, VA.....................................................    48
Schachte, Rear Admiral William L., Jr., JAGC, USN (Ret.) 
    Charleston, SC................................................    59
    Prepared statement............................................    62
Stevens, Hon. Ted, U.S. Senator from Alaska, Chairman, Senate 
    Appropriations Committee......................................    28
    Prepared statement............................................    31
Watkins, Admiral James D., USN (Ret.), Chairman, U.S. Commission 
    on Ocean Policy, Washington, DC...............................    39
    Prepared statement............................................    42

                       TUESDAY, OCTOBER 21, 2003

                                PANEL I

Crowley, Rear Admiral John E., Jr., Chief Counsel and Judge 
    Advocate General, U.S. Coast Guard, Department of Homeland 
    Security, Washington, DC......................................   107
    Prepared statement............................................   108
    Responses to additional questions for the record from Senator 
      Biden.......................................................   170
Esper, Mark T., Deputy Assistant Secretary of Defense for 
    Negotiations Policy, Department of Defense, the Pentagon, 
    Washington, DC................................................    96
    Prepared statement............................................   100
    Responses to additional questions for the record from Senator 
      Biden.......................................................   172
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
    statement.....................................................    82
Mullen, Admiral Michael G., Vice Chief of Naval Operations, Joint 
    Chiefs of Staff, Department of the Navy, Washington, DC.......   102
    Prepared statement............................................   104
    Responses to additional questions for the record from Senator 
      Biden.......................................................   172
Taft, Hon. William H., IV, Legal Adviser, Department of State, 
    Washington, DC................................................    88
    Prepared statement............................................    91
    Responses to additional questions for the record from Senator 
      Lugar.......................................................   168
    Responses to additional questions for the record from Senator 
      Biden.......................................................   176
    Responses to additional questions for the record from Senator 
      Kerry.......................................................   183
Turner, Hon. John F., Assistant Secretary of State, Bureau of 
    Oceans and International Environmental and Scientific Affairs, 
    Department of State, Washington, DC...........................    84
    Prepared statement............................................    85
    Responses to additional questions for the record from Senator 
      Lugar.......................................................   168
    Responses to additional questions for the record from Senator 
      Biden.......................................................   173

                                PANEL II

Cox, Joseph J., president and CEO, Chamber of Shipping of America, 
    Washington, DC................................................   138
    Prepared statement............................................   140
Kelly, Paul L., senior vice president, Rowan Companies, Inc., 
    Houston, TX...................................................   113
    Prepared statement............................................   117
Rufe, Vice Admiral Roger T., Jr., USCG (Ret.), president, The 
    Oceans Conservancy, Washington, DC............................   121
    Prepared statement............................................   124
Thomas, Ms. Randi, national representative, U.S. Tuna Foundation, 
    Washington, DC................................................   134
    Prepared statement of David Burney, U.S. Tuna Foundation, 
      submitted by Ms. Thomas.....................................   135

             ADDITIONAL STATEMENTS SUBMITTED FOR THE RECORD

American Bar Association, Dennis W. Archer, president, Washington, 
    DC............................................................   150
Council on Ocean Law..............................................   151
Humane Society of the United States, submitted testimony on 
    History and Interpretation of Article 65, by Patricia Forkan, 
    executive vice president......................................   152
Kerry, Hon. John F., U.S. Senator from Massachusetts,.............   159
National Marine Manufacturers Association, Monita W. Fontaine, 
    Esq., vice president, Government Relations....................   160
U.S. Arctic Research Commission, George B. Newton, chairman, 
    Washington, DC................................................   161
White House Fact Sheet--Proliferation Security Initiative: 
    Statement of Interdiction Principles..........................   165
World Wildlife Fund, Brooks B. Yeager, vice president, Global 
    Threats Program...............................................   166


     THE U.N. CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-39)

                              ----------                              


                       TUESDAY, OCTOBER 14, 2003

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar 
(chairman of the committee), presiding.
    Present: Senator Lugar.
    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order. The committee meets today to 
begin consideration of the U.N. Convention on the Law of the 
Sea. This treaty represents the culmination of decades of work 
to produce a comprehensive international framework governing 
the use of the world's oceans. The Law of the Sea Convention 
has great potential to advance United States interests related 
to the navigation of the seas, the productive use of their 
resources, and the protection of the marine environment.
    The United States played a leading role in negotiating the 
convention in the 1970s and the early 1980s. Because of 
concerns about its deep sea mining provisions, however, the 
United States declined to sign the convention when it was 
initially concluded in 1982. Subsequently the United States led 
a successful effort to revise the deep sea mining provisions of 
the convention. As a result, the United States signed the 
convention in 1994.
    Congress had expressed its support, stating in the Deep 
Seabed Hard Mineral Resources Act of 1980 that: ``It is in the 
national interest of the United States and other nations to 
encourage a widely acceptable Law of the Sea Treaty which will 
provide a new legal order for the oceans covering a broad range 
of ocean interests.''
    Although the convention was submitted to the Senate for its 
advice and consent in October 1994, the Foreign Relations 
Committee has not held a hearing on it since that time. I am 
pleased the committee will now have that opportunity.
    Today's hearing is the first step in that process. We will 
hold a second hearing to examine the treaty on October 21. 
Following these hearings, it is my intention to work on a 
resolution of advice and consent, with the hope that the 
committee can mark up such a resolution early next year.
    More than 140 nations are party to the Law of the Sea 
Convention, including all other permanent members of the U.N. 
Security Council and all but two other NATO members. The 
absence of American leadership in the convention diminishes its 
effectiveness and our own influence over international ocean 
policy. As a maritime state and the world's only superpower, 
the United States has vital economic and security interests in 
preserving freedom of navigation of the oceans and in 
preventing piracy, smuggling, terrorism, and other criminal 
activity from occurring off our shores. Our ability to import 
goods from abroad and to sell our goods to other countries 
depends on transporting these goods by sea.
    As a coastal state, we also have important interests in 
protecting the marine environment while managing and making 
productive use of the resources off our coasts. These include 
petroleum and mineral resources as well as fishery resources.
    We are fortunate today to have two extremely knowledgeable 
panels of witnesses to discuss the convention. First we will 
have the privilege of hearing from our distinguished colleague 
Senator Ted Stevens, Chairman of the Senate Appropriations 
Committee, who has long been interested in the convention and 
its ratification. Although our schedule did not permit the 
attendance of Senator John McCain, he similarly expressed his 
desire to speak on behalf of the convention.
    Thus, we begin our inquiry with the knowledge that Senate 
consideration of the convention is supported by the chairmen of 
the Appropriations and Commerce Committees of the Senate. This 
underscores the active interest that Members of the Senate have 
taken in the Law of the Sea Convention during the long course 
of its negotiation.
    I want also to take this opportunity to recognize the 
commitment and leadership of a former chairman of this 
committee, Senator Claiborne Pell. Senator Pell brought passion 
and expertise to his work on the Law of the Sea and our current 
examination of the treaty benefits greatly from his 
contributions.
    In our second panel we will also welcome four witnesses 
with exceptional expertise on the convention and related 
maritime issues: Admiral James Watkins, Admiral Joseph Prueher, 
Professor John Norton Moore, and Admiral William Schachte. I 
will introduce this panel in greater detail after we have heard 
from Senator Stevens. I thank all of you for joining us today 
and we look forward to your insights.
    [The opening statement of Senator Lugar follows:]

             Opening Statement of Senator Richard G. Lugar

    The committee meets today to begin consideration of the U.N. 
Convention on the Law of the Sea. This treaty represents the 
culmination of decades of work to produce a comprehensive international 
framework governing the use of the world's oceans. The Law of the Sea 
Convention has great potential to advance U.S. interests related to the 
navigation of the seas, the productive use of their resources, and the 
protection of the marine environment.
    The United States played a leading role in negotiating the 
Convention in the 1970s and early 1980s. Because of concerns about its 
deep sea mining provisions, however, the United States declined to sign 
the Convention when it was initially concluded in 1982. Subsequently, 
the United States led a successful effort to revise the deep sea mining 
provisions of the Convention. As a result, the United States signed the 
Convention in 1994.
    Congress had expressed its support for these efforts, stating in 
the Deep Seabed Hard Mineral Resources Act of 1980 that: ``it is in the 
national interest of the United States and other nations to encourage a 
widely acceptable Law of the Sea Treaty, which will provide a new legal 
order for the oceans covering a broad range of ocean interests.''
    Although the Convention was submitted to the Senate for its advice 
and consent in October 1994, the Foreign Relations Committee has not 
held a hearing on it since that time. I am pleased that the committee 
will now have the opportunity to consider this treaty. Today's hearing 
is the first step in that process. We will hold a second hearing to 
examine the treaty on October 21. Following these hearings, it is my 
intention to begin work on a resolution of advice and consent, with the 
hope that the committee can mark up such a resolution early next year.
    More than 140 nations are party to the Law of the Sea Convention, 
including all other permanent members of the U.N. Security Council and 
all but two other NATO members. The absence of American leadership from 
the Convention diminishes its effectiveness and our own influence over 
international ocean policy.
    As a maritime state and the world's only superpower, the United 
States has vital economic and security interests in preserving freedom 
of navigation on the oceans and in preventing piracy, smuggling, 
terrorism, and other criminal activity from occurring off our shores. 
Our ability to import goods from abroad and to sell our goods to other 
countries depends on transporting these goods by sea. As a coastal 
state, we also have important interests in protecting the marine 
environment while managing and making productive use of the resources 
off our coasts. These include petroleum and mineral resources, as well 
as fisheries resources.
    We are fortunate to have two extremely knowledgeable panels of 
witnesses with us this morning to discuss the Convention. First, we 
will have the pleasure of hearing from our distinguished colleague 
Senator Stevens, who has long been interested in the Convention and its 
ratification. Although our schedule did not permit the attendance of 
Senator McCain, he similarly expressed his desire to speak on behalf of 
the Convention. Thus, we begin our inquiry with the knowledge that 
Senate consideration of the Convention is supported by the chairmen of 
the Appropriations and Commerce Committees. This underscores the active 
interest that Members of the Senate have taken in the Law of the Sea 
Convention during the long course of its negotiation.
    I also want to take this opportunity to recognize the commitment 
and leadership of a former chairman of this committee, Senator 
Claiborne Pell. Senator Pell brought passion and expertise to his work 
on the Law of the Sea, and our current examination of the treaty 
benefits greatly from his contributions.
    We also welcome five witnesses with exceptional expertise on the 
Convention and related maritime issues: Admiral James Watkins, Admiral 
Joseph Prueher, Professor John Norton Moore, Admiral William Schachte, 
Jr., and Professor Bernard Oxman.
    First we will hear from Admiral James Watkins. Admiral Watkins 
served from 1982 to 1986 as Chief of Naval Operations. From 1989 to 
1993 he was U.S. Secretary of Energy. Currently, Admiral Watkins is the 
Chairman of the U.S. Commission on Ocean Policy.
    Our second witness on the panel is Admiral Joseph Prueher. Admiral 
Prueher served for 35 years in the U.S. Navy. From 1996 to 1999, he was 
Commander-in-Chief of the U.S. Pacific Command. From 1999 to 2001, he 
served as U.S. Ambassador to China.
    Next we will hear from Professor John Norton Moore. From 1973 to 
1976, Professor Moore served as Ambassador and Deputy Special 
Representative of the President to the Third U.N. Conference on the Law 
of the Sea. He also was Chairman of the National Security Council's 
Interagency Task Force on the Law of the Sea. Currently he is the 
Walter L. Brown Professor of Law at the University of Virginia School 
of Law and Director of the University's Center for Oceans Law and 
Policy.
    Finally we will hear from Admiral William L. Schachte, Jr. During 
his Navy career, Admiral Schachte served in many capacities related to 
ocean policy. He was a member of the U.S. Delegation to the Third U.N. 
Conference on the Law of the Sea. He is currently special counsel to 
Tetra Tech, Inc. Welcome to each of you.
    We were to hear from a fifth witness, Professor Bernard Oxman. 
Unfortunately, Professor Oxman has fallen ill and is not able to be 
hear today. If there are no objections, his prepared written statement 
will be included in the record in full. Professor Oxman served as 
United States Representative and Vice-Chairman of the U.S. Delegation 
to the Third U.N. Conference on the Law of the Sea. He is also a former 
Assistant Legal Adviser for Oceans, Environment, and Scientific Affairs 
in the Office of the Legal Adviser at the Department of State. 
Professor Oxman is currently a Professor at the University of Miami Law 
School and serves as a Judge Ad Hoc on the International Tribunal for 
the Law of the Sea.

    [The prepared statement of Senator McCain follows:]

  Prepared Statement of Hon. John McCain, U.S. Senator from Arizona, 
                  Chairman, Senate Commerce Committee

    I am pleased to testify, today in support of the Senate's 
ratification of the U.N. Convention on the Law of the Sea. As Chairman 
of the Senate Committee on Commerce, Science, and Transportation, which 
has jurisdiction over oceans, and maritime and ocean navigation, I 
believe ratification of this important Convention would help strengthen 
our national security, promote the free and unimpeded flow of 
international trade and commerce, and protect our vital natural 
resources. Its ratification would enable the United States to regain 
its leadership role in promoting the rule of law for the oceans and 
encouraging respect for traditional navigational freedoms.
    Throughout our nation's history, our security and economic well-
being have long been dependent on our free access to the world's seas. 
The oceans have helped to protect us against potential adversaries, 
facilitate the transportation and trade of our products, and provided 
abundant fish and natural resources in the waters off our shores.
    The United States has historically been a global leader in 
advocating the Law of the Sea. After World War II, the United States 
was at the forefront in calling for a formal Law of the Sea and was one 
of its champions during the two decade struggle to draft this 
Convention. However, when the Convention was opened for signature in 
1982, much of the developed world, led by the United States, refused to 
sign it over concerns with the provisions related to deep seabed 
exploitation.
    In the early 1990s, the United States helped craft an important 
compromise which satisfied the many objections to the deep seabed 
mining provisions. Yet despite removing this impediment, we still have 
not ratified this Convention, which to date has been ratified by 143 
countries.
    The U.N. Convention on the Law of the Sea provides a comprehensive 
regime of law and order in the world's oceans and seas and it serves as 
an umbrella convention under which rules governing all uses of the 
oceans and their resources are established. As a global power, the 
United States depends on ready and unrestricted access to the world's 
oceans and international airspace. The navigational rights and freedoms 
codified by the Convention would ensure our military continues to have 
the mobility it needs to maintain a military presence around the world 
and move military forces where needed. Additionally, these rights and 
freedoms will ensure our nation's ability to ship goods and materials 
throughout the world using the most expeditious routes.
    Support for Convention ratification within the United States is 
widespread and diverse, including environmental groups, the maritime 
industry, the oil and natural gas industry, and the oceanographic 
research community. The Clinton Administration previously supported 
ratifying the Convention and now the U.S. State Department has 
indicated its support of ratification. Additionally, in one of its 
first official acts, the U.S. Commission on Ocean Policy publicly 
called for ratification of the Convention.
    As a result of our failure to ratify the Convention, our national 
interests have suffered. We are now barred from membership on the Law 
of the Sea Tribunal and the Continental Shelf Commission as well as the 
right to name members to special arbitration panels which are 
responsible for settling interstate disputes. In these bodies, the 
United States has been relegated to observer status. Furthermore, the 
United States is barred from membership in the International Seabed 
Authority where parties to the Convention organize and direct ventures 
to exploit the mineral resources of the deep seabed.
    The importance of the U.S. ratification of the Convention is 
further compounded by the emerging issues brought about because of 
Global Climate. For example, as the Arctic icecap around the Canadian 
Arctic archipelago continues to shrink and thin, some scientists have 
suggested the Northwest Passage could be open for possible year-round 
navigable passage within 10 to 15 years. As a result, the contentious 
issue of whether this passage will be an international strait or 
considered part of Canadian waters will need to be determined.
    It has been more than nine years since the Convention was 
transmitted to the Senate for ratification, where it has since resided 
with the Senate Committee on Foreign Relations. Today's hearing is an 
important step toward finally addressing this critical international 
issue and I hope it prompts Senate ratification of the Convention in 
the near future.

    The Chairman. Let me now give a special welcome to my 
colleague Ted Stevens. We really do appreciate your coming this 
morning, Ted, on this important issue.

   STATEMENT OF HON. TED STEVENS, U.S. SENATOR FROM ALASKA, 
CHAIRMAN, APPROPRIATIONS COMMITTEE, U.S. SENATE, WASHINGTON, DC

    Senator Stevens. Thank you very much, Mr. Chairman. We do 
have our supplemental on the floor at 10 o'clock. I wish I 
could join you to listen to these panels. However, I have 
confidence that they will present substantial testimony in 
favor of the Law of the Sea Convention.
    I do thank you for holding the first of the two hearings on 
the U.N. Convention on the Law of the Sea. In 1969, Mr. 
Chairman, my first full year in the Senate, Senator Warren 
Magnuson, then Chairman of the Commerce Committee, asked me to 
monitor the Law of the Sea negotiations. As a freshman minority 
member at that time and assigned to attend all of the 
negotiations around the world, I learned a great deal from the 
discussions on the Law of the Sea that took place all over the 
world, and the work on the Magnuson-Stevens Act was really a 
product of those negotiations. The concepts embodied in that 
act I believe were ahead of its time by 20 to 30 years.
    Mr. Chairman, I am going to summarize the balance of my 
statement and ask you to print the full statement in the record 
if you will.
    The Chairman. It will be published in full in the record.
    Senator Stevens. I am proud that Congress and the President 
approved Alaskans' suggestions that are now part of the U.N. 
Convention on the Law of the Sea. These include many of the 
provisions of the convention that are consistent with the 
Magnuson-Stevens Act on living resource management, 
conservation and exploitation. Before the passage of this act, 
fisheries around the world, including those off our State of 
Alaska, were being overfished, primarily by distant foreign 
fleets.
    Second, the moratorium on high seas driftnets. In 1987, the 
Driftnet Impact Monitoring, Assessment, and Control Act 
directed the Secretary of the Interior to negotiate observer 
and enforcement agreements with nations whose vessels used 
large-scale driftnets on the high seas. It also began the 
process that eventually led to the U.S. recommendation that the 
U.N. adopt our suggestion for a global moratorium on large-
scale driftnet fishing on the high seas.
    Third, the agreement on conservation and management of 
straddling fish stocks and highly migratory species. The 
Convention on Conservation and Management of Pollock Resources 
in the Central Bering Sea, otherwise known as the Donut Hole 
and the 1995 U.N. Fish Stocks Agreement, attempted to better 
define the obligations and redress for countries where highly 
migratory species and straddling fish stocks originate.
    The Donut Hole agreement was the model for the global 
treaty that became the 1995 U.N. Fish Stocks Agreement. I 
carried the commitment to ratify this agreement to the United 
Nations General Assembly and the U.S. did the right thing by 
ratifying it in August 1996.
    I believe the Donut Hole and the U.N. Fish Stocks Agreement 
cleared up many concerns that had been voiced about the 
efficacy of enforcing living marine resource laws 
internationally under this convention. The agreements have 
proven to be critical first steps toward cooperative 
international management of transboundary stocks.
    I do recommend ratification of the Convention on the Law of 
the Sea and related agreements, provided the following concerns 
are adequately addressed: First, potential surpluses of U.S. 
fish stocks must not lead to arguments by foreign nations to 
gain access to these marine resources. The quotas for all 
groundfish contained in the Bering Sea and Aleutian Islands are 
capped at a maximum of 2 million metric tons annually, which 
include pollock, Pacific cod, yellowfin sole, turbot, 
arrowtooth flounder, rock sole, Alaska plaice, sablefish, 
Pacific Ocean perch, northern rockfish, rougheye, atka 
mackerel, and squid. This is the most bountiful place I think 
in the world for fisheries today that are under sound 
management.
    This cap is enforced regardless of the maximum recommended 
acceptable biological catch level. This is one of the longest 
standing conservation measures in the North Pacific.
    The pollock biomass is now at an all-time high, with 2002 
overfishing levels at 3.54 million metric tons. As you know, 
article 62 of the convention is consistent with the Magnuson-
Stevens Act for authorizing the allocation of any surplus to 
foreign States and provides terms and conditions for any 
foreign fishing in the U.S. exclusive zone.
    Apparently, recent changes or proposals to the Law of the 
Sea have not changed this and I hope we will be vigilant, if we 
ratify this convention, to assure that strong conservation 
measures to protect species in U.S. waters do not lead to 
claims by foreign fleets to gain access to our living marine 
resources.
    Mr. Chairman, it is very important, because we do not 
allocate to maximum availability. We allocate so that the 
stocks are constantly increasing in biomass, and we have proven 
that with our pollock. It is growing substantially.
    Third, next, the deep seabed claims by Russia on the Arctic 
shelf. It is my understanding that the United States 
successfully negotiated favorable terms on the deep sea mining 
agreement which should guarantee us a seat on the 
decisionmaking body of the International Seabed Authority and 
eliminate mandatory transfer of technology provisions. Further, 
it scales back the administrative structure for the mining 
regime. I do believe, from the mining point of view, that this 
convention is now acceptable if that understanding is correct, 
Mr. President.
    The Arctic continental shelf extends beyond the U.S. 200-
mile exclusive economic zone and is of great interest to 
Alaska. As a matter of fact, two-thirds of the United States 
continental shelf is off Alaska. Article 76 of the convention 
allows member States to lay claim to all bottom resources on 
their continental shelves beyond 200 miles. It is my 
understanding that Russia has recently proposed claims to a 
large area of the Arctic shelf to the International Seabed 
Authority. Aggressive claims such as these raise a question of 
whether the U.S. would be better situated if it became a party 
to the convention and had a seat on the authority that oversees 
these claims.
    In addition, if we ratify the convention pursuant to 
article 76 the U.S. could lay claim to an area of about 62,000 
square kilometers north and east of the Bering Strait. I 
recommend that this committee closely review the agreement on 
deep seabed mining with regard to the outer continental shelf 
off our State. I strongly recommend this committee work closely 
with our Commerce Committee on the various issues that I raised 
today and I know the Chairman, Senator McCain, will raise, and 
others that are very much within our committee's jurisdiction.
    We believe that the provisions of the convention must be 
specific to avoid future misinterpretation. Proponents of 
ratifying the Law of the Sea argue that active U.S. 
participation in the convention and agreements will guarantee 
that the protections and restrictions are applied in a fair and 
commensurate manner. I urge caution. The Law of the Sea 
Convention and other related agreements must not be open-ended 
and some of them are, Mr. Chairman. But these provisions must 
be specific and precise to prevent future misinterpretation. I 
do believe your committee has a real task ahead of itself to 
find out how we might make certain that these future 
interpretations do not enlarge the scope of foreign invasion of 
our basic 200-mile limit. If those determinations are not 
clear, later interpretations will seriously erode the U.S. 
policy that I have described.
    The U.S. Commission on Oceans Policy is expected to release 
its report on oceans policy next month, and I see Admiral 
Watkins is here, who has done a magnificent job with the 
Commission. Their report, I am told, will include a 
recommendation for the United States to become a party to the 
convention.
    The Senate should seriously consider their recommendation. 
The Law of the Sea Convention has benefited from the laws that 
originated here in the United States that I have recited. This 
convention now embodies the 200-mile exclusive economic zone, 
provisions to prevent destructive fishing practices, and 
conservation and management of shared living resources. But 
Congress needs further assurance that the Law of the Sea will 
not undermine future conservation and management initiatives or 
security measures.
    In this and future centuries, Mr. Chairman, demands on the 
world's oceans will only increase, as we all know. If properly 
managed, oceans will become an even more important and 
bountiful source of food as well as a place of commerce, 
communication, and resource development. The Law of the Sea can 
provide us with the comprehensive legal framework that we need 
to maximize our utilization of the ocean resources while 
ensuring their healthiness and productivity for generations to 
come.
    Again, I congratulate you for holding these hearings and 
look forward to working with you as this convention comes to 
the floor. I thank you for your courtesy, Mr. Chairman.
    [The prepared statement of Senator Stevens follows:]

   Prepared Statement of Hon. Ted Stevens, U.S. Senator from Alaska, 
               Chairman, Senate Appropriations Committee

    Chairman Lugar, thanks for holding this first of two hearings on 
the U.N. Convention on the Law of the Sea. In 1969, my first full year 
in the Senate, Senator Warren Magnuson asked me to monitor the Law of 
the Sea negotiations. As a freshman minority member then, and assigned 
to attend all of those negotiations, I learned a great deal from the 
discussions on the Law of the Sea that took place all over the world, 
and work on the Magnuson-Stevens Act was really a product of those 
negotiations. The concepts embodied in that Act were ahead of its time 
by 20 or 30 years.
    Many of the provisions in the Law of the Sea Convention are 
consistent with the Magnuson-Stevens Act on living resource management, 
conservation and exploitation. Before passage of our Act fisheries 
around the world, including those off the coast of Alaska, were being 
overfished, primarily by distant foreign fleets. These fleets engaged 
in ``pulse fishing'' in U.S. waters. ``Pulse fishing'' exploits one 
fishery until its collapse and then move on to another fishery and 
decimate those stocks. This practice was devastating for our fisheries, 
and until the 200-mile exclusive economic zones were established there 
was very little international cooperation to manage or to protect 
shared fisheries.
    After the 200-mile Exclusive Economic Zone for U.S. waters was 
implemented, attention turned to the fishing practices on the high seas 
and the adverse affects on straddling fish stocks and highly migratory 
species. Addressing this problem was extremely important for Alaska 
because of the high seas interception of Alaska salmon by foreign 
fleets. Wild salmon prices were strong at the time, and high seas 
fishing was damaging the resource by reducing the overall 
sustainability of the stocks. In response to this problem, the Driftnet 
Impact Monitoring, Assessment, and Control Act was introduced in 1987. 
That Act directed the Secretary of State to negotiate observer and 
enforcement agreements with nations whose vessels used large scale 
driftnets on the high seas. It also began the process that eventually 
led to the U.S. recommendation that the U.N. adopt our suggestion for a 
global moratorium on large-scale driftnet fishing on the high seas.
    The Law of the Sea Convention incorporated the 200-mile exclusive 
economic zones and placed substantive restrictions, such as the 
moratorium on large-scale driftnets, on the freedom of fishing on the 
high seas under Article 87. These are real protections that will allow 
for conservation and management of the world's shared living marine 
resources. They establish a precedent that, particularly on the high 
seas outside the jurisdiction of any country, destructive fishing 
practices will not be tolerated. These important provisions make the 
Law of the Sea Convention a much better body of international law.
    From 1990 to 1994, the U.S. participated in consultations designed 
to remedy the problems with the deep seabed provisions of the Law of 
the Sea Convention. President Clinton signed the 1994 Agreement on the 
revised deep seabed mining provisions, which was referred to this 
committee in October of that year. It is my understanding that the U.S. 
successfully negotiated favorable terms on the deep seabed mining 
Agreement, which should guarantee the U.S. a seat on the decision-
making body of the International Seabed Authority and eliminates 
mandatory transfer of technology provisions. Further it scales back the 
administrative structure for the mining regime.
    The Arctic continental shelf extends beyond the U.S. 200-mile 
exclusive economic zone and is of great interest to Alaska, in fact 2/
3rds of the continental shelf off the U.S. is off Alaska. Article 76 of 
the Convention allows member States to lay claim to all bottom 
resources on their continental shelves beyond 200-miles based on the 
appropriate charting and relevant geodetic data. It is my understanding 
that Russia has recently proposed claims to large areas of the Arctic 
shelf to the International Seabed Authority. These claims may be of 
little consequence to the U.S. because we are not a party to the 
Agreement on deep seabed mining and would likely not respect or 
recognize these claims. However, it does raise a question of whether we 
would be better situated if the U.S. became a party to the Convention 
and were represented on the Authority that oversees these claims. In 
addition, if we ratify the convention, pursuant to Article 76 the U.S. 
could lay claim to an area of about 62,000 square kilometers, an area 
roughly larger than West Virginia, north and east of the Bering Strait. 
I recommend that this committee closely review the Agreement on deep 
seabed mining.
    Around the same time the agreement on deep seabed mining was 
completed, work was being done on two other important agreements. Those 
agreements attempt to better define the obligations and redress for 
countries where highly migratory species and straddling fish stocks 
originate. They were titled the ``Convention on Conservation and 
Management of Pollock Resources in the Central Bering Sea'' otherwise 
know as the Donut Hole, and the 1995 U.N. Fish Stocks Agreement. The 
Donut Hole agreement restricted the U.S., Russia and the four former 
high seas fishing states--Japan, South Korea, China and Poland--from 
fishing for pollock within an area in the Central Bering Sea until 
those stocks recovered.
    The Donut Hole agreement was important because it effectively 
coordinated international fishing efforts on certain pollock straddling 
stocks, and it also was the model for the global treaty that became the 
1995 U.N. Fish Stocks Agreement. I carried the commitment to ratify 
this agreement to the United Nations General Assembly, and the U.S. did 
the right thing by ratifying it in August of 1996. I believe the Donut 
Hole and U.N. Fish Stocks Agreements cleared up many concerns that had 
been voiced about the efficacy of enforcing living marine resource laws 
internationally under the Convention. To this date to my knowledge none 
of the countries party to the Donut Hole agreement have permitted 
fishing in the restricted area and those stocks continue to rebuild. 
The agreements have proven to be critical first steps toward 
cooperative international management of transboundary stocks. Because 
of good management practices the biomass of pollock off Alaska 
continues to grow.
    The international agreements on shared stocks, especially those in 
the Bering Sea, demonstrates an important issue on conservation and 
management under the Convention. The quotas for all groundfish combined 
(which include pollock, Pacific cod, yellowfin sole, turbot, arrowtooth 
flounder, rock sole, Alaska plaice, sablefish, Pacific Ocean perch, 
northern rockfish, rougheye, atka mackerel, and squid) in the Bering 
Sea and Aleutian Islands are capped at a maximum of 2 million metric 
tons annually, regardless of the maximum recommended acceptable 
biological catch levels. This is one of the longest standing 
conservation measures in the North Pacific. For the past 25 years, 
annual catch limits for groundfish have been set at or below the 
acceptable biological catch levels recommended by fishery scientists. 
The pollock biomass is currently near all-time high levels, with a 2002 
overfishing level of 3.54 million metric tons and an acceptable 
biological catch level of 2.1 million metric tons--this is for pollock 
alone, not combining the rest of the groundfish species in the Bering 
Sea, and still the Council conservatively does not allow harvesting 
over the cap. The North Pacific presently has large surpluses of 
pollock because of the conservative and science-based management by the 
Regional Council. As you know, Article 62 of the Convention is 
consistent with the Magnuson-Stevens Act for authorizing the allocation 
of any surplus to foreign States and provides terms and conditions for 
any foreign fishing in the U.S. exclusive economic zone.
    Apparently, recent changes or proposals to the Law of the Sea have 
not changed this, but we must be vigilant if we ratify this Convention, 
to assure that strong conservation measures to protect species in U.S. 
waters do not lead to arguments by foreign fleets to gain access to our 
living marine resources.
    I would also recommend this committee look closely at the 
provisions in the Convention relating to freedom of navigation in 
territorial seas. As a result of the Exxon Valdez oil spill, tankers 
operating in U.S. waters must be double-hulled. There should be a 
clarification in Part II, Article 21 pertaining to laws and regulations 
of the coastal State relating to innocent passage. Section 2 of this 
Article specifies that such laws and regulations of a coastal State 
shall NOT apply to the design or construction of foreign ships. 
Therefore, foreign ships carrying toxic materials would be allowed to 
move freely in the territorial seas of coastal States and not have to 
meet certain design requirements, such as double-hulls. The spills of 
the past, such as that off the coast of Spain and Portugal last year 
should have taught us that some foreign fleets do not meet even basic 
maintenance and structural integrity requirements. We should not permit 
this Convention to erode the stringent environmental standards required 
in the U.S.
    I strongly recommend that this committee work closely with the 
Commerce Committee on the various issues I have raised today, as they 
are very much within that committee's jurisdiction.
    Proponents of ratifying the Law of the Sea argue that active U.S. 
participation in the Convention and Agreements will guarantee the 
protections and restrictions are applied in a fair and commensurate 
manner. I urge caution: the Law of the Sea Convention and other related 
agreements must not be open ended; provisions must be specific and 
precise to prevent future misinterpretation. If those determinations 
are not clear, later interpretations will seriously erode U.S. policy.
    Finally, the U.S. Commission on Ocean Policy is expected to release 
its report on Ocean Policy next month. It is my understanding their 
report will include a recommendation for the U.S. to become a party to 
the Convention. The Senate should consider seriously their 
recommendation. The Law of the Sea Convention has benefited from the 
laws that originated in the U.S. This Convention now embodies the 200-
mile exclusive economic zone, provisions to prevent destructive fishing 
practices, and conservation and management of shared living resources. 
But Congress needs assurance that the Law of the Sea will not undermine 
future conservation and management initiatives or security measures.
    In this and future centuries, demands on the world's oceans will 
only increase. And, if properly managed oceans will become an even more 
important and bountiful source of food as well as a place of commerce, 
communication and resource development. The Law of the Sea can provide 
us with the comprehensive legal framework we need to maximize our use 
of the oceans' resources, while ensuring their healthiness and 
productivity for generations to come.

    The Chairman. Thank you very much, Senator Stevens. I thank 
you again, as you have recited the many ways over decades in 
which you have participated in this public policy issue. My 
background is not nearly as extensive as yours, but I was 
impressed at an Aspen Institute conference in Rome this year 
about the conservation and security issues that you have 
mentioned and the fact that we must not undermine those. These 
are a very important part of the heritage that you have brought 
to this and that we hope to continue. I would think that we 
would want to work carefully with the Commerce Committee, and 
likewise with yourself, given your background, as we get the 
advice and consent resolution prepared after our hearings are 
concluded.
    We look forward to working with you and we appreciate your 
strong testimony.
    Senator Stevens. Thank you very much. Matt Paxton of my 
staff has worked with me on this matter and I would urge that 
he be permitted to stay as long as he can as an observer of 
these hearings.
    The Chairman. We welcome him with you today and we welcome 
his continuing as an observer working with our committee. Thank 
you very much. Good luck on the floor.
    I would like to welcome now our second panel. We are 
pleased this morning to have four outstanding witnesses to 
discuss the implications of the Law of the Sea Convention. 
First we will hear from Admiral James Watkins. Admiral Watkins 
served from 1982 to 1986 as Chief of Naval Operations. From 
1989 to 1993 he was United States Secretary of Energy. 
Currently Admiral Watkins is the Chairman of the United States 
Commission on Ocean Policy, and the report which Senator 
Stevens referenced will be forthcoming shortly and of benefit 
to our committee.
    Our second witness on the panel is Admiral Joseph Prueher. 
Admiral Prueher served for 35 years in the United States Navy. 
From 1996 to 1999 he was Commander-in-Chief of the United 
States Pacific Command. From 1999 to 2001 he served as the 
United States Ambassador to China.
    Next we will hear from Professor John Norton Moore. From 
1973 to 1976 Professor Moore served as Ambassador and Deputy 
Special Representative of the President to the Third United 
Nations Conference on the Law of the Sea. He also was Chairman 
of the National Security Council's Inter-Agency Task Force on 
the Law of the Sea. Currently he is the Walter L. Brown 
Professor of Law at the University of Virginia School of Law 
and director of the University's Center for Oceans Law and 
Policy.
    Finally, we will hear from Admiral William Schachte. During 
his Navy career, Admiral Schachte served in many capacities 
related to ocean policy. He was a member of the United States 
Delegation to the Third U.N. Conference on the Law of the Sea. 
He is currently special counsel to Tetra Tech, Inc.
    We welcome each of you. I would indicate that we were to 
hear from a fifth witness, Professor Bernard Oxman. 
Unfortunately, Professor Oxman has fallen ill and is not able 
to be here today. If there are no objections, and the Chair 
hears none, his prepared statement will be included in the 
record in full.
    Professor Oxman has served as United States Representative 
and Vice Chairman of the U.S. Delegation to the Third U.N. 
Conference on the Law of the Sea. He is also the former 
Assistant Legal Advisor for Oceans, Environment, and Scientific 
Affairs in the Office of the Legal Advisor at the Department of 
State. Professor Oxman is currently a professor at the 
University of Miami Law School and serves as a judge ad hoc on 
the International Tribunal for the Law of the Sea.
    [The prepared statement of Professor Oxman follows:]

 Prepared Statement of Prof. Bernard H. Oxman,\1\ University of Miami 
                             School of Law

    Mr. Chairman and Members of the Committee,
    It is an honor to appear before you today to testify on the United 
Nations Convention on the Law of the Sea and the Implementing Agreement 
Regarding Part XI of the Convention.
    I must begin by begging your indulgence. I returned to the United 
States from Hamburg only last Friday after serving for several weeks on 
the International Tribunal for the Law of the Sea as a judge ad hoc 
appointed by one of the states party to the case. One unfortunate 
consequence is that my statement today is less polished and thorough 
than I would have liked. In this respect I fortunately had the luxury 
of relying on what I anticipated to be the comprehensive statements of 
others here today.
    Whatever the utility of my remarks, I hope the Committee will bear 
in mind the authority, insight and conviction with which the case for 
the Convention would have been presented by two extraordinary 
individuals with whom it was my great honor to work most closely, the 
late Ambassador John R. Stevenson and the late Ambassador Elliot L. 
Richardson. Both served at critical formative periods as Special 
Representative of the President for the Law of the Sea and are 
unquestionably regarded throughout the world as among the small handful 
of individuals singularly responsible for the ultimate shape of the 
Convention.
    Mr. Chairman, it is my strongly held opinion that it is in the 
interests of the United States to become party to the Convention as 
soon as possible. We are, and have been since the founding of the 
Republic, a seafaring nation that relies on the right to move off 
distant shores. Our security is dependent upon the unchallenged global 
mobility of our armed forces to respond to any threat, whatever its 
nature, emanating from any part of the world; our prosperity is 
dependent upon the unimpeded global movement of goods and persons to 
and from our shores; and our future well-being may increasingly depend 
on the uninterrupted global carriage of telecommunications by submarine 
cable.
    Ambassador Stevenson and I put it this way:

          From the perspective of international security, the basic 
        question is whether forces may be moved from one place to 
        another without the consent or interference of states past 
        whose coasts they proceed. Global mobility is important not 
        only to naval powers but to other states that rely on those 
        powers to maintain stability and deter aggression, directly or 
        through the United Nations. As the size of major navies is 
        reduced after the Cold War, the adverse impact on their ability 
        to perform their primary missions will increase if they must 
        divert scarce resources to challenging coastal state claims 
        that prejudice global lines of communication or set adverse 
        precedents. Enhancing the legal security of navigation and 
        defense activities at sea maximizes the efficient use of 
        defense resources.

          From the perspective of trade and communications, the basic 
        question is whether two states may communicate with each other 
        by sea without interference by a third state past whose coast 
        they proceed. Restrictions imposed by a coastal state along the 
        route may well result in increased costs for industries 
        dependent upon trade and communications and for countries whose 
        exports or imports are affected.\2\

    The historic tension in the law of the sea has been a struggle 
between the freedom of the seas and coastal state sovereignty over the 
seas. The two are, in their purest forms, directly contradictory. The 
duty of all states to respect the freedoms of the seas is in principle 
equal. If one coastal state can impose a limitation, all can.
    Thus, when in 1945 President Truman claimed the natural resources 
of the continental shelf beyond the territorial sea of the United 
States, we willingly ceded the same exclusive control to other coastal 
states that we claimed for ourselves. The difficulty is that we were 
unable to control the process. We were emulated, so to speak, beyond 
our wildest expectations. It was plausibly argued that since, as the 
uncontested global maritime power at the time, we had the greatest 
interest in preventing coastal state incursions on freedom of the seas, 
any claims of exclusive coastal state control that we made were the 
minimum, not the maximum, that might be regarded as reasonable. Where 
we limited our claim to the seabeds, others claimed the waters and even 
the airspace over vast areas as well. Where we limited our claim to 
natural resources, others claimed sovereignty and with it control over 
all activities, including navigation and overflight.
    Our official position that coastal state sovereignty ended at the 
three-mile limit, and therefore that the free high seas began at that 
limit, became increasingly untenable. What was emerging was a sense 
that any coastal state could claim what it wished and might well get 
away with it; in opposing those claims, the United States and other 
maritime nations were regarded as hypocritical because they too claimed 
what they wished off their own coasts. If the United States could 
unilaterally try to strike the right balance between its coastal 
interests in control of foreign uses of the sea off its own coast, and 
its maritime interests in the free use of the sea off foreign coasts, 
why couldn't others strike a balance that suited them better? That very 
process ironically made it harder for the United States to protect its 
interests off its own coast, for fear that new assertions of right 
would abet a process that would further degrade what remained of the 
platform of principle upon which the U.S. operated off foreign shores. 
In short, the interests of the United States in both global mobility 
and in protection of its interests off its own shores were caught in a 
stultifying conundrum.
    Needless to say, the United States had the ability to challenge 
foreign states that interfered with its perceived rights. But to 
physically challenge every coastal state that made a claim contrary to 
our view of our rights would have required far greater resources than 
we were prepared to divert to such a project, and would have come at a 
significant cost to other U.S. interests in the various countries 
concerned. Moreover, both domestic and international public opinion 
demanded a platform of principle for such overt assertions of right off 
foreign shores that was substantially more legitimate than nostalgic 
invocation of what once may have been the law.
    As stated in a study by the Panel on the Law of Ocean Uses, of 
which I was rapporteur at the time,\3\ the United States was faced 
``with three expensive choices when confronted with a foreign state's 
claim of control over our navigation or military activities off its 
coast in a manner inconsistent with our view of the law:

          1. resistance, with the potential for prejudice to other U.S. 
        interests in that coastal state, for confrontation or violence, 
        or for domestic discord;

          2. acquiescence, leading inevitably to a weakening of our 
        position of principle with respect to other coastal states 
        (verbal protests to the contrary notwithstanding) and domestic 
        pressures to emulate the contested claims; or

          3. bilateral negotiation, in which we would be expected to 
        offer a political, economic or military quid pro quo in 
        proportion to our interest in navigation and military 
        activities that, under the Convention's rules, can be conducted 
        free of such bilateral concessions.''

    The fundamental truth is that the most difficult and potentially 
costly policy decisions made by the President and the Congress 
regarding activities at sea turn not on what our own lawyers say our 
rights are under the law of the sea, but what foreign states perceive 
our rights to be. And what we saw in the 1960's was an accelerating 
collapse of any semblance of consensus on the fundamental question: 
Where is there freedom and where is there sovereignty?
    This is the setting in which President Nixon made his historic 
decision in 1970 to launch a new oceans policy. The challenge was to 
devise a political strategy for stabilizing and enhancing our ability 
to influence the perceptions of foreign coastal states as to their 
rights and duties, and hence their perceptions as to our rights and 
duties, off their coasts. The key to that policy was a new multilateral 
elaboration of the law of the sea. The object was a widely ratified 
convention of highly legitimate pedigree that, by balancing the 
conflicting interests not only between but within states, stabilized 
the law of the sea over the long term and protected our fundamental 
interests in global mobility. This in turn would provide us a common 
platform of principle to influence foreign perceptions of their rights 
and duties as well as our rights to operate off foreign coasts and to 
regulate activities off our own coast.
    Ambassador Richardson put the objective in the following way:

          A Law of the Sea treaty creating a widely accepted system of 
        international law for the oceans would--if the rules it 
        contains adequately meet U.S. needs--be the most effective 
        means of creating a legal environment in which our own 
        perception of our rights is essentially unchallenged. We would 
        then, for the first time since the Grotian system began to 
        disintegrate, be assured rights of navigation and overflight 
        free of foreign control, free of substantial military risk, and 
        free of economic or political cost.\4\

    It took another thirteen years of hard continuous negotiations 
among the nations of the world before President Reagan was finally able 
to declare the underlying substantive effort launched by President 
Nixon a success: President Reagan concluded that the provisions of the 
Convention with respect to traditional uses of the sea ``fairly balance 
the interests of all states'' and expressly stated that ``the United 
States will recognize the rights of other states in the waters off 
their coasts, as reflected in the Convention, so long as the rights and 
freedoms of the United States and others under international law are 
recognized by such coastal states.''
    The policy declared by President Reagan aligns our position 
regarding customary international law with the substantive provisions 
of the Convention dealing with all the traditional uses of the sea. 
What then are the advantages of becoming a party?
    President Reagan expressly recognized that the rules set forth in 
the Convention constitute the platform of principle on which we 
operate. There is indeed no plausible alternative for the foreseeable 
future. The interpretation and application of these rules, like all 
rules, is a dynamic process that evolves with time. It is going on in 
countless venues even as we speak. As a practical matter, our rights 
and duties will be affected by that process whether or not we are 
party. What we gain by becoming party is increased influence over that 
process.
    In particular:

   we gain the ability to speak authoritatively as a party to 
        the Convention in setting forth our views regarding its 
        interpretation and application;

   we gain the enhancement of our credibility when we insist 
        that other states respect the Convention; as the world's 
        principal maritime power, we are already the most active in 
        noting and protesting foreign legislation and other measures 
        that we believe may not be fully consistent with the 
        Convention;

   we gain the right to participate in the organs established 
        by the Convention and the meetings of states parties; one 
        example is the review by the Commission on the Limits of the 
        Continental Shelf of Russian continental shelf claims that 
        immediately abut our own and implicate our own interests in the 
        Arctic; another is the permanent seat on the Council of the 
        Seabed Authority accorded the United States by the 1994 
        Implementing Agreement.

    With respect to the underlying objective of promoting stability in 
the law of the sea, the 1994 Study of the Panel on the Law of Ocean 
Uses suggests four main advantages of widespread, including U.S., 
ratification:

          1. Treaties are perceived as binding. Legislators, 
        administrators, and judges are more likely to feel bound to 
        respect treaty obligations. . . . Even nonparties are more 
        likely to be cautious about acting a manner contrary to a 
        widely ratified Convention; if they do, they are more likely to 
        be isolated when their claims are challenged.

          2. Treaty rules are written. Treaty rules are easier to 
        identify and are often more determinate than customary law 
        rules. Even if one argues that a customary law rule is 
        identical to a treaty rule, that argument in and of itself is 
        elusive and hard to prove. Even a nonlawyer reading the text of 
        a binding treaty knows he or she is reading a binding legal 
        rule, and can often form some appreciation of what the rule may 
        require.

          3. Compulsory arbitration. Parties to the Law of the Sea 
        Convention are bound to arbitrate or adjudicate most types of 
        unresolved disputes regarding the interpretation or application 
        of the Convention. This can help forestall questionable claims 
        in the first place. Perhaps more importantly, it provides an 
        option for responding to unilateral claims the may well be less 
        costly than either acquiescence or confrontation. Because 
        states are not bound to arbitrate or adjudicate disputes absent 
        express agreement to do so, this benefit of the Convention . . 
        . is dependent upon ratification.

          4. Long-term stability. Experience in the [twentieth] century 
        has shown that the rules of the customary law of the sea are 
        too easily undermined and changed by unilateral claims of 
        coastal states. Treaty rules are hard to change unilaterally. 
        At the same time, the Law of the Sea Convention establishes 
        international mechanisms for ordered change that promote rather 
        than threaten the long-term stability of the system as a 
        whole.\5\

    To these I might add that other coastal states. that have yet to 
become party to the Convention are more likely to follow suit once we 
do, beginning with our Canadian friends. This may even include states 
with whose governments we are not on intimate terms, but whose experts 
have a sophisticated understanding of the law of the sea, and whose 
decision-makers might regard the subtle reciprocal gesture of becoming 
party to the Convention as providing a rational basis for avoiding 
unnecessary conflict with the United States over navigation and 
overflight as well as offering other benefits.
    Senate approval of the Convention at this time may also be roughly 
contemporaneous with the anticipated approval by the European Union of 
the 1995 Agreement on the Implementation of the Provisions of the Law 
of the Sea Convention regarding Straddling Fish Stocks and Highly 
Migratory Fish Stocks, to which the United States is already party but 
which is not as widely ratified as the Convention. With both Europe and 
the United States firmly aligned on the essential elements of the 
superstructure of the modern law of the sea, it is more likely that 
others can be encouraged to come along soon.
    Mr. Chairman, there is insufficient time for me to even begin to 
outline all of the specific benefits to the United States of 
ratification of the Convention. With your permission, I would like to 
submit for the record a copy of Ambassador Stevenson's and my published 
observations on The Future of the United Nations Convention on the Law 
of the Sea from which I have already quoted;\6\ these observations were 
prepared at the time the future of the Convention was still very much 
in doubt and new arrangements were beginning to emerge that ultimately 
became the 1994 Implementing Agreement regarding Part XI of the 
Convention.
    That said, I must make special note that Ambassador Stevenson and I 
specifically observed that, ``The Convention is the strongest 
comprehensive environmental treaty now in existence or likely to emerge 
for quite some time.'' \7\ I am delighted to see that former Secretary 
of State Warren Christopher agreed with this appraisal in his Letter of 
Submittal of the Convention. I would only add that the statement 
remains true today. The protection and preservation of the marine 
environment is of fundamental importance to the American people and to 
people throughout the world. No one country can achieve this on its 
own. Both environmental and economic objectives point in the same 
direction, namely international standards that states have the right 
and duty to implement, supplemented by measures taken by states 
individually and jointly to control access to their own ports and to 
regulate seabed activities, offshore installations, and similar 
matters. One of the greatest contributions made by the Convention is to 
be found in its extensive provisions mandating this approach.
    Mr. Chairman, this Committee has before it a Convention that 
reflects a conscious decision by the United States that multilateralism 
was and is in its best interests with respect to the law of the sea. It 
has before it the most comprehensive and ambitious lawmaking convention 
ever negotiated, a Convention that makes a significant contribution to 
the rule of law in international affairs because strengthening the rule 
of law at sea was and remains important to American interests. It has 
before it a powerful Convention on protection and preservation of the 
marine environment precisely because this Convention seeks to achieve a 
reasonable balance between environmental protection and other 
interests.
    Senate approval of the Convention and the 1995 Implementing 
Agreement would suggest that there is every reason to ensure that the 
international agenda is pursued carefully and that, as long as it may 
take, at the end of the day relevant interests are reasonably 
accommodated. It would announce that when that is done, America will 
stand second to none in joining to strengthen multilateralism, to 
strengthen the rule of law in international affairs, and to strengthen 
protection of the environment.
    Mr. Chairman, it is of particular importance that many of the 143 
parties to the Convention worked painstakingly with us over many years 
to produce a Convention that we as well as they could ratify. From the 
perspective of much of the rest of the world, a great deal of the 
negotiation of the Law of the Sea Convention revolved around 
accommodating the interests and views of the United States regarding:

   the 12-mile maximum limit for the breadth of the territorial 
        sea,

   the retention of many provisions drawn from the 1958 
        Conventions on the Territorial Sea and the Contiguous Zone, the 
        Continental Shelf and the High Seas, to which the United States 
        is party,

   the more detailed and objective provisions on innocent 
        passage,

   the extension of the contiguous zone to 24 miles from the 
        coastal baselines in order to strengthen enforcement of 
        smuggling and immigration laws,

   the new regime of transit passage through, over and under 
        straits,

   the new regime of archipelagic waters and archipelagic sea 
        lanes passage,

   the detailed and carefully balance of the provisions 
        regarding the regime of the 200-mile exclusive economic zone 
        and its status, including express enumeration of the rights of 
        the coastal state and express preservation of the freedoms of 
        navigation, overflight, laying of submarine cables and 
        pipelines, and other internationally lawful uses of the sea 
        related to these freedoms,

   the immunities of and exemptions for warships and military 
        aircraft,

   the precision of the texts on artificial islands, 
        installations and structures,

   the extension of the limit of the continental shelf to the 
        outer edge of the continental margin,

   the inclusion, in additional to coastal state control over 
        fisheries in the 200-mile exclusive economic zone, of a ban on 
        salmon fishing beyond the zone, a reference to regional 
        regulation of tuna fisheries, and a special provision 
        protecting marine mammals,

   the avoidance of a separate legal regime for enclosed and 
        semi-enclosed seas,

   the limitations on coastal state authority with respect to 
        marine scientific research,

   the elaborate detail on environmental rights and 
        obligations,

   the inclusion of compulsory arbitration or adjudication with 
        important exceptions (e.g. for military activities),

   the limitation of the regulatory functions of the Seabed 
        Authority to mining activities, and

   most dramatically, the extensive revision of Part XI of the 
        Convention in the 1994 Implementing Agreement to accommodate 
        the objectives articulated by President Reagan.\8\

    These and many more provisions are widely regarded as having been 
designed to respond positively to U.S. requirements and interests.
    Mr. Chairman, I respectfully recommend that the United States take 
yes for an answer and assume its rightful place as a party to the 
Convention and the Implementing Agreement.
    Thank you.
                               footnotes
    \1\ Professor of Law, University of Miami School of Law. Formerly 
United States Representative and Vice-Chairman of the U.S. Delegation 
to the Third U.N. Conference on the Law of the Sea, and Chairman of the 
English Language Group of the Conference Drafting Committee.
    \2\ John R. Stevenson and Bernard H. Oxman, The Future of the 
United Nations Convention on the Law of the Sea, 88 AJIL 488, 493 
(1994).
    \3\ Panel on the Law of Ocean Uses, United States Interests in the 
Law of the Sea Convention, 88 AJIL 167, 171 (1994) (hereinafter Panel 
Study). The panel was chaired by Louis Henkin and included James M. 
Broadus, Jonathan I. Charney. Thomas A. Clingan, Jr., John L. Hargrove, 
Jon L. Jacobson, Terry L. Leitzell, Edward L. Miles, J. Daniel Nyhart, 
Bernard H. Oxman, Giulio Pontecorvo, Horace B. Robertson, Jr., Louis B. 
Sohn and James Storer. Other contributions of the Panel include U.S. 
Interests and the United Nations Convention on the Law of the Sea, 21 
Ocean Dev. & Int'l L. 373 (1990); Deep Seabed Mining and the 1982 
Convention on the Law of the Sea, 82 AJIL 363 (1988); U.S. Policy on 
the Settlement of Disputes in the Law of the Sea, 81 AJIL 438 (1987); 
and Exchange Between Expert Panel and Reagan Administration Officials 
on Non-Seabed Mining Provisions of LOS Treaty, 79 AJIL 151 (1985).
    \4\ Elliot L. Richardson, Power, Mobility and the Law of the Sea, 
58 Foreign Affairs 902 (1980).
    \5\ Panel Study, supra note 3, at 172.
    \6\ See supra note 2.
    \7\ Id. at 496.
    \8\ A comparison of the changes effected by the Implementing 
Agreement with the objectives identified by President Reagan may be 
found in Bernard H. Oxman, The 1994 Agreement and the Convention, 88 
AJIL 687 (1994).

    The Chairman. Gentlemen, we greet you and we ask that you 
testify in the order that I have introduced you. First of all, 
Admiral Watkins, we look forward to hearing from you.

   STATEMENT OF ADMIRAL JAMES D. WATKINS, U.S. NAVY (RET.), 
   CHAIRMAN, U.S. COMMISSION ON OCEAN POLICY, WASHINGTON, DC

    Admiral Watkins. Thank you very much, Mr. Chairman, and 
thank you for inviting me to testify before your committee 
today.
    The Oceans Act of 2000 specifically charged the Commission 
on Ocean Policy, of which I am the chairman, with developing 
recommendations for a national ocean policy that will, among 
other objectives, ``preserve the role of the United States as a 
leader in ocean and coastal activities.'' With this charge in 
mind and after hearing compelling testimony, our commissioners 
unanimously adopted a resolution in support of United States 
accession to the Law of the Sea Convention and provided that 
resolution to the President, senior government officials, and 
the leadership of this committee in November 2001.
    In response, Secretary of State Colin Powell wrote that he 
``shared our views on the importance of the convention'' and 
then-Admiral Vernon Clark, Chief of Naval Operations, stated 
that he ``strongly believed that acceding to this convention 
will benefit the United States by advancing our national 
security interests and ensuring our continued leadership in the 
development and interpretation of the Law of the Sea.'' Copies 
of this important correspondence exchange are attached to my 
more lengthy written statement which I ask to be entered into 
the record.
    The Chairman. Let me just state at this point, all of the 
statements that you have prepared will be entered in the record 
in full, so there will be no need to ask for permission, and 
proceed as each of you will in summarization.
    Admiral Watkins. Thank you, Mr. Chairman.
    Now I would like to share with you some of the reasons that 
our commissioners unanimously support United States accession 
to the Law of the Sea Convention. First, there are a series of 
issues currently being considered under the convention which 
would have tremendous economic implications for the United 
States. The Law of the Sea Convention's Commission on the 
Limits of the Continental Shelf is charged with reviewing 
claims and making recommendations on the outer limits of the 
continental shelf. Identification of these outer limits will 
help establish a degree of certainty crucial to capital-
intensive deepwater oil and natural gas development. This is 
particularly important to the United States, which is one of 
the only few nations in the world with broad continental 
margins.
    The Continental Shelf Commission's future actions on claims 
such as Russia's claims in the Arctic will directly impact U.S. 
interests. If we do not become a party to the convention, we 
will be unable to participate directly in resolution of these 
issues of importance to U.S. economic interests.
    Acceding to the Law of the Sea Convention will also allow 
the United States to play an active leadership role in dealing 
with a host of other issues with economic ramifications. As a 
party to the convention, the United States will be able to 
participate fully in International Seabed Authority efforts to 
develop rules and practices that will govern future commercial 
activities on the deep seabed. We will also be in a much 
stronger position to protect navigational freedoms specified in 
the convention, which are of particular importance to the 
United States given the critical role maritime commerce plays 
in our international trade and economic health.
    Second, there is a security issue. The Law of the Sea 
Convention provides core navigational rights through foreign 
territorial seas, international straits, and archipelagic 
waters and preserves critical high seas freedoms of navigation 
and overflight seaward of the territorial sea, including in the 
exclusive economic zone. The navigational freedoms guaranteed 
by the convention allow timely movement by sea of U.S. forces 
throughout the world and provide recognized navigational routes 
which can be used to expeditiously transport the United States' 
military cargo, 95 percent of which moves by ship.
    However, there have been several instances of unilateral 
assertions of jurisdiction which seem to disregard the 
convention's clear meaning and intent relative to freedom of 
navigation and overflight. The United States has challenged 
some of the more excessive coastal State claims, relying on the 
navigational freedom reflected in the convention.
    There are also emerging issues that may affect the balance 
of interests between navigational freedoms and coastal State 
authority. The United States has important interests both as a 
coastal State and as a major maritime power. We will be in a 
much stronger position and a more credible position to 
challenge excessive claims and to shape the future of issues 
and outcomes that impact our interests if we are a party to the 
convention.
    Third, the Law of the Sea Convention provides a 
comprehensive framework for protection of the marine 
environment. The convention includes articles mandating global 
and regional cooperation, technical assistance, monitoring and 
environmental assessment, and establishes a comprehensive 
enforcement regime. The United States is party to international 
agreements which rely directly on this environmental protection 
framework. The Coast Guard, which has played a lead role in 
developing international agreements on maritime safety, 
security, and environmental protection at the International 
Maritime Organization, IMO, told our commission that a failure 
to accede to the convention materially detracts from its 
credibility when its representatives seek to rely on convention 
principles and leaves important questions of implementation and 
interpretation to others who may not share our views. Former 
Coast Guard Commandant Admiral James Loy and the current 
Commandant Admiral Thomas Collins told us that they strongly 
support U.S. accession to the Law of the Sea Convention.
    Mr. Chairman, there are many other examples of benefits 
that would be derived from U.S. accession to the Law of the Sea 
Convention. For instance, provisions in the convention could be 
used by our researchers to expedite the approval process for 
research in foreign maritime jurisdictions. Also, the U.S. 
could participate in member selection, including the nomination 
of U.S. candidates for the International Law of the Sea 
Tribunal as well as the Continental Shelf Commission and the 
various organs of the International Seabed Authority.
    U.S. accession to the Law of the Sea Convention has 
received bipartisan support from past and the current 
administration. This administration is on record both before 
the United Nations and at the recent G-8 meeting supporting 
U.S. accession to the convention.
    Mr. Chairman, the input received by our commission reflects 
a broad consensus among many diverse groups in favor of 
ratification. As you stated in your early statement today, 140 
nations are already party to the convention.
    There has been some suggestion that we simply continue to 
rely selectively on the convention's provisions without 
ratification. However, until we become a party to the 
convention we cannot participate directly in the many bodies 
established under the convention that are making decisions 
critical to our interests. While we remain outside the 
convention, we lack the credibility and position we need to 
most effectively influence the evolution of ocean law and 
policy.
    There is little doubt that the framework provided by the 
convention will evolve through clarification, interpretation, 
and implementation decisions. It is interesting to note in this 
regard that the convention will be open for amendment for the 
first time beginning in 2004. In short, if we want to be a 
leader in the continuing development of ocean law and policy, a 
development that will have very substantial impacts on U.S. 
vital interests, we first have to be in the game.
    The Ocean Commission was asked to make recommendations to 
preserve the role of the United States as a leader in ocean 
activities. For the reasons I have outlined here this morning, 
I renew our commission's unanimous call for the United States' 
accession to the Law of the Sea Convention.
    Thank you, Mr. Chairman, and I stand ready to answer 
questions.
    [The prepared statement of Admiral Watkins follows:]

 Prepared Statement of Admiral James D. Watkins, USN (Ret.), Chairman, 
                    U.S. Commission on Ocean Policy

    Mr. Chairman. Thank you for inviting me to testify before your 
Committee today on the important subject of United States accession to 
the United Nations Law of the Sea (LOS) Convention.
    The U.S. Commission on Ocean Policy has taken a strong interest in 
the international implications of ocean policy since the inception of 
our work. Our 16 Commissioners were appointed by the President--12 from 
a list of nominees submitted by the leadership of Congress--and 
represent a broad spectrum of ocean interests. The Oceans Act of 2000 
(P.L. 106-256) specifically charged our Commission with developing 
recommendations on a range of ocean issues, including recommendations 
for a national ocean policy that ``. . . will preserve the role of the 
United States as a leader in ocean and coastal activities.''
    With this charge in mind, the Commission took up the issue of 
accession to the LOS Convention at an early stage. At its second 
meeting in November, 2001, the Commissioners heard testimony from 
Members of Congress, federal agencies, trade associations, conservation 
organizations, the scientific community and coastal states. We heard 
compelling testimony from many diverse perspectives--all in support of 
ratification of the LOS Convention. After reviewing these statements 
and related information, our Commissioners unanimously passed a 
resolution in support of United States accession to the LOS Convention. 
The fact that this resolution was our Commission's first policy 
pronouncement speaks to the real sense of urgency and importance 
attached to this issue by my colleagues on the Commission.
    The Commission's resolution was forwarded to the President, Members 
of Congress, the Secretaries of State and Defense, and to other 
interested parties. I have enclosed a copy of our resolution, and the 
accompanying transmittal letters, for the record.
    The responses we received have been very positive. Secretary of 
State Colin Powell wrote that he ``shared our views on the importance 
of the Convention,'' and Admiral Vern Clark, Chief of Naval Operations, 
stated that he ``. . . strongly believe, [d] that acceding to this 
Convention will benefit the United States by advancing our national 
security interests and ensuring our continued leadership in the 
development and interpretation of the law of the sea.''
    Ensuing hearings, and the additional information we have gathered, 
have served to reinforce our conviction that ratification of the LOS 
Convention is very much in our national interest. I would like to share 
with you some of the reasons that our Commissioners have unanimously 
adopted this view of the Convention.
    The LOS Convention was described by those who appeared before the 
Ocean Commission as the ``foundation of public order of the oceans'' 
and as the ``overarching framework governing rights and obligations in 
the oceans.'' The United States was involved in all aspects of the 
development of the Convention, including reshaping the seabed mining 
provisions in the early 1990's. As a consequence, the Convention 
contains many provisions favorable to U.S. interests.
    However, the foundation that the LOS Convention provides is subject 
to interpretation and will no doubt continue to evolve through time. 
The United States needs to be an active leader in this process, working 
to preserve the carefully crafted balance of interests that we were 
instrumental in developing, and playing a leadership role in the 
evolution of ocean law and policy. Acceding to the Convention will 
allow us to fully and effectively fulfill that leadership role, and 
will enhance United States economic, environmental and security 
interests.
    For example, there are a series of issues currently being 
considered by parties to the Convention which could have tremendous 
economic implications for the United States.
    Of particular importance is the work of the Convention's Commission 
on the Limits of the Continental Shelf, which is charged with reviewing 
claims and making recommendations on the outer limits of the 
Continental Shelf. This determination will in turn be used to establish 
the extent of coastal state jurisdiction over Continental Shelf 
resources. There are several reasons why direct U.S. participation in 
this process would be beneficial, namely:

   The LOS Convention sets up the ground rules by which coastal 
        nations may assert jurisdiction over exploration and 
        exploitation of natural resources beyond 200 miles to the outer 
        edge of the continental margin. This is particularly important 
        to the United States, which is one of only a few nations in the 
        world with broad continental margins.

   The continental margins beyond the United States' Exclusive 
        Economic Zone (EEZ) are rich not only in oil and natural gas, 
        but also appear to contain large concentrations of gas 
        hydrates, which may represent an important potential energy 
        source for the future.

   The work of the Continental Shelf Commission in establishing 
        clear jurisdictional limits creates a degree of certainty 
        crucial to capital-intensive deepwater oil and natural gas 
        development projects. Industry representatives stressed to us 
        the importance of this certainty not only for potential 
        investment in energy resource development beyond our own EEZ, 
        but in U.S. industry participation in approved development 
        projects undertaken on other nation's Continental Shelves.

    The work of the Continental Shelf Commission is now at a critical 
stage. All current parties to the LOS Convention must submit their 
Continental Shelf claims prior to 2009. The Commission's action on 
these submissions will directly impact U.S. jurisdictional interests, 
particularly in the Arctic. If we do not become a party to the LOS 
Convention, we are in danger of having the world leave us behind on 
issues of Continental Shelf delimitation because we will continue to be 
ineligible to participate in the selection of members of the Commission 
or nominate U.S. citizens for election to that body.
    Acceding to the LOS Convention will also allow the United States to 
play an active leadership role in a host of other issues of economic 
importance. As a party to the Convention, the U.S. can participate 
fully in International Seabed Authority efforts to develop rules and 
practices that will govern future commercial activities on the deep 
seabed. Currently, the U.S. is relegated to observer status.
    As a party to the Convention, the United States will also be in a 
much stronger position to ensure the preservation of the balance 
between coastal state authority and freedom of navigation. The United 
States, whose international trade and economic health relies so heavily 
on maritime commerce, cannot afford to remain on the sidelines while 
parties to the LOS Convention make decisions that directly impact 
navigational rights and maritime commerce.
    Further, the LOS Convention provides a comprehensive framework for 
protection of the marine environment. The Convention includes articles 
mandating global and regional cooperation, technical assistance, 
monitoring and environmental assessment, and establishing a 
comprehensive enforcement regime. The Convention specifically addresses 
pollution from a variety of sources, including land-based pollution, 
ocean dumping, vessel and atmospheric pollution, and pollution from 
offshore activities. The principles, rights and obligations outlined in 
this framework are the foundation on which more specific international 
environmental agreements are based.
    The United States is party to many international agreements--
including conventions pertaining to vessel safety, environmental 
protection and fisheries management--which are based directly on the 
LOS framework. Those United States representatives who participate in 
the negotiation of these agreements are among the strongest advocates 
for accession to the LOS Convention.
    For example, the Coast Guard, which has played a lead role in 
developing international agreements on maritime safety, security and 
environmental protection at the International Maritime Organization 
(IMO), and also participates in fisheries negotiations, told our 
Commission that: ``[A] failure to accede to the Convention materially 
detracts from United States credibility when we seek to advance our 
various ocean interests based upon Convention principles. Also, as a 
non-party, we risk losing our ability to influence international oceans 
policy by leaving important questions of implementation and 
interpretation to others who may not share our views.'' In testimony 
before our Commission, then-Commandant Admiral James Loy, and more 
recently the current Commandant, Admiral Thomas Collins, both strongly 
supported United States accession to the LOS Convention.
    From a security perspective, the LOS Convention provides a balance 
of interests that protect freedom of navigation and overflight in 
support of United States' national security objectives. The provisions 
were carefully crafted during negotiation of the LOS Convention, and 
reflect the substantial input that the United States had in their 
development. In particular, the Convention provides core navigational 
rights through foreign territorial seas, international straits and 
archipelagic waters, and preserves critical high seas freedoms of 
navigation and overflight seaward of the territorial sea, including in 
the EEZ. The navigational freedoms guaranteed by the Convention allow 
timely movement by sea of U.S. forces throughout the world, and provide 
recognized navigational routes which can be used to expeditiously 
transport U.S. military cargo--95 percent of which moves by ship.
    The Convention's law enforcement provisions establish a regime that 
has proven to be effective in furthering international efforts to 
combat the flow of illegal drugs and aliens by vessel--efforts which 
directly impact our nation's security. The Convention establishes the 
rights and obligations of flag states, port states, and coastal states 
with respect to oversight of vessel activities, and provides an 
enforcement framework to expeditiously address emerging maritime 
security threats.
    However, there have been several instances of unilateral assertions 
ofjurisdiction which seem to disregard the Convention's clear meaning 
and intent relative to freedom of navigation and overflight. The United 
States has unilaterally challenged some of the more excessive coastal 
state claims, relying on the navigational freedoms reflected in the 
Convention. There are also emerging issues that address the balance of 
interests between navigational freedoms and coastal state authority. 
The United States has important interests both as a coastal state and 
as a major maritime power. We will be in a much stronger and more 
credible position to challenge excessive claims, and to shape the 
future of issues and outcomes that impact our interests, if we are a 
party to the Convention.
    There are many other examples of benefits that would be derived 
from U.S. accession to the LOS Convention. For example, the U.S. 
research fleet frequently suffers costly delays in ship scheduling when 
other nations fail to respond in a timely manner to our research 
requests. Currently, we are not in a position to rely on articles in 
the Convention that address this issue, such as the ``Implied Consent'' 
article (Article 252) that allows research to proceed within 6 months 
if no reply to the request has been received, and other provisions that 
outline acceptable reasons for refusal of a research request. Also, as 
a party to the Convention, the U.S. could participate in the member 
selection process, including nominating our own representatives, for 
the International Law of the Sea Tribunal, as well as the Continental 
Shelf Commission and the various organs of the International Seabed 
Authority that I have previously mentioned.
    U.S. accession to the LOS Convention has received bipartisan 
support from past and current Administrations. On November 27, 2001, 
Ambassador Sichan Siv, U.S. Representative on the United Nations 
Economic and Social Council, in his statement in the General Assembly 
on Oceans and Law of the Sea, said: ``Because the rules of the 
Convention meet U.S. national security, economic, and environmental 
interests, I am pleased to inform you that the Administration of 
President George W. Bush supports accession of the United States to the 
[LOS] Convention.'' More recently the G-8 Summit held in June, 2003, 
produced a G-8 Action Plan for Marine Environment and Tanker Safety 
which stated: ``Specifically, we commit to: [1.1] The ratification or 
acceding to and implementation of the United Nations Convention on the 
Law of the Sea, which provides the overall legal framework for 
oceans.''
    Mr. Chairman, the input received by the U.S. Commission on Ocean 
Policy reflects a broad consensus among many diverse groups in favor of 
ratification of the LOS Convention. Over 140 nations are party to the 
Convention. As I have described, there are many important decisions 
being made right now within the framework of the Convention which will 
impact the future of the public order of the oceans and directly impact 
U.S. interests. Until we are a party to the Convention, we cannot 
participate directly in the many bodies established under the 
Convention that are making decisions critical to our interests.
    While we remain outside the Convention, we lack the credibility and 
position we need to influence the evolution of ocean law and policy. 
That law and policy is evolving as the provisions of the Convention are 
interpreted and implemented. It is interesting to note, in this regard, 
that the Convention will be open for amendment for the first time 
beginning in 2004. The Ocean Commission was directed by our enabling 
legislation to make recommendations to preserve the role of the United 
States as a leader in ocean activities. We cannot be a leader while 
remaining outside of the process that provides the framework for the 
future of ocean activities. For this reason, I renew our Commission's 
unanimous call for United States accession to the United Nations Law of 
the Sea Convention.
    Thank you, Mr. Chairman. I stand ready to answer any questions that 
the Committee may have.

[Attachments to statement.]

                       Commission on Ocean Policy

                                                  November 28, 2001
The President
The White House
Washington, D.C. 20500

    Dear Mr. President:

    On behalf of all 16 Members of the Commission on Ocean Policy, I 
respectfully transmit a copy of the Commission's recently adopted 
Resolution urging the accession of the United States to the United 
Nations Law of the Sea Convention. Also enclosed is a copy of a cover 
letter sent to the Chairman and Ranking Minority Member of the Senate 
Committee on Foreign Relations providing the background and reasons for 
the Commission's action.
    As the letter makes clear, the Commission heard powerful testimony 
in support of the Convention from a broad range of witnesses at two 
days of hearings earlier this month. Additionally, a number of Members 
have studied various provisions of this complex Convention prior to 
being appointed to the Commission and have been convinced for some time 
that there are compelling national security, jurisdictional, 
environmental, and economic interests reasons for the U.S. to accede to 
this international agreement. The enclosed letter also makes clear that 
time is of the essence in such accession because of certain important 
institutions established by the Convention in which U.S. participation 
is critically important.
    Mr. President, I urge your expeditious, special attention and 
support for the Convention on the Law of the Sea and I have taken the 
liberty of providing the Resolution and the letter to the Senate to the 
Secretaries of Defense and State, with an identical request.
            Respectfully,
                                 James D. Watkins, Chairman
                                       Admiral, U.S. Navy (Retired)

[Enclosures.]

              Resolution of the Commission on Ocean Policy

    The National Commission on Ocean Policy unanimously recommends that 
the United States of America immediately accede to the United Nations 
Law of the Sea Convention. Time is of the essence if the United States 
is to maintain its leadership role in ocean and coastal activities. 
Critical national interests are at stake and the United States can only 
be a full participant in upcoming Convention activities if the country 
proceeds with accession expeditiously.
                                      Adopted by Voice Vote
                                          November 14, 2001
                                           Washington, D.C.

                                 ______
                                 

                       Commission on Ocean Policy

                                                  November 26, 2001
Hon. Joseph R. Biden, Jr., Chairman
Hon. Jesse Helms, Ranking Member
Committee on Foreign Relations
United States Senate
Washington, D.C. 20510-6225

    Dear Mr. Chairman and Ranking Member:

    This is to bring to your attention a policy resolution recently 
adopted by the Commission on Ocean Policy urging ratification of the 
United Nations Law of the Sea (LOS) Convention. The Commission is a 16-
member congressionally established body that is directed to submit to 
Congress and the President a report recommending a coordinated and 
comprehensive national ocean policy to promote a number of noteworthy 
objectives.
    One of those objectives is ``the preservation of the role of the 
United States as a leader in ocean and coastal activities, and, when it 
is in the national interest, the cooperation by the United States with 
other nations and international organizations in ocean and coastal 
activities'' (Section 2(8), P.L. 106-256). In this regard, the 
Commission strongly believes that immediate accession to the LOS 
Convention is in the national interest of the U.S. and one of the most 
important steps that we can take to demonstrate such leadership and 
cooperation.
    At the second meeting of the Commission in Washington, D.C. on 
November 13-14, 2001, the Commissioners heard testimony on a broad 
range of ocean and coastal issues from Members of Congress, Federal 
agencies, trade associations, conservation organizations, the 
scientific community, and coastal states. Some of the most powerful 
presentations were made in support of ratification of the LOS 
Convention, particularly from the American Bar Association and the 
offshore oil and gas industry. The Department of State representative 
addressed the effects of our current non-party status and the benefits 
of the Convention to the U.S.
    A stable international legal framework for the determination of the 
rights and responsibilities of nations with respect to adjacent oceans 
and their resources is a necessary prerequisite for the Commission to 
be able to assess the place of the U.S. in the community of coastal 
states. The LOS Convention provides that framework for a whole host of 
jurisdictional issues including the 12 mile territorial sea, the 200 
mile Exclusive Economic Zone, and the continental shelf through its 
full prolongation including those areas where it extends beyond 200 
miles.
    Although there are many more matters addressed by the Convention 
that are in the economic and environmental interest of the United 
States, there are some issues of immediate concern that call for the 
expeditious consideration of the Convention by your Committee. 
Specifically, the Continental Shelf Commission established by the 
Convention has the responsibility to review submissions from coastal 
states that have continental shelves extending beyond 200 miles to 
establish the outer limits of their shelves. The U.S. has one of the 
broadest continental margins in the world and our oil and gas industry 
operates not only on our shelf but on the continental shelves of other 
nations. Thus, a place on the Commission is critical to the protection 
of our jurisdictional, resource management, and economic interests. 
Elections to the 21 member Continental Shelf body are scheduled in 
April of next year. To be in a position to nominate someone to the 
Continental Shelf Commission, we must be a party to the Convention by 
February, 2002. This situation also applies to the primary dispute 
settlement institution of the Commission, the Law of the Sea Tribunal. 
Seven of the Tribunal's judges will be elected in April and the U.S. 
must be a party to the Convention if we want to nominate a candidate.
    For these and many other reasons stated by officials from all walks 
of American life, the Commission on Ocean Policy unanimously passed the 
enclosed resolution in support of ratification of the Law of the Sea 
Convention. I would note that the 16 members of the Commission were 
appointed by the President, 12 from a list of nominees submitted by the 
leadership of Congress, and represent a broad spectrum of ocean 
interests.
    As the president of the American Bar Association stated in his 
testimony before the Commission, the LOS Convention is the ``foundation 
of public order for the oceans.'' The interests of the United States in 
the world community of coastal states and the work of our Commission in 
recommending a comprehensive ocean policy is dependent on the stability 
of that foundation. We urge that, notwithstanding the short legislative 
calendar that remains this year, the Committee on Foreign Relations 
consider and report out favorably the Convention on the Law of the Sea 
prior to adjournment.
    A copy of this letter is being forwarded to the President of the 
United States and the Secretaries of State and Defense, urging their 
special attention and support.
            Sincerely,
                                James D. Watkins, Chairman,
                                      Admiral, U.S. Navy (Retired).

                                 ______
                                 

                         THE SECRETARY OF STATE

                               washington

                           December 12, 2001

Admiral James D. Watkins, USN (Ret.),
Chairman, Commission on Ocean Policy,
1120 20th Street NW, Suite 200 North,
Washington, DC 20036.

    Dear Admiral Watkins:

    Thank you for sending me a copy of the unanimous resolution urging 
accession of the United States to the United Nations Convention on the 
Law of the Sea, adopted by the Commission on Ocean Policy at its second 
meeting November 13-14, 2001.
    The Commission's distinguished members were charged with developing 
a national ocean policy to promote objectives that include preserving 
the United States' role as a leader in ocean and coastal activities. 
The resolution conveys a real sense of urgency, both through its words 
and through its timing, as the Commission's first policy pronouncement.
    Deputy Assistant Secretary Mary Beth West testified before your 
Commission on November 14, explaining the detrimental effects of our 
non-party status. You may be aware that Ambassador Sichan Siv, two 
weeks later, announced at the UN General Assembly that the Bush 
Administration supports U.S. accession to the Convention.
    I am aware of the elections scheduled for April 2002 for members of 
the Commission on the Limits of the Continental Shelf and for judges of 
the International Tribunal for the Law of the Sea, and the benefits the 
United States could expect from representation on those bodies. Please 
be assured that we share your views on the importance of this 
Convention and are working actively on it.
    I extend best wishes as you undertake leadership of this important 
Commission, whose report in the spring of 2003 will help to shape 
national ocean and coastal policy for the 21st century.
            Sincerely,
                                            Colin L. Powell

                                 ______
                                 

                       Chief of Naval Operations

                                                    5 December 2001
Admiral James D. Watkins, USN (Ret.)
Commission on Ocean Policy
c/o Ocean.US
2300 Clarendon Boulevard, Suite 1350
Arlington, VA 22201-3367

    Dear Admiral Watkins,

    Thank you for your letter of November 29, 2001, advising that the 
Commission on Ocean Policy unanimously adopted a resolution supporting 
United States accession to the United Nations Law of the Sea 
Convention.
    Like you, I strongly believe that acceding to this convention will 
benefit the United States by advancing our national security interests 
and ensuring our continued leadership in the development and 
interpretation of the law of the sea.
    I appreciate your continued strong support of this convention and 
the Navy.
            Sincerely,
                                                Vern Clark,
                                                Admiral, U.S. Navy.

    The Chairman. Thank you very much, Admiral Watkins.
    Admiral Prueher.

 STATEMENT OF ADMIRAL JOSEPH PRUEHER, U.S. NAVY (RET.), FORMER 
 U.S. COMMANDER-IN-CHIEF PACIFIC AND FORMER U.S. AMBASSADOR TO 
                   CHINA, VIRGINIA BEACH, VA

    Admiral Prueher. Good morning, Mr. Chairman. It is a 
pleasure to be here with you this morning. Before I start I 
would like to thank you for your sustained and level-headed 
efforts for our national well-being.
    As U.S. CINCPAC in 1998, I had written a letter to the 
chairman of the Senate Foreign Relations Committee reflecting 
then the DOD view, asking the committee to bring the U.N. 
Convention on the Law of the Sea forward for ratification or, 
at a minimum, to bring it forward for discussion. I hold the 
same view now as a private citizen, only more so. My comments 
today will reflect what I believe is a balanced view in support 
of U.S. security, economic, and also diplomatic interests. I 
trust I can be succinct and I will try not to overlap too much.
    My perspective, as I have said, is of a private citizen. 
But as a former U.S. CINCPAC, when that term was in vogue, 
there were responsibilities for security interests in the Asia 
Pacific region. Incorporated in those were the sea lanes, the 
archipelagoes of Indonesia and the Philippines, the associated 
sea lines, the South China Sea, the East China Sea, the Sea of 
Okhotsk up near Japan, as well as those mentioned earlier by 
Senator Stevens and by Admiral Watkins. We spent much time in 
discussions on how to work these sealane issues.
    A second perspective was as U.S. Ambassador to China in a 
period encompassing some times of strained relationships 
between us and China where negotiating required a solid and 
well-founded U.S. position. Something like the U.N. Convention 
on Law of the Sea would offer much in this area. From our 
Nation's perspective, it is self-evident. We are the world's 
greatest sea power, we are the world's greatest military and 
economic power, and we rely on the world's oceans and our own 
policies in order to maintain that position.
    In addition to the military and the economic ventures, 
there are also the environmental and conservation issues which 
are so important, and increasingly so. So our policies must be 
wise, far-sighted, effective, and as intellectually sound as we 
can make them.
    Turning to the legal issues, on which I lack expertise, 
there seem to be three foremost issues to which the answer must 
be yes for us to ratify this convention. One is, ``Will 
accession to the convention better protect U.S. interests than 
continued reliance on our customary international laws?'' The 
second question is, ``Does the military activities exception 
adequately protect U.S. interests?'' And third, ``Do the legal 
implications of the convention strengthen or at least maintain 
our ability to conduct our proliferation strategy initiative 
and maritime interdiction operations?''
    As I said, the answer to these questions should be yes. My 
looking at this subject tells me the answer is so, but the 
legal ramifications are outside any area of expertise that I 
might have.
    So what would be the benefits of U.S. accession? Admiral 
Watkins has covered these quite well, I think, but I would say 
that there are five. One is to codify and reinforce our 
navigational freedoms. Second is to provide the U.S. Government 
a strong legal foundation to deter and in fact defeat 
encroachment efforts by nations that oppose our views. Third is 
to enhance maritime interception ops and the PSI efforts. And 
fourth is to allow the U.S. Government participation in key 
institutions that will shape future activities. Some of these 
activities and institutions are amendments to the U.N. 
convention, dispute settlement tribunals, limits on the 
continental shelf, and participation in the Commission on the 
International Seabed Authority. The urgency, of course, is that 
amendments come open for review in 2004 and our Nation needs to 
be a player at that time.
    The fifth item that is a benefit is it strengthens the 
authoritative force of the U.N. Convention on the Law of the 
Sea by virtue of having our Nation be a participant in it.
    There are perhaps some risks to non-accession and they are 
also fairly well known, but I would like to list four of them. 
First is that walking away from the convention from our 
Nation's point of view, sends, in my opinion, a needless 
contentious signal to our partners in the nations with whom we 
deal. If we walk away from it, we also lose a forum for dispute 
resolution.
    Third, reliance on the uncodified customary international 
law would be more difficult than reliance on the U.N. 
Convention on the Law of the Sea for resolution of disputes; 
and possibly a walking away from the convention would increase 
our difficulty in global mobility, both economically and 
militarily.
    To summarize, my view is that the benefits are strong in 
the military, the economic, as well as in the political and in 
the environmental sectors. Second, remaining outside of the 
convention limits the U.S. ability to shape and prevent changes 
that are inimical to our national interest and may encourage 
excessive reliance on force for dispute resolution. Third, the 
known risks of not acceding outweigh the possible risks of 
accession.
    Thank you very much for your courtesy.
    The Chairman. Thank you very much, Admiral Prueher.
    Professor Moore.

STATEMENT OF PROFESSOR JOHN NORTON MOORE, DIRECTOR, CENTER FOR 
 OCEANS LAW AND POLICY, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 
                      CHARLOTTESVILLE, VA

    Mr. Moore. Chairman Lugar, it is a privilege and a pleasure 
to testify before the Senate Foreign Relations Committee on the 
Law of the Sea Treaty. My congratulations to you on your 
leadership in holding these important hearings. I would also 
like to extend my congratulations to Senator Stevens for a 
wonderfully important, clear statement and indeed for his 
important advice to the Law of the Sea negotiators throughout 
the years of those negotiations.
    I had a very special pleasure as one of our LOS negotiators 
in working with one of this committee's former chairmen, 
Senator Pell, and I very much join your congratulations to him 
and note of his great interest in this matter as well.
    As you know so well, specific foreign policy problems tend 
to last and last even beyond the Energizer Bunny. Achieving 
closure with a recognized victory is rare. The Law of the Sea 
Treaty is one such victory for the United States. The Senate 
should give advice and consent at the earliest possible time.
    United States leadership in the 1970s to protect U.S. 
oceans interests and to establish a rule of law in the oceans 
was enormously successful. We achieved full protection for our 
vital security needs, particularly our naval and commercial 
mobility. We solidified for the United States the largest area 
of oil and gas and fisheries jurisdiction in the world. And, 
Mr. Chairman, after President Reagan held firm on the problems 
that were in the initial draft on deep seabed mining, the 
United States successfully concluded a renegotiation in 1994 
that met every single one of the conditions set by President 
Reagan and by the Congress of the United States in the 1980 
Hard Minerals Act.
    Let me say that Senator Stevens again is absolutely correct 
in his opening statement about how this renegotiation of part 
11 met all of the United States' interests and it did indeed do 
away with the problems, such as the mandatory technology 
transfer that was a great mistake being pushed at that time by 
the Group of 77. So I am delighted to say, Mr. Chairman, there 
were initial problems that were overcome and part 11 ended up 
consistent with United States national interests and 
requirements.
    Given the scope of the clear United States victory in these 
negotiations, it is a source of puzzlement to some of us, Mr. 
Chairman, as to why it has so far been 9 years for the United 
States to move forward to ratification. Now, on this point, we 
should make no mistake. Every day that goes by of United States 
non-adherence inflicts costs on the security and economic 
interests of this great Nation.
    I believe that United States adherence will serve three 
groupings of goals and I will summarize those and then very 
briefly go through one or two points on each. The three are: 
restoring United States oceans leadership, protecting United 
States oceans interests, and enhancing United States foreign 
policy.
    The United States at the time of the negotiations, Mr. 
Chairman, was the recognized leader in the world in oceans 
matters. No other nation in the world has our range of oceans 
interests. No other nation in the world provided the leadership 
that we did on oceans matters. However, once the treaty had 
moved forward and for 9 years we have not adhered, we have, I 
am sorry to say, lost that leadership role. We can easily 
regain it simply by moving forward with this treaty. I have no 
doubt that we will almost instantly become the leader in world 
oceans matters once again if we move forward with Senate advice 
and consent.
    In addition to that, as the previous witnesses have 
indicated very effectively, there are a number of important 
fora out there that the United States by not adhering to the 
treaty is simply excluding itself from. We are minimizing our 
voice in all of these different areas. With respect to the 
International Seabed Authority we will take our seat on the 
council and on the finance committee as soon as we adhere to 
the treaty. Without being there, we do not have the ability to 
cast a veto, for example, if funding were to go to a terrorist 
``liberation'' group that we did not support. We would not have 
a veto over the now developing mining code for cobalt crusts 
and polymetallic sulfides; that is an area that, again, we 
simply shoot ourselves in the foot by not participating in the 
authority.
    With respect to the International Tribunal for the Law of 
the Sea, we have no judge at present, so we have no voice. We 
have no voice in the meeting of States parties that 
unfortunately is beginning to push to make changes in the 
treaty, some of which are harmful. The United States can be a 
powerful voice to prevent bad changes in the treaty if we are 
permitted to participate actively as a member in the annual 
meeting of States parties.
    Then, of course, there is the Commission on the Limits of 
the Continental Shelf, which ultimately will decide the crucial 
matter of the important limits of the United States' 
continental shelf and which, as Senator Stevens has indicated, 
is right now considering a critically important Russian claim 
in the Arctic. The United States by not participating has 
simply excluded itself from being able to have a voice on 
issues that are affecting us in a very vital and direct way.
    The second general area supporting U.S. adherence is 
protecting United States oceans interests more specifically. 
Here let me just suggest that the single greatest risk to 
United States oceans interests in the future as in the past, is 
the potential loss of our naval mobility, and our security 
interest in commercial mobility for the critical trade that 
comes into and out of the U.S. by ship.
    We have one great advantage in this treaty. We won those 
issues big time and we won them unequivocally. It is a setting 
where we have every advantage in simply telling other nations 
that seek to violate the treaty that they must adhere to the 
most widely adhered convention in the world. But when the 
United States is not a party to the convention, it quite simply 
forfeits that enormous advantage which we achieved by winning 
decisively in the negotiation.
    Let me just give you one specific example, Mr. Chairman, 
from a very fine book by Mr. Roach and Mr. Smith on excessive 
maritime claims. This comes from a statement by Iran when it 
was signing the convention back in 1982. It made a declaration, 
basically disputing our rights to go through the Strait of 
Hormuz, which is critical for our oil supplies. Here is what it 
said:
    ``It seems natural that only States parties to the Law of 
the Sea Convention shall be entitled to benefits from the 
contractual rights created therein. The above considerations 
pertain specifically but not exclusively to the right of 
transit passage through straits used for international 
navigation.''
    You can see very clearly they are using our non-party 
status to try to challenge our legal ability to go through 
Hormuz.We now have an opportunity for a very effective response 
to this extreme position. We simply adhere to the treaty and 
now their own declaration gets to be used against them to make 
it clear that they have indicated if you are a party presumably 
you have every right to the crucial navigational provisions.
    Another important issue relates to the fisheries issues 
that Senator Stevens I think very properly indicated as of 
great importance here. Under the existing treaty law 
obligations of the United States, the 1958 conventions, which 
are terribly outdated, the United States has no rights to 
control fish stocks beyond the 12 nautical mile territorial 
sea. The new convention is absolutely clear on coastal State 
control of its fish stocks within the 200 nautical mile 
economic zone off its coast and in relation to the continental 
margin. In those areas we completely control setting the 
optimal yield. We completely control setting the allowable 
catch. We completely control setting all of the kinds of 
requirements for foreign access and for conservation measures.
    So I think the Senator is absolutely right, coastal State 
control of protecting those stocks is critical and the new 
treaty does that very powerfully.
    Further, on the second point, Mr. Chairman, let me point 
out the great importance economically for the United States in 
moving forward to develop the continental margin in areas 
beyond the economic zone. I believe you have a chart up there 
that has some yellow areas. The yellow areas on it are the 
areas going beyond the 200 nautical mile zone, and the United 
States oil and gas industry right now has the ability to begin 
to move forward with the technology, in those areas, but by not 
adhering to the treaty that is being held up significantly. Of 
course, these are the areas in the end also that will be 
subject at least to consideration in the Continental Shelf 
Commission and we definitely want a voice in that 
consideration.
    Now, Mr. Chairman, turning to the last set of goals, 
enhancing U.S. foreign policy, just two very brief comments. As 
you know so well and have provided such fine leadership toward 
in this committee, the United States has an enormous interest 
in promoting the rule of law in the world's oceans. The rule of 
law creates stable expectations, it reduces the risk of 
conflict; it is one of our major long-term goals.
    The LOS convention is one of the most important rule of law 
conventions for the 20th century. It is very important for the 
United States to move forward and to again affirm its 
leadership, not just in oceans, but in the rule of law more 
broadly.
    Finally, a point that is too infrequently noticed; that is 
the United States achieved a great success in a renegotiation 
of this treaty. It was tough. We established our requirements, 
we held to them, and the international community and our allies 
eventually agreed and we were able to achieve every one of 
those conditions.
    If the United States in seeking to engage and renegotiate 
other bad treaties seeks to give a series of conditions that 
have to be met, unfortunately now we are hearing the refrain: 
Why should we negotiate with you when we met all of your 
conditions in the Law of the Sea and you have still not moved 
forward? I believe, Mr. Chairman, that removing this argument 
against us in foreign policy negotiations generally is of 
considerable importance to success of the United States issues 
going quite beyond the oceans area.
    One last point--and that is that I do not know many 
treaties or proposed legislation that come before the Senate 
that do not involve some kind of substantial tradeoff. This is 
not one of them. One of the extraordinary things about this 
convention is there is not a single United States oceans 
interest that would be better off by not adhering to the treaty 
than if we move forward and promptly adhere to this treaty.
    I have not said anything, Mr. Chairman, about the 
proliferation initiative or the exclusion for military 
activities. But if you would like to pursue any of these 
subjects, I would be delighted to answer questions on them or 
anything else. It has been a very special privilege to be here.
    [The prepared statement of Professor Moore follows:]

  Prepared Statement of Prof. John Norton Moore, Director, Center for 
      Oceans Law and Policy, University of Virginia School of Law

             ``The day is within my time as well as yours,

               when we may say by what laws other nations

                      shall treat us on the sea.''

                            Thomas Jefferson

    Chairman Richard G. Lugar and Honorable Members of the Foreign 
Relations Committee:
    Senate advice and consent to the 1982 Law of the Sea Convention is 
strongly in the national interest of the United States. Ratification of 
the Convention will restore United States oceans leadership, protect 
United States oceans interests, and enhance United States foreign 
policy. For these reasons the Convention is broadly supported by United 
States oceans organizations, including the United States Navy (one of 
the strongest supporters over the years), the National Ocean Industries 
Association \1\, the United States Outer Continental Shelf Policy 
Committee \2\, the American Petroleum Institute \3\, the Chamber of 
Shipping of America \4\, The Center for Seafarers' Rights \5\, the 
Chemical Manufacturers Association \6\, and the congressionally 
established National Commission on Ocean Policy. \7\ This testimony 
will briefly explore reasons for United States adherence to the 
Convention. First, however, it will set out a brief overview of the 
Nation's oceans interests and history of the Convention.
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    \1\  On June 6, 2001, the National Ocean Industries Association 
submitted a resolution to the Chairman of the Senate Foreign Relations 
Committee declaring: ``The National Ocean Industries Association (NOIA) 
is writing to urge your prompt consideration of the Convention on the 
Law of the Sea. . . . The NOIA membership includes companies engaged in 
all aspects of the Outer Continental Shelf oil and natural gas 
exploration and production industry. This membership believes it is 
imperative for the Senate to act on the treaty if the U.S. is to 
maintain its leadership role in shaping and directing international 
maritime policy.''
    \2\ On May 24, 2001, the Outer Continental Shelf (OCS) Policy 
Committee adopted the following recommendation: ``[T]he OCS Policy 
Committee recommends that the Administration communicate its support 
for ratification of UNCLOS to the United States Senate. . . .''
    \3\ See the statement of Ms. Genevieve Laffly Murphy on behalf of 
the American Petroleum Institute at the recent oceans forum of the 
Center for Oceans Law and Policy, Oct. 1, 2003. Ms. Murphy stressed the 
energy security interest of the American petroleum industry both in 
access to the continental shelf beyond 200 miles and in protection of 
navigational freedom. See also the letter from the president of the 
American Petroleum Institute to the Chairman of the Senate Committee on 
Foreign Relations of October 1, 1996, which states: ``The American 
Petroleum Institute wishes to express its support for favorable action 
by the Senate on the United Nations Convention on the Law of the Sea 
(UNCLOS). API favors ratification of the revised treaty because it 
promotes unimpeded maritime rights of passage; provides a predictable 
framework for minerals developed; and, sets forth criteria and 
procedures for determining the outer limit of the continental shelf. 
The latter will be accomplished by the soon-to-be established 
Commission on the Limits of the Continental Shelf.''
    \4\ In a letter to the Chairman of the Senate Foreign Relations 
Committee of May 26, 1998, the president of the Chamber of Shipping of 
America writes: ``[t]he Chamber of Shipping represents 14 U.S. based 
companies which own, operate or charter oceangoing tankers, container 
ships, and other merchant vessels engaged in both the domestic and 
international trades. The Chamber also represents other entities which 
maintain a commercial interest in the operation of such oceangoing 
vessels. Over the past quarter century, the Chamber has supported the 
strong leadership role of the United States in the formalization of the 
UN Convention on the Law of the Sea (UNCLOS) into its final form, 
including revision of the deep seabed mining provision. We believe the 
United States took such a strong role due to its recognition that 
UNCLOS is of critical importance to national and economic security, 
regarding both our military and commercial fleets. . . . Mr. Chairman, 
we appreciate your consideration of these issues and strongly urge you 
to place the ratification of UNCLOS on the agenda of your Committee. 
The United States was a key player in its development and today, is one 
of the few industrialized countries who have not yet ratified this very 
important Convention. The time is now for the United States to retake 
its position of leadership.''
    \5\ On May 26, 1998, the Director of the Center for Seafarers' 
Rights wrote the following in a letter addressed to the Chairman of the 
Senate Foreign Relations Committee: ``The 1982 United Nations 
Convention on the Law of the Sea creates a legal framework that 
addresses a variety of interests, the most important of which is 
protecting the safety and well-being of the people who work and travel 
on the seas. I urge you to support ratification of the 1982 United 
Nations Convention on the Law of the Sea.''
    \6\ In a July 17, 1998 letter to the Chairman of the Senate Foreign 
Relations Committee, the President of the Chemical Manufacturers 
Association wrote the following: ``The Law of the Sea Convention 
promotes the economic security of the United States by assuring 
maritime rights of passage. More importantly, the Convention 
establishes a widely-accepted, predictable framework for the protection 
of commercial interests. The United States must be a full party to the 
Convention in order to realize the significant benefits of the 
agreement; and to influence the future implementation of UNCLOS at the 
international level. On behalf of the U.S. chemical industry, I 
strongly encourage you to schedule a hearing on UNCLOS, and favorably 
report the Convention for action by the Senate.''
    \7\ On November 14, 2001, the National Commission on Ocean Policy 
adopted a resolution--its first on any subject--providing: ``The 
National Commission on Ocean Policy unanimously recommends that the 
United States of America immediately accede to the United Nations Law 
of the Sea Convention. Time is of the essence if the United States is 
to maintain its leadership role in the ocean and coastal activities. 
Critical national interests are at stake and the United States can only 
be a full participant in upcoming Convention activities if the country 
proceeds with accession expeditiously.''
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                      background of the convention
    As the quote by Thomas Jefferson illustrates, the United States, 
surrounded by oceans and with the largest range of oceans interests in 
the world, has a vital national interest in the legal regime of the 
sea. Today those interests include naval mobility, navigational freedom 
for commercial shipping, oil and gas from the continental margin, 
fishing, freedom to lay cables and pipelines, environmental protection, 
marine science, mineral resources of the deep seabed, and conflict 
resolution. Consistent with these broad interests the United States has 
been resolute in protecting its ocean freedoms. Indeed, the Nation has 
fought at least two major wars to preserve navigational freedoms; the 
War of 1812 and World War I. In point II of his famous 14 Points at the 
end of World War I, Woodrow Wilson said we should secure ``[a]bsolute 
freedom of navigation upon the seas . . . alike in peace and in war.'' 
And the Seventh Point of the Atlantic Charter, accepted by the Allies 
as their ``common principle'' for the post World War II world, provided 
``such a peace should enable all men to traverse the high seas and 
oceans without hindrance.''
    In the aftermath of World War II the United States provided 
leadership in the First and Second United Nations Conferences to seek 
to protect and codify our oceans freedoms. The first such conference, 
held in 1958, resulted in four ``Geneva Conventions on the Law of the 
Sea'' which promptly received Senate Advice and Consent. One of these, 
the Convention on the Continental Shelf, wrote into oceans law the 
United States innovation from the 1945 Truman Proclamation--that 
coastal nations should control the oil and gas of their continental 
margins. During the 1960's a multiplicity of illegal claims threatening 
United States navigational interests led to a United States initiative 
to promote agreement within the United Nations on the maximum breadth 
of the territorial sea and protection of navigational freedom through 
straits. This, in turn, led some years later, and with a broadening of 
the agenda, to the convening in 1973 of the Third United Nations 
Conference on the Law of the Sea. In this regard it should be clearly 
understood that the United States was a principal initiator of this 
Conference, and it was by far the preeminent participant in shaping the 
resulting Convention. Make no mistake; the United States was not 
participating in this Conference out of some fuzzy feel good notion. 
Its participation was driven at the highest levels in our Government by 
an understanding of the critical national interests in protecting 
freedom of navigation and the rule of law in the world's oceans. Today 
we understand even more clearly from ``public choice theory,'' which 
won the Nobel Prize in economics, why our choice to mobilize in a 
multilateral setting all those who benefited from navigational freedom 
was a sound choice in controlling individual illegal oceans claims.\8\ 
And the result was outstanding in protecting our vital navigational and 
security interests. Moreover, along the way we solidified for the 
United States the world's largest offshore resource area for oil and 
gas and fishery resources over a huge 200 nautical mile economic zone, 
and a massive continental shelf going well beyond 200 miles.\9\
---------------------------------------------------------------------------
    \8\ The reason supporting this is most easily understood as the 
high cost of organization of those affected by illegal oceans claims; 
claims which were externalizing costs on the international community. A 
multilateral strategy of response to such illegal claims, far from 
being simply a fuzzy effort at cooperation, effectively enabled 
coordination of nations to promote the common interest against such 
illegal claims. Counter to the perception of some that a unilateral 
U.S. response is always the best strategy, a multilateral forum was 
indeed the most effective forum for controlling such threats to our 
navigational freedom. Moreover, since a majority of coastal nations are 
completely ``zone locked,'' that is, they have no access to the oceans 
without traversing the 200 mile economic zones of one or more 
neighboring states, a multilateral strategy continues to offer an 
important forum for rebutting illegal unilateral oceans claims 
threatening navigational freedom. The fact is, because of this ``zone 
locked'' geography, a majority of nations should never either favor 
extending national jurisdiction beyond 200 nautical miles nor 
permitting interference with navigational freedom in the 200 nautical 
mile economic zone.
    \9\ The Convention powerfully supports United States control of its 
fisheries resources. Indeed, with respect to fisheries, the United 
States is already a party to the ``Agreement for the Implementation of 
the Provisions of the United Nations Convention on the Law of the Sea 
of 10 December 1982 Relating to the Conservation and Management of 
Straddling Fish Stocks and Highly Migratory Fish Stocks,'' a treaty 
that implements certain fisheries provisions of the Law of the Sea 
Convention. Senator Ted Stevens provided crucial leadership in Senate 
advice and consent to this implementing Convention.
---------------------------------------------------------------------------
    Despite an outstanding victory for the United States on our core 
security and resource interests a lingering dispute remained with 
respect to the regime to govern resource development of the deep seabed 
beyond areas of national jurisdiction. Thus, when the Convention was 
formally adopted in 1982, this disagreement about Part XI of the 
Convention prevented United States adherence. Indeed, during the final 
sessions of the Conference President Reagan put forth a series of 
conditions for United States adherence, all of which required changes 
in Part XI. Following adoption of the Convention without meeting these 
conditions, Secretary Rumsfeld served as an emissary for President 
Reagan to persuade our allies not to accept the Convention without the 
Reagan conditions being met. The success of the Rumsfeld mission set 
the stage some years later for a successful renegotiation of Part XI of 
the Convention. In 1994, Part XI, dealing with the deep seabed regime 
beyond national jurisdiction, was successfully renegotiated meeting all 
of the Reagan conditions and then some. Subsequently, on October 7, 
1994, President Clinton transmitted the Convention to the Senate for 
advice and consent.\10\ Since that time no Administration, Democratic 
or Republican, has opposed Senate advice and consent--and United States 
ratification.
---------------------------------------------------------------------------
    \10\ For the letter of transmittal to the Senate and official 
United States Government article-by-article commentary on the 
Convention, see ``Sen. Treaty Doc. 103-39,'' reprinted in U.S. 
Department of State Dispatch Supplement, Law of the Sea Convention: 
Letters of Transmittal and Submittal and Commentary (Feb. 1995, Vol. 6, 
Supp. No. 1). For the most authoritative article-by-article 
interpretation of the Convention, see the multi-volume Commentary on 
the United Nations Convention on the Law of the Sea 1982, prepared 
under the auspices of the Center for Oceans Law and Policy of the 
University of Virginia School of Law. ``Myron H. Nordquist (ed.), 
United Nations Convention on the Law of the Sea 1982: a commentary'' 
(1985-2003 Martinus Nijhoff Publishers).
---------------------------------------------------------------------------
    At present the Convention is in force; and with 143 states parties 
it is one of the most widely adhered conventions in the world. Parties 
include all permanent members of the Security Council but the United 
States, and all members of NATO but the United States, Denmark and 
Canada--and Canada is expected to join in the immediate future as soon 
as the European Union formally adopts an important fisheries agreement 
implementing the 1982 Convention. The Convention unequivocally and 
overwhelmingly meets United States national interests--indeed, it is in 
many respects a product of those interests.
    If one were to travel back in time and inform the high-level 
members of the eighteen agency National Security Council Interagency 
Task Force which formulated United States oceans policy during the 
Convention process--an effort never matched before or since in the care 
with which it reviewed United States international oceans interests--
that the Convention today in force, powerfully meeting all United 
States oceans interests, would not yet be in force for the United 
States nine years after being submitted to the Senate, the news would 
have been received with incredulity. As this suggests, the Senate 
should understand that United States oceans interests, including our 
critical security interests, are being injured--and will continue to be 
injured--until the United States ratifies the Convention. Among other 
costs of non-adherence we have missed out on the formulation of the 
mining code for manganese nodules of the deep seabed; we have missed 
participating in the development of rules for the International Law of 
the Sea Tribunal and the Commission on the Limits of the Continental 
Shelf, and in ongoing consideration of cases before the Tribunal as 
well as ongoing consideration of the Russian continental shelf claim 
now before the Continental Shelf Commission; we have had reduced effect 
in the ongoing struggle to protect navigational freedom and our 
security interests against unilateral illegal claims; and we have been 
unable to participate in the important forum of Convention States 
Parties.
    Why should the United States give advice and consent to the Law of 
the Sea Convention? I will summarize the most important reasons under 
three headings:
              i. restoring united states oceans leadership
    Until our prolonged non-adherence to the 1982 Convention, the 
United States has been the world leader in protecting the common 
interest in navigational freedom and the rule of the law in the oceans. 
We have at least temporarily forfeited that leadership by our continued 
non-adherence. United States ratification of the Convention will 
restore that leadership. Specifically, ratification will have the 
following effects, among others:

   The United States will be able to take its seat on the 
        Council of the International Seabed Authority. The authority is 
        currently considering a mining code with respect to 
        polymetallic sulfides and cobalt crusts of the deep seabed. 
        Council membership will also give us important veto rights over 
        distribution of any future revenues from deep seabed 
        exploitation to national liberation groups;

   The United States should, at the next election of judges for 
        the International Tribunal for the Law of the Sea, see the 
        election of a United States national to this important 
        tribunal. Since this Tribunal frequently considers issues 
        relating to navigational freedom and the character of the 200 
        mile economic zone it is a crucial forum for the development of 
        oceans law;

   The United States should, at the next election of members of 
        the Commission on the Limits of the Continental Shelf, see the 
        election of a United States expert to the Commission. This 
        Commission is currently considering the Russian claim in the 
        Arctic that is of real importance for the United States (and 
        Alaska) and for appropriate interpretation of the Convention 
        respecting continental margin limits. Over the next few years 
        the Commission will begin to consider many other shelf limit 
        submissions, beginning next with Australian and Brazilian 
        claims. This is also the Commission that ultimately must pass 
        on a United States submission as to the outer limits of our 
        continental shelf beyond 200 nautical miles. The early work of 
        the Commission, as it begins to develop its rules and 
        guidelines, could significantly affect the limits of the United 
        States continental shelf. Not to actively participate in the 
        work of this Commission could result in a loss of thousands of 
        square kilometers of resource-rich United States continental 
        shelf;

   The United States will be able to participate fully in the 
        annual meeting of States Parties that has become an important 
        forum for ongoing development of oceans law. Of particular 
        concern, United States presence as a mere observer in this 
        forum has in recent years led to efforts by some to roll back 
        critical navigational freedoms hard won in the LOS negotiations 
        where we were a leader in the negotiations and our presence was 
        powerfully felt; and

   The United States will be far more effective in leading the 
        continuing struggle against illegal oceans claims through our 
        participation in specialized agencies such as the International 
        Maritime Organization; in bilateral negotiations such as those 
        with the archipelagic states; in acceptance by other states of 
        our protest notes and our ability to coordinate such notes with 
        others; and generally in organizing multilateral opposition to 
        threats to our oceans interests and the rule of law in the 
        oceans.

             ii. protecting united states oceans interests
    A second set of important reasons for United States adherence to 
the Law of the Sea Convention relate to the particularized protection 
of United States oceans interests. Some of the more important and 
immediate of these include:

   More effectively engaging in the continuing struggle to 
        protect our naval mobility and commercial navigational freedom. 
        Protecting the ability of the United States Navy to move freely 
        on the world's oceans and the ability of commercial shipping to 
        bring oil and other resources to the United States and for us 
        to participate robustly in international trade overwhelmingly 
        carried in ships is the single most important oceans interest 
        of the United States. This interest, however, is also the 
        single most threatened interest; the continuing threat being 
        the historic pattern of unilateral illegal oceans claims. As of 
        June 22, 2001, there were at least 136 such illegal claims \11\ 
        This struggle has been the key historic struggle for the United 
        States over the last half century and gives every indication of 
        continuing. Adhering to the Convention provides numerous ways 
        for the United States to engage more effectively in protecting 
        these interests. An immediate and important effect is that we 
        are able on ratifying the Convention to attach a series of 
        crucial ``understandings'' under Article 310 of the Convention 
        as to the proper interpretation of the Convention, as have many 
        other nations--too many of which have made erroneous 
        interpretations as yet unrebutted by United States 
        statements.\12\ Moreover, as a party we will be far more 
        effective in multiple fora in protecting the many excellent 
        provisions in the Convention supporting navigational freedom. 
        Indeed, much of the struggle in the future to protect our vital 
        oceans interests will be in ensuring adherence to the excellent 
        provisions in the Convention. Having won in the struggle to 
        protect these interests within UNCLOS we now have a substantial 
        advantage in the continuing struggle--we need only insist that 
        others abide by the nearly universally accepted Convention. 
        Obviously, that is an advantage largely thrown away when we 
        ourselves are not a party. And for our commercial shipping we 
        will be able to utilize the important Article 292 to obtain 
        immediate International Tribunal engagement for the release of 
        illegally seized United States vessels and crew. It should be 
        emphasized that the threat from these illegal claims is that of 
        death from a thousand pin pricks rather than any single 
        incident in response to which the United States is likely to be 
        willing to employ the military instrument. Moreover, some of 
        the offenders may even be allies of the United States, our NATO 
        partners, or even over zealous officials in our own country who 
        are unaware of the broader security interests of the Nation;
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    \11\ The best general discussion of these illegal oceans claims and 
their effect on United States interests is ``J. Ashley Roach & Robert 
W. Smith, Excessive Maritime Claims,'' 66 U.S. Naval War College 
International Law Studies (1994), and ``J. Ashley Roach & Robert W. 
Smith, United States Responses to Excessive Maritime Claims'' (2d ed. 
1996).
    \12\ United States ``understandings'' under Article 310 could 
either be formulated and attached to the Convention by the Executive 
Branch at the time the United States ratifies the Convention or they 
could be attached to the Resolution of Senate Advice and Consent. I 
believe the second of these alternatives would have the greatest effect 
in the ongoing ``struggle for law'' as to the correct interpretation of 
the Convention. Given the highly technical nature of these 
understandings I would be pleased to work with the Committee to provide 
a draft of understandings for your consideration. It should be clearly 
understood that these are not ``reservations'' altering the correct 
legal meaning of the Convention. Such reservations or exceptions are 
barred by Article 309 of the Convention except as specifically 
permitted by the Convention, as, for example, in Article 298 of the 
Convention concerning optional exceptions to the compulsory dispute 
settlement provisions.

   More effective engagement with respect to security incidents 
        and concerns resulting from illegal oceans claims by others. 
        Examples include the new law of the People's Republic of China 
        (PRC) providing that Chinese civil and military authorities 
        must approve all survey activities within the 200 mile economic 
        zone, the PRC harassment of the Navy's ocean survey ship the 
        USNS Bowditch by Chinese military patrol aircraft and ships 
        when the Bowditch was 60 miles off the coast, the earlier EP-3 
        surveillance aircraft harassment, Peruvian challenges to U.S. 
        transport aircraft in the exclusive economic zone, including 
        one aircraft shot down and a second incident in which two U.S. 
        C-130s had to alter their flight plan around a claimed 650 mile 
        Peruvian ``flight information area,'' the North Korean 50 mile 
        ``security zone'' claim, the Iranian excessive base line claims 
        in the Persian/Arabian Gulf, the Libyan ``line of death,'' and 
        the Brazilian claim to control warship navigation in the 
---------------------------------------------------------------------------
        economic zone;

   More rapid development of the oil and gas resources of the 
        United States continental shelf beyond 200 nautical miles. The 
        United States oil and gas industry is poised in its technology 
        to begin development of the huge continental shelf of the 
        United States beyond 200 miles (approximately 15% of our total 
        shelf). But uncertainties resulting from U.S. non-adherence to 
        the Convention will delay the substantial investment necessary 
        for development in these areas. Moreover, U.S. non-adherence is 
        causing the United States to lag behind other nations, 
        including Russia, in delimiting our continental shelf. 
        Delimitation of the shelf is an urgent oceans interest of the 
        United States; \13\
---------------------------------------------------------------------------
    \13\ For a state-of-the-art assessment of the extent of the United 
States continental shelf beyond the 200 mile economic zone see the work 
of Dr. Larry Mayer, the Director of the Center for Coastal and Ocean 
Mapping at the University of New Hampshire. As but one example 
indicating the great importance of performing this delimitation of the 
shelf well--and the importance of the United States participating in 
the resulting approval process in the Commission on the Limits of the 
Continental Shelf--Dr. Mayer's work shows that sophisticated mapping 
and analysis of the shelf would enable the United States to claim an 
additional area off New Jersey within the lawful parameters of Article 
76 of the Convention of approximately 500 square kilometers just by 
using a system of connecting seafloor promontories. The work of Dr. 
Mayer has been funded in part through an innovative forward-looking 
grant supported by Senator Judd Gregg of New Hampshire. This work, 
however, is important for the Nation as a whole, and particularly for 
Alaska, which has by far the largest shelf beyond the 200 mile economic 
zone.

   Reclaiming United States deep seabed mineral sites now 
        virtually abandoned. United States firms pioneered the 
        technology for deep seabed mining and spent approximately $200 
        million in claiming four first-generation sites in the deep 
        seabed for the mining of manganese nodules. These nodules 
        contain attractive quantities of copper, nickel, cobalt and 
        manganese and would be a major source of supply for the United 
        States in these minerals. Paradoxically, ``protecting'' our 
        deep seabed industry has sometimes been a mantra for non-
        adherence to the Convention. Yet because of uncertainties 
        resulting from U.S. non-adherence these sites have been 
        virtually abandoned and most of our nascent deep seabed mining 
        industry has disappeared. Moreover, it is clear that without 
        U.S. adherence to the Convention our industry has absolutely no 
        chance of being revived. I believe that as soon as the United 
        States adheres to the Convention the Secretary of Commerce 
        should set up a working group to assist the industry in 
        reclaiming these sites. This working group might then recommend 
        legislation that would deal with the industry problems in 
        reducing costs associated with reacquiring and holding these 
---------------------------------------------------------------------------
        sites until deep seabed mining becomes economically feasible;

   Enhancing access rights for United States marine scientists. 
        Access for United States marine scientists to engage in 
        fundamental oceanographic research is a continuing struggle. 
        The United States will have a stronger hand in negotiating 
        access rights as a party to the Convention. As one example of a 
        continuing problem, Russia has not honored a single request for 
        United States research access to its exclusive economic zone in 
        the Arctic Ocean from at least 1998, and the numbers of turn-
        downs for American ocean scientists around the world is 
        substantial. This problem could become even more acute as the 
        United States begins a new initiative to lead the world in an 
        innovative new program of oceans exploration;

   Facilitating the laying of undersea cables and pipelines. 
        These cables, carrying phone, fax, and Internet communications, 
        must be able to transit through ocean jurisdictions of many 
        nations. The Convention protects this right but non-adherence 
        complicates the task of those laying and protecting cables and 
        pipelines; and

   It should importantly be noted in protecting United States 
        oceans interests that no U.S. oceans interest is better served 
        by non-adherence than adherence. This is an highly unusual 
        feature of the 1982 Convention. Most decisions about treaty 
        adherence involve a trade off of some interest or another. I am 
        aware of no such trade off with respect to the 1982 Convention. 
        United States adherence is not just on balance in our 
        interest--it is broadly and unreservedly in our interest.
              iii. enhancing united states foreign policy
    The United States would also obtain substantial foreign policy 
benefits from adhering to the 1982 Convention; benefits going quite 
beyond our oceans interests. These benefits include:

   Supporting the United States interest in fostering the rule 
        of law in international affairs. Certainly the promotion of a 
        stable rule of law is an important goal of United States 
        foreign policy. A stable rule of law facilitates commerce and 
        investment, reduces the risk of conflict, and lessens the 
        transaction costs inherent in international life. Adherence to 
        the Law of the Sea Convention, one of the most important law-
        defining international conventions of the Twentieth Century, 
        would signal a continuing commitment to the rule of law as an 
        important foreign policy goal of the United States;

   United States allies, almost all of whom are parties to the 
        Convention, would welcome U.S. adherence as a sign of a more 
        effective United States foreign policy. For some years I have 
        chaired the United Nations Advisory Panel of the Amerasinghe 
        Memorial Fellowship on the Law of the Sea in which the 
        participants on the Committee are Permanent Representatives to 
        the United Nations from many countries. Every year our friends 
        and allies ask when we will ratify the Convention and they 
        express their puzzlement to me as to why we have not acted 
        sooner. In my work around the world in the oceans area I hear 
        this over and over--our friends and allies with powerful common 
        interests in the oceans are astounded and disheartened by the 
        unilateral disengagement from oceans affairs that our non-
        adherence represents;

   Adherence would send a strong signal of renewed United 
        States presence and engagement in the United Nations. 
        multilateral negotiation. and international relations 
        generally. At present those who would oppose United States 
        foreign policy accuse the United States of ``unilateralism'' or 
        a self-proclaimed ``American exceptionalism.'' Adhering to the 
        Law of the Sea Convention will demonstrate that America adheres 
        to those multilateral Conventions which are worthy while 
        opposing others precisely because they do not adequately meet 
        community concerns and our national interest;

   Efforts to renegotiate other unacceptable treaties would 
        receive a boost when an important argument now used by other 
        nations against such renegotiation with us was removed. This 
        argument, now used against us, for example in the currently 
        unacceptable International Criminal Court setting, is: ``[W]hy 
        renegotiate with the United States when the LOS renegotiation 
        shows the U.S. won't accept the Treaty even if you renegotiate 
        with them and meet all their concerns?''; and finally

   The United States would obtain the benefit of third party 
        dispute settlement in dealing with non-military oceans 
        interests. The United States was one of the principal 
        proponents in the law of the sea negotiations for compulsory 
        third party dispute settlement for resolution of conflicts 
        other than those involving military activities. We supported 
        such mechanisms both to assist in conflict resolution generally 
        and because we understood that third party dispute resolution 
        was a powerful mechanism to control illegal coastal state 
        claims. Even the Soviet Union, which had traditionally opposed 
        such third party dispute settlement, accepted that in the law 
        of the sea context it was in their interest as a major maritime 
        power to support such third party dispute settlement.\14\
                               conclusion
    Senate advice and consent to the 1982 Convention on the Law of the 
Sea is strongly in the national interest of the United States. There 
are powerful reasons supporting United States adherence to the 
Convention; reasons rooted in restoring U.S. oceans leadership, 
protecting U.S. oceans interests, and enhancing U.S. foreign policy. I 
would urge the Senate to support advice and consent to the 1982 
Convention at the earliest possible time.

--------------
    \14\ The 1994 submission of the LOS Convention to the Senate 
recommended that the United States accept ``special arbitration for all 
the categories of disputes to which it may be applied and Annex VII 
arbitration [general arbitration] for disputes not covered by . . . 
[this], and that we elect to exclude all three categories of disputes 
excludable under Article 298.'' See U.S. Department of State Dispatch 
IX (No. 1 Feb. 1995).

    The Chairman. Well, thank you again, Professor Moore, for 
being here and for your leadership throughout the years on this 
issue.
    Admiral Schachte.

STATEMENT OF REAR ADMIRAL WILLIAM L. SCHACHTE, JR., JAGC, U.S. 
                  NAVY (RET.), CHARLESTON, SC

    Admiral Schachte. Thank you very much, Chairman Lugar. I 
would like to start by echoing what Professor Moore has said, 
sir, about your leadership in this and other international 
issues and, I might add from my own observations, your 
tremendous insight and vision on foreign matters.
    The Chairman. Thank you.
    Admiral Schachte. It is an honor to appear before you today 
and to be on this illustrious panel. I feel strongly that 
accession to the Law of the Sea Convention is very important 
from a national security perspective. I addressed this issue in 
an article that was published in the Georgetown International 
Environmental Law Review and I will attach a copy of that 
article with my full statement.
    Accession to the convention will help America reassert and 
reassume our rightful place of leadership in these matters 
relating to the global commons. I was an active participant in 
Law of the Sea matters for many years. I was particularly 
active in 1982 and 1983 when we in the Pentagon were confronted 
with the decision against the seabed mining provisions of the 
convention. Under those circumstances, we concluded that our 
best option was to call the non-seabeds provisions of the 
convention customary international law, although we knew that 
the straits regime, the archipelagic regime, continental shelf 
delimitation provisions, the exclusive economic zone, and other 
provisions were all negotiated articles, articles that benefit 
and enhance global maritime mobility for all nations, and these 
articles also provided us with predictability and stability in 
an otherwise changing environment.
    Thus, in President Reagan's 1983 oceans policy statement we 
in essence said that we were not going to sign or ratify the 
convention, but that we would abide by and accept the non-
seabeds provisions of the convention. We were very careful in 
saying this as we were somewhat creating an offer to the rest 
of the world. If other nations would conform their actions to 
the non-seabed provisions, we would honor those actions and we 
would likewise conform our actions to those convention 
articles.
    We had fashioned our freedom of navigation program on the 
convention. As you know, this important program directs our 
naval and air assets to operate in a manner consistent with the 
convention while the State Department also diplomatically 
protested claims that were inconsistent with the convention. I 
might add that maintaining this program is essential as the 
convention alone is not enough, even with the United States as 
a party. The navigational provisions of the convention must 
continue to be exercised by our operational forces, 
particularly in the maritime environment of the global commons, 
an environment that has historically been one of claim and 
counterclaim.
    Accession to the convention would also enhance America's 
credibility. As has been pointed out here this morning, the 
world recognized eventually that we were right about seabed 
mining and they fixed it. I must submit, this was undertaken 
with the obvious anticipation that the United States would then 
join our allies and many others who are parties to the 
convention.
    I would now like to briefly address three areas: customary 
international law and challenges to military activities at sea, 
mandatory dispute resolution, and the effect of the convention 
on maritime intercept operations. Customary international law 
and challenges. Not everyone agreed with our customary 
international law interpretation 20 years ago, but from 1982 to 
1994 we continued to exercise our navigational rights and 
freedoms consistent with our interpretation of what those 
rights and freedoms entailed, in an effort to solidify those 
concepts as customary norms.
    However, our ability to influence the development of 
customary law changed dramatically in 1994 when the convention 
entered into force. As a nonparty, we no longer had a voice at 
the table when important decisions were being made on how to 
interpret and apply the provisions of the convention. As a 
result, over the past 10 or so years we have witnessed a 
resurgence of creeping jurisdiction around the world. Coastal 
states are increasingly asserting greater control over waters 
off their coasts and a growing number of States have started to 
challenge U.S. military activities at sea, particularly in 
their 200 nautical mile exclusive economic zones.
    For example, Malaysia has closed the Strait of Malacca, an 
international strait, to ships carrying nuclear cargo. Chile 
and Argentina have similarly ordered ships carrying nuclear 
cargo to stay clear of their EEZ's. These actions are 
inconsistent with the convention and customary law. But the 
question comes, will other nations follow suit and thereby 
establish a new customary norm that prohibits the transport of 
nuclear cargo? Will the next step on this slippery slope be one 
that would exclude nuclear-powered ships from so transiting?
    China, India, North Korea have directly challenged U.S. 
military operations in their EEZ as being inconsistent with the 
Law of the Sea Convention and customary law. Again, these 
actions of those countries are inconsistent with the convention 
and customary law, but will other nations follow suit and 
establish new customary norms that prohibit military activities 
in the exclusive economic zone of those States without coastal 
State consent?
    If we are going to successfully curtail this disturbing 
trend of creeping jurisdiction, we must reassert our leadership 
role in the development of maritime law and, I submit, join the 
convention now. The customary norms of the future will be 
developed, as has been pointed out here this morning, by the 
parties to the convention and the international forums it 
creates, such as the International Tribunal on the Law of the 
Sea, the Commission on the Limits of the Continental Shelf, and 
the International Seabed Authority.
    Unless we participate fully in these forums as a State 
party, our ability to shape the development of new customary 
norms in ways that are favorable to our national security and 
economic interests will be lost.
    Mandatory dispute resolution. The first point I would make 
is that no country would subordinate its national security 
activities to an international tribunal. No country would 
subordinate its international security activities to an 
international tribunal. This is a point that everyone 
understood, and that is why article 286 of the convention makes 
clear that the application of Compulsory Dispute Resolution 
procedures of section 2 of part 15 are subject to the 
provisions of section 3 of that same part, which includes a 
provision that allows for military exemptions.
    Some may try to argue that article 288 provides that in the 
event of a dispute as to whether the court or tribunal has 
jurisdiction that matter shall be settled by a decision of that 
court or tribunal. However, article 288 is found in section 2 
of part 15 and therefore does not apply to disputes involving 
what the U.S. Government has declared in good faith to be a 
military activity under section 3 of part 15.
    I submit this interpretation is supported by the 
negotiating history of the convention, which reflects that 
certain disputes about military activities are considered in 
essence to be so sensitive that they are best resolved by 
diplomatic means.
    It is very important that, while depositing an Instrument 
of Accession, the United States should reemphasize this point 
by making a declaration or an understanding that clearly states 
that military activities are exempt from the Compulsory Dispute 
Resolution provisions of the convention and that the decision 
regarding whether an activity is military in nature is not 
subject to review by any court or tribunal.
    The effect of the convention on maritime intercept 
operations. The convention has two particular articles that 
people cite when they raise this issue as probably an 
impediment. No. 1 is article 92 of the convention, which we 
know provides that ships shall sail under the flag of one State 
only and that basically that ship shall be subject to the 
exclusive jurisdiction of that State while on the high seas.
    One exception to the exclusive flag State jurisdiction over 
its ships is found in article 110 of the convention, which is 
the right of approach and visit. Article 110 allows a warship 
to board a foreign flag vessel without flag State consent if 
there are reasonable grounds for suspecting several things: 
One, the ship is engaged in piracy or slave trade; the ship is 
engaged in unauthorized broadcasting; or the ship is without a 
nationality, basically; or if the ship is in reality the same 
nationality of the approaching warship.
    However, exclusive flag State jurisdiction and article 110 
are not the only legal bases that can be used to interdict 
vessels on the high seas. Other legal bases for stopping and 
searching foreign flag vessels beyond the territorial sea 
include: flag State or master's consent, authorization granted 
by a U.N. Security Council resolution, as a condition of 
entering port or internal waters, preexisting bilateral or 
multilateral agreements or ad hoc arrangements which provide 
advanced authority to board and inspect and search.
    But I think primarily and basically the most important of 
these rights is the inherent right of self-defense under 
article 51 of the United States Charter. Additionally, under 
the law of armed conflict there is the belligerent right of 
visit and search.
    Any one of these above legal bases can be used individually 
or in combination to interdict suspect vessels on the high seas 
and thus, I submit, successfully be used to continue our 
extremely important fight on global terrorism.
    That is my statement, Mr. Chairman. Again, it is an honor 
to be with you. I would conclude by suggesting to Admiral 
Prueher that I think my answer to your questions, admiral, 
would be: better protect, yes; military exemption protects, 
yes; proliferation strategy, yes; I think we are covered.
    Admiral Prueher. Thank you.
    Admiral Schachte. Thank you.
    Thank you, Mr. Chairman.
    [The prepared statement of Rear Admiral Schachte follows:]

Prepared Statement of Rear Admiral William L. Schachte, Jr., JAGC, USN 
                                 (Ret.)

    Mr. Chairman, Members of the Committee, it is an honor to be here 
before you today and to be on this illustrious panel which will address 
issues related to the 1982 United Nations Convention on the Law of the 
Sea. While I recognize that the Convention is beneficial from a number 
of perspectives--in my opinion, the benefits to national security are 
paramount. I addressed this issue in an article that was published in 
the Georgetown International Environmental Law Review. I will attach a 
copy of this article to my full statement.
    First, accession to the Convention will be a significant step in 
reaffirming America's place of leadership in matters relating to the 
global commons. It was my good fortune as a Navy judge advocate to 
actively participate in the final stages of the process that produced 
the Convention, and in the interagency deliberations that followed in 
1982-83. At that time, we in the Pentagon were confronted with the 
decision not to support signature of the Convention because of the deep 
seabed mining provisions. Under these circumstances we concluded that 
our best option was to characterize the non-seabed provisions of the 
Convention as customary international law--although we knew that 
certain portions of the Convention, such as the straits and 
archipelagic regimes, the exclusive economic zone, and the continental 
shelf delimitation provisions, and others, were negotiated articles 
that benefit and enhance maritime mobility for all nations and provide 
predictability and stability in an otherwise changing environment.
    Thus, in President Reagan's 1983 Oceans Policy Statement we, in 
essence, said we weren't going to sign or ratify the Convention, but we 
would abide by and accept the non-seabed provisions. This statement was 
crafted carefully as we were somewhat creating an offer: if other 
nations would conform their actions to the non-seabed provisions, we 
would honor those actions, and we would likewise conform our actions to 
those Convention articles.
    In so doing, we effectively used the Law of the Sea Convention as a 
basis for maintaining a ``persistent objector'' status towards 
excessive maritime claims. Our goal was to prevent coastal nations' 
maritime claims that were inconsistent with the Convention from 
ripening into customary international law. This policy was facilitated 
further by the Freedom of Navigation Program whereby we continued to 
diplomatically protest excessive claims and conducted operational 
assertions in conformance with the navigational provisions of the 
Convention. I might add that maintaining that program is essential. The 
Convention alone is not enough, even as a party. Our operational forces 
must continue to exercise our rights under the Convention--particularly 
in the maritime environment of the global commons, which historically 
has been one of claim and counter claim.
    Accession to the Convention will also enhance America's 
credibility. The world recognized that we were right about seabed 
mining and fixed it. This effort was undertaken with the obvious 
anticipation that the U.S. would then join our allies and many others 
who are parties to the Convention.
    I will now briefly address three areas: customary international law 
and challenges to U.S. military activity at sea, the effect of the 
Convention on Maritime Intercept Operations, and Mandatory Dispute 
Resolution.
                      customary international law
     Not everyone agreed with our ``customary international 
law'' interpretation 20 years ago, but from 1982 until 1994, we 
continued to exercise our navigational rights and freedoms through 
international straits, archipelagic waters and the EEZ consistent with 
our interpretation of what those rights and freedoms entailed in an 
effort to solidify those concepts as customary norms.
     However, our ability to influence the development of 
customary law changed dramatically in 1994 when the Convention entered 
into force. As a non-Party, we no longer had a voice at the table when 
important decisions were being made on how to interpret and apply the 
provisions of the Convention.
     As a result, over the past 10 years, we have witnessed a 
resurgence of creeping jurisdiction around the world.
     Coastal States are increasingly exerting greater control 
over waters off their coasts and a growing number of States have 
started to challenge U.S. military activities at sea, particularly in 
their 200 nautical mile (nm) EEZ.
     For example, Malaysia has closed the strategic Strait of 
Malacca, an international strait, to ships carrying nuclear cargo. 
Chile and Argentina have similarly ordered ships carrying nuclear cargo 
to stay clear of their EEZs. These actions are inconsistent with the 
Convention and customary law, but will other nations attempt to follow 
suit and establish a new customary norm that prohibits the transport of 
nuclear cargo? Will attempts be made to expand such a norm to include 
nuclear-powered ships?
     China, India, North Korea, Iran, Pakistan, Brazil, 
Malaysia and others, have directly challenged U.S. military operations 
in their EEZ as being inconsistent with the Law of the Sea Convention 
and customary international law. Again, the actions by those countries 
are inconsistent with the Convention and customary law, but will other 
nations follow suit and attempt to establish a new customary norm that 
prohibits military activities in the EEZ without coastal State consent?
     If we are going to successfully curtail this disturbing 
trend of creeping jurisdiction, we must reassert our leadership role in 
the development of maritime law and join the Convention now.
     The Parties to the Convention will develop the customary 
norms of the future and the international forums it creates--the 
International Tribunal for the Law of the Sea, the International Seabed 
Authority and the Commission on the Limits of the Continental Shelf. 
Unless we participate fully in these forums as a State Party, our 
ability to shape the development of new customary norms in ways that 
are favorable to our national security and economic interests will be 
lost.
        effect of article 110 on maritime intercept ops (mio's)
     Some have suggested that becoming a Party to the LOS 
Convention could impede our ability to engage in Maritime Interception 
Operations to interdict terrorist and weapons of mass destruction at 
sea. This is simply not accurate.
     The United States has legally conducted MIO's at sea for 
over 5 decades. These operations have been conducted using a variety of 
legal bases that are consistent with customary international law and 
our treaty obligations as a party to the 1958 Geneva Convention on the 
High Seas. The provisions of 1958 Convention are mirrored in the 1982 
LOS Convention.
     Article 92 of the Law of the Sea (LOS) Convention provides 
that ships shall sail under the flag of one State only and, save in 
exceptional cases expressly provided for in international treaties or 
in the Convention, shall be subject to its exclusive jurisdiction on 
the high seas.
     One exception to exclusive flag State jurisdiction is 
found in Article 110 of the LOS Convention (right of approach and 
visit). Article 110 allows a warship to board a foreign flag vessel 
without flag State consent if there is reasonable grounds for 
suspecting that

   The ship is engaged in piracy or the slave trade

   The ship is engaged in unauthorized broadcasting (in certain 
        situations)

   The ship is without nationality or has been assimilated to 
        be a ship without nationality (i.e., sailing under the flags of 
        2 or more States)

   The ship is, in reality, of the same nationality as the 
        approaching warship.

     However, exclusive flag State jurisdiction and Article 110 
are not the only legal bases that can be used to interdict vessels on 
the high seas.
     Other legal bases for stopping and searching foreign flag 
vessels on the high seas (beyond the territorial sea) include:

   Flag State or master's consent. This was recognized most 
        recently as a proper legal basis to interdict vessels at sea in 
        the 1988 UN Convention Against Illicit Traffic in Narcotic 
        Drugs and Psychotropic Substances and in the 2000 The United 
        Nations Convention Against Transnational Organized Crime and 
        its Protocol to Suppress the Smuggling of Migrants by Land, Air 
        and Sea. The U.S. is a signatory to both of these agreements.

   Authorization granted by a UN Security Council Resolution. 
        Examples would be the 1990 UN embargo against Iraq; the 1991 UN 
        embargo against Yugoslavia and the 1993 UN embargo against 
        Haiti.

   As a condition of entering port or internal waters

   Pre-existing bilateral or multilateral agreements or ad hoc 
        arrangements, which provide advance authority to board and 
        inspect/search. The U.S. has some 20-plus bilateral agreements 
        to conduct counter-narcotics operations.

   The inherent right of self-defense under Article 51 of the 
        UN Charter. Examples would be the 1962 Cuban Missile Crisis; 
        the 1990 pre-UN embargo against Iraq (for two weeks by the U.S. 
        and UK as collective self-defense with Kuwait); post-911 
        terrorist MIO's and the Proliferation Security Initiative.

   The belligerent right of visit and search under the Law of 
        Armed Conflict.

     Any one of these legal bases can be used individually or 
in combination to interdict suspect vessels on the high seas and 
successfully continue the fight on the Global War on Terrorism.
                      mandatory dispute resolution
     The first point I would make is that no country would 
subordinate its national security activities to an international 
tribunal. This is a point that everyone understood. That is why Article 
286 of the Convention makes clear that the application of the 
compulsory dispute resolution procedures of section 2 of Part XV are 
subject to the provisions of section 3 of Part XV, which includes the 
provision that allows for the ``military'' exemption.
     Article 288 provides that in the event of a dispute as to 
whether a court or tribunal has jurisdiction, the matter shall be 
settled by decision of that court or tribunal.
     Some may attempt to argue that Article 288 could be read 
to authorize a court or tribunal to make a threshold jurisdictional 
determination of whether an activity is a military activity or not and, 
therefore, subject to the jurisdiction of the court or tribunal.
     However, Article 288 is found in section 2 of Part XV. It 
therefore does not apply to a dispute involving what the U.S. 
Government has declared to be a military activity under section 3 or 
Part XV.
     This interpretation is supported by the negotiating 
history of the Convention, which reflects that certain disputes, 
including military activities, are considered to be so sensitive that 
they are best resolved diplomatically, rather than judicially.
     When depositing its instrument of accession, the United 
States could re-emphasize this point by making a declaration/
understanding that clearly states that military activities are exempt 
from the compulsory dispute resolution provisions of the Convention and 
that the decision regarding whether an activity is ``military'' in 
nature is not subject to review by a court or tribunal.

[Attachment.]

   [Georgetown International Environmental Law Review--Summer, 1995]

Symposium Issue: Implementing the United Nations Convention on the Law 
            of the Sea: An International Symposium, January 27, 1995, 
            Georgetown University Law Center

Panel 2: International Security and the Law of the Sea Convention

 National Security: Customary International Law and the Convention on 
                           the Law of the Sea

                       (William L. Schachte, Jr.)

                            i. introduction
    I am grateful for the opportunity this afternoon to provide my 
views on the importance of becoming a party to the 1982 UN Convention 
on the Law of the Sea Convention (Convention). Georgetown University 
Law Center's initiative in providing a forum to discuss the importance 
of the Convention comes at an opportune time. As Jack has just 
discussed, the President has forwarded the Law of the Sea Convention to 
the Senate for its advice and consent. If given, it will fulfill a 
long-standing commitment shared with previous Republican and Democratic 
administrations to participate in a stable, widely accepted, and 
comprehensive legal regime for the world's oceans.
    Other speakers will address the key national security interests in 
the Convention. I would like to focus on what the United States has to 
gain, in terms of a stable legal order, by becoming a Party to a 
universally accepted Convention.
                     ii. why ratify the convention?
    Opponents to the Convention are asking, ``Why accede to a 
convention we rejected eleven years ago?'' ``What has changed in those 
eleven years that makes accession to the Convention acceptable today?'' 
Others are saying, ``We've been operating outside the Convention all 
this time; isn't the status quo acceptable?'' ``Since the argument is 
that the Convention, for the most part, reflects customary 
international law, what do we lose by failing to become a Party to the 
Convention?''
    In general, responses to these questions can be summarized in three 
basic points. First, valid reasons for the rejection of the Convention 
have been satisfied by the recent modifications to Part XI of the 
Convention. Second, stability and predictability on, under, and over 
the world's oceans is best assured by a universally accepted 
comprehensive legal regime. Finally, now that the Reagan Administration 
objections to the deep seabed mining have been accommodated, if the 
United States is to re-assume its leadership role in international 
oceans policy affairs, we must accede to the Convention.
             iii. part xi objections and the 1994 agreement
    Let me begin with the first point: what has changed in the last 
eleven years to make the Convention now acceptable to the United 
States?
    As many of you are aware, our failure to sign the Convention when 
it was opened for signature in 1982 was based on objections to Part XI 
deep seabed mining provisions of the Convention. As far as the rest of 
the Convention was concerned, the U.S. government has long maintained 
that the United States accepts and will act in accordance with the 
balance of interests relating to traditional uses of the oceans (such 
as navigation and overflight) reflected in the Convention.
    With regard to Part XI, our objections fell into two broad 
categories: institutional issues and commercial considerations. On the 
institutional front, we objected to the lack of adequate voting power 
for the United States and other industrialized countries within the 
seabed organization. From an economic and commercial standpoint, we 
objected to mandatory technology transfer, production limitations, 
onerous financial obligations on miners, and the establishment of a 
subsidized international mining organization that would compete 
unfairly with other commercial enterprises.
    For the past several years, the United States and other 
industrialized nations have been working intensively behind the scenes 
to address these concerns. As a result of these efforts, an 
international agreement that modifies Part XI of the Convention was 
signed by the United States and sixty- nine other states on July 29, 
1994. The Part XI Implementing Agreement eliminates the U.S. objections 
to the deep seabed mining regime and paves the way for Senate action on 
the Convention.
                        iv. why the convention?
    With the recent modifications to the deep seabed mining regime, the 
United States now has a rare window of opportunity to solidify the 
vital navigational and resource issues addressed by the Convention. The 
question is whether accession to the Convention at this time is in the 
best interest of the United States.
    Some opponents to the Convention maintain that the United States 
already has its navigational rights vested by virtue of customary 
international law. Therefore, they argue that the status quo is an 
acceptable way of doing business.
    One can certainly argue that we could continue to rely on the 
protection of U.S. national security interests based on customary 
international law. The United States, as a maritime power, could press 
its rights unequivocally and, if necessary, unilaterally, when 
obstacles to traditional ocean freedoms are encountered. Claims 
inconsistent with the Convention would continue to be contested by 
diplomatic protest and by operational challenges under the U.S. Freedom 
of Navigation Program. However, the posture of relying on customary 
international law is problematic for a number of reasons.
             v. uncertainty of customary international law
    First, customary international law is, by its very definition, a 
fluid and changing concept. Vague on details, it is a constantly 
evolving process created by claim and counterclaim. As a result, there 
is much less agreement on the details of the customary Law of the Sea. 
Therefore, customary international law does not provide the kind of 
stability and predictability that we need for an uncertain political 
landscape. By contrast, the Convention locks in the rules that promote 
maximum maritime flexibility while at the same time ensures that 
coastal state interests are accommodated. This balance between maritime 
and coastal interests enhances the Convention's long term viability as 
well as its widespread acceptability among diverse interest groups. In 
short, the Convention will foster the legal stability that the United 
States and the rest of the international community has sought for so 
long.
    The end of the Cold War has not changed the fact that many of our 
economic, political, and military interests are located far away from 
American shores. Recent events in Haiti, the Persian Gulf, the former 
Yugoslavia, Somalia, and Rwanda serve as important reminders that we 
still live in an uncertain and potentially dangerous world. While the 
specific threats and challenges that the United States will face in the 
years ahead undoubtedly will differ from those that dominated our 
thinking over the past forty years, capable, vigilant forces will 
continue to be required to deter aggression and, if deterrence fails, 
to take necessary action.
    The Convention provides the stability and predictability we seek to 
ensure the flexibility and mobility for our military naval and air 
forces, as well as our seaborne and airborne commercial activities 
around the world. By serving as a source of authority, the Convention 
guides the behavior of nations, promotes stability of expectations, and 
provides a framework for issue resolution. In effect, it provides the 
legal predicate for our armed forces to respond to crises expeditiously 
and, importantly, at minimal diplomatic and political costs. And while 
the Convention may not preclude all attempts by coastal and 
archipelagic states to impede navigational freedoms, it puts the world 
community on notice that these freedoms have a solid legal basis and 
enjoy broad support among the major maritime and industrialized 
nations.
               vi. customary law and developing countries
    Some states, especially developing nations, do not embrace 
customary international law to the same extent that the United States 
and other maritime powers do. Those states view it as a body of law 
frequently formed without their participation and consent, law that 
only promotes the interests of developed nations--often former colonial 
powers. Developing countries prefer the relative certainty of 
international agreements concluded on the basis of equality of nations.
    Similarly, some Convention signatories, a number of whom are near 
or adjacent to important waterways used for international transit, have 
asserted that the Convention is a legal contract--and therefore its 
rights and benefits, such as transit passage and archipelagic sea lanes 
passage, are not available to non-parties. We do not accept these 
claimed restrictions on international transit rights, but such issues 
would be mooted under a universal Convention to which the United States 
is a Party.
    As a recent example of potential difficulties, in July 1994, in the 
context of their right to exploit seabed resources in the strategic 
straits of Malacca, Malaysia stated that the ``newness'' of the transit 
passage regime casts doubts as to its status as a customary 
international law principle.
            vii. political and military costs of enforcement
    Customary international law tends to be hard to enforce and 
maintain. For example, eighteen states continue to claim territorial 
sea in excess of twelve nautical miles. Thirteen states claim, historic 
bays inconsistent with international law. More than sixty countries 
delimit straight baselines along portions of their coast, many of which 
are drawn inconsistently with international law. Also, more than twenty 
states attempt to over-regulate their exclusive economic zones (EEZ), 
contrary to the express provisions of the Convention.
    Since 1979, the United States has formally contested excessive 
coastal state claims, both operationally and diplomatically, through 
the Freedom of Navigation Program. The program is based entirely on the 
navigation and overflight provisions of the Convention. While this 
program is designed to breathe life into the terms of the Convention, 
Parties to the Convention are likewise capable of defining or refining 
provisions of the Convention. By remaining outside the Convention, the 
United States' only way of confronting attempts by Parties to the 
Convention to interpret or refine Convention provisions would be by the 
exercise of our naval and air forces in accordance with the existing 
terms of the Convention. However, in presenting Admiral Center's paper, 
Commander Rosen will discuss that this will be harder to do in the 
years to come as we downsize. Also, as a nation committed to the rule 
of law, the use of military force to resolve legal conflicts between 
Parties and non-Parties to the Convention should not be the preferred 
method of challenging excessive coastal state claims.
    I would note that, in the case of the ``Black Sea Bumping 
Incident,'' the United States and Soviet Union approached the legal 
issues involved as would Parties to the Treaty in relying on the 
Convention's rules on innocent passage to amicably resolve the issues 
raised by the incident.
                        viii. unraveling regime
    If the United States and other major maritime and industrialized 
powers do not become parties to the Convention, there is a real 
possibility and probability that the delicate balance that the 
Convention provides in dealing with emerging issues of importance, 
including environmental protection and resource conservation, would 
simply begin to unravel. The Convention provides an excellent framework 
for addressing and resolving contentious issues which, if attended to 
solely on a bilateral basis, would undoubtedly give rise to increased 
tensions and conflict elsewhere. Moreover, if the Convention does not 
receive the support of the major maritime powers, it will lose its 
restraining influence as law, and the United States will thus be hard 
pressed to argue that the Convention continues to reflect customary 
international law. As a result, insistence upon our navigational 
freedoms, based on a traditional claim-counterclaim, customary 
international law approach, would be costly diplomatically and 
economically and could invite military resistance. It was this reality 
that led us as a nation to undertake the prolonged negotiations that 
resulted in the 1982 Convention. Moreover, the Convention's entry into 
force and its wide acceptance properly forecloses any possibilities of 
reopening negotiations.
                         ix. dispute settlement
    Finally, dispute settlement under customary international law can 
run the gamut from diplomatic intervention to economic sanctions, to 
arbitration, to bringing an action before the International Court of 
Justice. Bottom line, it is ad hoc, at best. The Convention, on the 
other hand, contains an elaborate dispute settlement mechanism that 
promotes compliance with its provisions and ensures that ocean disputes 
will be settled in a peaceful manner. This mechanism is both flexible, 
in that Parties have options as to how and in what fora they will 
settle their disputes, and comprehensive, in that most of the 
Convention's rules can be enforced through binding dispute resolution. 
At the same time, however, the dispute settlement mechanism 
accommodates matters of vital national concern by excluding certain 
sensitive categories of disputes, such as fisheries management in the 
EEZ, from binding dispute settlement. It also allows State Parties to 
exclude other disputes, such as controversies involving military 
activities, from the binding dispute settlement procedures.
    As a State Party, the United States could enforce its rights and 
preserve its prerogatives through peaceful dispute settlement under the 
Convention, as well as encourage compliance with the Convention by 
other State Parties.
         x. u.s. leadership role in international oceans policy
    The last point I would like to address is that of a resumption of a 
clear leadership role for the United States in international oceans 
policy affairs--an area where we have so much at stake.
    As the preeminent global power in the 1990s and beyond, the United 
States is uniquely positioned to assume a more visible leadership role. 
The United States can lead the movement to the achievement of a widely 
accepted international order, regulating and safeguarding the diverse 
activities and interests regarding the world's oceans. The Convention 
affords us the opportunity to lead in a way that protects and promotes 
U.S. national security interests. To ensure a leadership role in this 
important arena, the United States must become a party to the 
Convention.
    By remaining outside the Convention, our long-standing leadership 
role in international ocean affairs, and in fora such as the 
International Maritime Organization, would be further eroded. Moreover, 
as an outsider looking in, we would not be in a position to influence 
the Convention's further development and interpretation. In effect, as 
mentioned earlier, by refusing to become a Party to the Convention, the 
only way we could seek to influence changes in the LOS regime would be 
through unilateral action, and that could lead to further 
destabilization and increased international friction.
                             xi. conclusion
    In conclusion, a universal regime for the oceans is needed to 
safeguard U.S. security and economic interests, as well as to establish 
public order and to defuse situations in which competing uses of the 
oceans are likely to result in conflict. Remaining outside the Treaty, 
continuing to rely on customary international law, would be an 
imprecise approach to the problem, as well as one that would require 
the United States to put forces into harm's way when principles of law 
are not universally understood or accepted. The best way to guarantee 
access to the world's oceans to conduct military naval and air 
operations and engage in maritime commerce in the years ahead is for 
the United States to become a Party to the Convention, as modified.
    Most industrialized nations have either signed or indicated that 
they will ratify the Convention, as modified. If we fail to become a 
Party to the Convention, we will be alone among a few dissenters. This 
may be our last opportunity to ``lock in'' those critical navigational 
and overflight rights so essential to our economic and military 
security. We may never mine the seabed, but we will, well into the 
twenty-first century, daily operate under, on, and over the oceans of 
the world as we meet our commercial and national security obligations. 
It is those obligations that should drive a U.S. decision to ratify the 
Convention.

    The Chairman. Well, I thank each one of you. Let me just 
preface the questions by saying that as the committee began its 
deliberations this year Senator Biden and I asked our staffs to 
take a look at work that has been done by able negotiators such 
as yourselves in the past. A number of treaties have been 
uncovered. The committee has dealt earlier this year with at 
least two that dealt with the seas and that were very 
constructive, I think in filling in gaps of previous 
negotiations.
    In the course of that research the Law of the Sea 
Convention came to the fore. Many of you have gently raised the 
question, and I did so as well in my own opening statement, 
that although the issues that were cleared away in 1994 
apparently led to a presumption that the treaty might be 
forthcoming, it in fact was not. Today is the first day in 9 
years or so that the treaty has been before us.
    Many Members in the House and the Senate ask: Why now? Or 
for that matter, what happened in the intervening 9 years? What 
were the issues? I do not ask you to begin unraveling your 
testimony by pointing out why for 9 years we were unlikely to 
see the Law of the Sea before this committee, quite apart from 
an advice and consent resolution. But can you just from 
practical experience, for the benefit of those who will clearly 
ask, please explain what is the down side?
    You have touched upon some of the down sides in terms 
particularly of the military exceptions, the problems of 
national security. For example, our government has suggested 
perhaps publicly the interdiction of materials or weapons of 
mass destruction if they should go to sea on ships that may or 
may not be from friendly or unfriendly nations. Nevertheless we 
feel our national security in an age of a war against terrorism 
could be affected. I know, Admiral Schachte, that you have gone 
into this very specifically and in some detail. That is 
important because these are issues that would clearly be raised 
by the Department of Defense and the Navy in particular.
    Senator Stevens has counseled us with regard to the seabed 
and the amount of stock that grows, and that there ought not to 
be intrusions, as he saw them, on those efforts of conservation 
by other nations making claims. He asked the committee to be 
vigilant in our work with regard to that. So these at least 
begin to suggest some areas where people have had some 
skepticism.
    But just for the benefit of this hearing, could any of you 
fill in why you feel there have been problems and why this 
might have been the first time in 9 years the subject has been 
raised?
    Mr. Moore. Mr. Chairman, if it is appropriate I might take 
a first shot at that, which I think is a very important 
question. I believe that the major problem was an understanding 
initially when the treaty was completed in 1982 that there were 
a series of significant problems with part 11 on deep seabed 
mining. The United States, for example, at that time had no 
permanent seat on the Council of the Authority and the Soviets 
had, in contrast, basically three votes on the Council of the 
Authority at that point. There were also issues concerning 
mandatory technology transfer and other things.
    That negotiation, the renegotiation to resolve that, took 
12 years. So you really had a perception from 1982 when the 
initial convention was completed down to 1994 of problems with 
the treaty, a 12-year perception I think, that lingered long 
after the reasons for it had been removed.
    Since that time there seem to be new, different kinds of 
objections; each gets clearly answered and then others pop up--
it seems to me, frankly, to be more ideological after that 
point than it is relating to any of the specifics in the 
convention itself. I am prepared to stake my reputation on the 
very simple point that there is not a single United States 
oceans interest that is better off by our Nation not adhering 
than it would be were we to adhere.
    If I could for a moment just comment on at least two points 
of the proliferation initiative and the dispute settlement 
issue that were raised, which seem to be the sort of 
questions--I am not sure objection is the right point, but the 
questions du jour in relation to it. Indeed, Mr. Chairman, I 
would suggest that it is very revealing that the questions du 
jour seem to change from time to time and there is nothing 
constant that anyone can really sink their teeth into here.
    But if we were to look for a moment at the proliferation 
initiative, which is very important--we all support that--that 
initiative by its own terms clearly states that it is 
consistent with all of the obligations under international law, 
which certainly include the law of the sea. And when we 
concluded the agreement with our 11 allies on this in Paris in 
2003, once again the agreement specifically said that it seeks 
to do nothing that would change the law of the sea, and I think 
this understanding is something our allies strongly wanted.
    The second point, Mr. Chairman, that does not seem to be 
noticed very much in this discussion with respect to the 
proliferations initiatives is that if there are any problems 
whatsoever they are already problems we are bound by in the 
1958 High Seas Convention and the Territorial Sea Convention. 
There is absolutely nothing new as an obligation on the United 
States in any way, shape, or form in the 1982 convention 
inhibiting our ability on the proliferation initiative. Indeed, 
I would say on something like dealing with the North Korean 50-
mile illegal military boundary zone, we are much more 
powerfully able to go forward if we adhere to the treaty.
    Finally, Admiral Schachte is absolutely correct, a terribly 
important point: Nothing in this treaty in any way, shape or 
form interferes with the right of individual and collective 
defense of the United States. This is a treaty, like many 
others, for peacetime settings. It does not govern security 
settings in relation to the ability to use force lawfully under 
article 51 or other provisions of the United Nations Charter.
    Now with respect to the military exclusion issue du jour 
that has been raised, article 298 is very clear that every 
State party has the ability when adhering to the convention to 
indicate that they seek to exclude military activities 
altogether from any kind of dispute settlement provision. I was 
Deputy Head of the U.S. delegation when that was negotiated and 
I can assure you that it was done absolutely consistent with 
the views of the Chairman of the Joint Chiefs, the Joint 
Chiefs, and the United States Navy as to what we had to do in 
protecting our security interests, and we were one of the 
leaders in getting that provision.
    I do not believe there is any risk whatsoever on that. In 
fact Mr. Chairman, if you will permit a simple analogy. I 
believe the chances of this article being interpreted the way 
some are arguing and posing a risk to the United States is 
about like your deciding not to hold this hearing today because 
of the risk of the hearing room being hit by a meteorite. To be 
frank, Mr. Chairman, this is a silly objection, and we have 
heard a variety of silly objections over the years and I do not 
believe that it is one that in any way takes away from our 
moving forward.
    The Chairman. When you have used the term ``ideological,'' 
is that last analogy an example of this? In other words, that 
one has some faith that these hearings ought not to be held 
because a meteorite, or something more substantial would come? 
What is the ideology out there that finds this difficult?
    Mr. Moore. Mr. Chairman, I am not sure that I would be able 
to talk on behalf of these others; since I do not hold whatever 
views they may have. I am not challenging that these issues are 
raised in good faith. I think they are. I just think that there 
has for some time been a concern perhaps that moving forward in 
multilateral treaties such as this were perhaps not the way to 
go.
    My own view is that you move forward when a treaty is 
strongly in your national interest as is this one, and you 
refrain from moving forward when it is not, just as you would 
as an individual with freedom to make such decisions. But I do 
not think I could add much more than that to any of the 
lingering skepticism I have seen over the years.
    The Chairman. Perhaps that is one of the issues, that is 
that there are witnesses from time to time who come before us 
who are opposed to multilateral agreements. In other words, as 
I understand their point of view, they believe that--
notwithstanding any of these agreements that we may have 
ratified in 2 centuries of our history and so forth--many of 
them are a mistake. They believe in essence, at least in the 
current situation of our country in the world, that we ought 
not to be inhibited by these sorts of agreements, that we ought 
to simply proceed in our interests.
    As I understand your testimony and that of the other 
witnesses, you believe that our security interests and our 
conservation or commercial interests and what have you are 
enhanced by these agreements, by the fora that are presented 
for resolutions of disputes, and by a sort of general coming 
together of a lot of parties that otherwise might be at the 
margins doing each other in all of the time without there being 
these rules of the game or these margins, as I understand it.
    Mr. Moore. Could I add that there is a powerful theoretical 
reason for that in this case as well, that perhaps we did not 
understand as well until the Nobel Prize in Economics was won 
on something called public choice theory. That is, one of the 
great problems here in this particular setting in protecting 
our national interest is a series of unilateral coast State 
claims. The only way you deal with those is actually to get a 
multilateral setting where it becomes in the interest of the 
international community as a whole basically to oppose those.
    So this is a setting where you are trying to deal with 
these coastal States externalizing costs on the community and 
where you have got a majority of States with you 
internationally, that you are far better off in a multilateral 
negotiation, as we proved here by winning what we did.
    The Chairman. Admiral Watkins, do you have any comment in 
this discussion?
    Admiral Watkins. I could never compete with John Norton 
Moore on the details of the issue. Let me just say why the 
commission picked this up in November 2001, 2 months after they 
held their first hearing. We felt so strongly that the United 
States needs to be the leader in the world in ocean matters 
that we felt it would be an absolute oxymoron not to be a 
signatory to this convention.
    Recently, the administration at the G-8 summit in Europe 
agreed to an Earth Observation summit here in the United 
States, held a few months ago. You can imagine what it would be 
like without being a signatory to this convention to establish 
an international monitoring and observing system for coastal 
and deep ocean areas. Can you imagine the complications 
associated with claims that might be imposed upon the United 
States were we not a signatory to this convention?
    So we felt so strongly about it, we came to a conclusion--
it is the first conclusion we have come to since, by the way--
we are not that ecumenical right now. We are fighting on some 
issues. But on this issue we were unanimous right off the bat, 
and this is why we sent you a strong letter, feeling that if we 
are to gain the respect internationally that we need in the 
greatest of our natural resources, which is 71 percent of the 
Earth, and if we do not take that leadership as the most 
powerful Nation in the world, that we are making a huge 
mistake.
    To the best of my knowledge, all of the urgent issues that 
were addressed in deep seabed mining aspects of this were 
clarified, and therefore the expectation was there. Here again, 
the leadership of the United States not stepping out in front 
was a tragedy. Why are we doing this? Is it an anti-U.N. 
feeling?
    I was so pleased to see Laura Bush go over to France and 
say: We are coming back into UNESCO. We need to get positive 
about some of these international linkages, and I believe this 
is one step that is a no-brainer. It is a win-win situation for 
the United States to leap in and say: We are doing something 
positive for our international leadership role in the world in 
the most critically important natural resource, regarding 
global climate change. We have not come to grips with the 
global climate change issue because we will not do the things 
that the ocean tells us to do, and those have to be negotiated 
internationally, with an international body.
    The IMO and the existing organizations are not sufficient 
to deal with this without the leadership on board, in the game. 
To heck with the umpires. You are only going to get an argument 
with the umpire if you are in the game, and we need to get in 
that game.
    So we felt so strongly about it that we made this an issue 
right up front and said this commission is not going to work 
unless the United States is perceived internationally as a 
leader in ocean matters. In this case we are talking about 
ocean matters that happen to link with atmosphere and happen to 
link with all the terrestrial observations that give us a 
handle on what is going on in the planet in a realistic sense 
so decisionmakers like you can do the right thing here and we 
are not basing it--we hear words like ``scientific 
decisionmaking,'' ``scientific-based decisionmaking.'' What is 
the program? There is not any.
    We hear about ecosystem-based management, in which all 
these fisheries issues are linked with human beings who are 
also in the ecosystem. What is the program? There is not any.
    So this is the precursor, I think, of some very important 
matters that the United States has to deal with on the oceans 
of the world, terrestrial issues that are linked, and the 
atmospheric issues that are linked. And we better get on with 
it, and I consider this to be an urgent first step. While it is 
not directly associated with everything we are doing on the 
Ocean Commission, it is so germane to the leadership challenge 
we were given in Oceans 2000 that we feel it is absolutely 
essential.
    The Chairman. Admiral, when will the Ocean Commission 
report be made public or available?
    Admiral Watkins. My executive director is in the room here, 
Mr. Chairman, and he refuses to give me a date. But I am 
pushing very hard for November to get it in the Federal 
Register, which is required by the act under the Federal 
Advisory Committee Act. That will then go to every Governor, 
not just the 35 coastal States' Governors. We are giving it to 
your Governor at home and every Governor in the Midwest. We are 
calling the Great Lakes our northern ocean on the northern 
coast. They believe that, we believe that. We have got all 
States, all of our territories in the Pacific and so forth, 
that give us this great, incredible, 200-mile EEZ base to work 
from. Everybody is involved in the ocean.
    The non-point source pollution issue associated with our 
estuarine and riverine problems are severe and we have got to 
deal with them. The jurisdictional problems associated with 
that are tremendous. So it is not just international alone. We 
have got a national problem of jurisdictional responsibilities 
that we are not dealing with.
    But if we do not have this linkage--and obviously everybody 
we do in the oceans is co-owned by the other nations of the 
world, so we have to be a player in that game. We cannot just 
deal with our own ocean. We have got to deal with oceans like 
the Arctic, which is very underserved and undertreated, and yet 
it is critical to the climate change understanding and those 
kinds of things, the great conveyor belt that moves the waters. 
The freshening of the water up there is worrisome. Woods Hole 
has said that within a decade we can lose that conveyor belt 
just on the freshening of the water. We have lost 40 percent of 
the ice depth and 3 percent of the ice up there. We know the 
glaciers are moving.
    So we have got to deal--the Defense Department is running a 
study on what do we do, what is the strategic ramification of 
an ice-free Arctic? Well, those are real questions, but they 
are all linked to what we are talking about here--taking a lead 
role in the driver of so much of the world's life. This is the 
source of life, and we better get on with it.
    And only the United States can take that leadership role. 
it will cost us half of the investment, but we do that in 
everything we do internationally, so it is nothing new. But the 
other nations will come aboard. They want us to take this 
leadership role.
    Ideologically, I think it is the right answer. I do not 
know why we have had this anti feeling about our international 
relationships, but I have never seen it any worse than this, 
and I think we have got to turn it around. Here is one 
mechanism that is a no-brainer. On both sides of the aisle up 
here on the Hill, we have not found any opposition to what we 
are doing on the Ocean Commission to bring the international 
side to bear so that we can get on with really understanding 
what is going on around us.
    The Chairman. Admiral Prueher, you have heard all of this. 
Have you been stimulated?
    Admiral Prueher. I happen to tune in very closely with 
Admiral Watkins in another hat on the environmental issues and 
the long-range part. I think, to address the, tactfully 
phrased, ideological reservations, when we started looking at 
this from a pragmatic view in 1998 we came at it from the 
approach that we do not want to ratify what is to our advantage 
to do this?
    As we studied the U.N. Convention on the Law of the Sea as 
it impacted our ability to do our security interests, and we 
looked primarily at the military and diplomatic--less so at 
economic interests, I must admit--but we came up with no 
advantages to not ratifying the convention. I think the 
situation, the world situation, has certainly changed since 
then, but I think the answer to that question is the same, that 
ratification accrues to our Nation a great many advantages and 
no significant disadvantages.
    The Chairman. Admiral Schachte.
    Admiral Schachte. I want to thank you very much, Mr. 
Chairman. I have been discussing these issues, as Admiral 
Watkins passionately and I think quite eloquently pointed out, 
from the perspective of the global commons. The only thing I 
can conclude is that we were perhaps hoist on our own petard. 
When we realized, as I mentioned in my testimony, that we had 
no options, we needed the non-seabeds articles of the 
convention, we needed those fleshed out with action, and we put 
in place a very aggressive program that was actually started 
under President Carter in 1978 in the Brzezinski memo setting 
up the Freedom of Navigation Program, under which we would 
operate consistently with the convention.
    We really put a separate emphasis on that, developing a 
Maritime Claims Manual so we would know where claims were that 
were not consistent with the convention, and so on and so 
forth, and we turned up the heat diplomatically, and pursued 
that aggressively. That kind of took the heat off of what was 
otherwise a--``despised'' is too strong, but a convention that 
developed some adverse traction because of the seabed mining 
provisions, which admittedly were the result of, let us say, a 
capitalist father and a socialist mother. I mean, the original 
seabeds regime was an incredibly complex thing that never would 
have worked.
    But the convention had that baggage, and it became quickly 
a litmus test: Where are you on the Law of the Sea Convention? 
If you are in favor of the convention, well, that is the end of 
that discussion. And unfortunately I think that hangover stayed 
with us for quite some time, and the success of our Freedom of 
Navigation Program--I was involved in the Black Sea bumping 
incident. We resolved that diplomatically. The Northwest 
Passage, I was also involved in the resolution of that issue.
    We resolved all of these things taking then out of a 
bilateral context by referring to the convention, and we were 
able to get away with that approach, as I said earlier, until 
1994 when the convention entered into force and we were no 
longer players.
    I was also a part of a team that went out to the Pacific--
Indonesia, Fiji, Solomon Islands--and then to the Bahamas, and 
other potential archipelagic claimants, trying to promote this 
deal that we were making: If you follow the convention, we will 
honor your claim.
    We did it in Indonesia. We had to backdoor it through their 
tax treaty making reference to the convention. In the 
Philippine bases renegotiations, we stuck a section in that on 
the archipelagic regime, knowing that that original concept 
advocated by Minister Mochtar and others was that you draw 
lines around their outermost islands and the result would be 
the equivalent of a land mass, you cannot do anything in there 
without permission of that island nation; it would have 
crippled our mobility--it would have been totally unacceptable.
    In fact, I was at the signing ceremony in Jamaica when 
Minister Mochtar came in and met with Tom Clingan, Ambassador 
Clingan, the head of our delegation. I happened to be in the 
room. It was at lunchtime, and Mochtar just candidly said: 
``Tom, how could you do this? We gave you all those 
navigational articles, all those provisions''--he was much more 
eloquent than that. ``But we did all of that, because we knew 
you would be there with us as a leader to make the other 
provision work.''
    The only thing Ambassador Clingan could say was: ``Give us 
time; wait it out.'' And they did. And they also fixed seabed. 
And so now I guess these negative arguments continue to abound 
by those who simply have this sense that was born in the early 
Reagan days of, the convention was about seabed mining, an 
awful thing, Third World giveaway, and so on and so forth.
    I'm sorry, but that, as simplistic as that is, is an 
explanation.
    The Chairman. Let me ask: we have discussed the security 
issues. Those usually come forward first, and properly so. We 
have had a good number of people, not in talking about Law of 
the Sea but in other fora, in treaties that we discussed 
earlier this year, who are deeply concerned about overfishing 
of the oceans generally. They brought charts and maps 
illustrating what they were talking about and went through some 
specific species of fish that have become nonexistent in 
various parts of our oceans due to overfishing. They spoke 
about the need to have a time out in some areas so that somehow 
the stocks can be replenished for the good of humanity 
generally, as well as for the fishing industries of whatever 
nations might be involved.
    Obviously, the issue of who is allowed to fish where and 
who is responsible for all of this becomes contentious. But in 
some cases there is not much dispute over whose waters these 
are. It is a dispute within the fishing industry itself as to 
how intensively people go at it and what the effects of all 
this are going to be.
    As you, each one of you, examine the Law of the Sea Treaty, 
clearly one of the benefits in general is the conservation 
ethic. We are an ecosystem and we cannot as human beings 
overfish the seas and expect to retain an abundance of fish. In 
fact, a sizable amount of these nutrients may be denied people. 
Yet there are competing interests: fishermen and various 
nations that back them, and maybe people who do not have that 
much sensitivity about the ecosystem and sort of anticipate 
that the Lord will provide and somehow the fish will still be 
there.
    To what extent is the problem of overfishing, or of these 
competing rights that I described, more intense or acute now? 
In your judgment, to what extent do we address this in the Law 
of the Sea?
    Admiral Watkins. Well, I know, Mr. Chairman, that when we 
held hearings in Hawaii, for example, the longline fishermen 
came forward to talk to us about their problems. The United 
States has taken a strong position on such things as sea 
turtles and others being caught up as bycatch in the fishing 
business. Yet the United States adheres to its own rules in 
deep waters on longline fishing. Other nations do not in the 
Pacific, and they are free to go into areas south of certain 
latitudes north and go ahead and use longlines with any bycatch 
they pick up. There is also some indication--and maybe Admiral 
Prueher can talk about this a little bit--about how the numbers 
are adjusted, annual catch and the volume and the tonnage that 
are picked up in bycatch and other things that do not really 
reflect what is going on, which is probably an enforcement 
problem internationally.
    So these are real problems. The cross-boundary issues with 
Canada on lobsters up in the Northeast, those are issues. And 
there are some strange provisions in the law that do not allow 
the locals, you might say, in the maritime regions in Canada 
and our Northeast group, the Governors in the coastal regions 
there, to negotiate a deal between themselves. It has to go up 
to a higher level convention.
    These are difficult hurdles to get over. So there are some 
funny little quirks in the way we operate internationally. I 
think the Magnuson-Stevens Act goes a long way to setting up 
the protection barriers against the overfishing that was done 
by these great trawlers that roll in there and suck up all the 
fish, including all the bycatch that goes with it, and 
rejecting them, which is a large number, like 25 percent.
    So the overfishing issue I think we tried to get a handle 
on in Magnuson-Stevens 30 years ago, but it also needs 
adjustment now, and it certainly needs a friendly negotiation 
protocol between the people who really understand these fish 
and how they migrate. And if we have an El Nino event in which 
the pollock go north and become Canadian citizens, we have to 
recognize that. They do not pay any attention to the 
jurisdictional boundaries that we have set up politically.
    Therefore, these kinds of issues again would be better 
resolved were we a signatory to this convention and say, you 
know, there are some rules of the game here, and we ought to be 
conservation-minded as well as taking advantage of the protein 
that is out there for the good of our people. So we can do 
both. We do not have to have them be mutually exclusive, but 
they need to be in part of the negotiation.
    I think it is very inconsistent for the nations that are 
co-signers to this to take different positions on conservation 
relative to the norm, which ought to be adjudicated through an 
international body in my opinion. So we see this across all the 
hearings that we go to, that there is an international 
component here that is frustrating our own ability to manage 
the resources from the United States' point of view, when it is 
relatively irrelevant if all the other nations, the larger 
nations in the Asian waters, for example, can longline at will 
with whatever bycatch they pick up, however they want to report 
the annual tonnage.
    The Chairman. Admiral Prueher.
    Admiral Prueher. I really cannot address the tonnages that 
Admiral Watkins referred to, but the issue as I see it is every 
so often, from a security point of view, an overfishing event 
or a fishing event in someone else's EEZ will erupt into a 
security issue and sometimes, particularly in Northeast Asia, 
these things will erupt into shooting. So like the ideological 
reservations about this treaty, restrictions are imposed 
anytime one signs a treaty. That is one point of view.
    The other point of view is that a well crafted treaty gives 
a framework, a codification, and a dispute resolution basis for 
resolving not only the environmental and the overfishing 
issues, but the security issues as well, without having to go 
into actual armed conflict about it, which is prevention, which 
is what I think we are after.
    The Chairman. Mr. Moore.
    Mr. Moore. Mr. Chairman, that is a very important set of 
issues you raised on the protection of fish stocks globally and 
other broad environmental issues generally. Let me just say in 
relation to the Law of the Sea Treaty that it was an 
extraordinarily important advance in protecting global fish 
stocks. Before that what we had is a setting in which once you 
got beyond the territorial sea there was no legal regime to 
enable a management system coextensive with the range of the 
stocks, which is the starting point for effective management of 
fish stocks. You have got to have a management system 
coextensive with the stock; whether it is a coastal stock or 
highly migratory stock, or whatever it may be.
    By extending the coastal State economic jurisdiction to 200 
nautical miles plus the areas of the margin beyond that for the 
creatures of the shelf, the lobster, et cetera, of the shelf 
that went beyond that, we completely solved that problem; what 
the economists used to call the common pool problem in global 
fisheries. So now what we have in place is the coastal State 
management systems, and in addition to that we have this 
wonderful new implementing convention that the United States 
already has in force for itself, actually implementing a 
section of the Law of the Sea Treaty on the straddling stocks 
and highly migratory species.
    When you put those two together, it gives us for all of our 
stocks a very solid management jurisdiction. What we have to 
do, of course, and the issues that both admirals I think 
addressed very well, relates to what your management system is, 
how you work it, how you negotiate with others, and I think the 
point made by both that we would be far better off in our 
continuing negotiations in this to be a member are absolutely 
true.
    One last point on the treaty environmentally generally. 
When it came to the oceans as an environmental area at Rio at 
the Earth summit, the Law of the Sea Treaty was so far ahead of 
all the other areas in relation to the environment that 
basically Rio simply said: For the environment, it is the Law 
of the Sea Treaty; that is what we look to.
    The Chairman. Professor, let me just ask, is it your 
perception that our government--and this is over the course of 
several years--has a sound conservation program with regard to 
fish, that the problem is not an intramural one in our country, 
but rather it is an external problem with regard to others who 
may not respect our conservation ethic?
    Mr. Moore. Mr. Chairman, I have not studied that like the 
commission has and so anything I said on it would not be 
particularly informed, and so, if you do not mind, I will not 
answer that. But let me make a general observation about world 
fisheries management as a whole. I believe that once we solve 
the problem of management systems, the next problem is you have 
to have proper management in all of the areas under national 
jurisdiction. And in this respect I believe one of the greatest 
single problems globally is oversubsidization of the fishing 
industry in general. The figures are hard to get, but some of 
the World Bank figures suggest we are subsidizing worldwide to 
the tune of about $20 billion. So when stocks are declining 
dramatically and we are spending taxpayer funds around the 
world of approximately $20 billion to subsidize, I suggest that 
is really one of the major problems here.
    The Chairman. Admiral Schachte.
    Admiral Schachte. Thank you very much, Mr. Chairman. I 
cannot add much. I definitely agree with Admiral Prueher's 
observations. Just going through the articles pertaining to 
living resources myself, I must acknowledge that, 
interestingly, we have a recognized expert on this matter here 
in the hearing room today, Mr. Tucker Scully, who spent a lot 
of time in the State Department effectively managing these very 
difficult issues.
    But the convention provides the framework under which these 
various programs can work. And a government such as ours--in a 
country as large as ours, and our government with our diverse 
interests and areas, we are often schizophrenic on matters 
because there is a pull of different interests. But I think 
that the convention clearly provides the framework for 
effective resource management and this is critically important.
    Again back to the leadership role, oftentimes an 
international treaty will either provide a floor or a ceiling 
on an issue. Here I think it will provide a ceiling so we can 
contain and resolve this serious problem.
    The Chairman. Let me ask if there are other considerations 
that any of you have thought of at this stage that you would 
like to proceed with? Yes, sir.
    Mr. Moore. Mr. Chairman, you might find it of interest. I 
was just handed from a good friend of mine who was formerly the 
legal counsel to the Senate Foreign Relations Committee from 
1979 to 1984, Mr. Fred Tipson, his answer to this problem of 
where did the opposition come from. It is a very interesting 
answer. His answer was that the major reason for U.S. failure 
to ratify was the classic free rider problem in economic 
theory, perceptions that the U.S. could get all the benefits of 
the treaty without the need to move forward to ratification.
    I think there is a lot of truth in that as part of the 
lingering misperception problem. Let me just say that I think, 
as this panel has unanimously indicated, we did not get all the 
benefits without ratification. There are huge costs that we are 
paying by not moving forward.
    The Chairman. Well, that is a very helpful addition. We 
thank all who are participating in the hearing, giving some 
additional thoughts.
    We will have another hearing in a week, in which members of 
the administration will be speaking for our government, and we 
look forward to that testimony. I appreciate very, very much 
your coming this morning. Your prepared statements, as well as 
the additional responses to questions, I think have been very 
helpful as members of the committee and our staffs study what 
you have said and, more importantly, as the general public has 
the benefit of that record.
    It is my hope, as I mentioned in the opening statement, 
after our second hearing to proceed to try to draft the proper 
advice and consent resolution, with consultation with other 
colleagues, including as we mentioned Senator Stevens and 
Senator McCain. There may be others. Likewise, we may have need 
to come back to you for final considerations as we take a look 
at it.
    My thought with regard to the timetable of action early 
next year comes from the fact that I believe the Senate will 
adjourn at some point. At least I am advised that that is the 
intent of the majority leader. If that should be erroneous and 
we simply continue on, well, then that would perhaps change our 
committee schedule, too. In any event, your commission report 
will probably be delivered to us during that period of time, 
Admiral Watkins, and we will benefit from that. Likewise, other 
additional materials that any of you have as experts and 
veterans in this field would be much appreciated.
    Having said that, the hearing is adjourned.
    [Whereupon, at 11:10 a.m., the committee adjourned, to 
reconvene at 9:30 a.m., October 21, 2003.]


     THE U.N. CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-39)

                              ----------                              


                       TUESDAY, OCTOBER 21, 2003

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met at 9:33 a.m., in room SH-216, Hart Senate 
Office Bldg., Hon. Richard G. Lugar (chairman of the 
committee), presiding.
    Present: Senator Lugar.
    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order.
    Today the committee meets to continue its consideration of 
the U.N. Convention on the Law of the Sea. Last Tuesday, the 
committee heard testimony on the convention from a 
distinguished panel of experts, including the Chairman of the 
U.S. Commission on Oceans Policy, a former Commander-in-Chief 
of U.S. forces in the Pacific, and two former negotiators of 
the Convention. They made several important observations about 
the convention.
    First, they noted that the convention holds important 
benefits for United States national security. Freedom of 
navigation and overflight across the world's oceans is of 
paramount importance to our military's ability to protect 
United States security interests worldwide. The convention 
provides extensive legal protections for navigation and 
overflight rights that the United States worked hard to achieve 
during negotiation of the convention. The panel observed that 
these protections will strengthen the ability of the United 
States to respond to excessive territorial claims by other 
countries and to ensure that key sea and air lanes remain open 
to the United States as a matter of legal right.
    Second, they noted that the treaty offers important 
economic benefits for the United States. The Convention 
enshrines our ability to explore and to exploit the natural 
resources of the ocean out to 200 miles from our shore. These 
include large reserves of oil and gas, as well as fisheries 
resources. The Convention also protects our ability to develop 
the resources of the broad continental margin of the United 
States beyond 200 miles, an area comprising an estimated 
370,000 square miles. We heard that the legal certainty 
provided by the Convention with respect to control of these 
resources is important to the willingness of industry to make 
the investments necessary to develop them.
    Third, our panel of experts underscored the Convention's 
importance for the protection of the marine environment. The 
Convention has been described as ``the strongest comprehensive 
environmental treaty now in existence.'' It addresses pollution 
from a variety of sources, including land-based pollution, 
ocean dumping, vessel and atmospheric pollution, and pollution 
from offshore activities. Its provisions have provided the 
framework for a number of subsequent agreements, including the 
1995 U.N. Fish Stocks Agreement, to which the United States 
became party in 1996 with the help of Senator Stevens' 
leadership.
    Fourth, our panel emphasized that ratifying the Law of the 
Sea Convention is important to the ability of the United States 
to exercise influence over oceans issues. By staying outside 
the treaty, we forfeit our membership in institutions that will 
make decisions about the future of the oceans, and we increase 
the risk that such decisions will be contrary to our interests. 
Next year the treaty will be open for amendment, creating the 
possibility that other nations may seek to roll back the 
protections our negotiators worked so hard to win.
    These are compelling arguments in favor of ratifying the 
convention, and I believe that the Senate should move swiftly 
to do so. Today's hearing is the next step in this process.
    We are pleased to be joined by two distinguished panels 
representing the U.S. Government and the private sector.
    On our first panel, we will hear from representatives of 
the Bush administration. We have been in touch with the 
leadership of the National Security Council, and we have been 
advised the President has expressed his support for this 
Convention. We welcome five officials to discuss it. With us 
this morning are Mr. John F. Turner, the State Department's 
Assistant Secretary for Oceans and International Environmental 
and Scientific Affairs; Mr. William H. Taft, IV, the Legal 
Adviser for the State Department; Mr. Mark T. Esper, the 
Defense Department's Deputy Assistant Secretary for 
Negotiations Policy; Admiral Michael G. Mullen, Vice Chief of 
Naval Operations for the United States Navy; and Admiral John 
E. Crowley, Chief Counsel and Judge Advocate General for the 
United States Coast Guard.
    On our second panel, we will hear from Mr. Paul L. Kelly, 
senior vice president of Rowan Companies, Inc., who represents 
the American Petroleum Institute, the International Association 
of Drilling Contractors, and the National Ocean Industries 
Association; Admiral Roger T. Rufe, Jr., president and CEO of 
the Ocean Conservancy; Ms. Randi Thomas, national 
representative of the U.S. Tuna Foundation; and finally, we 
will hear from Mr. Joseph J. Cox, president of the Chamber of 
Shipping America.
    [The opening statement of Senator Lugar follows:]

             Opening Statement of Senator Richard G. Lugar

    Today the Committee meets to continue its consideration of the UN 
Convention on the Law of the Sea. Last Tuesday, the Committee heard 
testimony on the Convention from a distinguished panel of experts, 
including the Chairman of the U.S. Commission on Oceans Policy, a 
former Commander-in-Chief of U.S. Forces in the Pacific, and two former 
negotiators of the Convention. They made several important observations 
about the Convention.
    First, they noted that the Convention holds important benefits for 
U.S. national security. Freedom of navigation and overflight across the 
world's oceans is of paramount importance to our military's ability to 
protect U.S. security interests worldwide. The Convention provides 
extensive legal protections for navigation and overflight rights that 
the United States worked hard to achieve during negotiation of the 
Convention. The panel observed that these protections will strengthen 
the ability of the United States to respond to excessive territorial 
claims by other countries and to ensure that key sea and air lanes 
remain open to the United States as a matter of legal right.
    Second, they noted that the treaty offers important economic 
benefits for the United States. The Convention enshrines our ability to 
explore and exploit the natural resources of the ocean out to 200 miles 
from our shore. These include large reserves of oil and gas, as well as 
fisheries resources. The Convention also protects our ability to 
develop the resources of the broad continental margin of the United 
States beyond 200 miles, an area comprising an estimated 370,000 square 
miles. We heard that the legal certainty provided by the Convention 
with respect to control of these resources is important to the 
willingness of industry to make the investments needed to develop them.
    Third, our panel of experts underscored the Convention's importance 
for the protection of the marine environment. The Convention has been 
described as ``the strongest comprehensive environmental treaty now in 
existence.'' It addresses pollution from a variety of sources, 
including land-based pollution, ocean dumping, vessel and atmospheric 
pollution, and pollution from offshore activities. Its provisions have 
provided the framework for a number of subsequent agreements, including 
the 1995 UN Fish Stocks Agreement, to which the United States became 
party in 1996 with the help of Senator Stevens' leadership.
    Fourth, our panel emphasized that ratifying the Law of the Sea 
Convention is important to the ability of the United States to exercise 
influence over oceans issues. By staying outside the treaty, we forfeit 
our membership in institutions that will make decisions about the 
future of the oceans, and we increase the risk that such decisions will 
be contrary to our interests. Next year the treaty will be open for 
amendment, creating the possibility that other nations may seek to 
rollback the protections our negotiators worked so hard to win.
    These are compelling arguments in favor of ratifying the 
Convention, and I believe that the Senate should move swiftly to do so. 
Today's hearing is the next step in this process. We are pleased to be 
joined by two distinguished panels representing the U.S. government and 
the private sector.
    On our first panel, we will hear from representatives of the Bush 
Administration. We have been in touch with the leadership of the 
National Security Council, and we have been advised that the President 
has expressed his support for this Convention. We welcome five 
officials to discuss it. With us this morning are Mr. John F. Turner, 
the State Department's Assistant Secretary for Oceans and International 
Environmental and Scientific Affairs; Mr. William H. Taft, IV, the 
Legal Adviser for the State Department; Mr. Mark T. Esper, the Defense 
Department's Deputy Assistant Secretary for Negotiations Policy; 
Admiral Michael G. Mullen, Vice Chief of Naval Operations for the U.S. 
Navy; and Admiral John B. Crowley, Chief Counsel and Judge Advocate 
General for the U.S. Coast Guard.
    On our second panel, we will hear from Mr. Paul L. Kelly, Senior 
Vice President of Rowan Companies, Inc., who represents the American 
Petroleum Institute, the International Association of Drilling 
Contractors and the National Ocean Industries Association; Admiral 
Roger T. Rufe, Jr., President and CEO of the Ocean Conservancy; Ms. 
Randi Thomas, National Representative of the U.S. Tuna Foundation; and, 
finally, we will hear from Mr. Joseph J. Cox, President of the Chamber 
of Shipping America.
    We welcome all of our distinguished witnesses and look forward to 
their insights on this treaty.

                                Panel I

    The Chairman. We welcome all of our distinguished witnesses 
and look forward to their insights on this treaty. I will now 
call upon the first panel to testify in this order. First of 
all, Mr. Turner, then Mr. Taft, Mr. Esper, Admiral Mullen, and 
Admiral Crowley. Mr. Turner.

 STATEMENT OF HON. JOHN F. TURNER, ASSISTANT SECRETARY, BUREAU 
   OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC 
          AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, DC

    Mr. Turner. Mr. Chairman, good morning. I certainly 
appreciate this opportunity to appear with my colleagues from 
the administration to testify on the U.N. Convention on the Law 
of the Sea and the agreement on implementation.
    Mr. Chairman, this administration has concluded that there 
are many important reasons for the United States to become a 
party to this convention and we strongly endorse the Senate 
proceeding with its advice and consent as soon as possible.
    As the world's leading maritime power with the longest 
coastline and the largest exclusive economic zone in the world, 
the U.S. benefits more than any other nation from this 
convention. It enhances U.S. objectives as a major maritime 
power with worldwide interests in military and commercial 
navigation, in communications, in protection of the marine 
environment, and in furthering marine scientific research. The 
convention provisions on navigation and overflight, as well as 
the balance reflected in its jurisdictional articles, preserve 
the right of the United States military to use the world's 
oceans to meet national security requirements and of commercial 
vessels to carry seagoing cargoes. The rule of law as embodied 
in the convention underpins U.S. leadership and security.
    The convention recognizes the coastal State's sovereign 
rights over the exploration and development of mineral 
resources, including oil and gas, found in the seabed and the 
subsoil of the shelf. It lays down specific criteria and 
procedures for determining the outer limits of the shelf. It 
also protects freedom to lay submarine cables and pipelines.
    The convention promotes the resource and environmental 
interests of the United States as a coastal State, including 
strong obligations to conserve and manage living marine 
resources and to protect the marine environment from all 
sources of pollution, combined with broad and exclusive 
jurisdiction over living and nonliving resources off our 
coasts. The convention's provisions on fisheries are entirely 
consistent with U.S. domestic fisheries laws, as well as our 
international fisheries agreements and understandings.
    The convention's regime of access for marine scientific 
research will support the U.S. role as a leader in efforts to 
understand our oceans, including their role in global 
processes.
    As to actual costs of being a party to the convention, our 
annual contribution to the convention's institutions would be 
about $3 million, in our view a bargain.
    As of today, Mr. Chairman, 143 parties, including most of 
our major allies, have joined the convention. It is time for us 
to take this unique opportunity to demonstrate U.S. leadership 
and credibility on oceans issues by becoming a party to the 
reformed Law of the Sea.
    Mr. Chairman, the United States obviously has basic and 
enduring national interests in our oceans. Pursuit of our 
oceans objectives requires careful and often difficult 
balancing of those interests. As a coastal nation, for example, 
we naturally are concerned about control over the waters off 
our shores. Just as often, as a major maritime power, we worry 
about efforts on the part of others to limit freedom of 
navigation.
    Moreover, traditional perceptions of the inexhaustibility 
of marine resources and the capacity of the oceans to 
neutralize wastes have changed, as marine species have been 
progressively depleted by harvesting and their habitats damaged 
or threatened by pollution and a variety of human activities. 
Maintaining the productive capacity of the oceans while seeking 
to meet the economic aspirations of growing populations 
requires difficult choices.
    Striking these balances must also be viewed in the 
international context. Living resources, of course, migrate 
across the jurisdictional lines that human beings draw on maps. 
Marine ecosystems and ocean currents transport pollutants and 
otherwise affect the environmental interests extending across 
maritime boundaries. National security and commercial interests 
are also international in scope. Achievement of ocean policy 
objectives thus requires international cooperation.
    The United States has consistently taken the view that 
these interests are best protected through a widely accepted 
international framework governing uses of the sea. Since the 
late 1960s, each U.S. administration has recognized this goal 
as the cornerstone of United States 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.
    It is time for the United States to become a party to the 
convention because of the substantive benefits to the United 
States; because U.S. adherence will promote the stability of 
the legal regime for oceans; and because U.S. accession will 
demonstrate to the international community that when it 
modifies a regime to address our concerns, we will join that 
regime.
    Becoming a party to the convention represents the highest 
priority of this administration and also the United States 
international oceans policy, I believe, which also is a 
bipartisan priority. And to this end, we urge rapid and 
favorable action on these treaties by the U.S. Senate.
    I am now pleased to yield to my colleague from the State 
Department, Will Taft, Chief Counsel for Secretary Powell, who 
can provide you with input on some of the specific provisions 
of the convention and the agreement. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Turner follows:]

   Prepared Statement of Hon. John F. Turner, Assistant Secretary of 
State, Bureau of Oceans and International Environmental and Scientific 
                      Affairs, Department of State

    Mr. Chairman and Members of the Committee:
    Thank you for the opportunity to testify on the 1982 United Nations 
Convention on the Law of the Sea (``the Convention'') and the 1994 
Agreement relating to the Implementation of Part XI of the United 
Nations Convention on the Law of the Sea of 10 December 1982 (``the 
1994 Agreement'').
                                   i.
Overview
    This Administration has concluded that there are important reasons 
for the United States to become a party to this Convention and to do so 
now.
    For many years, the United States has been seeking to assert its 
oceans interests as a non-party to the Convention. While we have had 
considerable success in doing so, our efforts will be enhanced by 
becoming a party. The Convention, as amended by the 1994 Agreement, 
offers an accepted and acceptable international framework within which 
to pursue and secure our oceans interests with greater certainty and 
with fewer political and economic disadvantages than we could otherwise 
achieve.
    The reformed Convention applies stable and predictable rules to the 
uses of the oceans. It does not answer every question, but it provides 
the only generally accepted framework for resolving new oceans issues 
as they arise. By becoming party to the Convention, the United States 
will thus maximize its influence over the outcome of these wide-ranging 
issues.
    As the world's leading maritime power, with the longest coastline 
and the largest exclusive economic zone in the world, the United States 
will benefit more than many other nations from the provisions of the 
Convention. The Convention enhances U.S. objectives as a major maritime 
power with worldwide interests. Its provisions on navigation and 
overflight, as well as the balance reflected in its jurisdictional 
articles, preserve 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. The rule of law as embodied in the 
Convention underpins U.S. leadership and security.
    The Convention promotes the resource and environmental interests of 
the United States as a coastal State, including strong obligations to 
conserve and manage living marine resources and to protect the marine 
environment from all sources of pollution, combined with broad and 
exclusive jurisdiction over living and non-living resources off our 
coasts. The Convention's provisions on fisheries are entirely 
consistent with U.S. domestic fisheries laws and well as our 
international fisheries agreements and understandings.
    In fact, the most innovative international fisheries agreements 
developed in the last decade have as their basis the Convention's 
statements of the obligations of each party to conserve and manage 
living marine resources in their own EEZs and on the high seas. The 
United Nations Fish Stocks Agreement, the FAO Compliance Agreement, the 
new convention on highly migratory species in the Western and Central 
Pacific, and recent bilateral agreements we have negotiated are 
elaborations on these obligations. Effective implementation of these 
forward-leaning agreements can bring about an end to rampant 
overfishing in the years to come. Becoming a party to the Convention 
will only strengthen our hand in addressing this serious issue.
    The Convention's regime of access for marine scientific research 
will support the U.S. role as a leader in efforts to understand the 
oceans, including their role in global processes. Such research is 
critical for addressing problems associated with the use and protection 
of the marine environment.
    Through its dispute settlement provisions, the Convention provides 
peaceful and effective mechanisms to ensure compliance by Parties with 
the Convention, thereby restraining unreasonable claims and 
interpretations and contributing to a stable international order.
    As to actual costs of being a party, our annual contributions to 
the Convention's institutions would be about three million dollars, 
paid to the Law of the Sea Tribunal and the International Seabed 
Authority from the State Department's Contributions to International 
Organizations account. In our view, this is a bargain.
    In spite of its manifest benefits to the United States, we said in 
1982, when the Convention was adopted, that we could not become a party 
unless its seabed mining system were reformed. Through the 1994 
Agreement, we have achieved the reform of this system that we sought. 
As of today, 143 parties, including most of our major allies, have 
joined the Convention. It is time for us to take this opportunity to 
demonstrate U.S. leadership on oceans issues by becoming a party to the 
Law of the Sea Convention.
                                  ii.
U.S. Interests in the Oceans
    The United States has basic and enduring national interests in the 
oceans. As the world's preeminent naval power, the United States has 
strong national security interests in the ability to freely and rapidly 
navigate and overfly the oceans. These are essential preconditions for 
projecting military power that must be able to react rapidly to 
emerging threats.
    Ensuring the free and secure flow of commercial navigation is 
likewise a basic concern for the United States as a major trading 
power, whose economic growth and employment are inextricably linked 
with a robust and growing export sector.
    At the same time, the United States, with the longest coastlines, 
the largest exclusive economic zone, and one of the largest continental 
shelves of any nation in the world, has basic resource and 
environmental interests in the oceans. Inshore and coastal waters 
generate vital economic activities--fisheries, offshore mineral 
development, ports and transportation facilities, and, increasingly, 
recreation and tourism. The health and well-being of coastal 
populations--and the majority of Americans do live in coastal areas--
are intimately linked to the quality of the coastal marine environment.
    Understanding the oceans is one of the frontiers of human 
scientific inquiry. The United States is a leader in the conduct of 
marine scientific research and ocean observation. Further, marine data 
collection is essential for understanding and addressing problems 
associated with the use and protection of the marine environment, 
including marine pollution, conservation of fish and other marine 
living species, and forecasting of weather and climate variability.
    Pursuit of our oceans objectives requires careful and often 
difficult balancing of interests. As a coastal nation, for example, we 
naturally are concerned about control over the waters off our shores. 
Just as often, as a major maritime power, we worry about efforts on the 
part of others to limit freedom of navigation.
    Moreover, traditional perceptions of the inexhaustibility of marine 
resources and of the capacity of the oceans to neutralize wastes have 
changed, as marine species have been progressively depleted by 
harvesting and their habitats damaged or threatened by pollution and a 
variety of human activities. Maintaining the health and productive 
capacity of the oceans while seeking to meet the economic aspirations 
of growing populations also requires difficult choices.
    Striking these balances must also be viewed in the international 
context. Living resources migrate across the jurisdictional lines that 
human beings draw on a map. Marine ecosystems and ocean currents 
transport pollutants and otherwise affect environmental interests 
extending across maritime boundaries and jurisdictional limits. 
National security and commercial interests are also international in 
scope. Achievement of ocean policy objectives thus requires 
international cooperation at the bilateral, regional, and global 
levels.
    The United States 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 generally respected. Each 
succeeding U.S. Administration has recognized this goal 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.
    Notwithstanding the numerous beneficial provisions of the 
Convention, the United States decided not to sign the Convention in 
1982 because of flaws in the deep seabed mining regime. As Mr. Taft 
will discuss, the 1994 Agreement before you overcomes these flaws and 
meets the objections the United States and other industrialized 
countries have expressed. It is time for the United States to become a 
party to the Convention, because of the substantive benefits to the 
United States; because U.S. adherence will promote the stability of the 
legal regime for the oceans, which is vital to U.S. national security; 
and because U.S. accession will demonstrate to the international 
community that, when it modifies a regime to address our concerns, we 
will join that regime.
    Let me note in closing that the U.S. Commission on Oceans Policy--a 
Commission that Congress established to make recommendations for a 
coordinated and comprehensive national ocean policy--has unanimously 
recommended that the United States immediately accede to UNCLOS. As the 
Commission's resolution says: ``Time is of the essence if the United 
States is to maintain its leadership role in ocean and coastal 
activities. Critical national interests are at stake and the United 
States can only be a full participant in upcoming Convention activities 
if the country proceeds with accession expeditiously.'' Becoming a 
party to the Convention, as modified by the 1994 Agreement, represents 
the highest priority of United States international oceans policy--a 
bipartisan priority--and to this end I urge rapid and favorable action 
on these treaties by the Senate.
    I will of course be happy to answer any questions you might have, 
but at this time I would ask my colleague, Legal Adviser Will Taft, to 
provide you with a detailed description of the Convention and the 
Agreement. He will also note some of the legal issues arising from U.S. 
accession to the Convention and Agreement.
    Thank you very much.

    The Chairman. Well, we thank you for your testimony, 
Secretary Turner, and we look forward to Secretary Taft.
    Let me mention that the full statements you prepared for 
the hearing will all be made a part of the record, and you need 
not ask for permission. It is granted. And you may proceed to 
either summarize them or present the full statements. We have 
not imposed arbitrary time limits because we really want to 
hear from you and to gain the insights that you have today. 
Thank you again, Secretary Turner. It is a pleasure, as always, 
to have you Secretary Taft.

     STATEMENT OF HON. WILLIAM H. TAFT, IV, LEGAL ADVISER, 
              DEPARTMENT OF STATE, WASHINGTON, DC

    Mr. Taft. Thank you, Mr. Chairman. It is a pleasure for me 
to appear before the committee and to join with Secretary 
Turner in representing the State Department and the 
administration. Secretary Turner has given you an overview of 
the important reasons for the United States to become a party 
and I will provide some additional detail on the convention and 
the 1994 agreement. I do have a longer statement which I 
appreciate your putting in the record, and I will try to 
summarize it here.
    The Chairman. Thank you.
    Mr. Taft. The Law of the Sea Convention establishes 
international consensus on the extent of jurisdiction that 
States may exercise off their coasts and allocates rights and 
duties among States in all marine areas. It provides for a 
territorial sea of a maximum breadth of 12 nautical miles and a 
contiguous zone of up to 24 nautical miles from coastal 
baselines. It also gives the coastal State sovereign rights for 
the purpose of exploring and exploiting, conserving and 
managing natural resources, whether living or nonliving, in an 
exclusive economic zone, which we naturally in government have 
called now the EEZ, that may extend to 200 nautical miles from 
the coast. In addition, the convention accords the coastal 
State sovereign rights over the Continental Shelf both within 
and beyond the EEZ to the extent of the geological margin.
    The convention specifically preserves and elaborates the 
rights of military and commercial navigation and overflight in 
areas under coastal State jurisdiction 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 guarantees the high seas 
freedoms of navigation, overflight, and the laying and 
maintenance of submarine cables and pipelines consistent with 
the other provisions of the convention.
    The convention imposes on coastal States a duty to conserve 
living marine resources in their EEZ's and also imposes 
obligations on all States to cooperate in the conservation of 
fisheries populations on the high seas and of so-called 
straddling stocks.
    With respect to nonliving natural resources, the convention 
recognizes the coastal State's sovereign rights over the 
exploration and development of mineral resources, including oil 
and gas, which are found in the seabed and the subsoil of the 
continental shelf. It lays down specific criteria and 
procedures for determining the outer limit of the shelf. In the 
Arctic, our shelf could run as far as 600 miles to the north of 
our coast.
    For the nonliving resources of the seabed beyond the limits 
of national jurisdiction, the convention establishes an 
international regime to govern exploration and exploitation. It 
defines the general conditions for access to deep seabed 
minerals and establishes an international organization, which 
is the International Seabed Authority, to oversee such 
development. The 1982 convention's provisions on deep seabed 
mining, as will be discussed shortly, have been fundamentally 
amended by the 1994 agreement. The United States did a lot of 
work to get that done.
    The convention sets forth a comprehensive legal framework 
and basic obligations for protecting marine environment from 
all sources of pollution. This framework also allocates 
regulatory and enforcement competence to balance the interests 
of coastal States in protection of the marine environment and 
its natural resources with the rights and freedoms of 
navigation of all States.
    The convention establishes a dispute settlement system to 
promote compliance with its provisions through the peaceful 
settlement of disputes. These procedures are flexible, 
providing options as to the appropriate means and forums for 
resolution of disputes. They are also comprehensive in 
subjecting the bulk of the convention's provisions to 
enforcement through mechanisms that are binding under 
international law. Importantly, the system also provides 
parties with means of excluding matters of vital national 
concern from the dispute settlement mechanisms. A State is able 
to choose one or more means for the settlement of disputes 
under the convention, and the administration recommends that 
the United States elect arbitration under Annex VII and special 
arbitration under Annex VIII of the convention as its means 
where appropriate.
    Subject to limited exceptions, the convention excludes from 
dispute settlement mechanisms any disputes relating to the 
sovereign rights of coastal States with respect to the living 
resources in their EEZ's, the fish principally. It also permits 
a State to opt out of dispute settlement procedures with 
respect to one or more categories of disputes. The 
administration recommends that the United States elect to 
exclude all three of these categories that you can opt out of 
from dispute settlement mechanisms.
    I would like to discuss a particularly important issue that 
arises with respect to the category of disputes concerning 
military activities. This exception has long been of particular 
importance to the United States. The U.S. negotiators sought 
and achieved language reflecting a very broad exception and we 
have consistently viewed this exception as a key element of the 
dispute settlement package, carefully balancing 
comprehensiveness with the need to protect our vital national 
interests.
    Over the past year, we reexamined these provisions to 
ensure that they continue to meet U.S. national security needs. 
We considered whether the United States declaration on dispute 
settlement should highlight this exception, given its 
importance and the possibility, however remote it might be, 
that another State might seek dispute settlement concerning a 
U.S. military activity, notwithstanding our declaration that 
would except such disputes from dispute settlement. We have 
concluded that each State party has the exclusive right, 
including of course the United States, to determine which of 
its activities are military and that such determination is not 
subject to review, and we recommend that the U.S. declaration 
invoking this exception should state our understanding of its 
operation.
    As I noted earlier, the United States decided not to sign 
the convention in 1982 because of serious defects in the regime 
it would have established for managing the development of 
seabed mineral resources beyond national deep seabed mining. 
While the other parts of the convention were judged to advance 
basic U.S. oceans policy interests, the United States and other 
industrialized countries felt the part XI regime needed reform 
before they would consider becoming party to the convention.
    As a result of international political and economic changes 
of the late 1980s and early 1990s, other countries recognized 
that the collectivist approach of part XI required basic 
change. Informal negotiations were launched in 1990 during the 
first Bush administration, and an agreement was adopted in July 
1994. That agreement, signed by the United States that same 
year, contains legally binding changes to part XI. It is to be 
applied and interpreted together with the convention as a 
single instrument.
    These changes overcome each one of the U.S. objections to 
the original part XI and meet our goal of guaranteed access by 
the U.S. industry to deep seabed minerals under reasonable 
terms and conditions. All other major industrialized nations 
have now signed the agreement and most have become party to the 
convention and the agreement as a package. As of today, 115 
States and the European Community have consented to be bound by 
the 1994 agreement.
    I would like to close my testimony just by outlining some 
of the distinct advantages of joining the convention over 
maintaining the status quo situation. You have mentioned some 
of these this morning yourself, Mr. Chairman, and I know they 
were well described by Admiral Watkins and some of the other 
witnesses that you had last week, but I think it is worth 
repeating on behalf of the administration.
    U.S. accession would substantially enhance the 
authoritative force of the convention, likely inspire other 
States to join, and promote its provisions as the governing 
rules of international law relating to the oceans.
    The United States would be in a much stronger position 
invoking a treaty's provisions to which it is a party, for 
instance in a bilateral disagreement where the other country 
does not understand or accept them.
    While we have been able to rely on diplomatic and 
operational challenges to resist excessive maritime claims, it 
would be more desirable to establish universal norms of 
behavior and have available additional methods of resolving 
conflicts.
    The convention continues to be implemented in various 
forums, both within and outside the convention. The United 
States as a party would be in a stronger position defending its 
military interests and other interests in these forums if it 
were to join.
    Becoming a party to the convention would permit the United 
States also to nominate members for election to both the Law of 
the Sea Tribunal and the continental shelf Commission. Having 
U.S. members on those bodies would help ensure that the 
convention is being interpreted and applied in a manner that is 
consistent with U.S. interests.
    And finally, becoming a party to the convention would 
strengthen our ability to deflect potential proposals that 
would be inconsistent with U.S. interests, including especially 
with our interests in freedom of navigation.
    Beyond these affirmative reasons for joining the 
convention, there are down-side risks if we further delay U.S. 
accession. U.S. mobility and access have been preserved over 
the past 20 years in the oceans largely due to the convention's 
stable, widely accepted legal framework, but it would be risky 
to assume that it is possible to preserve ad infinitum the 
stable situation that the United States currently enjoys on the 
basis just of customary international law. Customary 
international law can be changed by the practice of States over 
time and therefore does not offer the future stability that 
comes with being a party to the convention.
    I think, Mr. Chairman, that Jack McNeil who was the 
Assistant General Counsel of the Pentagon some years ago--and I 
worked with him there--put it well in his testimony to the 
committee some years ago when he said that basically what 
conduct that may be a violation, you are in a much stronger 
position condemning that conduct than waiting and seeing it 
actually turn into State practice over time, and we do not be 
in that position.
    Because the global context for the convention is 
continually changing, we need to ensure that it continues to 
serve U.S. interests over time. After accession, we will 
conduct biennial reviews of implementation and we will identify 
any changes that may be required. After 10 years, the executive 
branch proposes to conduct a more comprehensive evaluation of 
the operation of the convention, and we would intend that the 
results of these reviews, the biennial ones and the decennial 
one, be shared with the Senate.
    In addition, I would like to note that the convention 
includes simplified procedures for the adoption and entry into 
force of certain convention amendments and implementation and 
enforcement measures that do raise potential constitutional 
issues. We intend to sort these and other legal and policy 
issues out with our colleagues in the administration, 
particularly in the Department of Justice, and also with this 
committee, and we are confident that they can be satisfactorily 
resolved.
    Mr. Chairman, becoming a party to the convention represents 
a highest priority of the United States international oceans 
policy, a bipartisan priority, and to this end, we recommend 
that the Senate give its advice and consent to accession to the 
convention and to the ratification of the 1994 agreement. Thank 
you, Mr. Chairman.
    [The prepared statement of Mr. Taft follows:]

     Prepared Statement of Hon. William H. Taft, IV, Legal Adviser,
                          Department of State

    Mr. Chairman and Members of the Committee:
    Thank you for the opportunity to testify on the 1982 United Nations 
Convention on the Law of the Sea (``the Convention'') and the 1994 
Agreement relating to the Implementation of Part XI of the United 
Nations Convention on the Law of the Sea of 10 December 1982 (``the 
1994 Agreement''). My colleague, Assistant Secretary John Turner, has 
given you an overview of the important reasons for the United States to 
become a party to this Convention. Please allow me to provide 
additional detail on the Convention and the Agreement.
                                   i.
The Convention
    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, which met between 1973 and 1982 to adopt a treaty 
regulating all matters relating to the law of the sea.
    The Convention establishes international consensus on the extent 
ofjurisdiction that States may exercise off their coasts and allocates 
rights and duties among States in all marine areas. It provides for a 
territorial sea of a maximum breadth of 12 nautical miles, within which 
the coastal State may generally exercise plenary authority as a 
function of its sovereignty. The Convention also establishes a 
contiguous zone of up to 24 nautical miles from coastal baselines, in 
which the coastal State may exercise limited control necessary to 
prevent or punish infringements of its customs, fiscal, immigration, 
and sanitary laws and regulations that occur within its territory or 
territorial sea. It also gives the coastal State sovereign rights for 
the purpose of exploring and exploiting, conserving and managing 
natural resources, whether living (e.g., fisheries) or non-living 
(e.g., oil and gas), in an exclusive economic zone (EEZ) that may 
extend to 200 nautical miles from the coast. In addition, the 
Convention accords the coastal State sovereign rights over the 
continental shelf both within and beyond the EEZ where the geological 
margin so extends.
    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 
jurisdiction and on the high seas beyond. It protects the right of 
passage for all ships and aircraft through, under, and over straits 
used for international navigation and archipelagos. It protects the 
high seas freedoms of navigation, overflight, and the laying and 
maintenance of submarine cables and pipelines, as well as other 
internationally lawful uses of the sea related to those freedoms, 
consistent with the other provisions of the Convention.
    In recognizing the sovereign rights and management authority of 
coastal States over living resources within their EEZs, 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 and also imposes obligations upon all States 
to cooperate in the conservation of fisheries populations on the high 
seas and of 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 contains specific measures for the 
conservation of anadromous species, such as salmon, and for marine 
mammals, such as whales. These provisions of the Convention give the 
United States the right to regulate fisheries in the largest EEZ in the 
world, an area significantly greater than U.S. land territory, which 
contains some of the most resource-rich waters on the planet.
    With respect to non-living natural resources, the Convention 
recognizes the coastal State's sovereign rights over the exploration 
and development of mineral resources, including oil and gas, found in 
the seabed and subsoil of the continental shelf, out to 200 nautical 
miles and beyond, 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 United States has large areas of 
continental shelf seaward of 200 nautical miles in the Atlantic Ocean, 
the Gulf of Mexico, and the Arctic Ocean north of Alaska. In the 
Arctic, our shelf could run as far as 600 miles to the north.
    For the non-living resources of the seabed beyond the limits of 
national jurisdiction (i.e., beyond the EEZ or continental margin, 
whichever is farther 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 
oversee such development. The 1982 Convention's provisions on deep 
seabed mining, as will be discussed shortly, have been fundamentally 
amended by the 1994 Agreement.
    The Convention sets forth a comprehensive legal framework and basic 
obligations for protecting the marine environment from all sources of 
pollution: from vessels, from dumping, from seabed activities, and from 
land-based activities. This framework also allocates regulatory and 
enforcement competence to balance the interests of coastal States in 
protection of the marine environment and its natural resources with the 
rights and freedoms of navigation.
    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 right 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. More U.S. scientists 
conduct marine scientific research in foreign waters than scientists 
from almost all other countries combined.
    The Convention establishes a dispute settlement system to promote 
compliance with its provisions and the peaceful settlement of disputes. 
These procedures are flexible, providing options as to the appropriate 
means and forums for resolution of disputes. They are also 
comprehensive, in subjecting the bulk of the Convention's provisions to 
enforcement through mechanisms that are binding under international 
law. Importantly, the system also provides Parties with means of 
excluding matters of vital national concern from the dispute settlement 
mechanisms (e.g., disputes concerning maritime boundaries, military 
activities, and EEZ fisheries management). A State is able to choose, 
by written declaration, one or more means for the settlement of 
disputes under the Convention. The Administration recommends that the 
United States elect arbitration under Annex VII and special arbitration 
under Annex VIII.
    Subject to limited exceptions, the Convention excludes from dispute 
settlement mechanisms 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, through a declaration, to opt 
out of dispute settlement procedures with respect to one or 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. The 
Administration recommends that the United States elect to exclude all 
three of these categories of disputes from dispute settlement 
mechanisms.
    I would like to discuss a particularly important issue that arises 
with respect to the category of disputes concerning military 
activities. The military activities exception has long been of 
importance to the United States. The U.S. negotiators of the Convention 
sought and achieved language reflecting a very broad exception, 
successfully defeating attempts by certain other countries to narrow 
its scope. The U.S. has consistently viewed this exception as a key 
element of the dispute settlement package, which carefully balances 
comprehensiveness with protection of vital national interests.
    Over the past year, the Administration reexamined the Convention's 
dispute settlement provisions to ensure that they continue to meet U.S. 
national security needs. Now, more than ever, it is critical that U.S. 
military activities, such as military surveys and reconnaissance 
flights over EEZs, are not inappropriately subject to international 
dispute resolution procedures, which could have a major impact on our 
military operations and national security interests.
    As part of our review of this serious issue, we considered whether 
the U.S. declaration on dispute settlement should in some way 
particularly highlight the military activities exception, given both 
its importance and the possibility, however remote, that another State 
Party might seek dispute settlement concerning a U.S. military activity 
notwithstanding our declaration invoking the exception. We have 
concluded that each State Party has the right to determine whether its 
activities are military activities and that such determination is not 
reviewable. We also concluded that it was very important to highlight 
our understanding of the operation of this exception. As such, the 
Administration recommends that the U.S. declare that its consent to 
accession to the Convention is conditioned upon the understanding that 
each Party has the exclusive right to determine which of its activities 
are ``military activities'' and that such determination is not subject 
to review. We will provide the Committee with language for the dispute 
settlement declaration.
    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 
thirty years. As I noted before, the United States decided not to sign 
the Convention upon its adoption in 1982 because of serious defects in 
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 to advance basic U.S. ocean policy 
interests, the United States and other industrialized countries 
determined the deep seabed regime of Part XI to be inadequate and in 
need of reform before they would ever consider becoming party to the 
Convention.
The 1994 Agreement
    As a result of the important international political and economic 
changes of the late 1980s and early 1990s--including the end of the 
Cold War and growing reliance on free market principles--widespread 
recognition emerged, not limited to industrialized nations, that the 
collectivist approach of the seabed mining regime of the Convention 
required basic change. Thus, informal negotiations were launched in 
1990 during the first Bush Administration, under the auspices of the 
United Nations Secretary-General. An agreement was adopted in July 
1994.
    The Agreement, signed by the United States on July 28, 1994, 
contains legally binding changes to that part of the LOS Convention 
dealing with mining of the deep seabed beyond the limits of national 
jurisdiction (Part XI). It is to be applied and interpreted together 
with the Convention as a single instrument.
    The legally binding changes set forth in the 1994 Agreement 
overcome each one of the objections of the United States to Part XI of 
the Convention and meet our goal of guaranteed access by the U.S. 
industry to deep seabed minerals on the basis of reasonable terms and 
conditions. All other major industrialized nations have now signed the 
Agreement and most have become party to the Convention and the 
Agreement as a package.
    The Agreement overhauls the decision-making procedures of Part XI 
to accord the United States, and others with major economic interests 
at stake, decisive influence over future decisions on possible deep 
seabed mining. The Agreement guarantees a seat for the United States on 
the critical decision-making body and requires financial decisions to 
be based on a consensus of major contributors.
    The Agreement restructures the deep seabed mining regime along free 
market principles. 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 interest in seabed 
mining. A future decision, which the United States and a few of its 
allies could 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 Convention requirements as other 
commercial enterprises. States have no obligation to finance the 
Enterprise, and subsidies inconsistent with GATT/WTO are prohibited. 
Equally important, the Agreement eliminates all requirements for 
mandatory transfer of technology and production controls that were 
contained in the original version of Part XI.
    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. It also strengthens the provisions 
requiring consideration of the potential environmental impacts of deep 
seabed mining.
    The Agreement entered into force on November 16, 1998.
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 between 1982 and 1984. The 
Convention entered into force on November 16, 1994, one year after the 
sixtieth nation consented to be bound by it. As of today, there are 143 
Parties to the Convention, including virtually all of our NATO and OECD 
allies, as well as Russia and China.
    The 1994 Agreement was concluded on July 28, 1994, and was signed 
by 99 nations, including the United States. As of today, 115 States and 
the European Community have consented to be bound by the Agreement.
                                  ii.
    I would like now to address some perceived disadvantages of U.S. 
adherence to the Convention.
    First, it might be argued that the United States should not join 
the Convention because, as a party, we would be required to make 
financial contributions to run the Convention's institutions. However, 
payments to the Convention's institutions are modest. For the 2003-2004 
biennial budget, the U.S. assessment for the International Seabed 
Authority would be a little over $1 million. The U.S. assessment for 
the International Tribunal for the Law of the Sea for 2004 would be a 
little less than $2 million (24% of the total budget) and 22% of the 
total for the 2005-2006 budget years. We do not anticipate the budget 
for either institution to increase substantially in later years.
    Second, some would argue that we should not be joining and 
participating in a new bureaucracy for deep seabed mining. The 
International Seabed Authority has, however, now been restructured in 
ways that meet the objections raised by the United States and others. 
The United States has a guaranteed seat on the 36-member Council, an 
effective veto (in combination with two other consumer States) in the 
Council, and an absolute veto in the Finance Committee with respect to 
any decision with financial or budgetary implications. Moreover, as a 
practical matter, U.S.-based companies will not be able to engage in 
mining the deep seabed, without operating through another State Party, 
unless we are party to the Convention.
    Third, it might be argued that the United States should not join 
the Convention because we would have to pay a contribution based on a 
percentage of oil/gas production beyond 200 miles from shore. However, 
the revenue-sharing provisions of the Convention are reasonable. The 
United States has one of the broadest shelves in the world. Roughly 14% 
of our shelf is beyond 200 miles, and off Alaska it extends north to 
600 miles. The revenue-sharing provision was instrumental in achieving 
guaranteed U.S. rights to these large areas. It is important to note 
that this revenue-sharing obligation does not apply to areas within 200 
nautical miles and thus does not affect current revenues produced from 
the U.S. Outer Continental Shelf. Most important, this provision was 
developed by the United States in close cooperation with 
representatives of the U.S. oil and gas industry. The industry supports 
this provision. Finally, with a guaranteed seat on the Finance 
Committee of the International Seabed Authority, we would have an 
absolute veto over the distribution of all revenues generated from this 
revenue-sharing provision.
    Finally, as to whether it is sufficient to continue to rely only on 
customary international law, the distinct advantages of joining the 
Convention include the following:

   U.S. accession would enhance the authoritative force of the 
        Convention, likely inspire other States to join, and promote 
        its provisions as the governing rules of international law 
        relating to the oceans.

   The United States would be in a stronger position invoking a 
        treaty's provisions to which it is party, for instance in a 
        bilateral disagreement where the other country does not 
        understand or accept them.

   While we have been able to rely on diplomatic and 
        operational challenges to excessive maritime claims, it is 
        desirable to establish additional methods of resolving 
        conflict.

   The Convention continues to be implemented in various 
        forums, both within the Convention and outside the Convention 
        (such as at the International Maritime Organization or IMO). 
        The United States would be in a stronger position defending its 
        military interests and other interests in these forums if it 
        were a party to the Convention.

   Becoming a party to the Convention would permit the United 
        States to nominate members for both the Law of the Sea Tribunal 
        and the Continental Shelf Commission. Having U.S. members on 
        those bodies would help ensure that the Convention is being 
        interpreted and applied in a manner consistent with U.S. 
        interests.

   Becoming a party to the Convention would strengthen our 
        ability to deflect potential proposals that would be 
        inconsistent with U.S. interests, including freedom of 
        navigation.

    Beyond those affirmative reasons for joining the Convention, there 
are downside risks of not acceding to the Convention. U.S. mobility and 
access have been preserved and enjoyed over the past twenty years 
largely due to the Convention's stable, widely accepted legal 
framework. It would be risky to assume that it is possible to preserve 
ad infinitum the stable situation that the United States currently 
enjoys. Customary international law may be changed by the practice of 
States over time and therefore does not offer the future stability that 
comes with being a party to the Convention.
    Having elaborated the basic elements of the Convention and 
Agreement and the advantages of U.S. accession, allow me to raise two 
final serious issues.
    Because the global context for the Convention is rapidly and 
continually changing, a way needs to be found to ensure that the 
Convention continues to serve U.S. interests over time. We must ensure 
that, in obtaining the stability that comes with joining the 
Convention, we nonetheless retain sufficient flexibility to protect 
U.S. interests. After U.S. accession, the Executive Branch will conduct 
biennial reviews of how the Convention is being implemented and will 
seek to identify any changes in U.S. and/or international 
implementation that may be required to improve implementation and to 
better adapt the Convention to changes in the global environment. After 
ten years, the Executive Branch will conduct a more comprehensive 
evaluation to determine whether the Convention continues to serve U.S. 
interests. The results of these reviews will be shared with the Senate. 
(Another option that we considered is that of a sunset provision, i.e., 
limiting the length of time that the United States is a party to the 
Convention, which has disadvantages as well as advantages.) Needless to 
say, the United States could, of course, withdraw from the Convention 
if U.S. interests were seriously threatened.
    In addition, I would like to note that the Convention includes 
simplified procedures for the adoption and entry into force of certain 
Convention amendments and implementation and enforcement measures that 
raise potential constitutional issues. We intend to sort these and 
other legal and policy issues out with the Senate, confident that they 
can be satisfactorily resolved.
    Let me join with Assistant Secretary Turner in underscoring that 
becoming a party to the Convention, as modified by the 1994 Agreement, 
represents the highest priority of United States international oceans 
policy--a bipartisan priority--and to this end the Administration 
recommends that the Senate give its advice and consent to accession to 
the Convention and ratification of the Agreement. Thank you very much.

    The Chairman. Well, we thank you very much for your 
testimony.
    The Chair would like to call now upon the Department of 
Defense Deputy Assistant Secretary, Mark Esper. Mr. Esper.

  STATEMENT OF MARK T. ESPER, DEPUTY ASSISTANT SECRETARY FOR 
   NEGOTIATIONS POLICY, DEPARTMENT OF DEFENSE, THE PENTAGON, 
                         WASHINGTON, DC

    Mr. Esper. Thank you, Mr. Chairman, and good morning. Thank 
you for the opportunity to testify today in support of the 
United Nations Convention on the Law of the Sea.
    As my colleagues have already stated, the administration 
strongly supports accession to the Law of the Sea Convention. 
The convention codifies customary international law and 
practices that are critical to the United States Armed Forces 
and provides additional benefits to the United States.
    The administration has, however, identified serious issues 
raised by U.S. accession to the convention that we believe can 
be resolved with the Senate's assistance.
    I would like to address first the benefits to the United 
States that will be derived from accession to the convention 
and then follow with a discussion of the administration's 
concerns and proposed remedies.
    The administration supports accession to the convention 
because the convention supports navigational rights critical to 
military operations. These rights are essential to the 
formulation and implementation of our national security 
strategy. Although much of what is contained in the convention 
is customary international law, accession to the convention 
ensures that the United States has the benefit of the stability 
that comes with the codification of customary international 
law. Indeed, an essential element of executing our national 
security strategy is the assumption that key sea and air lines 
of communication will remain open as a matter of international 
legal right, not contingent upon approval by coastal and island 
nations along the route or in the area of operations.
    Examples of rights that exist under the convention that are 
critical to military operations include: freedom of navigation 
and overflight on the high seas and within the 200 nautical 
mile exclusive economic zone; freedom of navigation and 
overflight through key international straits; limitation of 
territorial seas to 12 nautical miles; innocent passage through 
foreign territorial seas without notice or permission, 
regardless of armament or means of propulsion; and freedom to 
conduct military surveys seaward of foreign territorial seas 
without the permission of coastal States.
    In short, Mr. Chairman, the Law of the Sea Convention 
codifies the rights of the United States Armed Forces to 
navigate freely on, under, and over the seas.
    While the United States currently enjoys the benefits of 
the convention as reflected in customary international law, 
accession provides the United States with additional benefits.
    First, U.S. accession to the convention will enhance our 
ability to influence the future direction of the law in 
international maritime forums, such as the International 
Maritime Organization, and the various entities established 
under the convention.
    Second, accession will provide the United States with 
another venue to try to prevent the erosion of navigational 
rights and freedoms critical to the United States Armed Forces. 
We can do this by seeking to prevent adverse amendments to the 
convention and by using the annual meeting of States parties to 
address misunderstandings and misinterpretations of the 
convention. These treaty-based tools complement longstanding 
United States efforts to challenge, among other things, 
excessive maritime claims and illegal constraints on our 
navigational freedoms through our diplomatic initiatives and 
the freedom of navigation program.
    Third, accession will not only provide the United States 
with additional mechanisms through which it can strive to stop 
the erosion of freedoms critical to the United States Armed 
Forces, but it will also provide the United States another 
forum to advance United States interests. For example, we 
believe that as a party to the Law of the Sea Convention, the 
United States will have another avenue through which to achieve 
international consensus proscribing the maritime trafficking of 
weapons of mass destruction, their delivery systems, and 
related materials to and from States of proliferation concern 
and terrorists. To be sure, we will avail ourselves of every 
available option to halt the proliferation of weapons of mass 
destruction on the high seas.
    Finally, accession will allow the United States to 
participate in the bodies established by the convention. 
Specifically, it will permit the United States to participate 
in the Commission on the Limits of the Continental Shelf, the 
International Seabed Authority, and the International Tribunal 
for the Law of the Sea.
    September 11 demonstrated how rapidly the world can change. 
As a result, the administration believes it is important to 
ensure that as time passes, the convention continues to provide 
the United States with the flexibility needed to meet national 
security challenges that may arise. To achieve that objective, 
the administration considered a number of options.
    To begin, once in force, the administration will conduct 
biennial reviews of the treaty's implementation, including the 
identification of any needed changes in the convention's 
implementation or in the convention itself. Such reviews will 
help the United States assess whether the convention continues 
to serve United States interests. As part of these reviews, the 
administration will seek to identify any changes in the treaty 
or its implementation that may be required to adapt the treaty 
to changes in the global security situation. In addition, these 
reviews will be coupled with a more comprehensive review after 
10 years. The results of these reviews will be shared with the 
Senate.
    Reviews of this kind are not the only option for ensuring 
the convention continues to serve United States interests. 
Another option that we considered is that of a sunset 
provision, that is, limiting the length of time that the United 
States is a party to the convention, which has disadvantages as 
well as advantages. And, needless to say, the United States 
could, of course, withdraw from the convention if United States 
interests are ever seriously threatened.
    In any case, the goal is to make certain that the 
convention continues to meet our national security 
requirements, protects our strategic flexibility, and advances 
broader United States interests in a world that is constantly 
changing.
    To this end, in the past year the administration undertook 
a review of the Law of the Sea Convention to ensure that it 
continues to meet United States needs in the current national 
security environment. This dynamic environment also requires 
that the convention allow for the flexibility we need to meet 
U.S. national security objectives and interests over the long 
term.
    Specifically, the administration sought to ensure that, 
given this new strategic environment, the Law of the Sea 
Convention provides the United States with sufficient 
operational freedom and flexibility to pursue effectively U.S. 
goals in the global war on terrorism and our efforts in concert 
with other nations to halt the proliferation of weapons of mass 
destruction. That review did not reveal particular problems 
affecting current U.S. operations.
    Our review also focused on the convention's dispute 
settlement provisions which permit a party to exclude from 
dispute settlement the category of ``disputes concerning 
military activities.'' This exception is of vital importance to 
the United States. That said, our review did identify one area 
of serious concern for United States military activities.
    As you know, the convention establishes a mandatory dispute 
resolution scheme. Pursuant to part XV of the convention, an 
arbitral tribunal may be constituted to settle disputes that 
arise with respect to the interpretation and application of the 
convention. The convention authorizes State parties to the 
convention, through a declaration, to opt out of dispute 
settlement procedures with respect to one or 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 U.N. Security Council is 
exercising the functions assigned to it under the U.N. Charter. 
Through the military activities exception, the convention 
recognizes that such activities involve vital national security 
interests that are not an appropriate matter for mandatory 
dispute resolution.
    The military activities exception is of obvious importance 
to the activities of the U.S. Armed Forces. As a result, we 
have examined this issue thoroughly to make certain that a 
tribunal cannot question whether U.S. activities are indeed 
military for purposes of that exception. Allow me to offer an 
example to illustrate the administration's concern.
    It is possible to imagine a scenario wherein another State 
party calls upon a tribunal to decide whether or not our 
military surveys in that country's EEZ or reconnaissance 
aircraft flying in the airspace above that country's EEZ, both 
of which are military activities of paramount importance, are 
consistent with the convention. In this scenario, if a tribunal 
were permitted to interfere with such military activities, this 
would have a major impact on our military operations and U.S. 
national security.
    In this light, the administration closely examined the 
convention, its negotiating history, and the practices of the 
tribunals constituted under the convention. Based on its 
examination, the administration believes that it is clear that 
whether an activity is military is for each State party to 
determine for itself. Indeed, having the ability to determine 
what is a military activity involves vital national security 
interests that are critical to our ability to defend the 
Nation, protect our forces overseas, safeguard our interests 
abroad, and assist our friends and allies in times of need.
    The administration thus recommends that the United States 
submit a declaration electing to exclude all three of these 
categories of disputes from binding dispute settlement. With 
respect to the particular category of disputes concerning 
military activities, the administration further recommends that 
the U.S. declaration make clear that its consent to accession 
to the convention is conditioned upon the understanding that 
each party has the exclusive right to determine which of its 
activities are military activities and that such determinations 
are not subject to review. We will provide the committee with 
language on this point.
    Additionally, I would like to note that the convention 
includes certain simplified procedures for the adoption and the 
entry into force of amendments and implementation and 
enforcement measures that raise potential constitutional 
issues. We intend to sort these and other legal and policy 
issues out with the Senate, confident that they can be 
satisfactorily resolved.
    Mr. Chairman, let me conclude where I began by stating the 
administration's strong support for U.S. accession to the Law 
of the Sea Convention. The convention codifies customary 
international law that is critical to the United States Armed 
Forces. Accession will provide the United States with 
additional benefits and ways to safeguard the rights the 
convention codifies.
    I would note that in addition to the declarations and 
provisions cited above, there are other declarations and issues 
that the administration is considering for inclusion in the 
resolution of ratification. That said, while the administration 
has identified problems with the convention, we believe those 
issues can be resolved by working in close partnership with the 
Senate.
    In closing, the administration is confident that U.S. 
accession to the Law of the Sea Convention will benefit the 
United States and that accession with the right declarations 
supports the ability of the United States Armed Forces to 
protect and advance our national security interests.
    Mr. Chairman, thank you again for the opportunity to appear 
before the committee this morning. The administration looks 
forward to working with the committee to secure the Senate's 
advice and consent, and I am happy to respond to any questions 
you may have. Thank you.
    [The prepared statement of Mr. Esper follows:]

  Prepared Statement of Mark T. Esper, Deputy Assistant Secretary of 
  Defense for Negotiations Policy, Department of Defense, the Pentagon

    Chairman Lugar, Senator Biden, Members of the Committee, good 
morning, and thank you for the opportunity to testify today in support 
of the United Nations Convention on the Law of the Sea.
    Let me begin by stating that the Administration strongly supports 
accession to the Law of the Sea Convention. The Convention codifies 
customary international law and practices that are critical to the 
United States Armed Forces, and provides additional benefits to the 
United States.
    The Administration has, however, identified serious issues raised 
by U.S. accession to the Convention that we believe can be resolved 
with the Senate's assistance.
    I would like to address first the benefits to the United States 
that will be derived from accession to the Convention, and then follow 
with a discussion of the Administration's concerns and proposed 
remedies.
    The Administration supports accession to the Convention because the 
Convention supports navigational rights critical to military 
operations. These rights are essential to the formulation and 
implementation of our national security strategy. Although much of what 
is contained in the Convention is customary international law, 
accession to the Convention ensures that the United States has the 
benefit of the stability that comes with the codification of customary 
international law. Indeed, an essential element of executing our 
national security strategy is the assumption that key sea and air lines 
of communication will remain open as a matter of international legal 
right--not contingent upon approval by coastal and island nations along 
the route or in the area of operations.
    Examples of rights that exist under the Convention that are 
critical to military operations include:

   Freedom of navigation and overflight on the high seas and 
        within the 200 NM Exclusive Economic Zone (EEZ);

   Freedom of navigation and overflight through key 
        international straits (such as Gibraltar, Hormuz, Malacca) and 
        archipelagoes (such as Indonesia and the Philippines);

   Limitation of territorial seas to 12 NM and limitations on 
        the jurisdiction of coastal states within their EEZs and 
        beyond;

   Innocent passage through foreign territorial seas without 
        notice or permission, regardless of armament or means of 
        propulsion; and

   Freedom to conduct military surveys seaward of foreign 
        territorial seas without the permission of coastal states.

    In short, the Law of the Sea Convention codifies the rights of the 
U.S. Armed Forces to navigate freely on, under, and over the seas.
    While the United States currently enjoys the benefits of the 
Convention as reflected in customary international law, accession 
provides the United States with additional benefits.
    First, U.S. accession to the Convention will enhance our ability to 
influence the future direction of the law in international maritime 
forums, such as the International Maritime Organization, and the 
various entities established under the Convention.
    Second, accession will provide the United States with another venue 
to try to prevent the erosion of navigational rights and freedoms 
critical to the U.S. Armed Forces. We can do this by seeking to prevent 
adverse amendments to the Convention, and by using the annual meeting 
of States Parties to address misunderstandings or misinterpretations of 
the Convention. These treaty-based tools complement longstanding U.S. 
efforts to challenge, among other things, excessive maritime claims and 
illegal constraints on our navigational freedoms, through our 
diplomatic initiatives and the freedom of navigation program.
    Third, accession will not only provide the United States with 
additional mechanisms through which it can strive to stop the erosion 
of freedoms critical to the U.S. Armed Forces, but it will also provide 
the United States another forum to advance U.S. interests. For example, 
we believe that as a party to the Law of the Sea Convention, the United 
States will have another avenue through which to achieve international 
consensus proscribing the maritime trafficking of weapons of mass 
destruction, their delivery systems, and related materials to and from 
states of concern and terrorists. To be sure, we will avail ourselves 
of every available option to halt the proliferation of weapons of mass 
destruction on the high seas.
    Finally, accession will allow the United States to participate in 
the bodies established by the Convention. Specifically, it will permit 
the United States to participate in the Commission on the Limits of the 
Continental Shelf, the International Seabed Authority, and the 
International Tribunal for the Law of the Sea. These bodies could play 
an important role in influencing future law of the sea developments.
    September 11 demonstrated how rapidly the world can change. As a 
result, the Administration believes it is important to ensure that, as 
time passes, the Convention continues to provide the United States with 
the flexibility needed to meet national security challenges that may 
arise. To achieve that objective, the Administration considered a 
number of options.
    To begin, once in force, the Administration will conduct biennial 
reviews of the treaty's implementation, including the identification of 
any needed changes in the Convention's implementation or in the 
Convention itself. Such reviews will help the United States assess 
whether the Convention continues to serve U.S. interests. As part of 
these reviews, the Administration will seek to identify any changes in 
the treaty or its implementation that may be required to adapt the 
treaty to changes in the global security situation. In addition, these 
biennial reviews will be coupled with a more comprehensive review after 
ten years. The results of these reviews will be shared with the Senate.
    Reviews of this kind are not the only option for ensuring the 
Convention continues to serve U.S. interests. Another option that we 
considered is that of a sunset provision, that is, limiting the length 
of time that the United States is a party to the Convention, which has 
disadvantages as well as advantages. And, needless to say, the United 
States could, of course, withdraw from the Convention if U.S. interests 
are ever seriously threatened.
    In any case, the goal is to make certain that the Convention 
continues to meet our national security requirements, protects our 
strategic flexibility, and advances broader U.S. interests in a world 
that is constantly changing.
    To this end, in the past year the Administration undertook a review 
of the Law of the Sea Convention to ensure that it continues to meet 
U.S. needs in the current national security environment. This dynamic 
environment also requires that the Convention allow for the flexibility 
we need to meet U.S. national security objectives and interests over 
the long term.
    Specifically, the Administration sought to ensure that, given this 
new strategic environment, the Law of the Sea Convention provides the 
United States with sufficient operational freedom and flexibility to 
pursue effectively U.S. goals in the global war on terrorism and our 
efforts in concert with other nations to halt the proliferation of 
weapons of mass destruction. That review did not reveal particular 
problems affecting current U.S. operations.
    Our review also focused on the Convention's dispute settlement 
provisions, which permit a Party to exclude from dispute settlement the 
category of ``disputes concerning military activities.'' This exception 
is of vital importance to the United States. That said, our review, did 
identify one area of serious concern for U.S. military activities.
    As you know, the Convention establishes a mandatory dispute 
resolution scheme. Pursuant to Part XV of the Convention, an arbitral 
tribunal may be constituted to settle disputes that arise with respect 
to the interpretation and application of the Convention. The Convention 
authorizes State Parties to the Convention, through a declaration, to 
opt out of dispute settlement procedures with respect to one or 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 U.N. Security Council is exercising the functions 
assigned to it under the U.N. Charter. Through the military activities 
exception, the Convention recognizes that such activities involve vital 
national security interests that are not an appropriate matter for 
mandatory dispute resolution.
    The military activities exception is of obvious importance to the 
activities of the U.S. Armed Forces. As a result, we have examined this 
issue thoroughly to make certain that a tribunal cannot question 
whether U.S. activities are indeed ``military'' for purposes of that 
exception. Allow me to offer an example to illustrate the 
Administration's concern. It is possible to imagine a scenario wherein 
another State Party calls upon a tribunal to decide whether or not our 
military surveys in that country's EEZ or reconnaissance aircraft 
flying in the airspace above that country's EEZ--both of which are 
military activities of paramount importance--are consistent with the 
Convention.
    In this scenario, if a tribunal were permitted to interfere with 
such military activities, this would have a major impact on our 
military operations and U.S. national security.
    In this light, the Administration closely examined the Convention, 
its negotiating history, and the practices of the tribunals constituted 
under the Convention. Based on this examination, the Administration 
believes that it is clear that whether an activity is ``military'' is 
for each State Party to determine for itself. Indeed, having the 
ability to determine what is a ``military activity'' involves vital 
national security interests that are critical to our ability to defend 
the Nation, protect our forces overseas, safeguard our interests 
abroad, and assist our friends and allies in times of need.
    The Administration thus recommends that the United States submit a 
declaration electing to exclude all three of these categories of 
disputes from binding dispute settlement. With respect to the 
particular category of disputes concerning military activities, the 
Administration further recommends that the U.S. declaration make clear 
that its consent to accession to the Convention is conditioned upon the 
understanding that each Party has the exclusive right to determine 
which of its activities are ``military activities'' and that such 
determinations are not subject to review. We will provide the Committee 
with language on this point.
    Additionally, I would like to note that the Convention includes 
certain simplified procedures for the adoption and the entry into force 
of amendments and implementation and enforcement measures that raise 
potential constitutional issues. We intend to sort these and other 
legal and policy issues out with the Senate, confident that they can be 
satisfactorily resolved.
    Mr. Chairman, let me conclude where I began by stating the 
Administration's strong support for U.S. accession to the Law of the 
Sea Convention. The Convention codifies customary international law 
that is critical to the United States Armed Forces; accession will 
provide the United States with additional benefits and ways to 
safeguard the rights the Convention codifies.
    I would note that, in addition to the declarations and provisions 
cited above, there are other declarations and issues that the 
Administration is considering for inclusion in the Resolution of 
Ratification. That said, while the Administration has identified 
problems with the Convention, we believe those issues can be resolved 
by working in close partnership with the Senate.
    In closing, the Administration is confident that U.S. accession to 
the Law of the Sea Convention will benefit the United States, and that 
accession with the right declarations supports the ability of the U.S. 
Armed Forces to protect and advance our national security interests.
    Mr. Chairman, I would like to thank you again for the opportunity 
to appear before the Committee this morning. The Administration looks 
forward to working with the Committee to secure the Senate's advice and 
consent. I am happy to respond to any questions you or other members of 
the Committee may have, Mr. Chairman.
    Thank you.

    The Chairman. Well, thank you very much, Mr. Esper, for 
that testimony. Let me mention that I appreciate in the 
testimony from both the Department of State and the Department 
of Defense an eagerness to work with the committee to furnish 
language that may be helpful in furthering points that you have 
made in your testimony.
    It is a privilege now to call upon from the United States 
Navy the Vice Chief of Naval Operations, Admiral Michael 
Mullen. Admiral.

  STATEMENT OF ADMIRAL MICHAEL G. MULLEN, VICE CHIEF OF NAVAL 
  OPERATIONS, JOINT CHIEFS OF STAFF, DEPARTMENT OF THE NAVY, 
                         WASHINGTON, DC

    Admiral Mullen. Good morning, sir. Mr. Chairman, I too 
would like to thank you for the opportunity to testify here 
today. General Myers, the Chairman of the Joint Chiefs of 
Staff, has asked that I review with you the position of the 
Joint Chiefs of Staff and the combatant commanders on 
ratification of the Law of the Sea Convention. With your 
permission, I would like to make a brief opening statement, and 
as you have already stated yourself, submit my written 
testimony for the record.
    The Chairman. Very good.
    Admiral Mullen. General Myers, the services, and the 
combatant commands strongly support the United States becoming 
a party to the convention, which DOD and five administrations 
have consistently supported.
    As a comprehensive, multilateral treaty that confirms 
navigational rights and freedoms for maintaining global 
mobility and forward presence and readiness, the convention 
supports national security interests by codifying the right of 
U.S. military vessels to navigate freely on, under, and over 
the high seas or within international straits. Furthermore, 
within traditional choke point areas, a normal mode of 
operations is permitted, including formation steaming, use of 
sensors such as radar and sonar, submerged transits, and the 
launching and recovery of aircraft.
    Since 1983, the Joint Chiefs and the combatant commanders 
have supported the navigational provisions of the convention 
because of the core belief that a comprehensive, widely 
accepted, and stable legal basis for the world's oceans is 
essential to U.S. national security. With the favorable changes 
already made to the deep seabed regime under the U.S. 
Government leadership, the minimal risks associated with 
operating inside the treaty are eclipsed by the risk to remain 
outside, to limit our operations, to permit excessive customary 
foreign claims, and to yield our position as the international 
leader, particularly in the maritime domain.
    United States forces are continuously forward deployed 
worldwide to deter threats to our national security and remain 
in position to rapidly respond in order to protect U.S. 
interests either as part of a coalition or, if necessary, to 
act independently. In addition to Operations Enduring Freedom 
and Iraqi Freedom, our forces are now engaged in laying the 
groundwork for the implementation of the President's 
Proliferation Security Initiative. This international coalition 
will work together to disrupt the flow of weapons of mass 
destruction, their delivery systems, and any related illicit 
materials being transshipped throughout the world. Therefore, 
for present and other undefined future operations, our naval 
and air forces must be able to take maximum advantage of the 
navigational rights reflected in the Law of the Sea Convention.
    The convention also restricts and deters encroachment of 
coastal States. We must be able to count on the codified 
limits, such as the 12 nautical mile territorial sea, the 
maximum jurisdiction of 200 nautical miles, or the right to 
conduct military operations, including intelligence activities, 
without permission or prior notice within a coastal State's 
exclusive economic zone. And we must be able to operate with 
the sovereign immunity imputed by the convention.
    We believe that there are several fundamental points in 
support of ratification.
    First, it preserves U.S. leadership in developing and 
influencing the Law of the Sea, including peaceful dispute 
settlement and participation within various international 
bodies.
    Second, it codifies existing navigational freedoms that 
support the way we operate and limits the restrictions imposed 
upon us by the customary law of some coastal States.
    And last, it represents the best guarantee against further 
erosion of essential navigational and overflight freedoms that 
place in jeopardy our global mobility and transforming defense 
strategy.
    It is too risky to continue relying upon written customary 
international law as the primary legal basis to support U.S. 
military operations. We must be a party to the convention to 
claim the rights we assert. Challenges to our national security 
interests make strategic mobility more important than ever to 
our national security, and the oceans provide a vast and 
exploitable military maneuver space. By joining the convention, 
we incur the freedom to get to the fight 24 by 7 without a 
permission slip.
    Again, Mr. Chairman, I wish to thank you and the committee 
for offering me the opportunity to appear before you today, and 
I will be very happy to answer any questions you may have.
    [The prepared statement of Admiral Mullen follows:]

Prepared Statement of Admiral Michael G. Mullen, U.S. Navy, Vice Chief 
   of Naval Operations, Joint Chiefs of Staff, Department of the Navy

    Chairman Lugar, Senator Biden, Members of the Committee on Foreign 
Relations, good morning. I would like to thank you for this opportunity 
to testify here today. I am Admiral Mike Mullen, U.S. Navy, the Vice 
Chief of Naval Operations for the Department of the Navy.
    Although I am presently the Vice Chief of Naval Operations, I 
previously commanded the Navy's Second Fleet and NATO's Striking Force 
Atlantic, was privileged to command the George Washington Carrier 
Battle Group, and was commanding officer on and served aboard a number 
of cruisers, destroyers and other ships in our Fleet. The 
Administration, including the Military Departments, the Joint Chiefs of 
Staff and the Combatant Commanders, strongly support U.S. accession to 
the Convention. Entry into force for the United States will enhance the 
worldwide mobility our forces require and our traditional leadership 
role in maritime matters, as well as position us better to initiate and 
influence future developments in the law of sea.
    The Administration has identified three areas of serious concern, 
one of which could have a direct impact on U.S. military activities. 
The Administration believes, however, that we can resolve these 
problems by working closely with the Senate.
    Military operations since September 11--from Operation Enduring 
Freedom to Operation Iraqi Freedom to the Global War on Terrorism--have 
dramatically increased our global military requirements. U.S. Forces 
are continuously forward deployed worldwide to deter threats to our 
national security and are in position to respond rapidly to protect 
U.S. interests, either as part of a coalition or, if necessary, acting 
independently. U.S. military strategy envisions rapid deployment and 
mobility of forces overseas anytime, anywhere. A leaner, more agile 
force with a smaller overseas footprint places a premium on mobility 
and independent operational maneuver. Our mobility requirements have 
never been greater.
    Future threats will likely emerge in places and in ways that are 
not yet fully clear. For these and other undefined future operational 
challenges, U.S. naval and air forces must take maximum advantage of 
the customary, established navigational rights that the Law of the Sea 
Convention codifies. Sustaining our overseas presence, responding to 
complex emergencies, prosecuting the global war on terrorism, and 
conducting operations far from our shores are only possible if military 
forces and military and civilian logistic supply ships and aircraft are 
able to make unencumbered use of the sea and air lines of 
communication. This is an enduring principle that has been in place 
since the founding of our country.
    In addition to Operations Enduring Freedom and Iraqi Freedom, our 
ships and aircraft have been deployed overseas to intercept terrorists 
in the Mediterranean Sea, the Pacific Ocean and the Arabian Sea. They 
have also been deployed to the Pacific and Indian Oceans to ensure 
security in vital lines of communication in Southeast Asia, as well as 
to the waters off Central and South America to interdict the flow of 
illicit traffic from that region. Our forces are now engaged in laying 
the groundwork for implementation of the President's Proliferation 
Security Initiative. The international coalition assembled as part of 
the President's initiative will work together to disrupt the flow of 
weapons of mass destruction, their delivery systems, and related 
materials throughout the world.
    The navigation and overflight freedoms we require through customary 
international law are better served by being a party to the Convention 
that codifies those freedoms. Being a party to the Convention is even 
more important because the trend among some coastal states is toward 
limiting historical navigational and overflight freedoms. Would-be 
adversaries, or nations that do not support the particular missions or 
activities we undertake, will be less likely to dispute our lawful use 
of the sea and air lanes if we are parties to the Convention. We 
support the Convention because it protects military mobility by 
codifying favorable transit rights in key international straits, 
archipelagic waters, and waters adjacent to coastal states where our 
forces must be able to operate freely.
    The Law of the Sea Convention serves some very important U.S. 
military interests. Specifically, the Convention, codifies:

   High seas freedoms of overflight and vessel navigation 
        without discriminating against military exercises, military 
        surveys, research and development activities, ordnance testing, 
        and space and telecommunications activities;

   Limitation of territorial seas to 12 nm in the face of 
        increasing pressure by some coastal states to expand those seas 
        well beyond that limit, and to assert other claims that have 
        the practical effect of extending coastal state control over 
        the U.S. military's legitimate uses of those seas;

   Unimpeded overflight and passage rights through critical 
        international straits such as the Straits of Hormuz, Gibraltar 
        and Malacca;

   Unimpeded overflight and passage rights through archipelagic 
        states such as Indonesia and the Philippines under a balanced 
        regime of archipelagic sea lanes;

   The right of innocent passage of ships through the 
        territorial seas of coastal states, without prior notification 
        or permission;

   Limitation of the jurisdiction of coastal states in their 
        exclusive economic zones (EEZ) to legitimate resource related 
        concerns, while preserving high seas freedoms for other states;

   The right to conduct hydrographic and military surveys on 
        the high seas and within foreign EEZs.

    In addition to the rights that I just mentioned, the Convention 
guarantees the right to conduct transits through international straits 
in ``normal modes,'' which means that submarines may stay submerged and 
air-capable ships may launch, recover, and operate aircraft. It further 
means that ships may steam in formation. This right to conduct transit 
in ``normal modes,'' which is frequently challenged, is particularly 
important to our naval units because it ensures their ability to 
maintain appropriate readiness and defensive postures through many of 
the most important choke points in the world.
    Moreover, the Convention also recognizes the right of ships to 
navigate in international waters and through territorial seas without 
regard to cargo or means of propulsion. Since many of the Navy's major 
combatants are nuclear powered, the importance of this right cannot be 
overemphasized as a component of strengthening the military's ability 
to respond globally.
    The right of transit passage through international straits and the 
related regime of archipelagic sea lanes passage are particularly 
important. More than 150 international straits are overlapped by 12 nm 
territorial seas. Of these, we consider approximately a dozen to be 
``strategic'' for commercial and military purposes. Among these 
strategic straits are the Straits of Hormuz, Bab el Mandeb, Malacca, 
Gibraltar, and Dover, plus the strategic sea lanes through the 
Philippine and Indonesian archipelagoes.
    These straits have been critical to U.S. operations in the past. 
For example, during the raid on Libya in 1986, U.S. Air Force FB-111 
fighter-bombers relied on free passage through the Strait of Gibraltar 
to accomplish their mission. Also, assured access for the enormous flow 
of forces and logistics to the Arabian Gulf during Operations Desert 
Shield/Desert Storm in 1990 and 1991 through Bab el Mandeb and Hormuz 
was a critical element of coalition success, as was again the case in 
Operation Enduring Freedom and Operation Iraqi Freedom. Afterwards, the 
United States used these straits continually throughout twelve years of 
enforcing U.N. sanctions against Iraq. Finally, since September 11, our 
forces have relied, to their advantage, upon all of these key routes in 
conducting Operation Enduring Freedom and Operation Iraqi Freedom as we 
prosecute the global war on terrorism.
    Notwithstanding the fact that the navigational freedoms and transit 
rights we currently enjoy are embodied in customary international law, 
as a party to the Convention, the United States would, however, be in a 
stronger leadership position to assert its rights to use the oceans for 
navigation and overflight. For example, in making excessive claims, 
some coastal states contend that the navigational and overflight rights 
contained in the Convention are available only to those states that 
also accept the responsibilities set forth in the Convention by 
becoming parties to it. By becoming a party to the Convention we can 
deprive those states of this argument. This is not to suggest that 
countries' attempts to restrict navigation will cease once the United 
States becomes a party to the Law of the Sea Convention. Coastal states 
make excessive claims for a variety of reasons--because they believe 
such claims to be in their national interest; because they feed 
domestics politics; and, because they believe they can enforce those 
claims or that other nations will, for lack of resources and 
capability, acquiesce in those claims. The Administration believes, 
however, that with the United States as a party, fewer states are 
likely to view such claims as sustainable. As a party, our diplomatic 
and operational challenges to excessive claims will carry greater 
weight.
    Although accession to the Convention will benefit the United 
States, the Administration has some concerns. As previously mentioned, 
three serious issues have been identified, one of which involves the 
military activities exception to the dispute settlement provisions.
    With respect to the dispute settlement provisions, the 
Administration intends to exempt military activities from those 
provisions. Notwithstanding our exemption, it is conceivable that a 
tribunal could assert it has jurisdiction over what we believe is a 
military activity, such as military surveys. If a tribunal did so, and 
if it issued an adverse ruling, then such a ruling could have an impact 
on operational planning and activities, and our security. The extent of 
that impact will depend on the circumstances. It could be major, it 
could be minor or it could have no impact whatsoever. The point is, we 
cannot predict the future with certainty. We believe that whether an 
activity is ``military'' is for each party to determine for itself. We 
will work with the Senate to ensure that our declaration on accession 
contains solid language to address this issue.
    Because the global context for the Convention is rapidly and 
continually changing, a way needs to be found to ensure that the 
Convention continues to serve U.S. interests over time. We must ensure 
that, in obtaining the stability that comes with joining the 
Convention, we nonetheless retain sufficient flexibility to protect 
U.S. interests. After U.S. accession, the Executive Branch will conduct 
biennial reviews of how the Convention is being implemented and will 
seek to identify any changes in U.S. and/or international 
implementation that may be required to improve implementation and to 
better adapt the Convention changes in the global environment. After 
ten years, the Executive Branch will conduct a more comprehensive 
evaluation to determine whether the Convention continues to serve U.S. 
interests. The results of these reviews will be shared with the Senate. 
Another option that the Administration considered is that of a sunset 
provision, i.e., limiting the length of time that the United States is 
a party to the Convention, which has disadvantages as well as 
advantages. Needless to say, the United States could, of course, 
withdraw from the treaty if U.S. interests were seriously threatened.
    In conclusion, from an operational perspective, two fundamental 
points support accession to the Convention: First, the diversity of 
challenges to our national security combined with a more dynamic force 
structure make strategic mobility more important than ever; Second, the 
oceans are fundamental to that maneuverability and, by joining the 
Convention, we further assure the freedom to get to the fight, twenty-
four hours a day and seven days a week, as necessary in the national 
security interests of the United States.
    Again, I wish to thank the Committee for offering me the 
opportunity to appear before you here today. I am happy to answer any 
questions that you may have.

    The Chairman. Well, thank you very much, Admiral Mullen. 
Let me just say as a personal point that I always appreciate 
whenever the Vice Chief of Naval Operations or the Chief of 
Naval Operations is testifying before our committee. It was my 
privilege to serve Admiral Burke as a young intelligence 
briefer a long time ago. He and Admiral Russell, who was then 
the Vice Chief, were mentors for me. So I would appreciate the 
Law of the Sea in any event.
    I thank you for your strong affirmation on behalf of the 
Navy and on behalf of our defense establishment.
    And as a very important part of that defense effort, we 
call now upon the Coast Guard Chief Counsel, Admiral John 
Crowley. Admiral.

 STATEMENT OF REAR ADMIRAL JOHN E. CROWLEY, JR., CHIEF COUNSEL 
  AND JUDGE ADVOCATE GENERAL, U.S. COAST GUARD, DEPARTMENT OF 
               HOMELAND SECURITY, WASHINGTON, DC

    Admiral Crowley. Thank you very much, Mr. Chairman. I also 
appreciate the opportunity to present the views of the Coast 
Guard and the administration in support of the 1982 U.N. 
Convention on the Law of the Sea, as amended.
    As you know, Mr. Chairman, the U.S. Coast Guard is the law 
on the sea. And as steward of the marine environment, my 
comments will focus on the convention and how it will support 
the Coast Guard's efforts in performing its multi-mission 
responsibilities.
    Following the comments that you have allowed into the 
record from our formal statements and the comments of my 
esteemed colleagues, I will first put my attention to the 
matter of drug interdiction.
    Article 108 of the convention requires all States, flag 
States and coastal States, to cooperate in the suppression of 
illicit traffic in narcotic drugs. Following the lead of the 
U.N. Convention on the Law of the Sea, the 1988 Vienna 
Convention, article 17 was complemented in its direction for 
States to cooperate. And we see today 23 bilaterals that have 
been formulated between the United States and other 
governments, last year resulting in 135,000 pounds of cocaine 
seized on high seas, 56 vessels seized, and 207 arrests.
    Turning my attention to the matter of living marine 
resources, we have a regime that was followed closely upon the 
United States Fishery Conservation Management Act in the 
development of the convention. It also established a regime 
whereby agreements and a framework for the conservation of 
living marine resources beyond the exclusive economic zone. 
Article 55 established the basic legal regime for the EEZ in a 
way consistent with the Magnuson-Stevens Act. Consistent with 
article 73, which provided for enforcement measures, the Coast 
Guard enforces today the Fishery Conservation Management Act 
and, in fiscal year 2003, discovered one minor incursion in the 
maritime boundary line of the Pacific and one, and the first in 
3 years, incursion of the Hague Line in the east coast.
    Finally, turning attention to the marine environmental 
protection provisions in part XII, article 194 specifically 
identifies measures to prevent, reduce, and control pollution 
of the marine environment. The convention marks the competent 
international organization, in this case, IMO, to establish 
regulations in article 211. Articles 217, 218, and 220 are very 
important in that they establish this framework for flag, port, 
and coastal States' enforcement regimes, and this is the 
architecture that the Coast Guard has been able to leverage, 
together with the administration, in the IMO in protecting our 
coastal interests in the marine environment.
    But, Mr. Chairman, the effects of September 11, 2001 had a 
profound impact on the direction of the Coast Guard and the 
Nation. We see the potential for the development of a law 
enforcement regime in support of maritime security that follows 
in the footsteps of our experience in counter-drug 
interdiction, as well as marine environmental protection, where 
we have a strong reliance on the competent international 
organizations. In this case, IMO stepped up to the bar last 
year working with our delegation and passing provisions for the 
security of ships and ports balancing the needs of flag States 
and port States so that we can accomplish commerce together. 
The security of our ports is No. 1. We will achieve that with 
the great support in the international community by bringing 
the flag State level up to our own port State equivalence.
    Mr. Chairman, this concludes my summary. I again appreciate 
your invitation today and I am available for any questions.
    [The prepared statement of Admiral Crowley follows:]

Prepared Statement of Rear Admiral John E. Crowley, Jr., Chief Counsel 
 and Judge Advocate General, U.S. Coast Guard, Department of Homeland 
                                Security

    Good Morning Mr. Chairman and distinguished members of the 
Committee. I am Rear Admiral John E. Crowley, Chief Counsel and Judge 
Advocate General of the U.S. Coast Guard. It is a pleasure to appear 
before you today to discuss the United Nations Convention on the Law of 
the Sea.
    I have previously served as the Assistant to the Secretary of 
Transportation's Representative to the United Nations Law of the Sea 
Conference in 1979-80, where I acquired an appreciation for the breadth 
of Law of the Sea issues. I also have served on five cutters, twice as 
commanding officer. My sea duty has encompassed all of the Coast 
Guard's Deepwater missions, including service as the Chief Staff 
Officer of the Joint Task Force responding to the 1994 Haitian and 
Cuban mass migrations. I have more recently served as the Special 
Assistant to the Secretary of Homeland Security and the interim 
Director of the Homeland Security Center. These assignments allow me to 
provide comments from the operator's point of view as well. Following 
these remarks, I am prepared to answer any questions you may have 
concerning the potential effects of this Convention on the U.S. Coast 
Guard's missions.
    Although the 1982 UN Convention on the Law of the Sea (LOS) entered 
into force in 1994, the U.S. has continued to rely upon customary 
international law as reflected in the Convention to advance our oceans 
policy. While reliance upon customary international law has, in fact, 
served us well for many years, becoming a party to the LOS Convention 
will enhance our position in maritime affairs. The first UN effort at 
codifying the Law of the Sea took place in 1958, when the first UN 
Conference on the Law of the Sea concluded four separate conventions 
dealing with the Law of the Sea. These four conventions represented, in 
the main, codifications of customary international law at the time. 
However, it must be remembered that at the time, pollution of the 
world's oceans was not considered an important issue; fish stocks were 
thought to be inexhaustible, and the need for maritime domain awareness 
was not present. Beginning in the 1960's, the world, in general, and 
the oceans, in particular, began experiencing significant change in 
such areas as pollution standards and fisheries management. This led to 
the Third United Nations Conference on the Law of the Sea (UNCLOS III), 
which developed the 1982 UN Convention on the Law of the Sea. With 143 
states party to the 1982 UN Convention on the Law of the Sea, the 
Convention will play a central role in resolving such issues in the 
future. It will also serve as a foundation upon which future oceans 
agreements will be based. For these reasons, it is particularly 
important for the United States to become a party to the Convention.
    On November 16, 1994, the LOS Convention entered into force. That 
event represented a milestone in the United States' efforts to achieve 
a widely ratified, comprehensive law of the sea treaty that protects 
and promotes a wide range of U.S. ocean interests, many of which affect 
the U.S. Coast Guard. Because of our law enforcement and national 
security missions, the Coast Guard has long been a proponent of 
achieving a comprehensive and stable regime with respect to traditional 
uses of the oceans. The Convention aids our interests by stabilizing 
the trend towards expansion of national jurisdiction over coastal 
waters, while furthering our efforts to protect and manage fishery 
resources and to protect the marine environment. From the Coast Guard 
perspective, public order of the oceans is best established and 
maintained by a stable, universally accepted law of the sea treaty 
reflective of U.S. national interest.
    One of the bedrock underpinnings of the Convention was codification 
of rights and responsibilities of states as port states, flag states 
and coastal states. During the LOS Convention negotiations, the U.S. 
aggressively sought both clarification and delimitation of seaward 
territorial claims by coastal states in order to ensure navigational 
freedoms while at the same time recognizing the U.S.'s interest as a 
coastal state with sovereignty to protect its living and non-living 
marine resources. The result was a limit nations could claim as a 
territorial sea of no more than 12 nautical miles. Our fishery 
conservation management interests, as reflected in the Magnuson-Stevens 
Fishery Conservation Management Act, were instrumental in the 
international development of the 200 nautical mile Exclusive Economic 
Zone (EEZ). In the EEZ, all nations enjoy freedoms of navigation, while 
the coastal state possesses sovereign rights to protect and exploit the 
living and non-living marine resources. Following the Amoco Cadiz and 
subsequent vessel oil spill incidents, marine pollution was also 
addressed in the 1982 UN Convention on the Law of the Sea with 
provisions that have been described as a far-reaching environmental 
accord. The Convention struck the appropriate balance of competing 
claims, so that all nations could engage in high seas freedoms, 
including non-resource related law enforcement in other nation's EEZ 
waters, and the coastal state enjoyed the right to protect its marine 
environment, including damage from oil spills by vessels, fisheries 
conservation and enforcement of domestic laws designed to conserve and 
protect the living marine resources in their EEZ. The Convention also 
recognized a port state regime adequate to ensure their interests were 
protected when vessels voluntarily entered their ports or places 
subject to their jurisdiction.
    The Coast Guard and other U.S. military forces already rely heavily 
on the elemental navigation freedoms codified in the Law of the Sea 
Convention. These protections allow the use of the world's oceans to 
meet changing national security requirements. The Convention limits a 
nation's territorial sea to no more than 12 nautical miles, beyond 
which all nations enjoy a high seas navigation regime that includes the 
freedom to engage in law enforcement activities. The Convention 
codifies the right to operate freely beyond a nation's territorial sea 
and protects this right by limiting excessive maritime claims that 
often have the effect of creating maritime safe havens for drug 
traffickers and other criminals. In fiscal year 2003, the Coast Guard 
maritime interdiction operations occurring on international waters 
resulted in the seizure of over 135,000 pounds of cocaine, 56 vessels, 
and 207 arrests. In keeping with our aggressive international crime 
control strategy, most of these seizures took place on distant maritime 
transit routes far from our shores. However, during hi-lateral 
negotiations, several nations have, in the past, questioned our 
authority to contest certain of their excessive maritime claims simply 
because we have yet to ratify the treaty. Becoming a party to the 
Convention will enhance our ability to conduct such interdiction 
operations and to refute excessive maritime claims. Rather than only 
basing our law enforcement operations on customary international law, 
the United States should become a conspicuous and leading party to the 
treaty that codifies these important navigational rights.
    The Convention also contains provisions that enhance our ability to 
interdict foreign flagged vessels off our own coasts. The Convention 
codifies a coastal nation's right to establish a contiguous zone not to 
exceed 24 nautical miles where it may enforce its customs, immigration, 
fiscal, and sanitary laws. Adoption by the U.S. of an expanded 
contiguous zone has doubled the area where we can exercise these 
increased authorities. The benefits of the contiguous zone against 
traffickers surreptitiously shipping their illicit products to U.S. 
shores are clear.
    Article 108 of the Convention requires international cooperation in 
the suppression of the transport of illegal drugs. The United Nations 
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, 1988 (the Vienna Convention) is a fine example of this. The 
United States has been at the forefront. We have aggressively pursued 
bilateral agreements with many nations that border drug transit zones 
as well as States with large registries to facilitate the effective 
interdiction of vessels suspected of transporting illegal drugs and the 
eventual prosecution of the drug traffickers. During discussions with 
these nations, we emphasize the Convention's call for cooperation and 
premise each agreement on concepts codified within the Convention; 
becoming a party to the Convention will improve our position during 
these negotiations.
    The Convention contains numerous provisions that advance the 
economic interests of the United States as a coastal state. By 
codifying the 200-nautical mile EEZ, the Convention confirms U.S. 
exclusive jurisdiction over all the living and non-living resources in 
the zone. Experts agree that the problems associated with the 
management of fish stocks will continue as a contentious issue for 
states that rely on fishing to feed their population. The Convention 
provides a legal baseline that sanctions the actions of regional 
fishing organizations to deal with such conservation issues. Indeed, 
the Convention imposes responsibilities on the coastal states to manage 
their fishery resources responsibly, and provides the best structural 
framework for resolving conflicts between competing users. The 
Convention's provisions regarding the exclusive economic zone are fully 
in accord with our fisheries policies and interest. Similarly, the 
Convention makes provision for a wider continental shelf. This is 
important to our oil and gas interests because they need the certainty 
of established continental shelf boundaries before they begin 
exploration.
    The Convention is also an environmental accord that provides a 
comprehensive framework for the prevention, reduction, and control of 
maritime pollution. The Coast Guard conducts a wide-ranging port state 
control program to purge our waters of substandard ships and is 
assisting other nations in doing the same. This initiative will be 
enhanced through the consistent application of the Convention's broad 
enforcement mechanisms. Additionally, the Convention carefully balances 
the rights of coastal states to adopt certain measures to protect the 
marine environment adjacent to their shores and the general right of a 
flag state to set and enforce standards and requirements concerning the 
operation of its vessels. Becoming a party to the Law of the Sea 
Convention will strengthen the international credibility of the U.S. 
and our efforts to guide the development of internationally accepted 
vessel standards, thereby improving marine safety and protection of the 
marine environment.
    The Convention calls for international cooperation among states in 
preserving the world's high seas fisheries. This provision on 
cooperation supports the UN ban on high seas drift net fishing.
    As the lead Federal agency for maritime security, the Coast Guard 
believes that acceding to the 1982 UN Convention on the Law of the Sea 
will benefit the Coast Guard in our efforts to ensure maritime homeland 
security, and ensure that our maritime borders are secure, as well. In 
that regard, in the Maritime Transportation Security Act, the Congress 
found that, ``it is in the best interests of the United States to 
implement new international instruments that establish [the IMO 
International Ship and Port Facility Security Code and amend SOLAS to 
include maritime security as well as safety among its provisions].''
    The Convention recognizes that various UN subsidiary bodies may 
serve as competent international organizations for the further 
Conventional development of the law of the sea. IMO has always been the 
recognized competent international organization for maritime safety and 
marine environmental protection. It has now assumed a similar role in 
port facility and vessel security. Acceding to the Convention will 
enhance Coast Guard efforts to work in the international community 
through the International Maritime Organization, the International 
Labor Organization and other UN subsidiary bodies to improve our 
security measures and to project our maritime domain awareness, 
consistent with the Convention's balance of states' rights to the uses 
of the oceans. Specifically, we are working now at IMO to build upon 
the successes achieved by the United States in that body at the 
December 2002 diplomatic conference. As you know, that diplomatic 
conference resulted in the landmark amendments to the SOLAS Convention 
for vessel and port facility security contained in Chapter XI and the 
International Ship and Port Facility Security Code. We have on-going 
efforts in respect of Conference Resolution 10 to enhance our maritime 
domain awareness through Long Range Tracking of vessels bound for our 
ports and waters. These negotiations are taking place in the context of 
the overwhelming number of nations at IMO being parties to the Law of 
the Sea Convention. Because of this fact, the Law of the Sea Convention 
provides the framework for the discussions and agreements. Although we 
have enjoyed success in the international security agreements so far, 
those negotiations have not always been easy. Further progress will not 
be as easy to achieve as our past successes. Frankly, the fact that the 
United States is not a party to the Law of the Sea Convention, when the 
overwhelming number of our international partners are parties, has 
occasionally put us in a difficult negotiating position at IMO. It is 
our judgment that accession to the Convention will put us in a stronger 
position at the IMO than we currently enjoy.
    In the view of the Department of Homeland Security and the Coast 
Guard, accession to the LOS Convention helps safeguard United States 
security and economic interests. The LOS Convention contains provisions 
that go beyond codifying existing customary international law. The LOS 
Convention contains both customary international law and the provisions 
allowing for the progressive development of law. Becoming a party to 
the Convention will help us preserve the significant concessions we 
obtained during the negotiations of the Convention in the area of 
navigational freedoms, and help us in the development of the law of the 
sea as it evolves.
    It is our understanding that the Administration has, however, 
identified certain serious concerns regarding accession to the 
Convention, but which we believe can be resolved. Those issues will be 
addressed by the State Department and the Department of Defense.
    Thank you for the opportunity to testify before you today. I will 
be happy to answer any questions you may have.

    The Chairman. Thank you very much, Admiral Crowley.
    Before turning to questions, let me make a couple of 
observations. I read the testimony before the hearing and have 
appreciated your presentations this morning. I am pleased to 
learn from the administration that there is strong support for 
the Convention. I agree that ratification is strongly in our 
national interest.
    I have listened carefully to at least three issues of 
possible concern which you have raised with respect to the 
Convention. It appears that the administration will be in a 
position to suggest various means of addressing these issues. I 
do not believe any of the issues present an obstacle to the 
Senate providing advice and consent to the convention. As I 
indicated in my opening statement, I will work to have the 
committee move swiftly with the Convention. I look forward to 
the administration's cooperation during the process, which you 
have generously offered.
    Let me turn to a question that relates to the 
administration's Proliferation Security Initiative, which is 
designed to prevent the proliferation of weapons of mass 
destruction and missile technology. I understand that the 
Statement of Principles establishing that initiative provides 
that actions taken under the initiative will be consistent with 
national legal authorities and relevant international law and 
frameworks, including the United Nations Security Council. What 
impact, if any, does the Convention that we are discussing 
today, the Law of the Sea, have on the ability of the United 
States to carry out interdiction efforts to be undertaken 
pursuant to this initiative? Perhaps, Mr. Esper, do you have a 
view--or Mr. Taft?
    Mr. Taft. Mr. Chairman, yes, we have actually considered 
this, of course, as an important issue because the 
Proliferation Security Initiative is a very high priority. The 
President announced his effort to the United States' commitment 
to bring this off in his speech to the United Nations just last 
month. So we are pursuing that initiative.
    But basically the language that you cited is that it is 
consistent with the international legal framework that actually 
is reflected in the provisions of the Law of the Sea 
Convention. Of the parties that we are working with at the 
moment on this initiative, all of them are actually parties to 
the Law of the Sea Convention, except ourselves. So they will 
be working with us in that framework, and it doesn't present 
any difficulties for us in conforming that initiative, which 
must be successful, is critically important, in any obligations 
that we would be undertaking under the convention, should we 
become a party to it.
    The Chairman. Thank you. Is there any other comment on that 
issue? Yes.
    Admiral Mullen. I might comment, sir, just from the 
standpoint of being in a position at sea to enforce this kind 
of initiative. Certainly the strength of the Law of the Sea 
Convention in terms of establishing and reinforcing and 
codifying the 12-mile territorial sea, the 200-mile EEZ, the 
right to transit, freedom of transit in international straits, 
all of that, it seems to me, would greatly strengthen our 
ability to support the objectives of this very important 
initiative in the PSI sense specifically and not be restricted 
when a situation would arise by a legal restriction and 
particularly in those kinds of situations, as in many military 
situations, where time is of the essence.
    So I see them as very consistent. Clearly the uniformity of 
approach, both in PSI and what we typically do in our maritime 
interception operations, that consistency would be very 
beneficial.
    The Chairman. I thank you.
    Let me ask Admiral Crowley. You have mentioned the security 
of our ports. We are always concerned about that. You have 
indicated an enhanced interest in that subsequent to September 
11, 2001. On those issues and those of homeland security--
insofar as the Coast Guard serves as an important enforcement 
agent--is it your view that the Law of the Sea Convention is 
helpful or neutral? Does it make any difference? Can you flesh 
out, at least from the homeland security situation, your views 
on the Convention?
    Admiral Crowley. Yes, Mr. Chairman, I would be pleased to 
answer that question. The Coast Guard's view would be, as a 
port State, we rely on our own domestic legislation and our 
sovereign concerns to protect our ports and being the 
preeminent element of law in ensuring port security. What the 
Law of the Sea Convention and the work that we have undertaken 
through the International Maritime Organization are able to 
accomplish and therefore enhance our ability to provide 
security within our ports is to provide this very important 
framework that first appeared in the convention whereby port 
States, coastal States, and flag States have their 
corresponding responsibilities welded together. And together, 
we are able to raise the standard for the flag States that sail 
through all the ports and that in various capacities affect our 
own security as the security of other ports that are part of 
the international commerce are touched. And in this fashion, we 
see that the framework and the regime, established first in 
UNCLOS, is a good thing and we look forward to ratification of 
the convention. We quite frankly see an enhancement of our 
position in negotiating enhanced flag State levels of 
comportment and other port States' levels of comportment with 
our standing as a member of the convention.
    The Chairman. I thank you, Admiral.
    Mr. Esper, as I listened to your testimony, you mentioned 
that, at one point at least, the administration considered a 
sunset provision. Now, do I understand it correctly that the 
administration has rejected this option, or do you have any 
further comment on that particular portion of your testimony?
    Mr. Esper. As you stated, Mr. Chairman, the issue of the 
sunset provision was considered. Clearly it has advantages and 
disadvantages. What we were looking at in considering a sunset 
provision, in addition to the others that were mentioned, is 
the means to maintain our strategic flexibility in the long 
term, given that you constantly have changes in the security 
environment and the strategic environment. So that was a 
provision that was considered.
    The Chairman. Well, where do you come out on it at this 
point?
    Mr. Esper. I think at this point it was considered and set 
aside, given the balance of interests and given the other 
options we had to ensure that we have some strategic 
flexibility.
    The Chairman. Thank you. Well, I appreciate very much the 
testimony that you have given. It is a very strong part of the 
record that we are establishing. As I mentioned, we are 
indebted to our first panel of witnesses a week ago, but you 
have fortified the case enormously. We look forward to working 
with each of the Departments represented here today and with 
the administration as a whole to perfect the work that we will 
attempt to do.
    Unless you have additional testimony that has come to mind, 
I thank you and we will look forward to hearing from the next 
panel.
    Admiral Mullen. Thank you very much, Mr. Chairman.
    Mr. Taft. Thank you, Mr. Chairman.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Esper. Thank you, Mr. Chairman.
    Admiral Crowley. Thank you, Mr. Chairman.

                                Panel II

    The Chairman. The chair would like to call now Paul Kelly, 
Roger Rufe, Randi Thomas, and Joseph Cox to the witness table.
    We thank each of you for coming to be with us this morning. 
We look forward to your testimony. As I indicated to the 
previous panel, we would like to incorporate all of your 
statements, the full statements, into the record. I will ask 
you to proceed as you wish, either with those statements or 
with summaries or points that you wish to make. I would ask 
that you testify in the order that I introduced you: first of 
all, Mr. Kelly, then Admiral Rufe, then Ms. Thomas, and then 
Mr. Cox. Mr. Kelly.

   STATEMENT OF PAUL L. KELLY, SENIOR VICE PRESIDENT, ROWAN 
                  COMPANIES, INC., HOUSTON, TX

    Mr. Kelly. Thank you, Mr. Chairman for inviting me to 
testify before you today to express the U.S. oil and natural 
gas industry's views on the important subject of United States 
accession to the United Nations Law of the Sea Convention.
    Taken together, the three associations I am representing, 
the American Petroleum Institute, the International Association 
of Drilling Contractors, and the National Ocean Industries 
Association, represent the full spectrum of American companies 
involved in all phases of oil and natural gas exploration and 
production in the oceans of the world, as well as the marine 
transportation of petroleum and petroleum products.
    Offshore oil and natural gas is now the world's biggest 
marine industry, where oil production alone can have a value of 
more than $300 billion per annum. This compares to global 
shipping revenues of $234 billion and expenditures of all the 
world's navies amounting to $225 billion. Submarine cables, 
which provide part of the World Wide Web and enable the very 
existence of the Internet is the next largest marine business 
with $86 billion in revenues. And incidentally, that important 
industry is on record as supporting U.S. accession to the 
convention.
    In addition to activities in areas under U.S. jurisdiction, 
such as Alaska and the Gulf of Mexico, our Nation has 
substantial interests in offshore oil and natural gas 
development activities globally given our significant reliance 
upon imported oil. U.S. oil and natural gas production 
companies, as well as oil field drilling equipment and service 
companies, are important players in the competition to locate 
and develop offshore natural gas and oil. The pace of 
technological advancement, which drove the need to define the 
outer limits of the continental margin, has not abated. 
Advances in technology and increased efficiencies are taking us 
to greater and greater water depths and rekindling interest in 
areas that once were considered out of reach or uneconomical.
    Recognizing the importance of the convention to the energy 
sector, the National Petroleum Council, an advisory body to the 
United States Secretary of Energy, in 1973 published an 
assessment of industry needs in an effort to influence the 
negotiations. Entitled Law of the Sea: Particular Aspects 
Affecting the Petroleum Industry, it contained conclusions and 
recommendations in five key areas, including freedom of 
navigation, stable investment conditions, protection of the 
marine environment, accommodation of multiple uses, and dispute 
settlement. The views reflected in this study had a substantial 
impact on the negotiations, and most of its recommendations 
found their way into the convention in one form or another.
    Having been satisfied with the changes made to the 
convention, the U.S. oil and natural gas industry's major trade 
associations, including API, IADC, and NOIA, support 
ratification of the convention. Also, the Outer Continental 
Shelf Policy Committee, an advisory body to the United States 
Secretary of the Interior on matters relating to our offshore 
oil and gas and natural leasing program, in 2001 adopted 
resolutions supporting the U.S. acceding to the convention.
    Considering the remarkable advances in offshore exploration 
technology that have taken us farther and farther offshore into 
deeper and deeper water, the assessment of the National 
Petroleum Council in 1973 seems remarkably prescient in 
retrospect. And that assessment rings more true today than 
ever.
    With what may be the largest and most productive 
continental shelf in the world, the U.S. now obtains about 28 
percent of its natural gas and almost as much of its oil from 
the Outer Continental Shelf. This share of U.S. production is 
increasing, thanks to new world-class oil discoveries in the 
deep waters of the Gulf of Mexico.
    Offshore petroleum production is a major technological 
triumph. We now have world-record complex development projects 
located in 5,000 to 6,000 feet of water in the Gulf of Mexico 
which were thought unimaginable a generation ago. Even more 
eye-opening, a number of exploration wells have been drilled in 
the past 3 years in over 8,000 feet of water, and a world-
record well has been drilled in over 9,000 feet of water. New 
technologies are taking oil explorers out more than 200 miles 
offshore for the first time, thus creating a more pressing need 
for certainty and stability in delineation of the outer shelf 
boundary.
    Under the convention, the continental shelf extends seaward 
to the outer edge of the continental margin or to the 200-mile 
limit of the EEZ, whichever is greater, to a maximum of 350 
miles. The U.S. understands that such features as the Chukchi 
Plateau and its component elevations, situated north of Alaska, 
are not subject to the 350-mile limitation and claims on the 
part of the United States could go as far as 600 miles with 
regard to that area. U.S. companies are interested in setting 
international precedents by being the first to operate in areas 
beyond 200 miles and to continue demonstrating environmentally 
sound drilling development and production technologies.
    It is in the best interest of the U.S. to register its 
claims extending the outer limits of our continental shelf 
where appropriate. In so doing, the United States could expand 
its areas for mineral exploration development by more than 
291,000 square miles. And we need to get on with the mapping 
work and other analyses and measurements required to 
substantiate our claims. Some of the best technology for 
accomplishing this resides in the United States. Establishing 
the continental margin beyond 200 miles is particularly 
important in the Arctic where there are a number of countries 
vying for the same resource area. In fact, Russia has already 
submitted claims to the U.N. body with respect to the outer 
limit of its continental shelf in the Arctic.
    As a result of the settlement of our maritime boundary with 
Mexico recently, according to the Minerals Management Service 
of the Department of the Interior, seven leases have been 
awarded to companies in the far offshore Gulf of Mexico which 
include stipulations that any discoveries made in those leases 
could be subject to the royalty provisions of article 82 of the 
convention. MMS also reports that one successful well has been 
drilled recently about 2.5 miles inside the U.S. EEZ. So we are 
getting closer and closer. Details on how the revenue sharing 
scheme will work beyond 200 miles remain somewhat unclear, and 
without ratification, the U.S. Government's ability to 
influence decisions on implementation of this provision is 
limited or nonexistent. This creates uncertainty for industry.
    Ratification of the convention also has an important 
bearing on a longer-term potential energy source that has been 
the subject of much resource and investigation by the 
Department of Energy, and that is gas hydrates. Gas hydrates 
are ice-like crystalline structures of water that form cages 
that trap low molecular weight gas molecules, especially 
methane, and have recently attracted international attention 
from government and scientific communities. World hydrate 
deposits are estimated to total more than twice the world's 
reserves of all oil, natural gas, and coal deposits combined. 
The U.S. needs to have a seat at the table of the Continental 
Shelf Commission in order to influence development of any 
international rules or guidelines that could affect gas 
hydrates beyond our EEZ.
    Let me turn my attention briefly to marine transportation. 
About 44 percent of U.S. maritime commerce consists of 
petroleum and petroleum products. Trading routes are secured by 
provisions in the convention combining customary rules of 
international law, such as the right of innocent passage 
through territorial seas, with new rights of passage through 
straits and archipelagos. U.S. accession to the convention 
would put us in a much better position to invoke such rules and 
rights.
    The outlook for United States energy supply in the first 25 
years of the new millennium, truly brings home the importance 
of securing sea routes through which imported oil and natural 
gas is transported.
    According to API's Monthly Statistical Report, published 
just last week on October 15, imports of crude oil reached a 
new, all-time high in September. At close to 10.4 million 
barrels per day, crude imports surpass the previous high record 
reached in April 2001. When combined with higher volumes for 
products such as gasoline, diesel fuels, and jet fuel, total 
imports amounted to nearly two-thirds of domestic deliveries 
for the month. This is an extraordinary volume of petroleum 
liquids being transported to our shores in ships every day.
    Recently there has been a newer development involving 
emerging economic and technology development that should give 
us additional concern for the Nation's energy transportation 
security. The Energy Information Agency's 2003 Outlook states 
that despite the projected increase in domestic natural gas 
production, over the next 20 years an increasing share of U.S. 
gas demand will also be met by imports. All four existing LNG 
import facilities in the U.S. are now open, and three of the 
four have announced capacity expansion plans. Meanwhile, 
several additional U.S. LNG terminals are under study by 
potential investors, and orders for sophisticated new LNG ships 
are being placed. This means even more ships following transit 
lanes from the Middle East, West Africa, Latin America, 
Indonesia, Australia, and possibly Russia, to name the 
prominent regions seeking to participate in the U.S. natural 
gas market.
    In addition, world oil demand in 2001 was 76.9 million 
barrels per day. Up to 1985, oil demand in North America was 
twice as large as Asia. As developing countries improve their 
economic conditions and transportation infrastructure, we could 
soon see Asian oil demand surpass North American demand. By 
2025, world demand is expected to reach nearly 119 million 
barrels per day. The convention can provide protection of 
navigational rights and freedoms in all these areas through 
which tankers will be transporting larger volumes of oil and 
gas in all directions.
    Finally, I would like to make a comment on the need for 
U.S. involvement in Law of the Sea governance. The United 
States should be in a position to exercise leadership and 
influence on how the Seabed Authority will implement its role 
in being the conduit for revenue sharing from broad margin 
States such as the United States. Yet at the present time, we 
do not have membership on key subsidiary bodies of the Seabed 
Authority and cannot have membership until we accede to the 
convention. With 143 countries and the European Union having 
ratified the convention, the convention will be implemented 
with or without our participation and will be sure to affect 
our interests.
    For all these reasons, the U.S. oil and gas industry 
supports ratification of the convention at the earliest date 
possible.
    [The prepared statement of Mr. Kelly follows:]

   Prepared Statement of Paul L. Kelly, Senior Vice President, Rowan 
                      Companies, Inc., Houston, TX

                              on behalf of

                    The American Petroleum Institute

         The International Association of Drilling Contractors

               The National Ocean Industries Association

    Mr. Chairman and members of the Committee:
    Thank you for inviting me to testify before you today to express 
the U.S. oil and natural gas industry's views on the important subject 
of United States accession to the United Nations Law of the Sea (LOS) 
Convention.
    Taken together, the three associations I am representing here 
today, the American Petroleum Institute (API), the International 
Association of Drilling Contractors (IADC) and the National Ocean 
Industries Association (NOIA), represent the full spectrum of American 
companies involved in all phases of oil and natural gas exploration and 
production in the oceans of the world, as well as the marine 
transportation of petroleum and petroleum products.
    The offshore oil and natural gas industry is a multibillion-dollar 
industry. A recent economic survey of global ocean markets done in the 
United Kingdom \1\ brings home clearly the economic significance of 
offshore oil and natural gas production. Offshore oil and natural gas 
is now the world's biggest marine industry where oil production alone 
can have a value of more than $300 billion per annum. This compares to 
global shipping revenues of $234 billion and expenditures of all the 
world's navies amounting to $225 billion. Submarine cables, which 
provide the ``worldwide'' part of the Worldwide Web and enable the very 
existence of the Internet, is the next largest marine business with $86 
billion in revenues; and incidentally, that important industry is on 
record as supporting United States accession to the LOS Convention. In 
addition to activities in areas under United States jurisdiction such 
as Alaska and the Gulf of Mexico, our nation has substantial interests 
in offshore oil and natural gas development activities globally, given 
our significant reliance upon imported oil. U.S. oil and natural gas 
production companies, as well as oilfield drilling, equipment and 
service companies, are important players in the competition to locate 
and develop offshore natural gas and oil resources. The pace of 
technological advancement, which drove the need to define the outer 
limits of the continental margin, has not abated. Advances in 
technology and increased efficiencies are taking us to greater and 
greater water depths and rekindling interest in areas that once were 
considered out of reach or uneconomic.
---------------------------------------------------------------------------
    \1\ John Westwood, Barney Parsons and Will Rowley, Douglas Westwood 
Associates, Canterbury, United Kingdom, ``Oceanography,'' vol. 14, no. 
3/2001.
---------------------------------------------------------------------------
    Recognizing the importance of the LOS Convention to the energy 
sector, the National Petroleum Council, an advisory body to the United 
States Secretary of Energy, in 1973 published an assessment of industry 
needs in an effort to influence the negotiations. Entitled ``Law of the 
Sea: Particular Aspects Affecting the Petroleum Industry,'' it 
contained conclusions and recommendations in five key areas including 
freedom of navigation, stable investment conditions, protection of the 
marine environment, accommodation of multiple uses, and dispute 
settlement. The views reflected in this study had a substantial impact 
on the negotiations, and most of its recommendations found their way 
into the Convention in one form or another.
    Among the provisions that were influenced by the study are the 
following:

   confirmation of coastal state control of the continental 
        shelf and its resources to a distance of 200 nautical miles and 
        beyond to the outer edge of the continental margin, defined on 
        the basis of geological criteria;

   establishment of a Continental Shelf Commission to advise 
        states in delimiting their continental shelves in order to 
        promote certainty and uniformity;

   specific provisions on the settlement of disputes related to 
        the delimitation of continental shelves among states with 
        opposite or adjacent coasts;

   revenue sharing applicable to development of resources 
        beyond 200 nautical miles based on a modest royalty beginning 
        in the sixth year of production;

   recognition of the role of the International Maritime 
        Organization in setting international safety and select 
        environmental standards;

   allocation of enforcement responsibility for safety and 
        environmental standards among states of registry, port states, 
        and coastal states;

   requirements for the prompt release of detained vessels and 
        crews upon the posting of bond; and

   a comprehensive system of dispute settlement allowing a 
        choice among the International Court of Justice, a specialized 
        Law of the Sea Tribunal, and arbitration.

    Having been satisfied with changes made to the Convention, the U.S. 
oil and natural gas industry's major trade associations, including API, 
IADC and NOIA, support ratification of the Convention by the United 
States Senate. Also, the Outer Continental Shelf Policy Committee, an 
advisory body to the United States Secretary of the Interior on matters 
relating to our offshore oil and natural gas leasing program, in 2001 
adopted resolutions supporting the United States acceding to the 
Convention.
                 offshore oil and natural gas resources
    The Convention is important to our efforts to develop domestic 
offshore oil and natural gas resources. The Convention secures each 
coastal nation's exclusive rights to the living and non-living 
resources of the 200-mile exclusive economic zone (EEZ). In the case of 
the United States this brings an additional 4.1 million square miles of 
ocean under U.S. jurisdiction. This is an area larger than the U.S. 
land area. The Convention also broadens the definition of the 
continental shelf in a way that favors the U.S. as one of the few 
nations with broad continental margins, particularly in the North 
Atlantic, Gulf of Mexico, the Bering Sea and the Arctic Ocean.
    Considering the remarkable advances in offshore exploration 
technology that have taken us farther and farther offshore into deeper 
and deeper water, the assessment of the National Petroleum Council in 
1973 seems remarkably prescient in retrospect; and that assessment 
rings more true today than ever.
    With what may be the largest and most productive continental shelf 
in the world, the U.S. obtains about 28 percent of its natural gas and 
almost as much of its oil production from the outer continental shelf 
(OCS); this share of U.S. production is increasing thanks to new world 
class oil discoveries in the deep waters of the Gulf of Mexico.
        exploration moving farther from shore into deeper waters
    Offshore petroleum production is a major technological triumph. We 
now have world record complex development projects located in 5,000-
6,000 feet of water in the Gulf of Mexico which were thought 
unimaginable a generation ago. Even more eye-opening, a number of 
exploration wells have been drilled in the past three years in over 
8,000 feet of water and a world record well has been drilled in over 
9,000 feet of water. New technologies are taking oil explorers out more 
than 200 miles offshore for the first time, thus creating a more 
pressing need for certainty and stability in delineation of the outer 
shelf boundary. Before the LOS Convention there were no clear, 
objective means of determining the outer limit of the shelf, leaving a 
good deal of uncertainty and creating significant potential for 
conflict. Under the Convention, the continental shelf extends seaward 
to the outer edge of the continental margin or to the 200-mile limit of 
the EEZ, whichever is greater, to a maximum of 350 miles. The U.S. 
understands that such features as the Chukchi Plateau and its component 
elevations, situated to the north of Alaska, are not subject to the 
350-mile limitation. U.S. companies are interested in setting 
international precedents by being the first to operate in areas beyond 
200 miles and to continue demonstrating environmentally sound drilling 
development and production technologies.
                            revenue sharing
    The Convention provides a reasonable compromise between the vast 
majority of nations whose continental margins are less than 200 miles 
and those few, including the U.S., whose continental shelf extends 
beyond 200 miles, with a modest obligation to share revenues from 
successful minerals development seaward of 200 miles. Payment begins in 
year six of production at the rate of one percent and is structured to 
increase at the rate of one percent per year to a maximum of seven 
percent. Our understanding is that this royalty should not result in 
any additional cost to industry. Considering the significant resource 
potential of the broad U.S. continental shelf, as well as U.S. 
companies' participation in exploration on the continental shelves of 
other countries, on balance the package contained in the Convention, 
including the modest revenue sharing provision, clearly serves U.S. 
interests.
            importance of delineating the continental shelf
    The Convention established the Continental Shelf Commission, a body 
of experts through which nations may establish universally binding 
outer limits for their continental shelves under Article 76. The 
objective criteria for delineating the outer limit of the continental 
shelf, plus the presence of the Continental Shelf Commission, should 
avoid potential conflicts and provide a means to ensure the security of 
tenure crucial to capital-intensive deepwater oil and natural gas 
development projects.
    It is in the best interest of the U.S. to register its claims 
extending the outer limits of our continental margin beyond 200 miles 
where appropriate--in so doing the U.S. could expand its areas for 
mineral exploration and development by more than 291,383 square miles. 
We need to get on with the mapping work and other analyses and 
measurements required to substantiate our claims, however. Some of the 
best technology for accomplishing this resides in the United States. 
Establishing the continental margin beyond 200 miles is particularly 
important in the Arctic, where there are a number of countries vying 
for the same resource area. In fact, Russia has already submitted 
claims with respect to the outer limit of its continental shelf in the 
Arctic.
                    resolution of boundary disputes
    As regards maritime boundaries, there presently exist about 200 
undemarcated claims in the world with 30 to 40 actively in dispute. 
There are 24 island disputes. The end of the Cold War and global 
expansion of free market economies have created new incentives to 
resolve these disputes, particularly with regard to offshore oil and 
natural gas exploration. During the last few years hundreds of 
licenses, leases or other contracts for exploration rights have been 
granted in a variety of nations outside the U.S. These countries are 
eager to determine whether or not hydrocarbons are present in their 
continental shelves, and disputes over maritime boundaries are 
obstacles to states and business organizations which prefer certainty 
in such matters. We have had two such cases here in North America where 
bilateral efforts have been made to resolve the maritime boundaries 
between the U.S. and Mexico in the Gulf of Mexico and between the U.S. 
and Canada in the Beaufort Sea. Both of these initiatives have been 
driven by promising new petroleum discoveries in the regions. The 
boundary line with Mexico was resolved in 2000 after a multi-year 
period of bilateral negotiations. Negotiations with Canada, however, 
seem to be languishing.
    While such bilateral resolution is always an option, the Convention 
provides stability and recognized international authority, standards 
and procedures for use in areas of potential boundary dispute, as well 
as a forum for dealing with such disputes and other issues.
    The settlement we made with Mexico now makes it possible for leases 
in the Gulf of Mexico issued by the Department of the Interior's 
Minerals Management Service (MMS) to be subject to the Article 82 
``Revenue Sharing Provision'' calling for the payment of royalties on 
production from oil and natural gas leases beyond the EEZ. According to 
MMS, seven leases have been awarded to companies in the far offshore 
Gulf of Mexico which include stipulations that any discoveries made on 
those leases could be subject to the royalty provisions of Article 82 
of the Convention. MMS also reports that one successful well has been 
drilled about 2.5 miles inside the U.S. FEZ. Details on how the revenue 
sharing scheme will work remain unclear, and without ratification the 
U.S. Government's ability to influence decisions on implementation of 
this provision is limited or non-existent. This creates uncertainty for 
U.S. industry.
                              gas hydrates
    Ratification of the Law of the Sea Convention also has an important 
bearing on a longer-term potential energy source that has been the 
subject of much research and investigation at the U.S. Department of 
Energy for several years: gas hydrates.
    Gas hydrates are ice-like crystalline structures of water that form 
``cages'' that trap low molecular weight gas molecules, especially 
methane, and have recently attracted international attention from 
government and scientific communities. World hydrate deposits are 
estimated to total more than twice the world reserves of all oil, 
natural gas and coal deposits combined.
    Methane hydrates have been located in vast quantities around the 
world in continental slope deposits and permafrost. They are believed 
to exist beyond the EEZ. If the hydrates could be economically 
recovered, they represent an enormous potential energy resource. In the 
U.S. offshore, hydrates have been identified in Alaska, all along the 
West Coast, in the Gulf of Mexico, and in some areas along the East 
Coast. The technology does not now exist to extract methane hydrates on 
a commercial scale. A joint industry group of scientists has been at 
work in the Gulf of Mexico since May of this year examining the hydrate 
potential in several deepwater canyons. This work is intended to help 
companies find and analyze hydrates seismically and to complete an 
area-wide profile of hydrate deposits.
    In the Methane Hydrate Research and Development Act of 2000 
Congress mandated the National Research Council to undertake a review 
of the Methane Hydrate Research and Development Program at the 
Department of Energy to provide advice to ensure that significant 
contributions are made towards understanding methane hydrates as a 
source of energy and as a potential contributor to climate change. That 
review is now underway. The U.S. Navy has also done work on gas 
hydrates, as has the U.S. scientific community, including universities 
such as Louisiana State University and Texas A&M. Significant research 
is also being conducted by scientific institutions in Japan. The United 
States needs to have a seat at the table of the Continental Shelf 
Commission in order to influence development of any international rules 
or guidelines that could affect gas hydrate resources beyond our EEZ.
                   marine transportation of petroleum
    Oil is traded in a global market with U.S. companies as leading 
participants. The LOS Convention's protection of navigational rights 
and freedoms advances the interests of energy security in the U.S., 
particularly in view of the dangerous world conditions we have faced 
since the tragic events of September 11, 2001. About 44 percent of U.S. 
maritime commerce consists of petroleum and petroleum products. Trading 
routes are secured by provisions in the Convention combining customary 
rules of international law, such as the right of innocent passage 
through territorial seas, with new rights of passage through straits 
and archipelagoes. U.S. accession to the Convention would put us in a 
much better position to invoke such rules and rights.
                   u.s. oil imports at all-time high
    The outlook for United States energy supply in the first 25 years 
of the new millennium truly brings home the importance of securing the 
sea routes through which imported oil and natural gas is transported.
    According to API's Monthly Statistical Report published on October 
15, 2003, imports of crude oil reached a new, all-time high in 
September. At close to 10.4 million barrels per day, crude imports 
surpassed the previous high reached in April 2001. When combined with 
higher volumes for products such as gasoline, diesel fuel and jet fuel, 
total imports amounted to nearly two thirds of domestic deliveries for 
the month. This is an extraordinary volume of petroleum liquids being 
transported to our shores in ships every day.
    The Department of Energy's Energy Information Administration (ETA), 
in its 2003 Annual Energy Outlook, projects that by 2025, net petroleum 
imports, including both crude oil and refined products on the basis of 
barrels per day, are expected to account for 68 percent of demand, up 
from 55 percent in 2001. Looking at the October numbers from API makes 
one wonder whether 2025 is fast approaching.
                      growing natural gas imports
    ETA's 2003 Outlook also states that, despite the projected increase 
in domestic natural gas production, over the next twenty years an 
increasing share of U.S. gas demand will also be met by imports. A 
substantial portion of these imports will come in the form of liquefied 
natural gas (LNG). All four existing LNG import facilities in the U.S. 
are now open, and three of the four have announced capacity expansion 
plans. Meanwhile, several additional U.S. LNG terminals are under study 
by potential investors, and orders for sophisticated new LNG ships are 
being placed. This means even more ships following transit lanes from 
the Middle East, West Africa, Latin America, Indonesia, Australia, and 
possibly Russia, to name the prominent regions seeking to participate 
in the U.S. natural gas market.
              global significance of persian gulf exports
    Another important factor to consider is that, according to ETA, 
Persian Gulf exports as a percentage of world oil imports are in the 
process of growing from 30 percent in 2001 to 38 percent in 2025. The 
Persian Gulf is a long, semi-enclosed sea. Much of it lies beyond the 
12-mile limit of the territorial sea but not beyond the 200-mile limit. 
Within the Persian Gulf there are seven settled international maritime 
boundaries and as many as nine possible maritime boundaries that have 
not been resolved in whole or in part.\2\
    Fortunately, from the standpoint of U.S. and world dependence on 
Persian Gulf oil imports, the LOS Convention provides authority that in 
those areas beyond the territorial sea the right of high seas 
navigation applies to all vessels. According to the Convention, within 
the territorial sea vessels have the right of innocent passage and, for 
straits used for international navigation, the right of transit passage 
applies. It goes without saying that the United States would be in a 
better position to secure these rights in this unstable area if it were 
a party to the Convention.
                        rising world oil demand
    World oil demand in 2001 was 76.9 million barrels per day. Up to 
1985 oil demand in North America was twice as large as Asia. As 
developing countries improve their economic conditions and 
transportation infrastructure we could soon see Asian oil demand 
surpass North American demand. By 2025 world demand is expected to 
reach nearly 119 million barrels per day. Steady growth in the demand 
for petroleum throughout the world means increases in crude oil and 
product shipments in all directions throughout the globe. The 
Convention can provide protection of navigational rights and freedoms 
in all these areas through which tankers will be transporting larger 
volumes of oil and natural gas.
              need for u.s. involvement in los governance
    In conclusion, from an energy perspective we see potential future 
pressures building in terms of both marine boundary and continental 
shelf delineations and in marine transportation. We believe the LOS 
Convention offers the U.S. the chance to exercise needed leadership in 
addressing these pressures and protecting the many vital U.S. ocean 
interests. Notwithstanding the United States' view of customary 
international law, the U.S. petroleum industry is concerned that 
failure by the United States to become a party to the Convention could 
adversely affect U.S. companies' operations offshore other countries. 
In November 1998, the U.S. lost its provisional right of participation 
in the International Seabed Authority by not being a party to the 
Convention. At present there is no U.S. participation, even as an 
observer, in the Continental Shelf Commission--the body that decides 
claims of OCS areas beyond 200 miles--during its important 
developmental phase. The U.S. lost an opportunity to elect a U.S. 
commissioner in 2002, and we will not have another opportunity to elect 
a Commissioner until 2007.
    The United States should also be in a position to exercise 
leadership and influence on how the International Seabed Authority will 
implement its role in being the conduit for revenue sharing from broad 
margin States such as the U.S., yet the U.S. cannot secure membership 
on key subsidiary bodies of the Seabed Authority until it accedes to 
the Convention. Clearly United States views would undoubtedly carry 
much greater weight as a party to the Convention than they do as an 
outsider. With 143 countries and the European Union having ratified the 
Convention, the Convention will be implemented with or without our 
participation and will be sure to affect our interests.
    It is for these reasons that the U.S. oil and natural gas industry 
supports Senate ratification of the Convention at the earliest date 
possible.

--------------
    \2\ See ``Persian Gulf Disputes,'' comments prepared by Jonathan L. 
Charney, Professor of Law, Vanderbilt University, for a conference on 
``Security Flashpoints: Oil, Islands, Sea Access and Military 
Confrontation,'' New York City on February 7-8, 1997.

    The Chairman. Thank you very much, Mr. Kelly, for your 
testimony.
    I would like to call now on Admiral Rufe of The Ocean 
Conservancy. Admiral.

  STATEMENT OF VICE ADMIRAL ROGER T. RUFE, JR., USCG (RET.), 
        PRESIDENT, THE OCEAN CONSERVANCY, WASHINGTON, DC

    Admiral Rufe. Good morning, Mr. Chairman, and I too thank 
you for the opportunity to appear before you this morning and 
present our views on the United States Convention on the Law of 
the Sea.
    In addition to being President of The Ocean Conservancy, I 
am also a member of the Pew Oceans Commission, which I think as 
you know, Mr. Chairman, strongly supports accession to this 
convention.
    I am here this morning representing The Ocean Conservancy, 
and I will give a brief summary of my remarks.
    The Ocean Conservancy strives to be the world's foremost 
advocate for the oceans. Our headquarters are here in 
Washington, and we have offices throughout the United States, 
including Alaska, Maine, California, Florida, and the Virgin 
Islands.
    Since all oceans are connected and all species related, our 
work to protect the oceans range from the local to the 
international. The Ocean Conservancy serves on the Species 
Survival Commission of the World Conservation Union and has led 
efforts to extend protections for threatened marine species 
worldwide. We have also been a major proponent for marine 
protected areas both in the United States and abroad.
    The Ocean Conservancy collaborated closely with our 
colleagues at Oceana and the Center for International 
Environmental Law in developing this testimony, and we have 
prepared a joint statement in support of accession that is 
appended to my written testimony for the record.
    In your opening statement on October 14, Mr. Chairman, you 
appropriately recognized the Law of the Sea as the 
international law for the world's oceans. You also took the 
opportunity to recognize the contributions of a former chair of 
the committee, Senator Pell, to this important issue, and you 
already recognized your past naval history. I might mention, 
for the benefit of those who do not know, Senator Pell was a 
very proud veteran of the United States Coast Guard and was a 
Coast Guard Reserve retired officer. He characterized the Law 
of the Sea as a constitution for the oceans, a characterization 
that has been widely echoed by others. Both your and Senator 
Pell's descriptions are entirely right. The convention is both 
international law and a constitution for the world's oceans to 
be used to guide and to promote positive international and 
national decisionmaking over time.
    The Ocean Conservancy strongly supports U.S. accession to 
the convention. We also believe, however, that several of its 
provisions require interpretive language to ensure that its 
terms are not misconstrued as limiting the United States 
regulatory authority to protect the marine environment. The 
Ocean Conservancy is concerned that absent such language, an 
argument could be made that the United States is precluded from 
taking unilateral action where necessary to protect its marine 
ecosystems through the adoption of national legislation.
    For instance, the Senate must ensure that the United States 
retains its full authority to regulate pollution from vessels 
or prevent a spread of invasive species. On one hand, the 
convention grants coastal States the authority to broadly 
regulate for purposes of environmental protection. On the other 
hand, it focuses on the rights to be enjoyed by ships in 
traveling throughout the seas, as we have heard earlier today.
    I have provided detailed descriptions of a number of 
potentially problematic provisions in our written testimony. 
This list is not intended to be exclusive. There may be 
additional areas of potential ambiguity that warrant Senate 
interpretation in its advice and consent. We would welcome the 
opportunity to work with the committee and members of your 
staff to address these issues through interpretive language.
    I would also like to stress the importance of continued 
international leadership by the United States after accession 
to ensure that future changes to the convention advance 
environmental goals. My comments here draw from the 1998 
statement of the environmental community's views on accession 
to the convention. The environmental community noted at that 
time that the concept of precautionary principle did not exist 
at the time the Law of the Sea Convention was negotiated and 
that consequently the term did not appear in the convention. 
Fortunately, the convention as a constitution does establish 
some principles and tools that may provide a framework for 
future application of the precautionary principle. Moreover, 
subsequent multilateral agreements related to UNCLOS include 
the use of the precautionary principle, including the 
Straddling Stocks Agreement. We urge the United States to work 
to ensure that subsequent changes to the convention 
appropriately embrace the precautionary approach.
    The Ocean Conservancy also urges the United States to take 
a leadership role through the Law of the Sea Convention and 
other treaties to ensure better implementation and enforcement 
of fish conservation measures. The Law of the Sea treaty did 
not resolve major issues regarding the management, 
exploitation, and conservation of living marine resources, 
particularly the highly migratory species of fish and 
populations of fish that straddle the boundaries between States 
and the high seas. The failure of governments to deal 
effectively with these issues has led to widespread over-
fishing and conflicts between nations.
    Recognizing the convention's limitations, the U.N. 
fisheries conference was convened. The resulting U.N. 
Straddling Stocks Agreement provisions are enforceable through 
the convention's dispute resolution system, thus reinforcing 
enforcement and compliance opportunities for parties to the 
convention.
    This example demonstrates the kind of leadership the United 
States should continue to exercise in the future. It 
illustrates how accession to the convention for this area, as 
well as others, provides a foundation for the further 
progressive development of international law.
    In conclusion, Mr. Chairman, we strongly support U.S. 
accession to the convention, and we urge the committee to 
develop interpretive language, as necessary, in its advice and 
consent to reconcile the Law of the Sea Convention's provisions 
with U.S. statutory law, and to preserve the ability of the 
United States to act to protect and conserve its marine 
environment. We also urge the Senate to include report language 
encouraging the United States to fully commit to its role as a 
world leader in advancing environmental protections for areas 
where the convention needs further development. It is our hope 
that with accession the United States will lead by example so 
that we may protect, maintain, and restore our magnificent 
ocean trust for future generations.
    Thank you, Mr. Chairman.
    [The prepared statement of Admiral Rufe follows:]

  Prepared Statement of Vice Admiral Roger T. Rufe, Jr., USCG (Ret.), 
            President, The Ocean Conservancy, Washington, DC

                     i. introduction and background
    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to present our views on the United Nations Convention on 
the Law of the Sea (UNCLOS or Convention). My name is Roger Rufe; I am 
the President of The Ocean Conservancy.
A. The Ocean Conservancy
    The Ocean Conservancy (TOC) strives to be the world's foremost 
advocate for the oceans. Through science-based advocacy, research, and 
public education, we inform, inspire, and empower people to speak and 
act for the oceans. TOC is the largest and oldest nonprofit 
conservation organization dedicated solely to protecting the marine 
environment. Headquartered in Washington, D.C., TOC has offices 
throughout the United States, including offices in Alaska, Maine, 
California, and the Virgin Islands.
    TOC has a long history as a leading proponent of numerous 
international initiatives to conserve the world's most biologically 
vulnerable marine animals--specifically marine mammals, sea turtles, 
sharks and their close relatives, skates and rays. TOC serves on the 
Species Survival Commission of the IUCN and has led efforts to extend 
protections for threatened marine species. We also helped secure 
listing of basking and whale sharks under the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) and passage of the International Dolphin Conservation Act and 
its sister treaty, The Antiqua Convention to the Inter-American 
Tropical Tuna Convention. To reduce litter on beaches, each year TOC 
sponsors an International Coastal Cleanup, assisted by hundreds of 
thousands of volunteers from over 100 participating countries.
    We have also been a major proponent of marine protected areas, both 
in the United States and abroad. Since the 1980s, The Ocean Conservancy 
has been one of the few U.S. organizations to work collaboratively with 
Cuban universities and researchers to inventory and conserve marine 
biodiversity in Cuba. More recently, this work has expanded to include 
an exciting and promising new marine protected area project in 
Colombia. As all waters are connected, our work on marine pollution 
ranges from urging the strongest Clean Water Act protections for all 
waters in the United States to efforts to restore and protect sensitive 
coral reef habitats from marine pollution produced by ocean-going 
ships.
    TOC collaborated closely with our colleagues at the Center for 
International Law and Oceana in developing this testimony, and we have 
prepared a joint statement in support of accession that is appended to 
this testimony. My testimony on behalf of TOC is organized as follows: 
first, I will explain why we support U.S. accession to the United 
Nations Convention on the Law of the Sea. Second, I will highlight 
several issues that require the Senate's attention and development of 
interpretive language so that potentially ambiguous terms of the 
Convention are not misconstrued as limiting the United States' 
authority to protect its marine environment. In the third part of my 
testimony, I will highlight a few environmental issues that warrant 
further attention by the United States after our accession to ensure 
that implementation of, and future changes to, the Convention fully 
advance environmental goals and protect our interests in healthy, 
vibrant oceans.
B. UNCLOS
    In his opening statement for the October 14th hearing, Chairman 
Lugar appropriately recognized the Law of the Sea as the international 
law for the world's oceans. The Chairman also took the opportunity to 
recognize the contributions of a former Chair of the Committee, Senator 
Pell, to this important issue. Senator Pell characterized the Law of 
the Sea as a ``constitution'' for the oceans,\1\ a characterization 
that has been widely echoed by others. As the committee has heard from 
many witnesses, UNCLOS is an important and progressive international 
agreement that largely reflects values that our nation has worked to 
implement over the years. The Convention imposes basic obligations for 
all states to protect and preserve the marine environment and to 
conserve marine living species. These commitments are testaments to 
enlightened diplomacy to manage shared resources. Perhaps even more 
importantly, the Convention calls for the further development of global 
and regional rules on these subjects, and provides a framework of 
principles and objectives for that development. Both Chairman Lugar and 
Senator Pell's descriptions are entirely right: the Convention is both 
international law and a constitution for the world's oceans, to be used 
to guide and promote positive international and national decision-
making over time.
---------------------------------------------------------------------------
    \1\ 141 Cong. Rec. S2, 266-67 (daily ed. Feb 7, 1995) (statement of 
Senator Pell).
---------------------------------------------------------------------------
    The Third United Nations Conference on the Law of the Sea was 
convened in late 1973. The Conference continued until its final meeting 
in late 1982, at which time the final act was signed and the Convention 
was opened for signature. As time went on, it became clear that 
developed states were not willing to agree to Part Xl of the Convention 
concerning deep seabed portions and mining of potentially valuable 
metals. Thus, modifications to that provision were negotiated, and an 
amending agreement was finalized in July of 1994. The U.S. signed the 
Agreement in 1994 and recognizes the Convention as general 
international law, but has not ratified it at this time. UNCLOS entered 
into force in November of 1994 with the requisite sixty ratifications.
    The Convention establishes law over a vast array of issues 
affecting the world's oceans, ranging from maritime boundary 
delimitation, to fisheries management, to the rights and duties of 
ships with regard to navigation, to ownership of marine resources. The 
United States' interests in becoming a signatory to the Convention are 
similarly broad and diverse, and the Committee has heard from many 
witnesses representing these interests, all in support of accession. 
Our testimony will be limited to a brief commentary on the 
environmental benefits and implications of U.S. accession at this time.
        ii. toc statement in support of u.s. accession to unclos
    There is general agreement in the environmental community that the 
Convention serves the environmental interests of the United States in 
providing a stable legal framework,\2\ and as the foundation of public 
order in the oceans.\3\ The primary environmental reason for 
encouraging U.S. accession to UNCLOS at this time is to give the United 
States the credibility and full rights accorded to a signatory, 
ensuring that the United States is in the best position to negotiate 
and lead future applications of this constitution for the oceans.
---------------------------------------------------------------------------
    \2\ In 1998 Clifton Curtis prepared a statement of accession 
endorsed by many environmental organizations, including The Ocean 
Conservancy (then the Center for Marine Conservation). This testimony 
draws from that statement in its discussion of dispute settlement 
procedures, the precautionary principle and fisheries conservation 
measures. See also, The United Nations Convention on the Law of the Sea 
and the Marine Environment: A Non Governmental Perspective, Clifton E. 
Curtis, Geo. Int'l Envtl. L. Rev., 7: 739-743 (1995).
    \3\ See Statement by Robert Hirshon, President, the American Bar 
Association, to the Commission on Ocean Policy, (November 13, 2001), 
available at http://oceancommission.gov/meetings/nov 13--14--01 /
hirshon--testimony.pdf.
---------------------------------------------------------------------------
    The Committee has heard from many witnesses that our failure to 
ratify this global treaty has hurt us to some extent economically, 
diplomatically and environmentally. These witnesses have rightly noted 
that our failure to ratify the Convention has hurt not only our 
international credibility, but also our ability to effect future 
changes in the terms and agreements upon which international law is 
based. The United States is a world leader in marine conservation, and 
our accession to UNCLOS will greatly help us advance international 
standards and practices.
    While the United States is a world superpower, we must fully engage 
our fellow nations and secure the cooperation of the international 
community if we are to be successful in protecting our oceans and their 
resources. For example, currently the United States adheres to the 
fisheries conservation measures in the Law of the Sea and subsequent 
Straddling Stocks Agreement, and we treat them as customary 
international law. However, unless we become a signatory to the treaty, 
we are without recourse to enforce this Agreement's terms with regard 
to other states which do not. We are also unable to fully represent 
U.S. interests in negotiating future changes or terms to both of these 
agreements. Both the Pew and the Federal Oceans Commission have 
recently recommended accession for this purpose: to secure a positive 
environmental framework for U.S. ocean management. In sum, it is 
impossible to be a world leader relative to the health of the oceans 
without full participation in the international rule of law that 
applies to them.
    Therefore, TOC urges accession at this time primarily to enable the 
United States to be a full participant and negotiator in the future 
development of the terms of the Convention. However, recognizing some 
of the environmental implications of our accession upon U.S. regulatory 
authority, we urge the Senate to include several interpretive 
statements as part of the record in giving its advice and consent to 
the President, and to be included in our accession instrument. These 
interpretive statements must clarify how some UNCLOS provisions will be 
implemented by the United States, so that our full authority to protect 
our marine environment and resources will be preserved and exercised 
effectively in the future. Part III of this testimony will address 
several areas requiring interpretive language to be developed by the 
Senate with its advice and consent.
             iii. issues requiring interpretive statements
    UNCLOS is a self-executing treaty, meaning the United States does 
not need to pass additional national legislation to implement its 
terms. By acceding to the treaty, the United States indicates its 
intent to be bound by the Convention. The broad scope and general 
nature of UNCLOS presents significant interpretational challenges that 
must be fully addressed by the United States in its accession. We are 
concerned that because of some potential ambiguities between the 
Convention's terms and the United States' own statutory framework, an 
argument could be made that the United States is precluded from taking 
unilateral action where necessary to protect its marine ecosystems 
through the adoption of protective national legislation.
    Before I summarize those provisions, let me provide a specific 
example. In the Department of Justice's 1998 prosecution of Royal 
Caribbean Cruise Lines (RCCL), the company attempted to use the 
Convention as a shield to prosecution.\4\ The Coast Guard had observed 
a cruise ship dumping oil in the waters off the Bahamas on its way to 
Miami. RCCL claimed it was immune from criminal prosecution in the 
United States under UNCLOS. Although the court denied RCCL's motion to 
dismiss on those grounds, this case illustrates the potential conflict 
with the Convention, even before ratification, and the willingness of 
industry to employ its terms to attempt to avoid U.S. health, safety 
and environmental laws.\5\ The case also demonstrates the potential for 
further confusion absent interpretation by the United States.
---------------------------------------------------------------------------
    \4\ U.S. v. Royal Caribbean Cruises, Ltd, 11 F. Supp.2d 1358 (S.D. 
Florida, 1998).
    \5\ See William A. Goldberg, Cruise Ships, Pollution and 
International Law: The United States Takes on Royal Caribbean Cruise 
Lines, 19 Wis. Int'l. L.J. 71 (2000), calling into question the 
continuing ability of international law to control pollution in the 
world's waterways. See also Shaun Gehan, United States v. Royal 
Caribbean Cruises, Ltd: Use of Federal ``False Statements Act'' to 
Extend Jurisdiction over Polluting Incidents into Territorial Seas of 
Foreign States, 7 Ocean & Coastal L.J. 167 (2001), concluding that 
similar applications of domestic law are entirely consistent with the 
goals of the applicable international treaties. Id., at 168.
---------------------------------------------------------------------------
    Therefore, it is crucial that the United States indicate its intent 
to implement UNCLOS's provisions in a manner that is consistent with 
existing U.S. statutory law and preserves our ability to act to protect 
and conserve the marine environment. I will now turn to the main areas 
of potential conflict or confusion between UNCLOS and U.S. provisions 
on environmental matters. In each case, we recommend that the Senate 
reconcile these conflicts through the inclusion of interpretive 
language, to be delivered with the United States' instrument of 
accession. We recognize that there may be other areas of potential 
ambiguity that warrant Senate interpretation in its advice and consent. 
We would welcome the opportunity to work with the Committee to address 
these issues through interpretive language.
A. Pollution From Vessels
    The Law of the Sea is particularly vague with respect to the rights 
of a coastal state to protect itself against pollution from ships.
    On one hand, the Convention grants coastal states the authority to 
broadly regulate for the purposes of environmental protection. Within 
the Exclusive Economic Zone (EEZ), Article 56 grants coastal states 
``sovereign rights'' for the purpose of (among other things) 
``conserving and managing the natural resources,'' as well as 
jurisdiction over ``the protection and preservation of the marine 
environment.'' On the other hand, Article 211, which generally 
discusses the regulation of pollution from vessels, potentially limits 
this broad authority. Article 211 permits a coastal state to establish 
particular requirements for the prevention, reduction and control of 
pollution of the marine environment ``as a condition for the entry of 
foreign vessels into their ports,'' and where ``conforming to and 
giving effect to generally accepted international rules and standards 
established through the competent international organizations . . .'' 
Thus, potentially a state may not regulate pollution discharges from 
vessels in the EEZ unless it is doing so either as a condition of port 
entry or to give effect to international standards.
    Relative to the territorial sea, there is additional ambiguity 
between the balance of the authority vested in the coastal state, and 
the rights of ships passing in innocent passage. Article 21 grants 
coastal states the authority to adopt laws and regulations for several 
purposes, including the conservation of the living resources of the 
sea, the prevention of infringement of the fisheries laws and 
regulations of the coastal state, the preservation of the environment 
of the coastal state and the prevention, reduction and control of 
pollution thereof, and the prevention of infringement of the customs, 
fiscal immigration or sanitary laws and regulations of the coastal 
state. However, all of these are subject to limitations in Article 
21.2, preventing a state from imposing restrictions on design, 
construction, manning, or equipment upon a foreign ship in innocent 
passage unless the state is doing so to give effect to ``generally 
accepted international rules or standards.'' Unfortunately, no clear 
view has been articulated either at the international level or within 
the United States as to what does or should constitute a ``generally 
accepted international standard'' under these articles.
    Without clarification by the United States, these provisions could 
be interpreted to preclude the U.S. from adopting legislation--even in 
the absence of any international dialogue on a particular subject--as 
may be necessary to protect its marine ecosystems. It could potentially 
limit the U.S. from taking necessary steps to protect the territorial 
sea except to give effect to those general rules or standards.
    Although generally the United States exercises jurisdiction in 
accordance with UNCLOS provisions, the Oil Pollution Act of 1990 (OPA) 
is one example of the U.S. exercising extraterritorial jurisdiction and 
exceeding the standards in UNCLOS.\6\ OPA requires all ships operating 
in U.S. waters to be constructed with a double-hulled design.\7\ 
Additionally foreign vessels lightering in the U.S. EEZ, including 
``those not intending to enter United States waters,'' must maintain 
certificates of financial responsibility if some of the oil is destined 
for the United States. OPA also imposes a series of additional 
requirements for vessels transferring oil or hazardous materials in the 
marine environment. Passed in response to the devastating Exxon Valdez 
oil spill off the coast of Prince William Sound in Alaska, OPA is a 
clear example of the need to protect the United States' ability to act 
in the absence of adequately protective international standards.
---------------------------------------------------------------------------
    \6\ See Christopher P. Mooradian, Protecting Sovereign Rights: The 
Case for Increased Coastal State Jurisdiction over Vessel Pollution in 
the Exclusive Economic Zone, 82 Boston U.L. Rev. 767, 801, 802 (2002).
    \7\ 46 U.S.C. 3703(a)(c)(3).
---------------------------------------------------------------------------
    The Senate must therefore ensure in its advice and consent that the 
provisions in UNCLOS do not overly limit the current authority of the 
United States to regulate pollution from vessels by clarifying the 
phrase ``generally accepted international standards.'' The Senate 
should also specify that the U.S. believes it is free to act where 
necessary to protect its waters where the regulated activity is not 
addressed by a specific international rule or standard to prevent, 
reduce or control its pollution.
B. Treatment of Invasive Species
    The introduction of invasive species via ballast water is a 
continuing and growing challenge for the protection of U.S. resources, 
both inland and throughout the EEZ. The potential ecological damage 
from invasive species is enormous. According to the International 
Maritime Organization, invasive species are one of the four greatest 
threats to the health of the world's oceans, along with other 
pollution, overexploitation of marine resources, and destruction of 
marine habitat. The discharge of ballast water from ships is the number 
one source of marine invasive species in the United States.\8\
---------------------------------------------------------------------------
    \8\ See, e.g., Canton and Geller, ``Ecological Roulette: The Global 
Transport and Invasion of Nonindigenous Marine Organisms,'' Science 
(1993); Marine Board of the National Research Council, Stemming the 
Tide, National Academy Press, Washington D.C. (1996).
---------------------------------------------------------------------------
    UNCLOS, however, fails to clearly address the problem of invasive 
species. If the treaty were interpreted such that invasive species were 
intended to be covered by the broad definition of ``pollution'' as 
defined in Article 1.1.3, then coastal states would be potentially 
constrained in their ability to prevent the spread of these invasive 
species from ships operating outside of the territorial sea. As the IMO 
has failed to prescribe international standards for the treatment of 
ballast water, more stringent measures by the U.S. could be interpreted 
as being ``beyond generally accepted international rules or 
standards.'' \9\ This would leave the United States reliant upon the 
remaining authority granted in 211 to require treatment and practices 
as a condition of entry info port.
---------------------------------------------------------------------------
    \9\ UNCLOS Art. 211.5
---------------------------------------------------------------------------
    We urge instead the better interpretation that alien species are 
not intended to be addressed by the definition of ``pollution'' by 
UNCLOS. This interpretation is supported by the fact that invasive 
species are addressed by Article 196, and not in Article 194, which 
addresses the regulation of various types of marine pollution 
generally. Moreover Article 196 distinguishes invasive species from 
pollution within the provision. We recommend that the Senate include an 
interpretive statement on this issue as part of its advice and consent 
to be included with the instrument of accession specifying that the 
United States does not view invasive species as ``pollution'' for 
purposes of UNCLOS.
C. Conditions of Port State Entry
    UNCLOS allows coastal states fairly wide authority to prescribe 
conditions of entry upon foreign vessels. This constitutes perhaps the 
most obvious mechanism for addressing illegal or problematic shipping 
discharges of pollution. Yet the U.S. should ensure its right to 
establish more stringent or targeted measures as necessary to protect 
and conserve the marine environment. For example, since 1996 the U.S. 
has required ships entering the Great Lakes to exchange ballast water 
from beyond the Exclusive Economic Zone as a condition of entering into 
the Great Lakes system to minimize the spread of invasive species.\10\
---------------------------------------------------------------------------
    \10\ National Invasive Species Act of 1996, P.L. 105-332, 16 U.S.C. 
4711 (1996). Both the Senate and the House are currently considering 
legislation to substantially strengthen this program to require ballast 
water treatment for ships coming into all U.S. ports (S. 525 and H.R. 
1080).
---------------------------------------------------------------------------
    We urge the Senate to include an interpretive statement on this 
issue as part of its advice and consent, to be included with the 
instrument of accession. This statement should clarify that the U.S. 
interprets Articles 25.2 and 211.3 to recognize longstanding rights of 
states to impose conditions on the entry of vessels into ports or 
internal waters. Conditions on port of entry include conditions on 
operation and design of a vessel as it proceeds to a given U.S. port of 
call, extending seaward as necessary.
D. Enforcement of Non-Monetary Penalties in the Territorial Sea
    Article 230.2 of UNCLOS authorizes only monetary penalties for 
violations committed in the territorial sea, except in the case of ``a 
willful and serious act of pollution.'' U.S. law (e.g. the Clean Water 
Act), currently authorizes criminal penalties as well as broad civil 
penalties for illegal discharges in the territorial sea.
    Two potential ambiguities are created by reconciling the UNCLOS 
provisions with U.S. law. The first is whether the monetary penalties 
authorized by UNCLOS are consistent with the U.S. concept of ``civil 
penalties'' so as to potentially allow for injunctive relief, 
administrative orders or restitution. And second, in determining where 
criminal penalties may be available in the territorial sea, to what 
extent is ``willful and serious'' consistent with the U.S. concept of 
mens rea; does it mean knowing, negligent or grossly negligent?
    So that this provision is not construed in a manner inconsistent 
with U.S. interests, the Senate should make clear in its advice and 
consent that the determination of ``willful and serious'' will be made 
by the responsible U.S. agency in accordance with U.S. law; that the 
``willful'' element is satisfied if the defendant was aware of the 
conduct leading to the ``act of pollution,'' regardless of whether the 
defendant intended the illegal discharge or the act of pollution, and 
that the concept of monetary penalties means the full array of civil 
remedies.
E. Environmental Protection in the Contiguous Zone
    Article 33.1 of UNCLOS provides that in the contiguous zone, a 
coastal state may exercise the control necessary to ``(a) prevent 
infringement of its customs, fiscal, immigration or sanitary laws and 
regulations within its territory or territorial sea . . .''
    There is a need to clarify the term ``sanitary laws'' to ensure 
these include environmental measures to protect human or ecosystem 
health within the territorial sea. These would include, for example, 
laws to prevent the contamination of fish or shellfish consumed by 
people, waters used for recreation, and the Clean Air Act standards 
which protect human health from the impairment of air quality from 
vessel emissions. International agreements negotiated in the time since 
UNCLOS have adopted a similarly broad definition of ``sanitary.'' \11\
---------------------------------------------------------------------------
    \11\ E.g. Article XX(b), General Agreement on Tariffs and Trade, 
(1994): Agreement on the Application of Sanitary and Phytosanitary 
Measures, World Trade Organization.
---------------------------------------------------------------------------
    We urge the Senate to include an interpretive statement on this 
issue as part of its advice and consent, to be included with the 
instrument of accession. The statement must clarify that ``sanitary 
laws'' under Article 33.1 include all laws and regulations that provide 
direct or indirect protection to human health, welfare or the marine 
environment.
F. Regulation of Industrial and Other Polluting Operations At Sea
    The U.S. currently regulates certain industrial facilities such as 
seafood processing vessels, aquaculture facility discharges, and 
offshore oil and gas operations under the permitting requirements of 
Sections 402 and 403 of the Clean Water Act. The U.S. also regulates 
certain cruise ship operations in the waters around Alaska. Additional 
measures will likely be necessary to address environmental issues 
arising from other industrial activities on vessels.
    UNCLOS, if interpreted too narrowly, could constrain the United 
States' ability to adopt and enforce these important measures. As noted 
earlier, Article 21.2 imposes limits on laws and regulations relating 
to ``innocent passage.'' Article 211 also raises similar issues. We 
urge the Senate to include an interpretive statement on this issue as 
part of its advice and consent, to be included with the instrument of 
accession. The statement must clarify that these vessels are not 
engaging in or innocent passage as defined in Articles 18 and 19, and 
that the U.S. is free to regulate vessels operating in a capacity other 
than innocent passage as necessary to protect against polluting 
discharges from these vessels.
G. Defining Clear Grounds for Inspection
    Article 226 of UNCLOS limits port state inspections to ``required 
documents'' except in certain cases, such as where there are ``. . . 
[c]lear grounds for believing that the condition of the vessel or its 
equipment does not correspond substantially with the particulars of 
those documents. This would make many enforcement cases difficult, such 
as those brought by the U.S. to determine whether a vessel is treated 
with a toxic antifouling agent such as tributyltin, or to determine 
whether a vessel is in compliance with a ballast water management 
performance standard.
    We urge the Senate to include in the record an interpretive 
statement which establishes that ``clear grounds'' includes at least 
``probable cause'' and ``reasonable suspicion,'' and that it is not 
intended to preclude the right or ability of a port state to take 
appropriate samples or tests.
H. Dispute Settlement Provisions as a Potential Bar to Protective 
        National Action
    UNCLOS is one of the few international environmental agreements 
requiring binding settlement for many environmental and conservation 
disputes. States may choose among four options for binding settlement: 
the International Court of Justice, the Tribunal for the Law of the 
Sea, an arbitral tribunal, or a special expert arbitral tribunal 
constituted to hear a dispute over navigation, fisheries, marine 
environmental protection, or marine scientific research.
    There is some concern that the Convention's dispute settlement 
provisions could be used ``politically'' to try to prevent a state from 
enforcing domestic laws that authorize or mandate trade measures. With 
regard to trade-related challenges, these kinds of laws often are 
placed into one of two categories, i.e. U.S. laws that apply unilateral 
standards to foreign actions (e.g., MMPA, Sea Turtle amendments), and 
U.S. laws addressed to nations that are diminishing the effectiveness 
of an international agreement (e.g., Pelly Amendments).
    The U.S. has taken the position, and TOC agrees, that UNCLOS was 
not intended to cover trade measures. It imposes no obligations on 
states relating to such measures, and the history of its negotiation 
makes it clear that conservation measures were not intended to 
encompass trade measures. There is therefore no substantive basis in 
the Convention for challenges to trade measures based on national 
standards.
    We remain concerned, however, that other nations may attempt to 
challenge trade measures or sanctions under the Convention's dispute 
settlement provisions in order to try to discredit those standards and 
gain an advantage in the World Trade Organization, where trade measures 
based on the standards could be challenged. Where multilateral 
processes fail to resolve pressing environmental problems, national 
action remains a necessary and effective option. The U.S. may both 
serve to protect against the problem, and to encourage positive 
international action and raise awareness of the problem.\12\
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    \12\ For example, in 1991, TOC and other groups petitioned the 
United States to certify the Government of Japan under the Pelly 
Amendments. The certification was for ``undermining the effectiveness 
of international programs for the conservation of sea turtles'' due to 
Japan's annual import of 20,000 kg of hawksbill sea turtle shell, and 
thousands of skins of the olive ridley turtle from Mexico. Mexico 
shortly thereafter ended the olive ridley harvest in order to avoid 
trade sanctions, and Japan agreed to phase out the trade by the end of 
1992. The threat of Pelly Amendment sanctions, while never imposed, in 
conjunction with international pressure, played a crucial role in 
preventing the extinction of the hawksbill sea turtles and in ending 
the illegal harvest of olive ridley turtles in Mexico.
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    Therefore, TOC urges the Senate to include interpretive language 
clarifying that there is no substantive basis in the Convention for 
those kinds of challenges, and that the Convention does not affect U.S. 
authority to utilize these measures.
iv. issues requiring leadership from the u.s. in the implementation and 
                          the future of unclos
    The vision of UNCLOS as a constitution was introduced at the 
beginning of this testimony, and it must be revisited here. As a 
constitution, UNCLOS is not meant to be an inflexible, stagnant 
document. Rather, its provisions must be interpreted over time, and its 
processes applied to our expanding environmental awareness about our 
world's oceans and the resources within them. In fact, subsequent 
multilateral environmental agreements have both reaffirmed and expanded 
upon UNCLOS's regime for the marine environment.\13\
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    \13\ At the time of the first meeting of UNCLOS and the Stockholm 
Convention in 1972, there were relatively few international agreements 
concerning the environment. Since 1972, almost every county has adopted 
at least one piece of environmental legislation, and there are more 
than 870 legal instruments that contain at least some provisions 
focusing on the environment. See Edith Brown Weiss, Introductory Note 
to United Nations Conference on Environment and Development, 31 
I.L.M.814 (1992); see also Jonathan L. Hafetz, Fostering Protection of 
the Marine Environment and Economic Development: Article 121(3) and the 
Third Law of the Sea Convention, 15 Am. Univ. I.L.R. 583, 592 (2000).
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    The United States will be in a better position to address the 
existing deficiencies or limitations in the rule of law for the oceans 
if it becomes a signatory to UNCLOS. In its 1998 joint statement, which 
provides the basis for my next remarks, the environmental community 
urged the United States to embrace its leadership role in the world by 
ensuring that UNCLOS serves as a framework for securing more protective 
regimes for the conservation of marine ecosystems and wildlife. This 
role must continue beyond accession to participation and negotiation 
for improved international environmental practices over time. I would 
like to take this opportunity to briefly mention a few of these 
emerging and important issues.
A. Precautionary approach
    The U.S. Commission on Ocean Policy and the Pew Oceans Commission 
on which I served have both confirmed that our oceans are in 
crisis.\14\ While we wait for the final recommendations of the Federal 
Oceans Commission, the Pew Oceans Commission recognized that to address 
the problems confronting our oceans, a new ethic is needed, one which, 
in the face of uncertainty, urges caution and protection. The 
precautionary approach today is endorsed internationally as a 
fundamental policy.
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    \14\ While the U.S. Commission on Ocean Policy's final findings and 
recommendations are not yet published, draft recommendations and 
findings are available on the Commission's Web site at .
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    It is absolutely critical that such an approach is utilized for our 
world's oceans. Relatively little is known about our oceans and the 
resources they contain. Yet we are already witnessing the consequences 
of failing to embrace the precautionary principle in our treatment of 
the marine environment. Throughout history the oceans have been treated 
as unlimited and resilient. We have generally exploited our resources, 
in the oceans as on land, in absence of unanimous agreement that these 
resources are at risk. As a result, proof of our error is beginning to 
pour in. The draft report from the federal oceans commission concluded 
last year that our oceans are in trouble. Specifically, the trouble 
comes from overfishing,\15\ coastal development and habitat loss,\16\ 
runoff \17\ and point source pollution \18\ and climate change.\19\ In 
a larger sense, however, the trouble comes primarily from our inability 
to make prudent decisions for the future in the face of uncertainty 
today. We have treated our oceans as an infinite resource, and now we 
must face the incontrovertible proof that we are devastating a finite 
one.
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    \15\ In 2001, the U.S. Government could only assure that 22 percent 
of fish stocks under federal management (211 of 959 stocks) were being 
fished sustainably (NMFS, 2002). New England cod, haddock, and 
yellowtail flounder reached historic lows by 1989. Atlantic halibut are 
commercially extinct in U.S. waters, and populations of some rockfish 
species have dropped to less than 10 percent of their historic levels. 
(MacCall and He, 2002). A recent study in Science reports that highly 
migratory species of sharks, including blue, thresher and hammerhead 
sharks, have declined by as much as 60-90% in the northwestern Atlantic 
since 1986.
    \16\ More than one fourth of all the land converted from rural to 
suburban or urban uses since the time of European settlement of the 
United States occurred during the 15 year period between 1982 and 1997 
(the last year for which figures are available) (NRI, 2000).
    \17\ More than 13,000 beaches were closed or under pollution 
advisories in 2001 (NRDC 2002), and a recent National Academy of 
Sciences study estimates that the oil runoff from land-based sources is 
equal to an Exxon Valdez oil spill--10.9 million gallons--every eight 
months (NRC 2002).
    \18\ In the U.S., animal feeding operations produce about three 
times the amount of sewage produced by the human population. Despite 
this, only 15% of all animal feeding operations have Clean Water Act 
permits to operate (EPA 2002). In one week a typical 3,000 passenger 
cruise ship generates about 1 million gallons of graywater (water from 
shower, laundries and dishwashing), which is exempt from the Clean 
Water Act.
    \19\ Global air temperature is expected to warm by 2.5 to 10.4 
degrees F in the 21st century, affecting sea-surface temperatures and 
raising the global sea level by 4 to 35 inches (Intergovernmental Panel 
on Climate Change, 2001).
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    The environmental community noted in 1998 that the concept 
``precautionary principle'' did not exist at the time UNCLOS was 
negotiated, and that consequently the term did not appear in the 
Convention. However, we urged then and TOC urges now that the United 
States play a leadership role in future Convention amendments to ensure 
the appropriate application of this principle to guide decision-making. 
Fortunately, the Convention, as a constitution, does establish some 
principles and tools that may provide a framework for future 
application of the precautionary approach.\20\ Moreover, subsequent 
multilateral agreements related to UNCLOS do include use of the 
precautionary principle, including the Straddling Stocks Agreement.\21\ 
We therefore believe this approach is compatible with UNCLOS and urge 
the United States to work to ensure that subsequent changes to UNCLOS 
appropriately utilize the precautionary approach.
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    \20\ These principles and tools may include environmental impact 
assessment and monitoring requirements, caution in the introduction of 
new technologies and new or alien species, and the establishment of 
critical habitat for marine life. The definition of pollution, which 
includes harm to living resources and marine life, is also 
complimentary to precautionary approaches.
    \21\ The Agreement for the Implementation of the Provisions of the 
United Nations Convention on the Law of the Sea Relating to the 
Conservation and Management of Straddling Fish Stocks and Highly 
Migratory Fish Stocks (1995).
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B. Fisheries Conservation Measures
    Part V of UNCLOS established the regime of the EEZ, the 200-mile 
area wherein coastal states have sovereign rights to explore and 
exploit, as well as to conserve and manage, their marine resources. The 
Convention recognizes the authority of the coastal state over the 
exploitation of living resources in its EEZ, yet qualifies this right 
by the overarching duty in the Convention to protect the marine 
environment.
    UNCLOS adopts as a goal of management in Article 61(3) the Maximum 
Sustainable Yield, qualified by environmental and economic factors. 
There is some concern that harvest rates based on MSY do not take 
natural variability and scientific uncertainty sufficiently into 
account. At the time UNCLOS was negotiated, many fisheries were still 
expanding. As more and more fisheries become overexploited, it is clear 
that using MSY as a management target very often results in overfishing 
and depletion. Optimum fishing effort for sustainable exploitation must 
now be below or well below the level of effort corresponding to MSY, 
according to the U.N. Food and Agricultural Organization.
    However, an even larger problem is in the failure of implementation 
to ensure accuracy in reporting, transparency and enforcement. TOC 
urges the United States to take a leadership role through UNCLOS and 
other treaties to ensure better implementation and enforcement of fish 
conservation measures.
    In particular, UNCLOS did not resolve major issues regarding the 
management, exploitation and conservation of living marine resources, 
particularly the highly migratory species of fish and populations of 
fish that straddled the boundaries between EEZs or between EEZs and the 
high seas. The Convention's provisions related to straddling stocks and 
highly migratory fish stocks are extremely general.\22\ The failure of 
governments and fishing industry to deal effectively with these species 
has led to widespread overfishing and conflicts between nations. Today 
several straddling and highly migratory fish stocks are in a state of 
collapse.
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    \22\ They require nations only to ``seek . . . to agree upon the 
measures necessary'' for cooperation (straddling stocks) and to 
``cooperate . . . with a view to ensuring conservation'' (highly 
migratory species).
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    Recognizing UNCLOS's limitations for addressing these species, 
further environmental agreements have been negotiated and signed by the 
United States.
    The U.N. Fish Stocks Agreement was negotiated to address some of 
the deficiencies of UNCLOS by elaborating on the duties of states to 
manage and conserve straddling and highly migratory fish stocks and 
ecologically related species. The Agreement's provisions are 
enforceable through the Convention's dispute resolution system, thus 
reinforcing enforcement and compliance opportunities for state parties 
to the Convention. The U.N. Fish Stocks Agreement has provided the 
basis to revise existing regional management agreements in the central 
and western Pacific and in the eastern Pacific Ocean. These regional 
management agreements are key to undertaking further reforms in 
relation to such critical issues as overcapacity, overfishing and 
unacceptable fishing practices that have contributed so greatly to the 
current fish crisis.
    We mention them in our testimony to note that the United States has 
already taken leadership in the negotiation of improvements to UNCLOS 
and should continue to do so in the future.\23\ The majority of highly 
migratory fish stocks lack the precautionary, transparent management 
programs dictated by the Straddling Stocks Agreement while shark and 
ray populations have no international fishery management measures 
whatsoever. To halt the decline of sharks and safeguard other migratory 
species, the U.S. must work after accession for the further progressive 
development of international law.
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    \23\ Other recent positive actions by the United States include 
efforts to promote a United Nations General Assembly Resolution to stop 
the practice of finning, the wasteful practice of slicing a shark's 
fins off while at sea while discarding the rest of the shark.
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                             iv. conclusion
    In conclusion, we strongly support U.S. accession to the 
Convention. We urge the Committee to develop interpretive language as 
necessary in its advice and consent to reconcile UNCLOS provisions with 
U.S. statutory law and to preserve the ability of the U.S. to act to 
protect and conserve its marine environment. We also urge the Senate to 
include report language encouraging the United States to fully commit 
to its role as a world leader in advancing environmental protections 
for areas where UNCLOS needs further development. It is our hope that 
with accession, the United States will lead by example so that we may 
protect, maintain and restore our magnificent ocean trust for future 
generations.

    [Attachment.]

 Ratification of the Law of the Sea Must Ensure the Protection of U.S. 
                            Ocean Resources

    On October 14 and 21, 2003, the Senate Foreign Relations Committee 
will hold hearings on U.S. ratification of the U.N. Convention on the 
Law of the Sea. The Convention sets forth the nature and extent of 
offshore jurisdictions within national 12-mile territorial seas and 
200-mile exclusive economic zones (EEZ), and preserves the rights of 
navigation and overflight in these areas and international straits. The 
Convention also contains provisions that are highly protective of the 
marine environment. However, due to concerns over its deep-seabed 
mining provisions, the U.S. never signed or ratified the Convention. 
Nevertheless, the Convention entered into force in 1994 and is 
generally regarded as customary international law.
    The Convention has much to recommend it, and should be ratified. 
However, in certain cases ratification may be used to frustrate the 
enactment and enforcement of U.S. environmental, health and safety 
laws. To minimize the risks to domestic laws from ambiguous or 
inconsistent provisions in the Convention, certain questions need to be 
addressed by the Committee (noted below), and an interpretative 
statement should be included by the Senate as part of its Advice and 
Consent. This interpretative statement should support the authority of 
the states and the federal government to prescribe and enforce laws to 
protect health, safety and the environment in the U.S., its territorial 
waters and its EEZ, including those laws with provisions more stringent 
than international standards when the U.S. deems it appropriate. The 
Senate's interpretations should be submitted as understandings when the 
U.S. submits its instruments of ratification.
      law of the sea and the protection of the marine environment
    Today, nearly 140 nations have ratified the Law of the Sea 
Convention. The U.S. should also ratify the Convention because of 
provisions that protect the marine environment.

   The Convention establishes duties for all nations to 
        conserve living marine resources in the high seas (Article 
        117), and conserve and maintain fish stocks within nations' 
        200-mile EEZs (Article 61).

   The Convention calls on nations to ensure the conservation 
        of fish stocks that straddle national EEZs (Article 63), and 
        highly migratory fish species and marine mammals that traverse 
        the high seas (Article 64).

   The Convention establishes duties for all nations to protect 
        the marine environment from pollution from vessel dumping, sea-
        based activities and land-based sources (Articles 192-236).
                 potential conflicts with domestic laws
    While the Convention should be ratified, the potential effects that 
ratification may have on U.S. health, safety and environmental laws 
must not be ignored. These are more than hypothetical concerns. In U.S. 
v. Royal Caribbean Cruises, Ltd, 11 F. Supp.2d 1358 (S.D. Florida, 
1998), Royal Caribbean Cruise Lines argued that the Convention shielded 
it from prosecution under the False Statements Act for presenting 
fabricated oil record books to the Coast Guard. Royal Caribbean argued 
that under the Convention the right to regulate pollution from ships 
belongs to the flag state (Liberia in this case) and not the U.S., 
regardless of whether the discharge occurred within or outside the U.S. 
EEZ. The U.S. District Court disagreed and found that Royal Caribbean 
could be prosecuted. However, the case illustrates how the Convention 
could be used before ratification to attempt to avoid prosecution of 
U.S. health, safety and environmental laws.
    It is therefore prudent for the Senate as part of its Advice and 
Consent to include interpretations of pertinent provisions of the 
Convention to support the authority of the states and the federal 
government to prescribe and enforce laws to protect health, safety and 
the environment in the U.S., its territorial waters and its EEZ, 
including laws with provisions more stringent than generally accepted 
international standards. These interpretations should be submitted as 
understandings when the U.S. submits its instrument of ratification. 
Because adoption of the Convention will be ``self-executing,'' it may 
be argued that certain international standards and/or provisions of the 
Convention take precedence over U.S. laws. This raises a number of 
questions that need to be addressed:

   Do Articles 21, 211 and 196 allow the U.S. to adequately 
        control the discharge of ballast water from vessels that 
        contain dangerous diseases, bacteria and species that endanger 
        domestic species and impose tremendous economic costs?

   Would Article 230, which restricts criminal penalties for 
        violating anti-pollution laws to monetary damages, impede the 
        full and effective enforcement of U.S. laws?

   Could Article 33 impede the enforcement of laws to prevent 
        the contamination of fish or the impairment of air quality from 
        vessel emissions?

   Could the Convention's dispute resolution procedures be used 
        to challenge U.S. trade measures under the Pelly Amendment, the 
        Endangered Species Act and other laws to protect species such 
        as sea turtles and dolphins from destructive fishing practices?

   Could Article 226 interfere with the inspection of vessel 
        discharges, hull coatings and equipment to determine if they 
        are harming the marine environment?

   Could Articles 21 and 211 limit U.S. laws to prevent 
        pollution from foreign ships if those laws exceeded ``generally 
        accepted international rules or standards''?

   Would the Convention affect the ability of the U.S. to 
        protect its coast from an environmental disaster like the 
        sinking of the Prestige, a foreign-flagged single-hulled tanker 
        carrying twice the oil of the Exxon Valdez that went down 150 
        miles off the coast of Spain in November 2002?

    If the answers to these questions are yes, ratification of the 
Convention might result in unintended consequences unless an official 
U.S. interpretation clarifies that ratification would not prevent the 
U.S. from prescribing and enforcing more stringent standards. For 
example, we are concerned that absent clarifying language, an argument 
could be made that prevents the U.S. from stopping a foreign-flagged 
cruise ship from dumping wastes into U.S. waters that violates the 
Clean Water Act so long as it meets weaker international standards; 
prevents the U.S. from stopping the dumping into U.S. waters of ballast 
water that contains invasive species, bacteria or diseases that harm 
marine resources; or prevents U.S. officials from inspecting equipment 
on a ship that has been discharging harmful or toxic wastes on the 
theory that the Convention limits inspections to certificates or other 
documents carried by the vessel.

    The Chairman. Thank you very much, Admiral, for that very 
important perspective. The committee looks forward to working 
with you and your associates on necessary language.
    Admiral Rufe. Thank you, sir.
    The Chairman. Ms. Thomas.

 STATEMENT OF MS. RANDI THOMAS, NATIONAL REPRESENTATIVE, U.S. 
                TUNA FOUNDATION, WASHINGTON, DC

    Ms. Thomas. Thank you, Mr. Chairman. I first want to say 
that David Burney was to give this testimony today, and his 
statement is included in what we have sent forward, but I will 
summarize his remarks.
    The Chairman. Thank you.
    Ms. Thomas. I wanted to tell you about the U.S. Tuna 
Foundation. It is a nonprofit trade association representing 
the legislative and international affairs of the U.S. canned 
tuna industry. Our membership includes all U.S. canned tuna 
processors and all of the U.S. flag, distant water tuna purse 
seine vessel owners.
    The U.S. tuna industry supports the accession of the United 
States to the Law of the Sea. We consider this hearing to be 
directly relevant to our industry since the conservation and 
management of the highly migratory tuna resources is closely 
tied to the relevant provisions of the convention. Not all fish 
stocks are in sad shape, as has recently been reported. As a 
matter of fact, most tuna stocks are in a healthy to relatively 
good condition. This is due in no small fact to the regional 
tuna conservation and management regimes that have been 
established in all of the major tuna fisheries in the world. 
These regimes include the Inter-American Tropical Tuna 
Commission, the International Commission for the Conservation 
of Atlantic Tunas, the Indian Ocean Tuna Commission, the newly 
developing Western and Central Pacific Fisheries Commission, as 
well as the Fisheries Treaty between the U.S. and South Pacific 
Island States. We believe the U.S. accession to the UNCLOS will 
strengthen our abilities to continue the strong U.S. leadership 
positions in the tuna agreements to which the United States is 
party.
    Article 64 of the UNCLOS has been instrumental in 
establishing principles of sound international fisheries 
conservation and management. In particular, article 64 has had 
an impact on the issues of coastal States' jurisdiction, the 
South Pacific Tuna Treaty, the U.N. Fish Stocks Agreement, and 
the new Western and Central Pacific Fisheries Commission.
    Prior to 1982, the U.S. tuna industry agreed with the U.S. 
position not to recognize coastal State jurisdiction over tuna 
stocks. The industry had long argued that because tunas 
traverse the juridical zones of numerous coastal States, these 
stocks could only be managed and conserved through 
international cooperation. A coastal State does not own the 
highly migratory stocks exclusively. After all, these fish do 
not recognize borders.
    Unfortunately, the coastal States did claim jurisdiction 
and would seize U.S. tuna vessels if they entered their 200-
mile zones. The U.S. policy was coming under increased attack, 
especially by Latin and Central American States that believed 
they have preferential rights to the resources without the 
obligation to provide for the optimum utilization of the 
resource throughout its range.
    The industry recognized the problem of coastal State 
jurisdiction over highly migratory species was not going to go 
away. As a result, beginning 1984, a series of meetings 
resulted in a precedent-setting fisheries treaty in 1987. This 
treaty, commonly referred to as the South Pacific Tuna Treaty, 
embodies the spirit and intent of article 64 of UNCLOS.
    During the negotiations leading up to the U.N. Fish Stocks 
Agreement, the South Pacific Tuna Treaty was referred to as the 
model to be followed in establishing a regional cooperative 
agreement for highly migratory fish stocks such as tuna. The 
Fish Stocks Agreement made it clear that highly migratory fish 
stocks can only be effectively managed as a biological unit 
throughout their entire range and that there was an obligation 
on the part of both the fishing States and the coastal States 
to ensure optimum utilization of the resource throughout the 
region.
    Following the Fish Stocks Agreement, negotiations began for 
a new management regime for the western and central Pacific 
Ocean. During the negotiations, the South Pacific Tuna Treaty 
was again used as a model for many features of this convention. 
The commission itself is expected to come into effect in 2004, 
thereby creating a worldwide tuna management organization.
    The U.S. tuna industry is especially pleased with article 5 
of this convention, which follows article 64 of UNCLOS, and 
makes clear that members have a duty to conserve and manage 
tuna stocks with the objective of optimum utilization.
    In summary, we believe article 64 of UNCLOS is being 
interpreted as intended. We urge the Senate to move to accept 
the Law of the Sea. Thank you.
    [The prepared statement of Mr. Burney follows:]

      Prepared Statement of David G. Burney, U.S. Tuna Foundation

    Mr. Chairman and members of the Senate Foreign Relations Committee, 
on behalf of the U.S. Tuna Foundation I want to express our gratitude 
for being invited to testify here today on a subject that is very 
important to our industry and to the highly migratory fish stocks that 
roam the oceans of the world. For those of you not familiar with the 
U.S. Tuna Foundation, it is a nonprofit trade association representing 
the legislative and international affairs of the U.S. canned tuna 
industry. Its members consist of all of the U.S. canned tuna processors 
and all of the U.S. flag, distant water tuna purse seine vessel owners.
    We consider this hearing to be directly relevant to our industry 
since the conservation and management of the highly migratory tuna 
resource is closely tied to the relevant provisions of the United 
Nations Convention on the Law of the Sea (UNCLOS). The recent horror 
stories regarding the current status of the world's fisheries 
notwithstanding, most tuna stocks are in a healthy to relatively good 
condition. This is due in no small fact to the regional tuna 
conservation and management regimes that have been established in all 
of the major tuna fisheries of the world.
    In 1979, I testified before the Senate Commerce Committee on the 
U.S. Tuna Industry's position regarding claims by some countries that 
they owned the tuna stocks that were within their exclusive economic 
zones (EEZs) and they alone could decide if any management or 
conservation was necessary. I stated at the time that I did not know 
how you could own something that migrates through your waters. I argued 
that highly migratory species of fish such as tuna could not be 
effectively managed or conserved in the same manner as standing stocks 
of fish. I stated that it was shown that highly migratory tuna traverse 
the juridical zones of numerous coastal States as well as high seas 
areas beyond coastal State jurisdiction. I concluded that it was our 
belief that highly migratory fish stocks such as tuna could only be 
effectively managed and conserved through international cooperation.
    Interestingly enough, several members of the Committee criticized 
me for taking this position. I was told that the U.S. tuna industry had 
used the highly migratory nature of the fish as a smoke screen to allow 
our distant water fishing vessels to exploit tuna stocks found in the 
waters of coastal States who claimed these stocks as their property. I 
was even told that my statement misrepresented the highly migratory 
nature of tuna.
    Prior to December of 1982, when the UNCLOS was signed, the 
ownership, management and conservation of highly migratory tuna had 
been hotly debated. The United States neither ratified the UNCLOS, nor 
recognized the claims of coastal States who declared sovereignty over 
the migratory tuna when it was in their juridical zone. The official 
U.S. position at that time was that tuna belonged to no one country 
because of their migratory nature and they could only be effectively 
managed and conserved as a biological unit throughout their entire 
range. Needless-to-say we agreed with this position.
    The UNCLOS clearly recognized the difference between managing and 
conserving standing stocks of fish and highly migratory fish such as 
tuna. Article 61 gave the coastal States the right ``to determine the 
allowable catch of the living resources in its exclusive economic 
zone.'' It went on to obligate the coastal State to ``ensure through 
proper conservation and management measures that the maintenance of the 
living resources in the exclusive economic zone is not endangered by 
over exploitation.'' Many coastal States interpreted Article 61 as 
justifying their claim of sovereignty over both standing fish stocks 
and highly migratory fish stocks found in their EEZs. We believed that 
Article 64 governed the treatment of highly migratory fish stocks, not 
Article 61.
    Article 64 specifically provides that ``the coastal State and other 
States whose nationals fish in the region for the highly migratory 
species'' . . . ``shall cooperate directly or through appropriate 
international organizations with a view to ensuring conservation and 
promoting the objective of optimum utilization of such species 
throughout the region, both within and beyond the exclusive economic 
zone.'' The coastal States blended the provisions of Article 61 and 
Article 64 and argued that together they granted a coastal State 
preference over tuna. The distant water fishing States, including the 
United States disagreed. They argued that Article 61 and Article 64 
were mutually exclusive and international cooperation, not coastal 
State preference, was the overriding intent of Article 64.
    In the 1990 amendments to the Magnuson Fisheries Conservation and 
Management Act (MFCMA), the United States for the first time claimed a 
form of coastal State preference over the tuna resource within its EEZ. 
The United States claimed the right to regulate the harvest of the 
resource found within its EEZ but made it clear that the resource could 
only be effectively managed through international cooperation. In 
essence, the United States did not want foreign fishing fleets to have 
unrestrictive access to the highly migratory tuna stocks found in the 
U.S. juridical zone.
    Although the 1990 MFCMA amendments declared U.S. jurisdiction over 
highly migratory fish stocks within its juridical zone, the United 
States continued to maintain that this jurisdiction did not amount to 
ownership of the resource. The U.S. position at the time was that 
coastal States had an obligation under Article 64 of the UNCLOS to 
cooperate directly or through international organizations to ensure 
conservation of the resource both within its EEZ and on the high seas. 
Additionally, the United States agreed that Article 64 required that 
the coastal States also promote the objective of optimum utilization of 
the highly migratory resource throughout the region, both within and 
beyond claimed juridical zones.
    At the time, there were many connected with U.S. fisheries, both in 
and out of government, who believed this would be the demise of the 
U.S. high seas tuna fleet. It is true that the U.S. tuna industry had 
supported the earlier position of the United States, when they did not 
recognize any coastal State preference or jurisdiction over the 
resource. However, the industry also recognized that this earlier U.S. 
position had been considered confrontational by many coastal States and 
had led to the costly seizure and detention of U.S. tuna vessels when 
they were found fishing within the foreign juridical zones.
    The penalties paid to the coastal States to get these seized 
vessels released had escalated significantly during the early to mid 
1980s because of the U.S. non-recognition policy. The increased 
penalties were principally due to the increasing awareness of the 
coastal States that the penalties were in fact paid by the U.S. 
government under a program entitled the Fisherman's Protective Act. 
This did not mean, however, that the U.S. high seas tuna fleet was not 
impacted by the seizures. Lost fishing time and vessel deterioration 
during the detention period often resulted in substantial cost to the 
vessel owner.
    The U.S. tuna industry never opposed or denied the need for 
effective tuna conservation and management programs. In fact, the 
industry was instrumental in the establishment of the first 
international tuna management organization, the Inter-American Tropical 
Tuna Commission, in 1945. This organization has effectively managed 
tuna in the eastern tropical Pacific Ocean since its inception and 
operates on the basis of the international cooperation envisioned in 
Article 64 of the UNCLOS.
    It is true, that prior to the MFCMA amendments of 1990, the U.S. 
tuna industry did oppose the extended fisheries jurisdiction claims by 
most coastal States. The industry firmly believed that tuna could not 
be managed on a piece-meal basis and saw most coastal State preference 
claims as being nothing more than an effort to deny access to distant 
water fishing fleets. However, in the early and mid 1980s the industry 
realized that the U.S. government's tuna policy was coming under 
serious attack by the coastal States and representatives of the U.S. 
government. Some U.S. government officials even expressed the belief 
that the U.S. high seas tuna fleet was becoming a U.S. foreign policy 
nightmare.
    As a result, beginning in 1984, representatives of the U.S. tuna 
industry initiated meetings with officials of several south Pacific 
Island States located adjacent to a very productive tuna fishery in the 
western and central Pacific Ocean. The purpose of the meetings was to 
explore the possibility of creating a regional access arrangement for 
the U.S. high seas tuna fleet, which up until this time had been 
operating primarily in the eastern tropical Pacific off of Central 
America. It had become clear to industry leaders that the Latin 
American coastal States viewed Article 64 as a one-way street--coastal 
States had preferential rights over tuna within their juridical zones 
and there was no concurrent duty or obligation to provide for the 
optimum utilization of the resource throughout the region.
    From 1985 to 1987, the U.S. tuna industry, working cooperatively 
with the U.S. government, continued to pursue a regional tuna access 
arrangement in the western and central Pacific Ocean region. In 1987, 
this effort resulted in a precedent setting fisheries treaty between 
the United States and the sixteen Pacific Island States that comprise 
the western and central Pacific region (the Tuna Treaty). It was, and 
is, our opinion, that this treaty embodies the spirit and intent of 
Article 64 of the UNCLOS.
    The Tuna Treaty created a licensing regime over an area that 
covered some 10 million nautical miles including the high seas and the 
juridical zones of the coastal States in the region. The Tuna Treaty 
recognized coastal State jurisdiction over tuna within their juridical 
zones but also acknowledged the obligation of the coastal States to 
cooperate with other States whose nationals fish in the region to 
ensure conservation of the resource and promote the objective of 
optimum utilization of the resource throughout the region. In essence, 
the Tuna Treaty was built on the provisions of Article 64 of the 
UNCLOS. The Tuna Treaty has been in effect since 1987, and was recently 
extended for an additional ten years commencing in 2003.
    During the negotiations leading up to the 1995 U.N. Agreement for 
the Implementation of the Provisions of the UNCLOS relating to the 
Conservation and Management of Straddling Fish Stocks and Highly 
Migratory Fish Stocks (the 1995 Agreement), the Tuna Treaty was 
referred to often as the model to be followed in establishing a 
regional management regime for highly migratory fish stocks such as 
tuna. The 1995 Agreement made it clear that highly migratory fish 
stocks can only be effectively managed as a biological unit throughout 
their entire range and that there was an obligation on the part of both 
the fishing States and the coastal States to ensure the optimum 
utilization of the resource throughout the region.
    The parties to the 1995 Agreement were able to agree on a rational 
and effective set of management principles for highly migratory fish 
stocks. After lengthy debate, it became the consensus of the parties 
that highly migratory fish stocks such as tuna cannot be effectively 
managed if different management principles are promulgated by coastal 
States for their juridical zones and by international agreement for the 
high seas area. It was agreed that the management measures must be 
designed for the entire range of the highly migratory resource. 
Finally, Article 64 was getting the recognition it deserved.
    Subsequent to the 1995 Agreement being adopted negotiations were 
commenced to establish an international tuna management regime for the 
western and central Pacific Ocean. In 2000, this effort culminated in 
the signing of the Convention on the Conservation and Management of 
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 
(the Convention). Again, during the negotiations leading up to the 
signing of this Convention, the Tuna Treaty was used liberally as a 
model for the management provisions that were included in the final 
work product. Of particular satisfaction to the U.S. tuna industry was 
the wording of Article 5 of the Convention dealing with the principles 
and measures for conservation and management. The pertinent language 
reads:

          In order to conserve and manage highly migratory fish stocks 
        in the Convention Area in their entirety, the members of the 
        Commission shall, in giving effect to their duty to cooperate 
        in accordance with the 1982 Convention, the Agreement and this 
        Convention:

                  (a) adopt measures to ensure long-term sustainability 
                of highly migratory fish stocks in the Convention Area 
                and promote the objective of their optimum utilization. 
                (emphasis added)

    In summary, it has taken a long time and many debates but finally 
Article 64 of the UNCLOS is being interpreted as intended. The U.S. 
tuna industry can find no fault with the fisheries application of the 
1982 UNCLOS, the 1995 Agreement or the 2000 Convention. They have 
collectively ensured that the principles of effective management and 
optimum utilization of important highly migratory fish stocks can work 
in harmony.

    The Chairman. Well, thank you very much, Ms. Thomas.
    I look forward now to hearing from you, Mr. Cox, on behalf 
of the Chamber of Shipping of America.

   STATEMENT OF JOSEPH J. COX, PRESIDENT AND CEO, CHAMBER OF 
              SHIPPING OF AMERICA, WASHINGTON, DC

    Mr. Cox. Good morning, Mr. Chairman, and thank you. I know 
my statement is in the record. However, sir, I did notice this 
morning that there are two typographical errors. I am one of 
the world's worst proofreaders, so lest your staff take the 
blame for it, I am going to say it in public here that it is my 
fault and I will give the changes to your staff.
    The Chairman. We will make those changes with your 
cooperation.
    Mr. Cox. Thank you very much.
    The Chamber of Shipping of America does trace its history 
back quite a bit, Mr. Chairman, to the early 1900s when we were 
formed in response to the British request for a Convention on 
Safety of Life at Sea and the American ship owners decided that 
we should be active on the U.S. delegation that was called for 
that particular convention treaty in 1914. We were very active 
then and I can assure you we have been very active on many 
maritime conventions that have been deliberated internationally 
since.
    You have heard much testimony that this is a framework 
convention that we are talking about today. We certainly 
support the ratification of this convention. The United States 
exercised a great deal of leadership in this convention. We 
noted that U.S. leadership in our testimony, and I noted this 
morning that Admiral Mullen talked about the United States 
leadership in the maritime field, and I am sure he was 
reflecting the military aspects. I can assure you that from the 
commercial aspects the United States has exercised just as 
great a leadership as we have in the military framework.
    Sir, I am going to comment on three aspects. We also heard 
this morning that Admiral Crowley from the Coast Guard referred 
to the environmental aspects of the Law of the Sea Treaty as it 
impacts our industry. Certainly it has been a very great impact 
and a very beneficial impact around the world to have 
international treaties dealing with environmental protection. 
The Maritime Pollution Convention, which he referred to, which 
we call MARPOL, does control oil and chemical and plastics 
pollution, to a great extent, and I think to a very large 
extent, that was reflected by the U.S. leadership at that 
convention.
    We note, as the Chamber of Shipping, that we have been very 
active in development of an annex to the MARPOL treaty dealing 
with air pollution that we know is going to be coming up before 
you. It is a very important annex. Sitting here this morning 
thinking about it, Mr. Chairman, there is a reflection on that 
that is very similar to the Law of the Sea, and that is that 
annex VI is going to come into force. It is going to be 
immediately put up for amendment in the way of tightening all 
the requirements, and we in the American industry support that 
tightening. However, we do not have a seat at the table unless 
we ratify it. So it is very similar to the Law of the Sea 
Treaty in that regard. So we certainly look forward to your 
consideration of that treaty when it comes up.
    With respect to the Law of the Sea, we are extremely 
concerned with freedom of navigation issues, and I will connect 
that with a couple of incidents that have occurred very 
recently that we have participated in, the first one being that 
a vessel got into a little bit of trouble off of a European 
coast, and two of the States actually went out and, through 
force, forced the vessel out of their exclusive economic zone. 
Now, nations certainly have a sovereign responsibility to their 
people to protect their coasts, but when we deal with the 
international maritime community and the freedom of navigation, 
those rights have to be exercised with respect to international 
law.
    We wrote to Secretary Powell with our deep concern that 
those nations were, indeed, violating not just customary law of 
the sea, but also the explicit requirements in the Law of the 
Sea Treaty.
    As I sat here this morning thinking about this part of my 
testimony, it also came to my mind that--and it is not in my 
written testimony and I apologize for that, but the issue of 
piracy. In the year 2002, which is the most recent year we have 
statistics for, there were 372 acts of piracy, reported piracy, 
in the world. A lot of that is in archipelagic seaways where 
people can come from shore very quickly.
    As we were debating the International Ship and Port 
Facilities Security Code last year--and the chamber was on the 
U.S. delegation and participated very deeply in that--we had 
much security concern with small boats coming up against large 
vessels. I think the French tanker Limberg showed us that a 
small boat can come up and do incredible damage to a large 
ship, not only to the ship itself and an economic burden there, 
but also an economic burden to the coastal State where that oil 
is going to be coming ashore.
    So certainly there has to be some way that we deal with 
piracy issues which are small boats coming up and how does a 
master know what is going to take place. I think the connection 
with the Law of the Sea is we have to start putting pressure on 
those coastal States that by dint of no action are actually 
encouraging piracy to take place, and terrorism hidden as a 
piracy act is certainly something that I think we have to 
foresee.
    The second area where I have some major concerns--and this 
is involved with the freedom of navigation--is at a recent 
meeting of the Marine Environment Protection Committee of the 
IMO, two States suggested that there be a particularly 
sensitive sea area declared in western Europe. Now, we 
recognize my friend sitting beside me here. I work with Roger 
and the Conservancy quite a bit on issues, but to suggest that 
the entire North Sea, the entire English Channel, the entire 
Irish Sea, 200 miles of waterways out to the west of Ireland 
and 200 miles off the coast of Portugal and Spain, all the way 
down to the Straits of Gibraltar are a particularly sensitive 
sea area that is in need of specific protection we think is a 
stretching of the traditional way that we would look at 
particularly sensitive sea areas. Certainly those two countries 
moving vessels off of their coasts and countries declaring 
enormous areas where there are going to be restrictions placed 
on shipping are two things that we see coming down the road 
that we think the United States is going to have to exercise 
its maritime leadership. And certainly ratification of the Law 
of the Sea would be beneficial in that regard.
    Mr. Chairman, I thank you very much for this opportunity 
and certainly would be pleased to respond to any questions.
    [The prepared statement of Mr. Cox follows:]

  Prepared Statement of Joseph J. Cox, President and CEO, Chamber of 
                          Shipping of America

    Thank you Mr. Chairman and committee members. The Chamber of 
Shipping of America is very pleased to testify before your committee 
today concerning U.S. ratification of the U.N. Convention on the Law of 
the Sea. We realize that you have heard testimony in support of 
ratification. We are very pleased to add the Chamber of Shipping of 
America (CSA) to the support column.
    The Chamber of Shipping of America represents 22 American owners 
and operators of ocean-going vessels. Our members operate both U.S. and 
foreign-flag ships in the domestic and international trades. While we 
have undergone a number of name changes over the years, CSA proudly 
traces its founding to 1914 when the British Government invited a small 
group of countries to develop the first international treaty regarding 
safety at sea. The American ship owners were involved in that first 
maritime treaty. It was prompted by a legendary incident--the sinking 
of the steamship--Titanic. While that treaty failed due to World War I, 
it plotted the course of future maritime treaties. Today, the safety, 
security and protection of the environment are all subjects of maritime 
treaties. World War I blocked the first try at a safety treaty although 
it led directly to development of treaties covering maritime labor 
conditions which are developed at the International Labor Organization 
(ILO). The ILO exists today under the U.N. umbrella although it was 
founded in 1919 as part of the League of Nations which was the brain-
child of our President Woodrow Wilson.
    Mr. Chairman and members, today we consider the Law of the Sea 
Treaty. It has been referred to as the fundamental framework governing 
obligations and rights of states; flag states, coastal states, and port 
states. Viewing it in conjunction with the many other maritime 
conventions shows the detailed interest the world has in the maritime 
industry. An import aspect of that interest is that shown by the United 
States. From 1914 through today, we do not know of any maritime 
treaties developed in any fora that did not have the active involvement 
of the United States. Indeed, many of the conventions, particularly 
those addressing environmental concerns, were undertaken at the urging 
of and subsequent leadership of the United States. Because the Law of 
the Sea Convention provides the framework for the protection of the 
environment, we feel comfortable in identifying another treaty that has 
been forwarded to your committee by the Administration, i.e., Annex VI 
of the Convention to Prevent Pollution from Ships. Annex VI of this 
convention covers the issue of air pollution from ships. It will soon 
be ratified by the requisite number of states to bring it into force. 
As with the Law of the Sea further development of Annex VI requires 
ratification. The U.S. led the effort on development of Annex VI. All 
of us recognize, and by all, we mean private sector and government, 
that Annex VI is not perfect although, if we wait for the perfect, we 
can be waiting a long time. We look forward to your positive 
consideration of Annex VI and the U.S. involvement in the continuing 
strengthening of this very important environmental measure.
    The Law of the Sea, Annex VI of the pollution treaty and the newly 
adopted amendments to the safety of life at sea treaty dealing with 
security involve vital U.S. interests. The world looks to our 
leadership in these matters. We must respond, and respond vigorously 
and positively, to that expectation. The credibility of the U.S. in 
international fora where these agreements are made depends on it.
    There are reasons why the U.S. benefits from a ratification of this 
treaty. It provides the framework for the essential concepts of freedom 
of navigation. The origination of the process leading to the treaty was 
occasioned by states exercising sovereignty in waters where the legal 
basis of that sovereignty was questionable to put it kindly. In recent 
months, we in the maritime industry saw states take action to forcibly 
remove a ship from their exclusive economic zone. It was reliably 
reported that the ship Prestige, listing and in imminent danger, was 
forced to go further out to sea under extremely dangerous conditions. 
We considered this very important and wrote to Secretary of State, 
Colin Powell expressing our grave concern. Nations can claim to 
interpret the law of sea. Those claims, unless challenged can stand. 
The Law of the Sea Tribunal is the appropriate place to adjudicate 
those claims and we want the U.S. to be able to participate and that 
requires ratification.
    Protection of the crew is also a vital component of the treaty. The 
Master of the Prestige, after taking heroic steps to save his ship, was 
imprisoned by coastal state authorities when the all-too-predictable 
pollution occurred. After months of captivity, he was freed on bail 
that the press reported at over three million dollars. Once again, a 
step which CSA believes conflicts with provisions of the treaty.
    Mr. Chairman, and members of the committee, these are not 
theoretical concepts or law school questions. These are topical 
circumstances involving developed nations. We must rely on our nation 
to call these actions to account. The U.S. should place itself in a 
position to be the effective force for adherence to treaty obligations 
by all. The only way we can do that is by ratifying the treaty. It is 
certainly unfortunate that states have taken dramatic action to control 
ships' off their coasts. It is also a measure of ``deja vu'' as similar 
actions led to the initiative of the law of the sea to begin with!
    We also have to be vigilant concerning recent actions which are 
purported by their adherents to be in concert with the law of the sea. 
Under the framework of the law of the sea, the International Maritime 
Organization (IMO) developed the concept of ``particularly sensitive 
sea areas'' or PSSAs. These are areas which a state can declare as 
eligible for special protection. At the July meeting of the Marine 
Environment Protection Committee, it was determined that the entire sea 
area off Western Europe from the upper reaches of the English Channel 
to the Straits of Gibraltar were a particularly sensitive sea area. 
While the area was determined to be a PSSA, steps were not adopted to 
protect the area. The steps will be discussed at an upcoming meeting of 
the Marine Environment Protection Committee of IMO. We will be involved 
in these deliberations and believe that any measure is inappropriate. 
It is clear that states are beginning to feel comport in stretching the 
interpretations of the law of the sea into unrecognizable forms. It is 
time the U.S. decided that such antics are unacceptable.

    The Chairman. Well, thank you very much, Mr. Cox.
    Let me just say parenthetically that one of the reasons for 
our committee's interest in this area, given longtime work of 
so many before us, is this business of maritime leadership and 
the need to be at the table, particularly at a time in which 
the amending process is coming up next year and in which there 
may be others who will be offering leadership, hopefully 
constructive, but nevertheless important enough for us to be 
offering our leadership and to be thoughtful about their 
suggestions.
    In a much more dire set of circumstances, probably not 
covered by the treaty, but of interest to many people with whom 
I have been working, there has been a problem left over from 
the cold war, and that is the problem of submarines that were 
first created by the Soviet Union. They have now been inherited 
by Russia. They are not abandoned, as far as we know, but on 
the other hand, they are in dire straits.
    One of the interesting aspects of the G-8 process is that 
they are taking a look at weapons of mass destruction and 
things that they may do in cooperative efforts with Russia on 
the nuclear cores of these submarines. There has been suspicion 
in the past that some of that material may have gotten into the 
seas in any event. It is very clear, looking at 150 submarines 
at the Nerpa shipyard near Murmansk, that a good many more 
might disappear or leak into the sea without there being very 
substantial intervention. To say the least, leadership on the 
part of a lot of people is going to be required so that there 
is not a massive danger to the seas that could last for some 
time and be of catastrophic import.
    I appreciate your mention that there are issues that go 
well beyond those we have discussed today in terms of national 
security, the environment, the commercial rights and 
privileges.
    I just want to follow up partially for my own curiosity, as 
well as for the committee record. I was intrigued, Mr. Kelly, 
by your statement in your testimony that world oil demand in 
2001 was 76.9 million barrels per day. You mentioned by 2025, 
sort of 24 years down the trail, that that may be 119 million 
barrels per day, based upon the development of the economies of 
various countries that have much greater energy needs.
    Without knowing all of the shipping aspects, on the vessels 
that will carry that energy, it does strike any observer that 
it is going to be a whole lot more than whatever the dangers 
are with regard to oil spills or other difficulties at the 76.9 
figure. At 119 they are increased. I am just, I suppose, 
hopeful--and perhaps that is the dint of your testimony on that 
page--that one of the reasons for the Convention, for all the 
parties being around the table rather continuously, is that the 
amount of activity and the potential for very severe difficulty 
is likely to increase not only incrementally but actually 
rather dramatically in this period.
    Could you amplify at all the point that you made here?
    Mr. Kelly. Well, Mr. Chairman, you have put your finger on 
a very important point. If one looks at the rising economies of 
China and India just alone, India has been in the news recently 
for its rapidly growing economy, which everyone is happy to 
see. We have been hearing about economic growth in China. And 
if you just look at the population growth projections in both 
countries, we see in both those countries rising levels of 
expectations on the part of the populations. They want 
mobility. So we are going to see increasing demand for 
petroleum products to give them increased mobility.
    Another thing that many people do not realize is that 
energy is behind the Internet, and as both those countries have 
rapidly growing Internet participation and that, with the 
desire to stay warm in the wintertime, is going to be driving 
the demand for electricity, which in turn will drive increased 
demand for oil and natural gas.
    The point you make is a very good one, as we live in a 
world with these kind of developments, our leaders should be in 
a position to make adjustments as they go along to adopt what 
we might call adaptive management, which is used in business 
these days. And being a party to this convention and being a 
player at the various meetings I think is very important so 
that those adjustments can be made.
    The Chairman. Well, I thank you for that testimony. 
Obviously, your business is involved with petroleum drilling 
and what have you. If we had other witnesses, perhaps they 
could suggest fuel cells or hydrogen or other ways in which the 
energy may be met. On the other hand, those suggestions have 
been coming for a long time, and the amount of oil that has 
been required seems to have increased through each year of 
hearings on the subject. That is why I was intrigued by the 
straight lines you were drawing into the future there.
    Mr. Kelly. Yes. All these alternate sources of energy are 
coming, but I think these projections include assumptions with 
respect to how much alternatives can contribute. I think that 
when it is all said and done for the next 25 years, we are 
still going to be highly dependent on fossil fuels.
    You know, another comment I was going to make, the comments 
by Admiral Rufe and Mr. Cox and yourself reminded me of the 
importance of the fact that the Law of the Sea Convention 
recognizes the leadership of the International Maritime 
Organization, IMO, on environmental and safety issues. I had 
the privilege of serving as an advisor to the U.S. delegation 
to IMO in London during the mid-1980s when I was resident in 
London managing my company's North Sea operations. When you 
look at the accomplishments of IMO, it should give one great 
satisfaction that maritime safety and environmental protection 
is really given careful consideration. Over the years, IMO has 
dealt with issues like invasive species, port security, 
pollution from vessels, safety of life, and annex VI to MARPOL 
that Mr. Cox mentioned is an example of this. It deals with air 
pollution from vessels, and my group of companies supports 
ratification of that as well.
    But IMO has taken such initiatives as to develop a safety 
code for the whole class of vessels in our industry, a safety 
code for mobil offshore drilling rigs by themselves which 
requires companies that own them to follow very specific safety 
and environmental standards. And I think that such codes have 
been applied to other vessels as well.
    Moreover, the United States Coast Guard, working with the 
State Department, has provided excellent leadership for the 
United States at all these meetings of IMO, and I know they 
will continue to do that in the future. And ratification of the 
convention gives us even more standing to do that.
    The Chairman. Thank you, Mr. Kelly.
    Admiral, you mentioned, quite appropriately, in addition to 
The Ocean Conservancy, the Pew Foundation which has offered 
leadership in this area. I really commend both for helping. A 
group of Members of the House and Senate met under the auspices 
of the Aspen Institute in a conference in Rome this summer. The 
purpose of the conference was really to take a look at the seas 
in terms of conservation of fish and fishing resources 
essentially. One of the large studies that was presented to us 
showed that unlike tuna that Ms. Thomas has mentioned, a good 
number of other species have disappeared in fairly large areas. 
Now, they reappear given proper management of the situation, 
but that is sometimes difficult to undertake without there 
being specific international cooperation that can govern fleets 
of fishing vessels or the ambitions of particular groups of 
people who understandably want the fish, but at the same time, 
sort of drive the population close to zero in some cases.
    We looked carefully at national security this morning. We 
also considered some way of adjudicating disputes or, long 
before that, bringing about cooperation among commercial 
interests. Clearly at the heart of the value of this convention 
is conservation of the resources of the seas that are our 
collective heritage and that many persons in that area have 
found can be maintained doing vigorous fishing. In the event 
that we are not thoughtful about this, we could, in fact, 
substantially depleted some of the nutritional resources of the 
world at a time when our populations are still increasing.
    When you speak of the precautionary principle, to what 
extent is this reflected in the convention now? To what extent 
should it be reflected, or can you amplify what we ought to do 
with regard to that?
    Admiral Rufe. Thank you, Mr. Chairman. Yes, thanks for your 
comments there.
    The concern that we have is that the U.S. EEZ is the 
largest EEZ in the world. It is 20 percent larger than our U.S. 
land mass. It is the largest public resource that we own, and 
it is all in the public domain. None of it is privately held. 
And it is a rich resource that is held in trust for all 
Americans.
    What the precautionary principle says is that in the 
absence of sound or final scientific information, that you 
should always err on the side of precaution rather than on 
exploitation. That is not covered in the convention currently. 
We think it is an accepted principle now internationally. It is 
certainly accepted, I think, in the U.S. in science and in 
conservation circles, but it often is ignored in the way we 
manage our fish stocks, as an example. We think that it ought 
to be part of the convention. We also think that the convention 
speaks to terms like generally accepted international rules and 
standards, that in the absence of those standards, that the 
U.S. not be precluded or restricted from taking unilateral 
action to protect our marine environment, our own marine 
resources, and using the precautionary principle in that 
context.
    The Chairman. Now, just in a technical sense, on the 
precautionary principle--as well as--the second idea that you 
presented--are these ideas that can be made a part of our 
accession? or are these in the form of amendments that after we 
have acceded to the treaty, if we are members next year when we 
get together around the table, we offer? What advice can you 
give us technically on this?
    Admiral Rufe. I would say, Mr. Chairman, do both. I think 
at least initially in the accession process, I think many of 
the things that we mention in our full written comments talk 
about the precautionary principle, as well as some other 
things, they should all be made part of the record I think as 
far as stating the U.S. position. But far stronger certainly is 
to have the official amendment adopted and accepted by all 
other countries. I actually think that the precautionary 
principle would be one that most countries would agree to and 
would be a good effort I think in terms of a strong amendment 
subsequently to the convention.
    The Chairman. Did you have a thought about that, Mr. Cox?
    Mr. Cox. Thank you, Mr. Chairman. Thank you for recognizing 
me.
    Certainly we, I cannot say, agree with the precautionary 
principle because I do not think it is defined in such a way 
that you could read it and say I agree with that or disagree 
with it. We agree with the principle that you do not have to 
have definitive scientific proof before you take some action to 
try and alleviate a problem. But there should be some 
connection, and I think that is where we get into some 
disagreements with our colleagues in the environmental 
movement. Just how direct is that connection going to be and 
what would it mean?
    Certainly the actions we take, particularly if they are 
going to have a large economic impact on an industry or on a 
people in a particular society, should be taken with some 
understanding that there is the potential for something 
positive coming out and not just taking the action because we 
think it might have some effect.
    But these are activities where Roger and I certainly sit 
down across a table and have at it and discuss and come to some 
resolution. I think that to actually try and put this into 
writing in an international instrument at this moment could be 
done on a principle basis, but I think in a specific line basis 
where we could look at it and say, yes, that is what we agree 
to and all future actions will be predicated on that line, I do 
not think we are quite there yet.
    The Chairman. Well, I appreciate your mentioning that. I 
would encourage some movement to see if there is not some 
reconciliation of the views. I suppose that there has not been 
that much opportunity for discussion because, as was pointed 
out at the last hearing, neither this committee nor any other 
committee that I know of has considered the Law of the Sea for 
9 years. It was only considered at that point 9 years ago 
because we at least got our way in terms of the seabed 
negotiations. The presumption was that that would lead to the 
United States becoming a party. That was a forgone conclusion. 
Having missed that opportunity, why, things foundered 
subsequently.
    In any event, why, now this is sort of back on the table. 
My hope is that conceivably, we can have, even within all of 
our parties here in the United States, a considerable degree of 
thoughtful compromise and movement.
    Let me ask Ms. Thomas--because you have at least cheerful 
news that tuna are still out there and through statesmanship 
the numbers have not been depleted substantially or in a 
catastrophic way--I am still intrigued as to how that came 
about. Now, maybe this is because as sort of an amateur in this 
area, I have been listening to people talking about one species 
after another disappearing temporarily from various blocks of 
the ocean. So we have sat down and looked at areas that have 
been under attack, so to speak, and dire things have happened 
to the fish population. I am amazed that tuna have been spared 
this fate. Why have the tuna been different? Why are these 
agreements that you have described that effective?
    Ms. Thomas. Well, I believe, Mr. Chairman, that when it 
comes to the tuna organizations that we have existing, that it 
gives all of the countries an opportunity to sit down and talk 
about this and bring some kind of decision on how they are 
going to manage it.
    Now, there is certainly room for improvement, and there are 
things that we think should be done, such as dealing with the 
issue of over-capacity and fishing too much is a concern. 
Luckily for the fish for canning, it is not for tuna.
    The Chairman. Are there some nations that seem to be 
egregious violators of this situation? In other words, do they 
really go after the tuna with a vengeance without regard to 
your other agreements?
    Ms. Thomas. There are some, and that is part of the problem 
that we are trying to deal with, is how to enforce these 
agreements. We can have all of these rules and regulations, but 
then how do you actually enforce them? How do you get the 
countries to stop?
    ICAT, the Atlantic Tunas Commission, has begun this slowly. 
They have had some success in it, not great. Their major 
problem has been blue fin tuna which is the large tunas that 
are used for sashimi mostly. They do use this trade mechanism.
    IATTC, the eastern tropical Pacific organization, just 
recently also decided that they could start looking at trade 
measures to block fish if they are caught incorrectly or if 
they exceed a quota.
    Those are the things that we still need to work on. There 
is generally success, but it does not mean that it is all done. 
That is where the Law of the Sea could help us because we would 
be then a member of the party and can say this is what is in 
the convention, and in particular in article 64.
    The Chairman. So for the moment, the United States 
exercises leadership anyway. You believe that is likely to have 
more standing and more success.
    Ms. Thomas. The State Department and the Department of 
Commerce do a wonderful job when we go to these meetings.
    The Chairman. Mr. Cox, you mentioned an interesting, rather 
alarming point that there may have been, allegedly, 372 acts of 
piracy last year. Amplify that some more. Where does this 
happen? What sort of people are involved in this and how does 
the convention speak to that?
    Mr. Cox. Well, Mr. Chairman, the 372 acts were reported 
piracy acts and they actually did occur. I said reported 
because there are probably many more that are not reported.
    The Chairman. I see.
    Mr. Cox. But they actually happen in areas close to shore, 
of course, and in straits like the Straits of Malacca where 
vessels are coming by and small boats come up and actually--in 
essence, it can be perceived as a mugging at sea. However, we 
see that they are getting much more brazen of late, and they 
are taking much stronger activity.
    Now, the industry itself, through its associations--there 
is an organization called BIMCO that has a piracy guideline 
which is actually put on vessels, and it outlines for the 
master what actions he should take in a piracy situation. It 
also describes what we would do to try and prevent piracy, what 
type of watch standing do we have, what do we do with the 
vessel to try and protect it. And the interesting connection 
that I made to myself was that some of the very same things 
that we put into the security code were the very same things 
that the industry already had in its piracy code.
    Mr. Chairman, the missing link here is we have been trying 
to get these coastal States that seem to be the epicenter of 
these piracy attacks to take some action against these pirates. 
We have been unsuccessful. I think that the Law of the Sea, of 
course, if nothing else, I think would hopefully say that 
piracy is not to be supported or condoned by any coastal State, 
and certainly ratification of that by the United States and 
some attention paid by the U.S. administration with regard to 
piracy attacks would certainly, I think, be beneficial in 
getting those nations that should be taking action to take that 
appropriate action.
    The Chairman. What nations specifically are involved in 
this? To state it another way, what nations are not doing the 
job in terms of enforcing the situation?
    Mr. Cox. Mr. Chairman, nations in western Africa, nations 
bordering the Straits of Malacca, some nations in South 
America, both the----
    The Chairman. Is this beyond the capability of their 
authorities? In other words, are these pirates operating there 
in ways in which they evade whatever law enforcement mechanism 
those States might have?
    Mr. Cox. I am not sure about what law enforcement 
mechanisms they may be evading, but my intuition would say that 
there is very little law enforcement going on, and so 
therefore, they do not have to take too much evasive tactics.
    Interestingly, there is a part of the International Ship 
and Port Facilities Security Code which places on the vessel an 
alarm button. It is a silent alarm which is meant to notify a 
coastal State and the flag State of the vessel that an imminent 
terrorist incident is taking place or about to take place. We 
have cautioned the U.S. Government that when we put that alarm 
on board the ship, we are certainly going to instruct the 
masters that when they are in a circumstance where they feel 
that someone is coming up against a vessel, they are not in a 
position to determine whether or not there is a terrorist 
incident, let us say, against an LNG tanker that is about to 
take place or whether that is simple piracy where they are 
going to come on and actually threaten the life of the people 
on board and rob the vessel. The master does not know what that 
is. So we are going to instruct him or her to press that alarm 
button. When that is pressed, we feel that we should have some 
expectation that the coastal State is going to take some 
action.
    The Chairman. Do something about it, yes.
    Mr. Cox. And I think there is nothing worse than having 
that alarm saying here is an imminent circumstance occurring 
and you press a button in the hopes that someone is listening.
    The Chairman. Mr. Kelly.
    Mr. Kelly. Mr. Chairman, mobil drilling rigs do not carry 
cargo, so our industry has not been as subject to piracy as 
other vessel owners have, but we have had some incidents. I 
heard of one recently where a drilling rig was in a harbor in 
Brazil and pirates came aboard and robbed all the crew and took 
food supplies and anything of interest. This is a subject that 
is getting far too little attention in the news media and among 
government policymakers.
    If you look at Lloyd's List, which is the leading maritime 
newspaper that is published out of London but gets considerable 
distribution here in the United States, you look at any issue 
of Lloyd's List and you are apt to see two columns of piracy 
incidents. They are reported because claims are filed with 
insurance companies and I think they are disclosed and listed 
for the information of insurance underwriters, but it is quite 
startling to see the volume of incidents that are now appearing 
in that publication.
    The Chairman. Well, we appreciate your testimony today. It 
has illuminated that situation for a much broader audience. I 
think it is an important issue. I suspect as we study the Law 
of the Sea Convention further, we will all be apprised of a 
much more comprehensive picture than we commenced with. You 
certainly brought a number of points to our attention and 
provided some excellent testimony for our record. We look 
forward to staying in touch with you.
    In reference to that, I just want to mention that formally 
the committee record will remain open for 48 hours following 
today's hearing so that other members of the committee who wish 
to do so may submit further statements or questions for the 
witnesses. If such Senators should do so, please respond as 
promptly as you can to their inquiries. We will thank you for 
that additional service to our committee.
    Unless you have further testimony, why, the hearing will 
adjourn, and many thanks again to all who have contributed to 
us today. Thank you.
    [Whereupon, at 11:32 a.m., the committee adjourned, to 
reconvene subject to the call of the Chair.]
                              ----------                              


      Additional Material and Statements Submitted for the Record

                                ------                                

                             General Counsel of the
                                U.S. Department of Commerce
                                  Washington, DC, December 18, 2003

The Honorable Richard G. Lugar
Chairman, Committee on Foreign Relations
United States Senate
Washington, DC 2051O-6225

    Dear Mr. Chairman:

    This letter provides the views of the Department of Commerce on 
accession to the Law of the Sea Convention and ratification of the 1994 
Agreement on deep seabed mining. In the Department's view, joining the 
Convention offers the best means to protect and to promote U.S. ocean 
interests and to strengthen U.S. leadership in ocean policy. Indeed, 
the Department is concerned that failure to do so will increasingly 
detract from the ability of the United States to chart the direction of 
ocean policies, including policies for protection of marine resources, 
in years to come.
    The Department's comments will focus primarily on fisheries and 
living resource matters, because the recent hearings on the Convention 
addressed other issues extensively. At the outset I note that the 
Convention is consistent with the fisheries and other living marine 
resource laws that the Department administers through the National 
Oceanic and Atmospheric Administration (NOAA). Joining the Convention 
would not require amendments to any of those laws.
    NOAA administers a host of ocean fisheries laws, including the 
Magnuson-Stevens Act, which governs fisheries in the Exclusive Economic 
Zone (EEZ). NOAA also implements many international fishery agreements.
    It is vital that we protect our valuable coastal resources and find 
means to protect the world's fish biomass in the face of increasing 
demands. The fishing industry contributes significantly to the U.S. 
economy. In 2002, U.S. commercial landings totaled over 9.4 billion 
pounds, worth $3.1 billion. U.S. commercial fisheries generated $28.4 
billion (in value added) to the U.S. Gross National Product, and 73.3 
million recreational fishing trips occurred. In 2000 (the most recent 
year for which information is available), recreational fishing added 
another $18.9 billion. The Food and Agriculture Organization predicts 
that the global annual demand for fish will continue to increase 
rapidly, to 100-120 million tons by 2010.
    Acceding to the Convention would increase protection of U.S. 
coastal interests by creating specific U.S. treaty rights. For 
instance, it would confirm and reinforce U.S. sovereign rights and 
jurisdiction with respect to natural resources in the U.S. EEZ and 
continental shelf, including the right to prohibit the take of marine 
mammals. Of special interest to the United States, the Convention 
protects the primary rights of the coastal State over anadromous 
species, such as salmon that originate in its rivers, by banning high 
seas fishing for such species. It imposes conservation obligations, 
applicable to all States, that are the basis for the ban on high seas 
drift net fishing and international protection of resources of great 
value to the United States, such as salmon and Bering Sea pollock. The 
Convention also affords coastal States a high degree of discretion in 
managing their EEZ fishery resources, underscored by the exemption from 
binding dispute resolution for a coastal State's resource management 
decisions, such as decisions about allowable catch and allocations.
    The Convention protects high seas fishing rights while imposing 
duties upon States to conserve and manage living resources of the high 
seas and to cooperate with other States to do so. It has special 
measures to protect straddling stocks and highly migratory species. 
These provisions are important because the United States has 
significant distant water fishing interests. Highly migratory stocks 
such as tuna and billfish are among the most valuable fish for the 
United States. In 2002, the United States landed almost 340 million 
pounds of tuna worth $200 million.
    The United States has played a leading role in the search for ways 
to conserve straddling stocks and highly migratory species, some of 
which are seriously overfished. To this end, we already have negotiated 
agreements that implement the fundamental principles in the Convention, 
including the Fish Stock Agreement (FSA) covering straddling stocks and 
highly migratory species, the Food and Agriculture Organization 
Compliance Agreement addressing flag State duties, the U.N. Resolution 
banning high seas drift nets, the Donut Hole Agreement regarding 
straddling stocks in the central Bering Sea, and, most recently, the 
Convention on the Conservation and Management of Highly Migratory Fish 
Stocks in the Western and Central Pacific Ocean. The Law of the Sea 
Convention provides the foundation and legal framework for these 
agreements. U.S. policy has been to urge all fishing States, and States 
that offer their flag to fishing vessels, to become party or to adhere 
to these agreements and to regional fishery agreements. Acceding to the 
Convention will further the policy objective by showing that the United 
States leads by example.
    As a party to the Convention, the United States would be in a much 
stronger position to influence how its fundamental conservation rules 
are implemented and maintained, as well as how they are applied in new 
circumstances. One such new circumstance, the increase in flags of 
convenience in the fishing industry and widespread illegal, unreported 
and unregulated fishing (so-called ``IUU fishing''), poses a new and 
alarming threat to both coastal and high seas resources.
    United States membership in the Convention will become more 
significant in the future as we seek to find new ways to curb IUU 
fishing and to promote conservation throughout the oceans. Fishing 
vessels that fly flags of States that refuse to join the FSA or 
regional agreements have seriously undermined conservation. When the 
United States urges these ``flag of convenience'' States to comply with 
the Convention's obligation to cooperate in conservation, they are 
often quick to respond that the United States, a non-party, cannot 
invoke the Convention. While this view is incorrect, it has become 
increasingly clear that being a party to the Convention would 
substantially advance U.S. coastal and global interests in the long 
term.
    Finally, this letter briefly addresses two other areas. First, NOAA 
licenses U.S. deep seabed mining under the Deep Seabed Hard Mineral 
Resources Act. As such, Commerce Department officials have attended the 
meetings of the International Seabed Authority (ISA) since its 
inception. The United States has always been the strongest voice for 
private mining interests. While deep seabed mining is not imminent, we 
believe it is in the long-term interests of the United States to ensure 
that the ISA continues to implement properly the provisions of the 1994 
Agreement on deep seabed mining. The United States cannot simply leave 
this responsibility to others. Acceding to the Convention, including 
ratifying the 1994 Agreement, will ensure continued U.S. leadership in 
this field.
    Second, NOAA has begun coordinating the acquisition of detailed 
bathymetric data to support a U.S. claim under Article 76 of the 
Convention to the extensive continental shelf area that lies beyond the 
U.S. EEZ. The United States' extensive technical expertise in 
bathymetry and geophysics will provide critical support to a U.S. 
claim. It will also have a significant influence on future policies of 
the Commission on the Limits of the Continental Shelf, but only if the 
United States becomes a party to the Convention. Furthermore, the clock 
is ticking for States Parties to submit claims to the Commission and, 
unless it joins the Convention, the United States will have no role in 
reviewing those claims.
    The Department of Commerce appreciates the opportunity to present 
views on the Law of the Sea Convention. The Office of Management and 
Budget has advised that there is no objection to the transmittal of 
this letter from the standpoint of the Administration's program.
            Sincerely,
                                      Theodore W. Kassinger

                                 ______
                                 

    Prepared Statement of Dennis W. Archer, President, American Bar 
                      Association, Washington, DC

    The American Bar Association welcomes this opportunity to express 
its support for ratification of the United Nations Convention on the 
Law of the Sea. As members of this Committee are aware, there are 
several commissions--one private, the Pew Foundation study, and the 
other governmental, the statutorily-created U.S. Commission on Ocean 
Policy--both currently addressing the great variety of American 
interests in the oceans. However, no view of U.S. ocean interests can 
be considered comprehensive that does not deal with the oceans beyond 
our shores and the rules by which all nations may accommodate their 
differing interests beyond the reach of national laws. That is why both 
the Pew Foundation Oceans Report and the U.S. Commission on Ocean 
Policy are both supporting the United States' ratification of the 1982 
U.N. Convention on the Law of the Sea. The American Bar Association 
strongly agrees.
    The Law of the Sea Convention provides that essential universal 
framework within which issues respecting the future stewardship of our 
common oceans may be equitably and peacefully resolved. The American 
Bar Association has therefore supported ratification of this Convention 
since 1994 when necessary changes to the 1982 Convention were adopted 
at the United Nations.
    I would like to comment briefly on the importance of this 
Convention and address specifically the issue of the consequences of 
failure of the United States to ratify a Convention to which 143 states 
are now party, and which has thus achieved the near-universality that 
was an important objective of the United States in negotiating this 
agreement over a period of twenty years and six administrations.
    In August 1994 the ABA approved a resolution recommending that the 
United States become party to the 1982 United Nations Convention on the 
Law of the Sea, and to the Agreement relating to the Implementation of 
Part XI of that Convention, which had been adopted and signed by the 
United States just the month before, in July 1994. These two documents 
were then submitted to the Senate in November of 1994.
    Members of your Committee who are familiar with the history of the 
negotiations of the Law of the Sea Convention will recall that the 
United States did not sign the Convention, when it was finally 
negotiated and opened for signature in 1982, because of concerns 
relating to certain deep-seabed mining provisions of Part XI that did 
not adequately protect possible U.S. future interests. With the 
exception of these provisions there has been broad agreement that the 
Convention greatly served the interests of the United States in 
providing a stable legal framework for, among other things, preserving 
customary freedoms of navigation vital to ocean powers such as the 
United States for both strategic and commercial reasons.
    Because of the importance the ABA attaches to such a rule of law 
respecting the oceans, the ABA early supported efforts to find ways to 
fix the controversial provisions of the deep-seabed mining regime and, 
in 1990, recommended that a new effort be made to determine what 
changes and clarifications would make Part XI acceptable to the United 
States and to its negotiating partners. Such an effort was undertaken 
by the first Bush administration and ultimately resulted in the 1994 
Agreement. At that time the ABA thoroughly reviewed these new 
provisions and concluded that the objections set forth by the United 
States in 1982 had been fully satisfied by this new Agreement, which, 
in effect, substitutes for any differing provisions in the original 
text. The ABA then adopted the resolution, noted above, recommending 
that the United States become a party to the Convention. Following the 
adoption of the 1994 Agreement, many of our allies including the United 
Kingdom, France, Germany, Japan, and others who had earlier signed, but 
had not yet become a party to the Convention, then did so. The United 
States, virtually alone among significant maritime nations, has yet to 
ratify.
    Some now suggest that since this Convention has been ratified by 
143 states, including both friends and adversaries, it does not matter 
whether or not the U.S. is formally a party to it. In the case of the 
Law of the Sea Convention, the answer to the question of whether formal 
acceptance matters is both specific, as to activities and institutions 
created by the Convention, and general, with respect to the nature of 
American leadership in promoting the rule of law in an increasingly 
lawless world.
    As to specifics, the Convention codifies rules with respect to 
freedom of navigation and overflight that were not necessarily 
universally recognized as customary international law. While the United 
States continues where necessary to assert rights of freedom of 
navigation, protests of violations or encroachments based upon 
universally understood and accepted provisions in the Convention are 
obviously more precise--and effective. The Convention also defines 
limits of, and the resource specific nature of, coastal state 
jurisdiction in an exclusive economic zone beyond the 12 mile 
territorial sea. The Convention created a Law of the Sea Tribunal but, 
absent ratification, the United States cannot offer a judicial 
candidate, nor staff the specialized arbitral panels available under 
the Convention regime. Similarly, the United States is ineligible to 
put forth a candidate for membership on the Outer Continental Shelf 
Commission that is reviewing proposals and making recommendations on 
how states should define the boundaries of the outer continental shelf 
in places where the shelf extends beyond 200 miles. As oil exploitation 
had become possible in these distant areas, certainty of jurisdiction 
is essential to stability, and perhaps also to the energy security of 
this nation. Likewise, the United States may not currently officially 
participate in the work of the International Sea-Bed Authority, and 
thus directly influence and control the course of rule-making for deep 
ocean resource exploitation. Lastly, it is by no means clear that the 
United States may take full advantage of the Convention's provisions on 
protection of the marine environment without being a party to the 
treaty. In short, the Convention is living up to its original intended 
function as a framework within which rules governing new and peaceful 
uses of the oceans might be developed, and the United States should be 
an active participant in its implementation.
    More important than specifics, however, is the Convention's role as 
the foundation of public order with respect to the oceans. In that 
sense the treaty is an extraordinary achievement in the annals of 
global rulemaking. However universally accepted the Convention's 
provisions may now appear they will surely erode over time if the 
United States fails to exercise the kind of continuing leadership and 
participation which led to this extraordinary achievement in the first 
place. There does not now appear to be any rationale which would 
support our continuing nonparticipation in an agreement that so 
effectively stemmed the rising tide of claims of national jurisdiction 
in the oceans, and that will continue to serve our interests as long as 
the United States is flanked by two great oceans.
    The American Bar Association therefore welcomes this opportunity to 
urge this Committee to give its advice and consent to ratification of 
this Convention. Thank you.

                                 ______
                                 

                          Council on Ocean Law

                                                  October 18, 2003.
   statement by the council on ocean law to the committee on foreign 
relations of the united states senate on the united nations convention 
                         on the law of the sea
    The Council on Ocean Law welcomes the hearings of the Senate 
Foreign Relations Committee on the United Nations Convention on Law of 
the Sea and hopes that the Committee will proceed expeditiously to the 
preparation of an advice and consent resolution for a vote of the 
Senate on this important treaty originally submitted for the Senate's 
advice and consent to ratification in November 1994. The Council 
particularly welcomes the leadership of Senator Lugar in his efforts to 
reassert the leadership role of the United States in the future of the 
world's oceans.
    The Council on Ocean Law was initiated in 1980 by the late Elliot 
L. Richardson, the former special representative of the President to 
the Law of the Sea treaty negotiations, who remained its chairman until 
his death in 1999. The Council's purpose is to further public 
understanding and support of this extraordinary effort to create a 
framework of law to govern the increasing and often conflicting uses of 
the oceans. The Council's role as a resource of information on 
continuing developments in ocean law was of significant importance 
during the 1980's when it became evident that new negotiations would be 
necessary to meet the concerns of the United States outlined by the 
Reagan Administration, and of other developed states, to Part XI of the 
1982 treaty dealing with any prospective deep seabed mining beyond the 
limits of national jurisdiction.
    The Council believed that it was important to keep before the 
public the many achievements of the 1982 treaty: Safeguarding 
traditional freedoms of navigation and overflight of great strategic 
importance to the United States, defining and stabilizing the 
jurisdiction of coastal states over resources seaward of the 
territorial sea in a 200 mile Exclusive Economic Zone, conserving 
living resources and protecting the environment throughout the world's 
oceans, and promoting peaceful settlement of disputes. The Council 
therefore strongly supported the efforts undertaken by the first Bush 
Administration at the United Nations in 1990 to renegotiate provisions 
of Part XI, negotiations which resulted in the adoption in July 1994 by 
the United Nations General Assembly of a new Agreement, signed by the 
United States, which modified and essentially substituted for the 
original Part XI in the 1982 treaty. This Agreement satisfactorily 
addressed all of the specific concerns outlined by the Reagan 
Administration in 1982 and included guarantees regarding the U.S. role 
in future mining arrangements--guarantees which the United States 
cannot take advantage of until it becomes a party to the Convention. 
The Convention and the Agreement were then transmitted by President 
Clinton to the Senate in November 1994 for its advice and consent to 
accession to the 1982 Convention and to ratification of the 1994 
Agreement.
    Today 143 states and the European Community have become parties and 
will continue to shape the new institutions created by the Convention, 
such as the Law of the Sea Tribunal and the Commission on the Limits of 
the Continental Shelf. That Commission is addressing the question of 
the outer limits of the continental shelf in places where it may extend 
beyond 200 miles, an issue of major interest to the U.S. as, for 
example, in the Arctic.
    In short there remains no reason for the United States not to join 
the international community consensus represented by this treaty. On 
the contrary, the treaty regime, which has created a stable framework 
of law governing the uses of the oceans, could well erode over time if 
the United States fails to exercise the leadership that made possible 
the successful outcome of these negotiations in the first place. 
Furthermore, the development of ocean law is a continuing process which 
requires the active participation of the United States to ensure that 
our national interests are protected.
    Two years ago, at the United Nations, the George W. Bush 
Administration announced its support for ratification by the U.S. of 
Convention and the Agreement, noting that the Convention serves the 
national security, economic, and environmental interests of the United 
States. The American Bar Association, and the presidential U.S. 
Commission on Ocean Policy, among others, have urged the Senate to act. 
So have Secretaries of State both Republican and Democratic. In 
transmitting the Convention to the Senate in 1994 then President 
Clinton wrote ``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 the uses of the oceans.'' 
Those enduring interests have led both Republican and Democratic 
Administrations to support this treaty. The Senate now should act.

                                 ______
                                 

Prepared Statement of the Humane Society of the United States, Patricia 
                    Forkan, Executive Vice President

the legislative history and interpretation of article 65 of the law of 
                           the sea convention
Hon. Richard G. Lugar, Chairman,
Senate Foreign Relations Committee,
United States Senate,
Washington, DC.

    Dear Chairman Lugar:

    The Humane Society of the United States (HSUS) appreciates your 
leadership in convening hearings on the UN Law of the Sea Convention. 
We believe that the United States' involvement in this Convention is 
crucial. With your permission, I am including testimony on the history 
and meaning of article 65 and would like to request your permission to 
include my statement in the Committee's record on this important 
matter.

      article 65, united nations convention on the law of the sea
                             marine mammals
    Nothing in this Part restricts the right of a coastal State or the 
competence of an international organization, as appropriate, to 
prohibit, limit or regulate the exploitation of marine mammals more 
strictly than provided for in this Part. States shall co-operate with a 
view to the conservation of marine mammals and in the case of cetaceans 
shall in particular work through the appropriate international 
organizations for their conservation, management and study.\1\
---------------------------------------------------------------------------
    \1\ www.globelaw.com/LawSea/ls82_2.htm#article_65_marine_mammals
---------------------------------------------------------------------------
Introduction
    The 1970s were a turning point for cetaceans in general and whales 
in particular, with attitudes shifting away from the exploitation of a 
resource towards conservation and protection of a unique creature. I 
have been attending meetings of the International Whaling Commission 
(IWC) since 1973, and have also had the privilege of being appointed in 
1977 to the Marine Environment Sub-Committee of the Law of the Sea 
Advisory Committee which was involved in the negotiations leading up to 
the adoption of the final version of Article 65 of the United Nations 
Convention on the Law of the Sea (UNCLOS). Thus I have seen the 
evolution of both the IWC and the UNCLOS as parallel systems--one 
driving the other--one influencing the other.
    As the 1982 UN Convention on the Law of the Sea is largely 
considered a ``constitution for the oceans,'' \2\ its role in the 
conservation of marine mammals is of vast importance, and needs to be 
accurately understood and interpreted. This report therefore seeks to 
clarify the meaning of Article 65, and in particular its relation to 
the IWC.
---------------------------------------------------------------------------
    \2\ John Temple Swing, ``What Future for the Oceans?'', Foreign 
Affairs, September/October 2003, p. 139.
---------------------------------------------------------------------------
History of the Drafting of Article 65, UNCLOS
    The marine mammal article of UNCLOS is considered a significant 
advance in our common efforts to stop the over-exploitation of marine 
mammals, especially whales and dolphins, and to conserve them.\3\ 
Nevertheless, potential ambiguity arises in relation to the second 
sentence of the final version of Article 65 which reads: ``States shall 
co-operate with a view to the conservation of marine mammals and in the 
case of cetaceans shall in particular work through the appropriate 
international organizations for their conservation, management and 
study.'' Therefore, the historical background that follows will go 
towards clarifying the meaning in particular of the appropriate 
international organizations referred to in the second sentence of 
Article 65, UNCLOS.
---------------------------------------------------------------------------
    \3\ The 12th J Seward Johnson Lecture in Marine Policy, ``Should 
the United States Ratify the New Law of the Sea Treaty?'' by Ambassador 
T T B Koh of Singapore at the Woods Hole Oceanographic Institution, 
Woods Hole, MA, 6/4/1980.
---------------------------------------------------------------------------
    During the mid-seventies, there had been almost single-minded 
concentration on improving the IWC with regard to whale conservation, 
and the UNCLOS went largely ignored. In 1977 a meeting was convened to 
discuss the problem of the weak UNCLOS Marine Mammal article. This 
resulted in a new coalition of environmental and animal welfare groups 
being formed to urge the U.S. to work for improved protection of marine 
mammals in general and cetaceans in particular within UNCLOS.\4\
---------------------------------------------------------------------------
    \4\ This new coalition and effort was led by Dr. Robbins Barstow of 
the Connecticut Cetacean Society. He brought together members of 
Congress, NOAA, NMFS, Marine Mammal Commission and NGOs to strengthen 
whale protective provisions in the LOS Treaty.
    In a 6/18/1979 Letter to the Honorable John B. Breaux, Chairman of 
the Subcommittee of Fish and Wildlife Conservation and the Environment, 
House Committee on Merchant Marine and Fisheries, the National Wildlife 
Federation suggested that the U.S. should propose language at the next 
Law of the Sea meeting that would among other things make clear that 
``management of at least the large whales and direct catches of small 
cetaceans should be regulated by a single international organization, 
the International Whaling Commission''.
---------------------------------------------------------------------------
    The U.S. spearheaded the movement to clarify the marine mammal 
conservation provisions of UNCLOS. An informal negotiating group, to 
which I was appointed by Ambassador Elliot Richardson, was established 
in the late seventies to consider revising the Informal Composite 
Negotiating Text (ICNT) provisions. The states were clearly aware of 
the need to conserve and protect marine mammals.\5\
---------------------------------------------------------------------------
    \5\ U.S. General Accounting Office, ``The Law of the Sea 
Conference--Status of the Issues, 1978'', March 9, 1978.
---------------------------------------------------------------------------
    Initially, the agreed upon language, for the second sentence of 
Article 65, referred to ``the appropriate international organization''. 
At a meeting of the informal negotiating group, the representative from 
Japan requested that the group consider changing the word organization 
from singular to plural. He explained that since this article covered 
all cetaceans, it would be better to leave the issue of cetacean by-
catch associated with regional fisheries in the hands of those various 
entities. In order to be responsive to Japan, it was agreed that the 
word organization would be plural. Thereby, allowing by-catch to remain 
a regional fisheries responsibility.
    Over many months of ongoing negotiations, progress was clearly made 
as UNCLOS agreed to recognize marine mammals as unique and separate 
from other living resources, and as such not subject to ``optimum 
utilization''. The provisions for other living resources under UNCLOS 
require coastal states to determine allowable catch, and if the coastal 
state cannot harvest the entire catch, they must give other states 
access to take the surplus. In the case of marine mammals this does not 
apply, and coastal states can be more restrictive than the 
international standard and can even protect marine mammals totally.
    In addition, there was also a growing global demand from NGOs that 
the IWC move away from a strictly quota setting whale killing operation 
to one of conservation, protection and humanness towards these 
creatures. Thus UNCLOS and the IWC in the mid and late seventies were 
developing as parallel systems, and in order to accurately interpret 
Article 65 of UNCLOS, the changes being discussed at the time in 
relation to the IWC need to be examined. In 1978 the IWC held a 
Preparatory Meeting on the Revision of the International Convention for 
the Regulation of Whaling (ICRW), the culmination of years of work to 
change the thrust and general character of the IWC. The U.S. began to 
push for a re-negotiation of the ICRW to make it an International 
Cetacean Convention. The NGO community also strongly supported 
renegotiating the treaty calling for an International Cetacean 
Commission (ICC)--not only changing the emphasis from whaling to the 
whales themselves but to broaden jurisdiction to small cetaceans such 
as dolphins and porpoises. The future ICC was to be primarily a 
scientific research and study organization aimed at protecting 
cetaceans, not killing them, with jurisdiction on a global basis.\6\
---------------------------------------------------------------------------
    \6\ On April 19, 1978, a ``Briefing Seminar on Potential Options in 
the Pending Renegotiation of the IWC Treaty'' was conducted at the 
National Headquarters of The Humane Society of the United States in 
Washington, D.C. It was co-sponsored by The HSUS and the American 
Cetacean Society. The seminar was attended by representatives of more 
than a dozen different whale and conservation organizations, and the 
program included background briefing presentations by a distinguished 
panel of experts from the United States Department of State, Department 
of Commerce (NOAA and NMFS), Marine Mammal Commission, and Council on 
Environmental Quality. As a result of the day's deliberations, 
including the study of extensive background information documents 
provided each participant, a positive consensus was reached by NGO 
representatives in support of a statement of ``Objectives for 
International Cetacean Conservation''.
---------------------------------------------------------------------------
    In a letter to Ambassador Richardson,\7\ one of the participants in 
the renegotiation of Article 65 listed one of the objectives as being 
to clearly establish the authority of a single international 
conservation organization to set the standards for protection and 
conservation of cetaceans throughout their range.
---------------------------------------------------------------------------
    \7\ The Honorable Elliot L. Richardson was Ambassador at Large, and 
Special Representative of the President to the Law of the Sea 
Conference, U.S. Mission to the United Nations.

          ``At the present time such an organization exists (the IWC) 
        although the United States has sought to strengthen it as an 
        International Cetacean Commission, aimed less at `whaling' and 
        more at `cetacean protection'. The recent moratorium within the 
        IWC suggests that the organization can be strengthened 
        substantially along these lines and that within the next few 
        years the time may be right for favorable international 
        consideration of efforts for a strengthened ICC.'' \8\
---------------------------------------------------------------------------
    \8\ Letter by John Norton Moore, Walter L. Brown Professor of Law 
and Director of the Center for Ocean Law and Policy, University of 
Virginia to The Honorable Elliot L. Richardson, August 15, 1979.

    This clearly demonstrates that the U.S. position during the 
drafting of Article 65 was that the ``appropriate international 
organization'' for the conservation of cetaceans was the IWC, though 
the plural of the word ``organization'' leaves open the additional 
possibility for a successor organization such as an ICC to qualify as 
such. As another non-governmental organization succinctly stated: 
``While the text implies there is more than one organization for the 
conservation of cetaceans, the reference is intended to apply to the 
International Whaling Commission or a successor organization.'' \9\ 
This was of course in addition to the role of regional fisheries in 
cetacean by-catch issues.
---------------------------------------------------------------------------
    \9\ Sierra Club, International Report, Volume VIII, Number eight, 
April 28, 1980.
---------------------------------------------------------------------------
    In 1979 at the same time as a partial moratorium passed at the 
annual IWC meeting, and votes for a total moratorium continued to 
increase, the proposed U.S. text for a new strengthened marine mammal 
article was accepted as a working document in Committee II of the Law 
of the Sea Conference. Finally, on March 21, 1980, the revised Article 
65 was successfully adopted. Crucial to any interpretation of the 
article are Ambassador Elliot Richardson's comments upon the occasion 
of its adoption:

          ``The text that was incorporated into the ICNT, Rev. 2 was 
        the product of lengthy negotiations with approximately 25 
        States of all persuasions and geographical regions. It was 
        supported (or not objected to) at an informal meeting of 
        Committee II and in Plenary. In fact, several speakers 
        represented States which were not part of the representative 
        group. It was particularly gratifying that speakers included 
        representatives of the major whaling nations as well as those 
        States primarily interested in the protection and conservation 
        of marine mammals.

          The new provision establishes a sound framework for the 
        protection of whales and other marine mammals with critical 
        emphasis on international cooperation. It exempts marine 
        mammals from the optimum utilization requirements of other 
        provisions of the ICNT Rev. 2 and permits States and competent 
        international organizations to establish more stringent 
        conservation regulations than otherwise mandated by ICNT, Rev. 
        2. Indeed, it explicitly permits States and international 
        organizations to prohibit the taking of marine mammals. The 
        text also preserves and enhances the role of the International 
        Whaling Commission (or a successor organization) (emphasis 
        added). It recognizes the role of regional organizations in the 
        protection of marine mammals, which are often taken incidental 
        to fishing operations. In sum, the article is a basic and sound 
        framework with which States and international organizations may 
        pursue the future protection of these wonderful creatures for 
        generations to come.'' \10\
---------------------------------------------------------------------------
    \10\ Letter from Ambassador Elliot L. Richardson to Patricia 
Forkan, 4/29/1980.

    As Ambassador Richardson indicated, the revised Article 65 received 
ample support in the Committee from non-whaling \11\ and whaling 
nations alike. In floor statements in Committee II on the Deliberations 
on the Article 65 Amendment (3/21/1980), Japan, a strongly pro-whaling 
nation, for example raised some concerns about Article 65, but made no 
mention of the possibility of an organization other than the IWC 
fulfilling the ``appropriate international organization'' role. The 
floor statements of Japan were as follows:
---------------------------------------------------------------------------
    \11\ Netherlands, a country in favor of conservation stated: ``We 
acknowledge the great importance of marine mammal conservation, 
particularly through the IWC. This proposal is a contribution and we 
support it.'' Committee II, Deliberations on Article 65 amendment, 
Floor statements, 3/21/1980.

          ``My delegation continues to consider that the concept of 
        optimum utilization also applies to marine mammals. 
        Consequently, there is no need to single out marine mammals in 
        a special provision, or to focus on cetaceans in such a 
        provision. As a practical matter, however, we can support this 
        text on the understanding, with regard to the second sentence, 
        that these activities do not necessarily need to be undertaken 
        simultaneously with the first sentence, but on an individual 
        (per species) basis when appropriate with consultations with 
        other nations.'' \12\
---------------------------------------------------------------------------
    \12\ Committee II, Deliberations on Article 65 amendment, Floor 
Statements, 3/21/1980.

    Norway and Iceland, also pro-whaling nations, merely stated their 
support for Article 65 without any further comments.\13\ Fast-forward 
12 years to 1992 when Iceland withdrew from the IWC and tried to 
establish a new organization to manage whales. Iceland, Norway, 
Greenland, and the Faroe Islands formed a group called, NAMMCO, North 
Atlantic Marine Mammal Commission. The purpose of NAMMCO was to unseat 
the IWC as the organization with jurisdiction over whale conservation 
and management. For numerous reasons, NAMMCO has never been recognized 
as a legitimate organization, and in fact most countries view it as 
nothing more than an exclusive whalers club. By 2002 even Iceland 
realized that NAMMCO was not going to replace the IWC, and in that 
year, the country rejoined the IWC.
---------------------------------------------------------------------------
    \13\ Ibid.
---------------------------------------------------------------------------
    Neither Japan nor any other country has ever joined NAMMCO. 
However, 23 years after Japan agreed to the language and interpretation 
of article 65 they announced a change in plans. Japan is now arguing 
that the ``appropriate international organizations'' clause of Article 
65 means that it is possible to have several organizations managing 
cetaceans under UNCLOS. In a recent statement Japan claims that they 
are considering setting up a rival organization to the IWC or joining 
NAMMCO because they are displeased with the recently adopted 
conservation measures at the IWC.\14\
---------------------------------------------------------------------------
    \14\ Japan Plans to Create Rival Organization of International 
Whaling Commission (IWC). From Atuna.com, Japan, October 10, 2003.
---------------------------------------------------------------------------
    The United States, both then and now has not wavered in their 
support of the language or the interpretation of article 65. The U.S.'s 
interpretation of Article 65 was clearly outlined in a statement 
prepared by the State Department in 1980 to be used as clarifying 
language on Article 65:

          ``The appropriate/primary international organization referred 
        to in Article 65 is the International Whaling Commission or a 
        successor organization. Certain regional organizations, which 
        are concerned with the regulation of fishing, may also 
        appropriately play a role as cetaceans are occasionally taken 
        as incidental catch to fishing activities. It is further 
        understood that the minimum international standards for the 
        protection of cetaceans apply throughout the migratory range of 
        such cetaceans whether within or beyond the exclusive economic 
        zone.'' \15\
---------------------------------------------------------------------------
    \15\ Drafted by George Taft (State Department) et al at the last 
session of the Law of the Sea Conference, 8/22/1980.

    The protection and conservation afforded to marine mammals in the 
exclusive economic zone \16\ of coastal States by Article 65 was 
expanded by Article 120 of UNCLOS to apply to the high seas as well. 
This expansion of coverage to the high seas also lends support to the 
interpretation that the IWC (or its successor) is the ``appropriate 
international organization'' for the conservation of cetaceans.
---------------------------------------------------------------------------
    \16\ The exclusive economic zone is a 200-mile zone in which 
coastal states have sovereign rights over resources and other 
activities related to economic exploration and exploitation.
---------------------------------------------------------------------------
U.S. Position on Marine Mammal Conservation
    Since the wording of Article 65 of UNCLOS originated with a United 
States proposal, an accurate interpretation of this provision 
necessitates an understanding of the U.S. position towards marine 
mammal conservation in general and whaling in particular.
    Setting the scene for the U.S. position on marine mammals was the 
passage in 1972 of the far-reaching Marine Mammal Protection Act 
(MMPA). The MMPA was amended in 1977 to forbid commercial whaling 
within the U.S.'s 200-mile zone. This, in effect, recognized that 
coastal states have the right to take action more restrictive than that 
agreed upon in the international body, but not less restrictive action 
which would weaken internationally accepted conservation measures. The 
MMPA also required the renegotiation of relevant treaties to reflect 
its standards. The MMPA was therefore an important impetus for the U.S. 
position within UNCLOS that coastal states could be more protective of 
whales than the IWC, but not less.
    The U.S. government began in the early 1990s to oppose more 
forcefully all commercial whaling,\17\ and in 1993 both houses of 
Congress unanimously adopted a resolution, H. Con. Res. 34 (103rd 
Congress), calling for the U.S. to oppose ``any resumption of 
commercial whaling.''
---------------------------------------------------------------------------
    \17\ CRS Report 97-55, ``Norwegian Commercial Whaling: Issues for 
Congress'', Carl Elk, December 31, 1996.
---------------------------------------------------------------------------
    The U.S. has also relied upon the threat of unilateral sanctions to 
induce whaling nations to give greater consideration to whale 
conservation.\18\ It has done this mainly through the 1971 Pelly 
Amendment \19\ to the 1954 Fishermen's Protective Act, which allows 
fishery product imports to be prohibited from nations acting to 
diminish the effectiveness of international fishery (including whaling) 
agreements. Presidential authority under the Pelly Amendment was 
expanded to impose sanctions against non-fishery imports from nations 
acting contrary to IWC guidelines in the 102nd Congress.\20\ In 
addition, the 1979 Packwood-Magnuson Amendment \21\ to the Fishery 
Conservation and Management Act of 1976 allows the U.S. to reduce or 
suspend fishing privileges in U.S. waters for nations acting contrary 
to IWC guidelines.\22\ Although Pelly amendment sanctions have never 
been imposed for whaling, the U.S. has used its certification process 
to obtain some concessions from offending nations to improve whale 
conservation and has influenced whaling nations to join the IWC.\23\ 
Norway, Japan, and Canada have all been certified under the Pelly 
amendment in the past for undermining the IWC.
---------------------------------------------------------------------------
    \18\ CRS Report 97-588, ``Whale Conservation and Whaling'', Eugene 
H. Buck.
    \19\ 22 U.S.C. 1978.
    \20\ Section 201 of P.L. 102-582.
    \21\ 16 U.S.C. 1821.
    \22\ The threat of Packwood-Magnuson sanctions is no longer 
influential, since no foreign whaling nation currently fishes in U.S. 
waters.
    \23\ Supra n. 17
---------------------------------------------------------------------------
    The strong position of the U.S. that the IWC is the ``appropriate 
international organization'' under Article 65 of UNCLOS was reinforced 
in 1996, when Canada permitted the harvesting by Inuit of two bowhead 
whales. The U.S. supports aboriginal whaling when it is managed through 
the IWC, the global body charged with responsibility for the 
international conservation and management of whale stocks and the 
regulation of whaling.\24\ Although Canada was not a member of the IWC 
at the time, the U.S. still certified Canada under the Pelly amendment, 
taking the view that the bowhead whale harvest had undermined the 
effectiveness of the IWC. In a message to Congress, President Clinton 
stated that, under international law, Canada was obligated to work 
through the IWC with regard to any whaling activities.\25\
---------------------------------------------------------------------------
    \24\ NOAA Press Release, 12/18/1996, ``Commerce Department 
Certifies Canada Under Pelly Amendment for Whaling'', at 
www.publicaffairs.noaa.gov/pr96/dec96/noaa96-r194.html
    \25\ President William J. Clinton, Message to Congress on Canadian 
Whaling Activities, 2/10/1997, 33Weekly Comp. Pres. Doc. 175 (1997).
---------------------------------------------------------------------------
    As recently as June of this year, members of the Senate reaffirmed 
that at the 55th Annual Meeting of the IWC the U.S. should ``remain 
firmly opposed to commercial whaling''.\26\
---------------------------------------------------------------------------
    \26\ S. Con. Res. 55 (108th Congress), 6/12/2003.
---------------------------------------------------------------------------
International Reinforcement of the IWC's Role in Relation to Article 65
    Apart from the very clear position of the United States both during 
the negotiation process and in subsequent years that Article 65 of 
UNCLOS is to be interpreted so that the IWC (or an even stronger 
conservation-oriented successor organization such as an International 
Cetacean Commission) is understood to be the ``appropriate 
international organization'', there is also international support for 
this interpretation.\27\
---------------------------------------------------------------------------
    \27\ There even appears to be support for this interpretation from 
pro-whaling nations. One commentator notes that Iceland, a pro-whaling 
nation, interpreted Article 65 of UNCLOS to mean that the IWC is the 
appropriate international organization with jurisdiction over whale 
management. ``In 1991, Iceland, a party to the 1982 Law of the Sea 
Convention, was contemplating withdrawing from the IWC. It appears that 
Iceland took the view that Article 65 required it to adhere to IWC 
quota regulations irrespective of its membership in the IWC.'' Ted L. 
McDorman, ``Canada and Whaling: An Analysis of Article 65 of the Law of 
the Sea Convention'', Ocean Development & International Law, 29: p. 
183-184 (1998)
    A commentator from Norway, also a pro-whaling nation, has stated: 
``However poorly the IWC may be seen to function, as measured against 
what it was intended to be, or could have been, it is a fact that by 
the large majority of member states it is seen as the only legitimate 
international body for dealing with the whaling issue. These nations 
include the US, all the main EU (European Union) states, most major 
western countries, including most Nordic countries.'' Steinar Andresen, 
The Fridtjof Nansen Institute, Oslo Norway, 11NAMMCO, IWC and the 
Nordic Countries'' from Whaling in the North Atlantic--Economic and 
Political Perspectives, Ed. Gudrun Petursdottir, University of Iceland, 
1997. Proceedings of a conference held in Reykjavik on March 1, 1997, 
organized by the Fisheries Research Institute and the High North 
Alliance, at www.highnorth.no/Library/Publications/Iceland/na-iw-an.htm
---------------------------------------------------------------------------
    International organizations recognize IWC's primacy for the 
conservation of whales. Most notably, Chapter 17 of Agenda 21, the 
environmental action plan endorsed by the 1992 United Nations 
Conference on Environment and Development adopts Article 65 of UNCLOS, 
and provides that states recognize:

          (a) The responsibility of the International Whaling 
        Commission for the conservation and management of whale stocks 
        and the regulation of whaling pursuant to the 1946 
        International Convention for the Regulation of Whaling;

          (b) The work of the International Whaling Commission 
        Scientific Committee in carrying out studies of large whales in 
        particular, as well as of other cetaceans.'' \28\
---------------------------------------------------------------------------
    \28\ Agenda 21, para. 17.61 at www.on.org/esa/sustdev/documents/
agenda21/english/agenda21chapter17.htm

    This position was bolstered by language in an IWC Resolution on the 
interaction of fish stocks and whales that was passed by consensus. The 
parties acknowledged at the outset of the Resolution that ``the IWC is 
the universally recognized international organization with competence 
for the management of whale stocks.'' \29\
---------------------------------------------------------------------------
    \29\ IWC, Proposed Resolution on Interactions Between Whales and 
Fish Stocks, Resolution 2001-9 (2001).
---------------------------------------------------------------------------
    The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) has always recognized IWC primacy over whale 
management and conservation. In 1986, in deference to the IWC's 
commercial whaling moratorium, all great whales were placed on Appendix 
1 (meaning whales and whale products cannot be traded internationally). 
Moreover, CITES has adopted several resolutions that relate to whales 
and the IWC that were consolidated in 2000 in Resolution 11.4 on 
``Conservation of cetaceans, trade in cetacean specimens and the 
relationship with the International Whaling Commission''. This 
resolution recognizes the primacy of the IWC over whale management and 
conservation.
The Evolution of the IWC
    Finally, it needs to be said that the evolution of the IWC itself 
into a more conservation and welfare oriented organization reinforces 
the interpretation that the IWC is the appropriate international 
organization as envisioned by the negotiators of Article 65 of UNCLOS. 
Some commentators have argued that Article 65 reflects a trend in the 
protection of cetaceans beyond economic value, to include 
considerations of a moral and ethical nature.\30\
---------------------------------------------------------------------------
    \30\ Maffei, M.C., 1992, The Protection of Endangered Species of 
Animals in the Mediterranean Sea in The Law of the Sea: New Worlds, New 
Discoveries, Proceedings of the 26th Annual Conference of the Law of 
the Sea Institute, Edited by Miles & Treves, Law of the Sea Institute, 
Honolulu.
---------------------------------------------------------------------------
    Since the IWC implemented a commercial whaling moratorium in 1986, 
it has placed greater emphasis on conservation of whales than 
regulating their exploitation. For example, it has designated 
established sanctuaries in the Southern and Indian Oceans. Today, a 
majority of IWC members are more concerned with protecting and 
conserving whales (and small cetaceans) than promoting and defending an 
industry that previously decimated whale stocks and proved impossible 
to regulate.\31\ The IWC has also taken on a welfare mandate, advancing 
``humane killing'' and discussing associated welfare issues in various 
committees.
---------------------------------------------------------------------------
    \31\ Kitty Block and Sue Fisher, ``Legal precedents for whale 
protection.''
---------------------------------------------------------------------------
    In addition, the IWC has adopted at least fifteen resolutions whose 
purpose is to improve the welfare of whales, and the most recent 
meeting of the World Parks Congress agreed that marine species require 
``protection'' and that their habitat needs ``conservation'' through 
domestic and high seas protected area systems.\32\
---------------------------------------------------------------------------
    \32\ World Parks Congress, 2003, The Durban Accord and 
Recommendation 5.22 Building a Global System of Marine and Coastal 
Protected Area Networks and Recommendation 5.23 Protecting Marine 
Biodiversity and Ecosystem Processes Through Marine Protected Areas 
Beyond National Jurisdictions, Vth IUCN World Parks Congress, World 
Conservation Union and World Commission on Protected Areas, Durban, 
South Africa.
---------------------------------------------------------------------------
    At this year's 55th annual IWC meeting, the Berlin Initiative was 
passed, strengthening the IWC's conservation agenda by forming an 
official committee to deal with such issues as by-catch and pollution. 
The initiative provides for the creation of a conservation committee to 
draft a ``Conservation Agenda'' as well as the means to implement it. 
This finally brings the IWC into the 21st century, and seems to settle 
the question of the IWC's future direction.
    An International Cetacean Commission, as envisioned by the U.S. at 
the time of the drafting of Article 65 in the late 1970s never 
materialized, the IWC is evolving from an industry based organization 
to one of conservation. A clear majority of IWC members now oppose the 
commercial exploitation of whales and support whale conservation and 
protection. Since Article 65 reflects a worldwide interest in and the 
belief that marine mammals in general and cetaceans in particular are 
unique, and must be protected on a global basis, the only accurate 
interpretation is that the IWC is the ``appropriate international 
organization'' to conserve, manage and study whales. A few whaling 
nations cannot now alter or rewire the history of Article 65 simply 
because they do not wish to honor the conservation measures adopted at 
the IWC. The commercial whaling moratorium adopted at the IWC in 1982, 
and still in place today, reflects the will of nations and civil 
society.\33\ We must not allow the purpose and meaning of article 65 to 
be distorted and become the excuse or justification for whaling nations 
to ignore their conservation obligations at IWC and form a new 
organization that endorses the resumption of commercial whaling.
---------------------------------------------------------------------------
    \33\ In Stockholm in 1972, delegates to the United Nations 
Conference on the Human Environment called for a moratorium on 
commercial whaling. The resolution proposed by the United States called 
for a ten-year moratorium on commercial whaling. It passed by fifty 
three votes to zero (Japan, Brazil and South Africa abstained).
---------------------------------------------------------------------------
    As someone who spent five years working on Article 65 and thirty 
years at the IWC, I am very pleased that the United States intends to 
ratify UNCLOS. I thank you on behalf of our 8 million members and 
constituents for the opportunity to speak on this very important issue 
and to clarify on the record the correct meaning of article 65.\34\
---------------------------------------------------------------------------
    \34\ I would also like to thank Bettina Camcigil, Director of 
Research, Investigative Services, HSUS and Kitty Block, Special Counsel 
to the United Nations and Treaties Department, HSUS, for their help and 
assistance in the researching and the drafting this testimony.

---------------------------------------------------------------------------
                                 ______
                                 

              Prepared Statement of Senator John F. Kerry

    I am very pleased, Mr. Chairman, that you have called these 
hearings on the United Nations Convention on the Law of the Sea, or 
UNCLOS. I have been a longtime supporter of this treaty. The Law of the 
Sea secures important rights for our military, for our commercial 
interests, and for the protection of our marine environment. Senate 
consideration of this comprehensive international agreement has 
languished over the years, and I am encouraged that we might begin to 
make some progress toward ratification.
    UNCLOS establishes important international rules for freedom of 
navigation and the use and conservation of ocean resources. Several 
international fisheries agreements have also been developed under its 
auspices for highly migratory species and straddling stocks. The treaty 
establishes much needed international rules on the rights and 
obligations of countries, as well as limits, for using the world's 
oceans.
    However, as we proceed, we must also consider the potential 
implications of ratification on our coastal interests. We must ensure 
that we will continue to be able to enact laws necessary to protect our 
environment, manage our natural resources, secure our coasts from 
threats, and for similar priorities.
    As the ranking member of the Senate Commerce Committee's 
Subcommittee on Oceans, Fisheries and Coast Guard, I am particularly 
interested in matters related to the protection of our living marine 
resources and the quality of our marine environment. I agree with my 
friend Senator Stevens that we must be extremely careful that UNCLOS 
not be used by other nations to weaken U.S. measures to sustain and 
manage our fisheries.
    Likewise, we must ensure that becoming a party to NCLOS would not 
hamper Congress from enacting important laws to protect such resources 
and the marine environment, including laws such as the Oil Pollution 
Act of 1990, which required double hulls on tank vessels to prevent 
future spills like Alaska experienced with the Exxon Valdez. While the 
U.S. must continue to be firmly engaged in the multilateral process, 
Congress must also be assured that we will have the flexibility to 
enact protections here at home in the absence of international action, 
or that are more stringent than those that can be agreed upon 
internationally.
    Ambiguities in some parts of UNCLOS warrant the development of 
clear understandings of how we will interpret its provisions to ensure 
that our ability to enact such laws are not compromised. For example, 
Article 21 provides strong authority to coastal States to adopt laws 
and regulations related to the management and protection of living 
marine resources and the marine environment for ships in innocent 
passage that pass through their territories. However, it also provides 
that such laws and regulations shall not apply to the ``design, 
construction, manning or equipment of foreign ships,'' unless they are 
implementing ``generally accepted international rules or standards.'' 
Many environmental laws that regulate impacts to the marine environment 
could result in changes to equipment, e.g., performance standards that 
could be met through operational changes or through innovative 
technology developments. If ``design, construction, manning or 
equipment'' measures are interpreted as any measure that may result in 
the use of new technologies, the right of countries to enact domestic 
laws that regulate such impacts under Article 21 could be severely 
undermined.
    Similarly, on security issues, UNCLOS strikes a careful balance 
between the rights of free passage and the ability of coastal States to 
protect their borders. We must ensure that UNCLOS will not interfere 
with our ability to protect our ocean borders from terrorist threats.
    I strongly advocate that the Senate move forward to provide its 
advice and consent on the Law of the Sea Convention. However, as part 
of that process, we must make it clear how the U.S. will interpret 
various provisions of the convention so as to protect our interests 
both internationally and as the coastal State with the largest EEZ in 
the world.
    I look forward to working with you, Mr. Chairman, with you, Senator 
Biden, and with the rest of my colleagues on both the Foreign Relations 
Committee and the Commerce Committee to develop a full record of our 
concerns and agreement on such understandings, and to moving this 
treaty forward.

                                 ______
                                 

         National Marine Manufacturers Association,
                              1819 L Street, NW, Suite 700,
                                 Washington, DC, November 10, 2003.

The Honorable Richard G. Lugar, Chairman,
U.S. Senate Committee on Foreign Relations,
450 Dirksen Senate Office Building,
Washington, DC.

    Dear Chairman Lugar:

    Mr. Chairman, on behalf of the National Marine Manufacturers 
Association (NMMA), I want to commend you and the Senate Foreign 
Relations Committee for holding the two hearings on Tuesday, October 
14, 2003 and Tuesday, October 21, 2003 addressing the topic of the 
United Nations Convention on the Law of the Sea (UNCLOS). NMMA, the 
nation's leading recreational marine trade association, urges the 
Senate to support ratification of UNCLOS. NMMA represents over 1,500 
member companies that are involved in every aspect of the recreational 
boating industry and our members manufacture over 80 percent of all 
recreational boats, engines, trailers, and accessories purchased by the 
boating community in the United States. NMMA urges Senate ratification 
of UNCLOS to complete the accession process and afford the U.S. a full 
participatory role in formulation and implementation of a uniform, 
worldwide law of the seas.
    U.S. accession to UNCLOS is vitally important for several reasons. 
While NMMA did not have an opportunity to testify at either of the 
hearings, it offers the following comments for consideration. First, 
the United States traditionally has been the world leader in protecting 
the rule of law of the oceans to protect navigational freedom upon the 
high seas. Second, accession will provide the U.S. a platform from 
which to better protect U.S. oceans interests. Third, accession will 
enhance U.S. foreign policy by bolstering its commitment to 
multilateralism. NMMA addresses each issue and provides the 
recreational boating perspective on each for your consideration.
    NMMA believes that the single most compelling reason for accession 
is to ensure the freedom of movement of naval, commercial, and 
recreational vessels upon the high seas, which is the most important 
U.S. oceans interest and is threatened by U.S. non-adherence. U.S. 
interests have been undermined because the U.S. has been precluded from 
participation on the various councils, commissions, and tribunals 
established under UNCLOS. Accession will allow the U.S. to participate 
fully in the annual meeting of States Parties. The mere presence of the 
U.S. at this meeting, absent an active role, has seriously jeopardized 
critical navigational freedoms, which were hard won by U.S. negotiators 
during early UNCLOS deliberations. NMMA is concerned that continued 
non-adherence will erode the recreational boating community's freedom 
of movement and from piracy upon the high seas, which, at its most 
basic, means access or the lack thereof.
    Today, there are more recreational boaters than ever before in U.S. 
history. Many in the boating community have benefited greatly from 
technological enhancements in boat design, navigation, and 
communications. Presently, there are nearly 400,000 recreational boats 
65 feet in length or longer in the U.S. alone, and recreational boats 
between 300 and 400 feet in length are not uncommon. All of these boats 
have the capability to travel on the high seas, and provide their 
owners the opportunity to travel to many interesting and exciting ports 
of call. Like their naval and commercial brethren, U.S. recreational 
boaters benefit from freedom of navigation upon the high seas as well 
as freedom from piracy. U.S. involvement in the protection of these 
interests is a vital concern to the entire recreational boating 
community including the recreational boating industry. Of course, 
navigational freedoms are not the only benefit of accession to UNCLOS.
    U.S. accession to UNCLOS also will ensure other vital U.S. oceans 
interests. These interests are varied, but they all have one thing in 
common, the need for a coherent, standard, well-vetted worldwide rule 
of law--a constitution of the sea.

   Accession to UNCLOS will ensure protection of U.S. economic 
        interests by allowing for the stability necessary to foster 
        economic development of the seabed including oil, gas, and 
        mineral exploration and exploitation as well as protecting the 
        burgeoning recreational marine industry in the United States.

   UNCLOS also provides a stable atmosphere for scientific 
        exploration and discovery, another issue of access that will 
        affect the recreational boater because allowing access sets a 
        precedent of freedom of navigation and use of the world's 
        oceans.

   UNCLOS provides for meaningful environmental protection and 
        monitoring because it establishes a mechanism for the 
        coordination and implementation of a worldwide environmental 
        policy, which impacts the recreational boater directly and 
        positively by providing for a cleaner more pristine environment 
        in which to engage in the pursuit of boating.

   UNCLOS promotes the strong obligation for resource 
        management including fisheries management, a vital interest for 
        many recreational boaters. UNCLOS' provisions on fisheries 
        management are consistent with U.S. domestic fisheries laws as 
        well as U.S. international fisheries agreements and 
        understandings.

   Finally, accession will signal to the international 
        community the U.S. commitment to multilateralism, and will 
        foster an atmosphere conducive to the rule of law, which will 
        impact the recreational boater by providing a structure and 
        mechanisms to address international concerns that may affect 
        the recreational boater, particularly the world traveling 
        boater.

    NMMA is hopeful that the U.S. will soon take its rightful seat at 
the table and strongly urges the Senate to support ratification of 
UNCLOS. NMMA is offering its services in an effort to ensure 
ratification. Please do not hesitate to contact Jeffrey Gabriel of my 
staff or email [email protected]
            Sincerely,
                                  Monita W. Fontaine, Esq.,
                              Vice President, Government Relations.

                                 ______
                                 

   Prepared Statement of U.S. Arctic Research Commission, George B. 
                         Newton, Jr., Chairman

    Chairman Lugar, Senator Biden, members of the Senate Committee on 
Foreign Relations, thank you for this opportunity to enter my comments 
into the record of your hearings. I speak on behalf of the United 
States Arctic Research Commission which I chair. The Arctic Research 
Commission is an independent agency of the U.S. government created by 
the Arctic Research and Policy Act of 1984 (as amended). By the Act, we 
report to both the President and Congress. Our principal responsibility 
is to recommend to the President and to the Congress Arctic research 
policies and priorities for the United States. Other duties include: 
promotion of inter-agency research cooperation; promotion of 
international, state, and local research activity; facilitation of data 
sharing; and enabling improved Arctic research logistics. The 
Commission does not fund research. In fact the Commission budget just 
pays for its administration. Our effectiveness comes from the ``bully 
pulpit'', our ability to put the hand of one research organization into 
the hand of another, or similarly, our ability to convince someone that 
a specific area of research should be undertaken. One last item: we are 
one of the smallest agencies in our Government.
    Given the foregoing, why is the Arctic Research Commission 
interested in accession of the United States to the UN Convention on 
the Law of the Sea?
    The Commission wishes to address you for two reasons. The first is 
our concern for the future of U.S. research in the Arctic Ocean, 
particularly in areas that may be claimed by other nations as 
extensions of their continental shelf under the provisions of Article 
76 of the Law of the Sea Treaty.
    We will address specific concerns for Arctic Ocean research and the 
Law of the Sea later in this statement. However, at the outset we must 
accept that the Arctic is the most poorly understood Ocean on earth. 
What little we do know clearly indicates that it has significant 
influence on the world climate, and is right now changing dramatically. 
With an increasingly accessible Arctic, exploitation opportunities will 
follow with attendant environmental impacts. The knowledge produced by 
our research efforts underlies these factors, and thus, leads to the 
other areas of national concern that we address in the following 
paragraphs.
    The second reason therefore is as American citizens. The evolving 
conditions in the Arctic Ocean which we address (in addition to 
research) will affect the U.S. in the following areas: international 
security (our term for terrorism), national security, economic 
development, commerce and diplomacy. Specifically, if this country does 
not accede to the Law of the Sea Treaty, each of these necessary and/or 
productive areas of national interest will be complicated or worse yet, 
be precluded in the Arctic Ocean.
    Through our accession to the Law of the Sea Treaty we as a Nation 
can make a statement that we will be preeminent in the Arctic Ocean. If 
we do not, we effectively cede the Ocean, which touches our border, to 
the rest of the world.
    Why is the Arctic Ocean so critical? And why now?

          1. Up to now, the Arctic Ocean has been largely ignored and 
        under appreciated. The Arctic Ocean has never been seen as an 
        economic contributor to our Nation.

          2. Thus, it is an ocean we do not understand. However, 
        emerging signs say its exploitation may yield great national 
        opportunities.

          3. The Arctic climate is changing. Some experts predict that 
        the Arctic Ocean will be ice free for ninety days or more in 
        the summer by the year 2050. Less ice means greater 
        accessibility and therefore, demands our consideration of all 
        things that are now considered routine in and on the temperate 
        oceans of the world.

    Please allow us to address the six areas of our concern for the 
nation's role in the Arctic and our accession to the Treaty.
                                research
    Russia is at this time the only country to have submitted a claim 
to extend the outer limits of her continental shelf, as allowed under 
Article 76 of the Treaty. It has not yet been approved. Russia's 
submitted claim covers roughly 45% of the Arctic Ocean bottom. Article 
76 grants to nations with approved claims control over all resources on 
or under the seabed, all ocean bottom research, cables and pipelines. 
The body that adjudicates all claims, the Commission on the Limits of 
the Continental Shelf (CLCS), is composed of representatives of states 
party to the Treaty. Its meetings are closed and no observers are 
allowed. The U.S. is therefore, unable to comment on Russia's (or any 
other nation's) claim. Ultimate approval of Russia's claim will convey 
authority in the approved area to access for any nation to conduct 
research on and/or beneath the ocean seabed. It is of concern that 
Russia has not granted access to U.S. research vessels seeking 
clearance to work inside the Russian 200 mile EEZ in nearly 10 years 
where, under the Treaty, similar clearance requirements exist. 
Knowledge of the ocean bottom and sub-bottom is fundamental to 
understanding the Arctic Ocean itself.
                           national security
    With more open water in the Arctic will come greater use of that 
ocean by all nations. More than a score of nations have active Arctic 
research programs. The U.S./Alaska coastline on the Arctic Ocean is 
over 1000nm (  1850km). These two facts carry with them the need to 
exercise sea control and protection on another ocean, or cede that role 
to whichever nation is willing to assume it.
                         international security
    With a long, unprotected and essentially unmanned border in the 
Arctic, drug trafficking, illegal immigration and potential terrorist 
entry become relevant issues.
                          economic development
    The U.S. claim under Article 76 of UNCLOS is expected to add an 
area of about 62,000 sq. km on the Chukchi Cap (This is an area roughly 
equal to the area of West Virginia). With accession to the treaty and a 
successful claim the U.S. would have the sole right to the exploitation 
of all the resources on or under the ocean bottom. Of relevance is the 
fact that oil/gas potential of the area is estimated to be high.
    One naturally thinks that the challenge of producing oil and gas 
offshore in the harsh, dynamic and ice infested Arctic is too difficult 
to overcome. But oil is produced safely and effectively in other ocean 
areas that experience rough weather, namely the North Sea and the Gulf 
of Mexico. Furthermore we believe that if viable oil prospects are 
discovered, existing technologies will be adapted and new techniques 
developed which will enable access to the Chukchi Cap and offshore the 
Nortji Slope for ocean drilling and production safe from sea ice.
    As examples: an appraisal well was recently drilled in the Gulf of 
Mexico in a water depth of 2951 meters (9682 feet). Other producing 
wells exist at depths of up to 2197 meters (7208 feet) and some 
floating platforms receive oil from wells that are over 200nm away. 
These potential resources could make large contributions to U.S. energy 
independence in the lives of our children and grand children.
                                commerce
    As environmental change proceeds in the Arctic, greater 
accessibility, driven by less ice will allow a longer shipping season. 
With more open water and a longer season, ocean commerce is sure to 
increase, for the distance between Seattle and Hamburg, Germany (for 
example) it is just about 40% shorter than it is via either of the 
canals. With such a clear savings, the Arctic becomes the faster, 
cheaper equivalent of either the Panama or Suez Canals and, in the case 
of the Northwest Passage, is entirely in the control of well 
established allies.
    Similarly it is logical to expect a desire to extend the shipping 
season even more using ice strengthened ships. This in turn means cargo 
will be transferred from the ice strengthened ships to normal cargo 
carriers at the first port opportunity after completing the Arctic 
Ocean passage. We see great opportunity for the U.S. to develop cargo 
transfer facilities at ports such as Dutch Harbor and Adak, in the 
Aleutian Island chain.
                               diplomacy
    Lastly, we offer a few thoughts about the impact on diplomacy 
gained by acceding to the treaty and conducting the Article 76 surveys 
in the Arctic.
    First of all, a recent international meeting on extending 
continental limits under the Law of the Sea, attended by 
representatives from over 50 nations, included 11 of the 21 members of 
the CLCS. Three of the CLCS members in attendance sought us out to 
encourage us to do all we can to gain U.S. accession. The reasons cited 
were U.S. leadership in general and the data quality standard the U.S. 
could set through submission of our claim under Article 76.
    Secondly, our Western Arctic neighbors are getting very close to 
accession. The Danish parliament has approved the Treaty and they await 
final (and apparently imminent) approval by the Greenland Home Rule 
government. Representatives within the Canadian government indicate 
that accession may well occur early in the coming year. The Commission 
believes that we should join them, as it is in our mutual interest to 
work cooperatively in the Arctic.
    Finally, without acceding to the treaty we are unable to use the 
dispute resolution process created under the treaty and, as a 
consequence, are unable to effectively interact with other nations in 
solving the difficulties that from time to time arise in our maritime 
enterprises ranging from research, through commerce and fishing, to 
military activities and border security.
                             in conclusion
    The aforementioned changes to the Arctic Ocean are becoming 
apparent now and will develop over the next forty plus years, well 
beyond the horizon of preparation and planning we normally practice in 
this country. We entreat you to take the long view. The time to start 
is NOW. The progress and development needed to exploit the Arctic fully 
when we are able, will take time but if we start now we can avoid 
playing expensive catch up ball in a crisis mode. Securing our 
interests by acceding to the Law of the Sea Treaty is the critical 
first step.
    Thank you very much for this opportunity to convey to you the 
recommendations of the United States Arctic Research Commission. Please 
feel free to contact the Commission if there is any further information 
we can provide.

          United States Arctic Research Commission,
                       4350 North Fairfax Drive, Suite 510,
                            Arlington, VA 22203, February 23, 2004.

The Honorable Richard G. Lugar,
Chair, Senate Foreign Relations Committee,
United States Senate,
Senate Dirksen Office Building, Room SD-450,
Washington, DC 20510

    Dear Senator Lugar:

    Incident to your hearings held to address accession by the United 
States to the United Nations Convention on the Law of the Sea (UNCLOS), 
as Chair of the U.S. Arctic Research Commission, I provided testimony 
for the record in support of such action.
    In mid-November, the full Commission met in formal session in 
Washington and agreed unanimously that the United States should ratify 
the UNCLOS Treaty at the earliest practicable opportunity and directed 
Staff to prepare a formal resolution confirming that position to our 
reporting Seniors--the President and the Congress.
    Forwarded herewith are copies of the Commission resolution sent 
earlier to the President, the President (Pro tem) of the Senate, and 
the Speaker of the House.
    The U.S. Arctic Research Commission remains at your disposal to 
assist your efforts leading to timely accession to UNCLOS.
            Sincerely,
                               George B. Newton, Jr., Chair

          United States Arctic Research Commission,
                       4350 North Fairfax Drive, Suite 630,
                             Arlington, VA 22203, January 14, 2004.

The Hon. Ted Stevens,
President pro tempore,
The United States Senate,
Senate Hart Office Building,
Washington, DC, 20510

    Dear Senator Stevens,

    At its meeting on the 19th and 20th of November 2003 the Arctic 
Research Commission heard a series of witnesses on the importance of 
the United Nations Convention on the Law of the Sea (UNCLOS). The 
Commissioners concluded that it was in the nation's interest that we 
become a party to the Convention.
    The benefits of acceding to UNCLOS include:

   The opportunity to participate in the dispute resolution 
        systems established by the Convention.

   The opportunity to serve on bodies such as the Commission on 
        the Limits of the Continental Shelf which will consider claims 
        for extensions of the continental margin of all nations 
        applying.

   The opportunity to participate in decisions regarding 
        amendments to the Convention which will open for amendments in 
        the coming year. The opportunity to represent the nation's 
        interests in freedom of navigation through strategic straits.

    In particular, the Commissioners recommend that we proceed to 
collect the information necessary for a claim to increase the area of 
influence of the United States under UNCLOS Article 76 which allows for 
national claims to extensions of their continental margins.
    A copy of the Commission's resolution is attached. Please feel free 
to call on the United States Arctic Research Commission for any 
information we may be able to provide.
            Sincerely,
                               George B. Newton, Jr., Chair

                               RESOLUTION

    At its recent meeting in Washington the Arctic Research Commission 
heard from several witnesses concerning the importance of accession to 
the United Nations Convention on the Law of the Sea (UNCLOS) by the 
United States. The Commission has been studying the implications of 
UNCLOS for some time. In addition, the Commissioners and Staff have 
participated in several international meetings on the Convention. The 
provisions of UNCLOS Article 76 are particularly important to the 
Commission as the potential for an extension of the US continental 
margin in the Arctic Ocean is substantial and the necessary data must 
be acquired soon in order to support a US claim. As a consequence of 
our studies:

the United States Arctic Research Commission supports United States 
accession to the United Nations Convention on the Law of the Sea.

                                 ______
                                 

Fact Sheet

The White House, Office of the Press Secretary

Washington, DC

September 4, 2003

Proliferation Security Initiative: Statement of Interdiction Principles

    The Proliferation Security Initiative (PSI) is a response to the 
growing challenge posed by the proliferation of weapons of mass 
destruction (WMD), their delivery systems, and related materials 
worldwide. The PSI builds on efforts by the international community to 
prevent proliferation of such items, including existing treaties and 
regimes. It is consistent with and a step in the implementation of the 
UN Security Council Presidential Statement of January 1992, which 
states that the proliferation of all WMD constitutes a threat to 
international peace and security, and underlines the need for member 
states of the UN to prevent proliferation. The PSI is also consistent 
with recent statements of the G8 and the European Union, establishing 
that more coherent and concerted efforts are needed to prevent the 
proliferation of WMD, their delivery systems, and related materials. 
PSI participants are deeply concerned about this threat and of the 
danger that these items could fall into the hands of terrorists, and 
are committed to working together to stop the flow of these items to 
and from states and non-state actors of proliferation concern.
    The PSI seeks to involve in some capacity all states that have a 
stake in nonproliferation and the ability and willingness to take steps 
to stop the flow of such items at sea, in the air, or on land. The PSI 
also seeks cooperation from any state whose vessels, flags, ports, 
territorial waters, airspace, or land might be used for proliferation 
purposes by states and non-state actors of proliferation concern. The 
increasingly aggressive efforts by proliferators to stand outside or to 
circumvent existing nonproliferation norms, and to profit from such 
trade, requires new and stronger actions by the international 
community. We look forward to working with all concerned states on 
measures they are able and willing to take in support of the PSI, as 
outlined in the following set of ``Interdiction Principles.''
   interdiction principles for the proliferation security initiative
    PSI participants are committed to the following interdiction 
principles to establish a more coordinated and effective basis through 
which to impede and stop shipments of WMD, delivery systems, and 
related materials flowing to and from states and non-state actors of 
proliferation concern, consistent with national legal authorities and 
relevant international law and frameworks, including the UN Security 
Council. They call on all states concerned with this threat to 
international peace and security to join in similarly committing to:

          1. Undertake effective measures, either alone or in concert 
        with other states, for interdicting the transfer or transport 
        of WMD, their delivery systems, and related materials to and 
        from states and non-state actors of proliferation concern. 
        ``States or non-state actors of proliferation concern'' 
        generally refers to those countries or entities that the PSI 
        participants involved establish should be subject to 
        interdiction activities because they are engaged in 
        proliferation through: (1) efforts to develop or acquire 
        chemical, biological, or nuclear weapons and associated 
        delivery systems; or (2) transfers (either selling, receiving, 
        or facilitating) of WMD, their delivery systems, or related 
        materials.

          2. Adopt streamlined procedures for rapid exchange of 
        relevant information concerning suspected proliferation 
        activity, protecting the confidential character of classified 
        information provided by other states as part of this 
        initiative, dedicate appropriate resources and efforts to 
        interdiction operations and capabilities, and maximize 
        coordination among participants in interdiction efforts.

          3. Review and work to strengthen their relevant national 
        legal authorities where necessary to accomplish these 
        objectives, and work to strengthen when necessary relevant 
        international law and frameworks in appropriate ways to support 
        these commitments.

          4. Take specific actions in support of interdiction efforts 
        regarding cargoes of WMD, their delivery systems, or related 
        materials, to the extent their national legal authorities 
        permit and consistent with their obligations under 
        international law and frameworks, to include:

                  a. Not to transport or assist in the transport of any 
                such cargoes to or from states or non-state actors of 
                proliferation concern, and not to allow any persons 
                subject to their jurisdiction to do so.

                  b. At their own initiative, or at the request and 
                good cause shown by another state, to take action to 
                board and search any vessel flying their flag in their 
                internal waters or territorial seas, or areas beyond 
                the territorial seas of any other state, that is 
                reasonably suspected of transporting such cargoes to or 
                from states or non-state actors of proliferation 
                concern, and to seize such cargoes that are identified.

                  c. To seriously consider providing consent under the 
                appropriate circumstances to the boarding and searching 
                of its own flag vessels by other states, and to the 
                seizure of such WMD-related cargoes in such vessels 
                that may be identified by such states.

                  d. To take appropriate actions to (1) stop and/or 
                search in their internal waters, territorial seas, or 
                contiguous zones (when declared) vessels that are 
                reasonably suspected of carrying such cargoes to or 
                from states or non-state actors of proliferation 
                concern and to seize such cargoes that are identified; 
                and (2) to enforce conditions on vessels entering or 
                leaving their ports, internal waters or territorial 
                seas that are reasonably suspected of carrying such 
                cargoes, such as requiring that such vessels be subject 
                to boarding, search, and seizure of such cargoes prior 
                to entry.

                  e. At their own initiative or upon the request and 
                good cause shown by another state, to (a) require 
                aircraft that are reasonably suspected of carrying such 
                cargoes to or from states or non-state actors of 
                proliferation concern and that are transiting their 
                airspace to land for inspection and seize any such 
                cargoes that are identified; and/or (b) deny aircraft 
                reasonably suspected of carrying such cargoes transit 
                rights through their airspace in advance of such 
                flights.

                  f. If their ports, airfields, or other facilities are 
                used as transshipment points for shipment of such 
                cargoes to or from states or non-state actors of 
                proliferation concern, to inspect vessels, aircraft, or 
                other modes of transport reasonably suspected of 
                carrying such cargoes, and to seize such cargoes that 
                are identified.

    [Also: Principles for the Proliferation Security Initiative and 
Proliferation Security Initiative--Paris Meeting of Core Participants, 
September 3-4, 2003]

                                 ______
                                 

   Prepared Statement of World Wildlife Fund, Brooks B. Yeager, Vice 
                   President, Global Threats Program

    1. The UN Law of the Sea (LOS) Convention establishes an important 
foundation for the further development and implementation of effective 
measures for sustainable ocean use. In important respects, the 
Convention serves as a dynamic, living constitution for the oceans. The 
Convention provides a legal framework for virtually all activities in 
over two-thirds of the Earth's surface. It sets forth the rights and 
obligations of nations in using the ocean and its resources. Agenda 21, 
in its chapter 17 on oceans and coasts, recognizes LOS Convention 
provisions as ``the international basis upon which to pursue the 
protection and sustainable development of the marine and coastal 
environment and its resources'' (17.1).\1\
---------------------------------------------------------------------------
    \1\ This statement is drawn from a more detailed statement 
initially prepared by Clifton Curtis in 1995, updated in December 1998, 
with the statement endorsed by WWF and more than 60 other U.S.-based 
environmental organizations. See also: The United Nations Convention on 
the Law of the Sea and the Marine Environment: A Non Governmental 
Perspective, Clifton E. Curtis, Geo. Int'l Envtl. L. Rev. 7:739-743 
(1995).
---------------------------------------------------------------------------
    2. Summarily stated, the LOS Convention covers navigation and 
overflight, fishing and conservation of marine living resources, marine 
mammals, the development of minerals in offshore and deep seabed areas, 
marine environmental protection, marine scientific research, maritime 
boundaries, the laying of submarine cables and pipelines, artificial 
islands and seabed installations, piracy, illicit drug trafficking, and 
dispute settlement. It substantially modifies the pre-existing ocean 
law regime as codified in the four 1958 Geneva Conventions. It expands 
coastal state sovereign rights over resources and other activities 
related to the economic exploration and exploitation within a 200-mile 
exclusive economic zone (EEZ). Where the legal continental shelf 
extends beyond 200 miles, the coastal state enjoys sovereign rights 
over seabed resource activities further offshore.
    3. The benefits of the LOS Convention are substantial. They 
outweigh any real or perceived drawbacks. The Convention's basic 
obligations for all states to protect and preserve the marine 
environment and to conserve marine living species, its call for the 
further development of global and regional rules on these subjects, and 
the framework of principles and objectives it establishes for that 
development, represent significant steps forward. These benefits 
advance global objectives in environmental protection and resource 
conservation. It would be far more difficult to negotiate the 
Convention's fundamental obligations on environmental protection and 
species conservation in more limited-purpose regional and global 
agreements.
    4. Part XII of the LOS Convention (``Protection and Preservation of 
the Marine Environment'') is the first comprehensive statement of 
international law on this subject, going well beyond the 1958 
conventions. It establishes unqualified obligations for all states to 
protect and preserve the entire marine environment, subject to 
compulsory, binding dispute settlement. All states are obliged to 
prevent, reduce, and control marine pollution from all sources, 
including the release of toxic, harmful or noxious substances.
    5. The unique relationships established between the Convention and 
other international marine agreements leverage the continual 
development and upgrading of international rules and standards and of 
recommended practices and procedures, which in turn are to form the 
basis for national laws and regulations. The articles on marine 
pollution control establish a symbiotic relationship between the LOS 
Convention and other issue-specific environmental agreements, such as 
the London Convention (LC), vessel-source pollution agreements like 
MARPOL 73/78, and regional seas agreements.
    6. Pursuant to Articles 210(6), 216, and 237 of the LOS Convention, 
international rules and standards agreed pursuant to global agreements 
such as those on vessel-source pollution, dumping, and pollution from 
seabed development are generally considered applicable to states 
parties to the LOS Convention. Those states must adopt and enforce laws 
and regulations and other measures that are no less effective than the 
global rules and standards. Moreover, the obligation to enact and 
enforce national laws that are no less effective than these 
international rules is an ongoing one as regards future changes in 
relevant issue-specific treaty regimes. Governments may enact more 
stringent laws for their own nationals, but the international rules and 
standards establish a common floor.
    7. The relationship between international rules and national laws 
is, unfortunately, not as advanced in relation to land-based and 
airborne sources (LBS) of marine pollution. Nonetheless, national LBS 
measures must take into account any international LBS rules and 
standards or recommended practices and procedures. Moreover, evolving 
international measures, binding and non-binding, will inform and may be 
taken into account as relevant rules of international law (as per Art. 
31(3) of the Vienna Convention on the Law of Treaties) in related 
dispute settlement proceedings. Such evolving measures include, among 
others, the Global Program of Action adopted at the Washington 
Conference for the Protection of the Marine Environment from Land-Based 
Activities (23 October-3 November 1995).
    8. Parts V and VII of the Convention govern the conservation, 
protection, and management of marine species. They establish 
fundamental obligations to conserve marine living resources. Article 
65, for example, specifically exempts marine mammals in general and 
cetaceans in particular from any general requirements of maximum usage 
by providing that appropriate international organizations, such as the 
IWC, may prohibit or limit the exploitation of marine mammals. In this 
regard, the Earth Summit's Agenda 21 (17.62a and 17.90a) specifically 
recognizes the IWC as the international organization responsible for 
the conservation and management of whales.
    9. Coastal states are required to conserve and manage EEZ living 
resources to ensure that they are not endangered by over-exploitation, 
and they are to cooperate with other states in managing species that 
migrate into areas under other states' jurisdiction or the high seas. 
All states have the duty to apply to their nationals fishing on the 
high seas measures necessary to conserve living resources and to 
cooperate with others in conserving and managing these resources. While 
there are limitations on the application of compulsory binding dispute 
settlement to national measures regarding EEZ fisheries, there are no 
limitations regarding conservation measures enacted by states fishing 
on the high seas.
    10. Like those on marine environmental protection, the fisheries 
provisions establish important principles for further development of 
regional/global fisheries agreements. These provisions promote 
sustainable use, based on ``best available'' scientific evidence, and, 
as considered below, they set the stage for a more fully-articulated 
ecosystem management approach. Today, this is best exemplified by the 
ecosystem conservation standard set forth in the 1980 Convention on the 
Conservation of Antarctic Marine Living Resources. Similarly, the 1995 
UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks 
(UN Fisheries Agreement) contains important advances, among them its 
commitment to a precautionary approach to fisheries management, and its 
strong compliance and enforcement measures for high seas areas--
measures that will help ensure effective application of that regime's 
conservation measures.
    11. Also like the marine environmental protection provisions, 
general fisheries conservation and management obligations in the LOS 
Convention are reinforced by specific requirements, practices, and 
criteria established in other sub-regional, regional, and global 
agreements. These ``generally recommended'' international minimum 
standards must be taken into account in the conservation measures set 
by coastal states and by states fishing on the high seas (Arts. 61.3 
and 119.1). They also may be taken into account as relevant rules of 
international law in related dispute settlement proceedings.
    12. At the same time, substantial further developments, building on 
LOS Convention provisions, are warranted. Clearly, the LOS Convention 
does not, in our view, address all ocean uses adequately. For matters 
such as the application of the precautionary approach, fisheries 
conservation measures, protections against invasive species, land-based 
sources of marine pollution, deep seabed mining, liability, and polar-
related initiatives, among others, there is a clear need for more 
focused and more effective requirements.
    13. Moreover, safeguards need to be taken to ensure that the 
Convention's dispute settlement or other provisions are not used to 
vitiate or curtail more stringent environment and conservation measures 
and standards, such as those matters referenced in paragraph 12, above. 
For that purpose, WWF believes that when United States deposits its 
instrument of accession, it should attach a note clarifying the United 
States' understanding that the Convention does not affect its right to 
utilize such measures as it, in its sole discretion, considers 
appropriate for the preservation of the marine environment, including 
but not limited to the living resources thereof.
    14. As stated at the outset of this statement, the LOS Convention 
establishes an important foundation, or framework, for the further 
development and implementation of effective global, regional, sub-
regional and national measures for protection, conservation and 
sustainable use of the ocean. At the same time, substantial further 
developments are warranted in relation to matters such as those 
addressed above. Despite these areas requiring further attention, WWF 
is firmly convinced, overall, that U.S. support for and accession to 
the Convention is merited, serving as the foundation for further 
progressive development of ocean-related international law and policy.

                              ----------                              


       Responses to Additional Questions Submitted for the Record


   Responses of William H. Taft, IV, Legal Adviser, and Hon. John F. 
      Turner, Assistant Secretary of State, Bureau of Oceans and 
   International Environmental and Scientific Affairs, to Additional 
     Questions for the Record Submitted by Senator Richard G. Lugar

    Question 1. Describe the circumstances under which the Convention 
would provide for the United States to permit foreign fishers to fish 
in waters subject to U.S. jurisdiction. Has the United States ever had 
an unharvestable surplus of any relevant fish species that would be 
subject to allocation under the treaty? Is the United States likely to 
have any such surplus in the future?

    Answer. During the 1970s and 1980s, U.S. fishermen did not have the 
capacity to harvest all of the allowable catch in waters within 200 
miles of our coast. Indeed, one of the driving forces behind the 
Fishery Conservation and Management Act of 1976 was to develop U.S. 
capacity and eventually to replace foreign fleets with American ones in 
the U.S. 200-mile zone. The Act requires the regional fishery 
management councils to determine the optimum yield from each fishery, 
and then to estimate what part of that yield could be harvested by U.S. 
fishermen (16 U.S.C. Sec. 1821(d), Sec. 1853(a) (3) and (4)). The 
surplus, or ``total allowable level of foreign fishing'' (TALFF), is 
then to be allocated to foreign fleets (16 U.S.C. Sec. 1821(e)). This 
scheme is completely consistent with the treaty, which gives each 
coastal State the discretion to determine the allowable catch within 
its EEZ (article 61(1)), to ensure that resources are not overexploited 
(article 61(2)), and to determine its capacity to harvest such 
resources and to give other States access to any surplus under 
reasonable conditions (article 62(2)); see also article 297(3)(a).
    The United States achieved the goal of full capacity in the early 
1990s. With one small exception (Atlantic mackerel and herring in 
2001), no regional fishery management council has identified a TALFF in 
more than a decade. The United States is unlikely to have any surplus 
in the future, as American capacity to take most species far exceeds 
the allowable catch.
    Senator Stevens, in his testimony before the Committee, raised this 
question in the context of Alaska fisheries, where the council sets an 
``acceptable biological catch'' for each fishery, and then sets an 
annual ``total allowable catch.'' The difference between the ABC and 
the TAC is not considered surplus. The difference between the two is a 
cushion dictated by conservative management, in accordance with article 
61(2). Only if U.S. fishermen could not harvest the entire TAC would 
the question of surplus arise (article 62(2)).
    It should be noted that no other party to the Convention could 
bring the United States to binding dispute resolution over the issue of 
fisheries allocations within the U.S. exclusive economic zone (article 
297(3)(a)).

    Question 2. The Executive Branch's 1994 transmittal package 
indicates that, at that time, the United States had Governing 
International Fishery Agreements (GIFAs) in force with five nations. 
Has the United States concluded any additional GIFAs since then? Is the 
United States currently negotiating any additional GIFAs?

    Answer. No new GIFAs have been negotiated or concluded since 1994. 
Those in force are with Lithuania, PRC, and the Russian Federation. The 
Russian GIFA, under which a mackerel and herring joint venture has been 
conducted in Narragansett Bay, will expire December 31, 2003, unless it 
is extended. A GIFA with Estonia expired June 30, 2003, and is in the 
process of being renewed; an expired GIFA with Latvia might also be 
renewed.

    Question 3. How, if at all, would the Convention require the United 
States to change its regulation of fisheries under the Magnuson-Stevens 
Fishery Conservation and Management Act?

    Answer. No change would be required. The Act fully enables the 
United States to exercise its rights and to implement its obligations 
with respect to the provisions of the Convention relating to fisheries. 
U.S. law and practice are also fully consistent with the provisions of 
the Convention relating to fishing on the high seas and dealing with 
particular categories of species, such as straddling fish stocks and 
anadromous stocks.

    Question 4. Beyond the specific oceans policy advantages of joining 
the Convention mentioned in the administration's testimony, are there 
also more general advantages for U.S. policy to joining the Convention 
at this time?

    Answer. Yes. We believe that U.S. accession to a major multilateral 
treaty such as the Law of the Sea Convention would yield foreign policy 
benefits. U.S. adherence would signal that we remain engaged in 
multilateral regimes that address important environmental and economic 
issues. U.S. accession would also demonstrate to the international 
community that, when the United States asks for a treaty to be modified 
to address particular concerns and those modifications are made, we 
will join the treaty.

    Question 5. What issues are raised for U.S. interests by the claim 
filed by Russia with the Commission on the Limits of the Continental 
Shelf to define the extent of its outer continental shelf? How would 
being party to the Convention affect the ability of the United States 
to protect such interests?

    Answer. As reflected in the Convention, a coastal State exercises 
sovereign rights over the continental shelf for the purpose of 
exploring it and exploiting its natural resources, including, e.g., oil 
and gas. The Convention permits a coastal State to claim continental 
shelf beyond 200 miles from its baselines, provided it meets certain 
criteria. For example, the continental margin does not include the deep 
ocean floor with its oceanic ridges.
    A coastal State claiming shelf beyond 200 miles from its baselines 
is to make a submission to the Commission on the Limits of the 
Continental Shelf, which makes recommendations to coastal States 
related to establishing the outer limits of their shelf. To the extent 
a coastal State establishes its outer limits based on such 
recommendations, its outer limits are final and binding.
    The United States has an obvious stake in the effective functioning 
of the Commission, which only recently received its first submission. 
The United States expects to submit scientific evidence to support its 
own extended shelf, e.g., off the Atlantic Coast, in the Bering Sea, 
and in the Arctic Ocean off Alaska. We also have a strong interest in 
ensuring that the submissions of other States meet the Convention's 
criteria. Finally, the proper interpretation and application of the 
Convention's provisions are important for the stability and general 
acceptability of the law of the sea regime reflected in the Convention.
    Specifically with respect to Russia's submission, the United States 
is concerned that it included certain extensive ridges in the Arctic 
Ocean that we do not consider meet the Convention's criteria for the 
continental shelf. The United States submitted its views, with 
supporting documentation, to the Commission (posted on the CLCS Web 
site). The resolution of this issue has implications for natural 
resource development, scientific research, and strategic interests in 
the Arctic.
    By becoming party to the Convention, the United States would be 
better able to protect its interests in several ways. U.S. comments on 
other parties' submissions to the Commission would carry added weight. 
The United States would be able to nominate a commissioner, whose 
expertise would help shape the Commission's recommendations. Finally, a 
U.S. submission of scientifically sound information on the outer limits 
of the broad continental shelf off our coasts would enable us to 
establish our outer limits as final and binding in accordance with 
article 76(8).

    Question 6. What effect, if any, would the Convention have on the 
ability of the United States to implement its existing regulations 
requiring oil tankers calling at U.S. ports to be double-hulled?

    Answer. The Convention does not affect our ability to implement the 
provision of the Oil Pollution Act of 1990 (OPA 90) that requires oil 
tankers intending to enter a U.S. port to be fitted with a double hull, 
in accordance with a statutorily established phase-in schedule. 
Concerning U.S. tankers, article 211(2) of the Convention in fact 
affirmatively calls upon States to adopt laws and regulations for the 
prevention, reduction, and control of pollution of the marine 
environment from vessels flying their flag or of their registry. 
Concerning foreign tankers, article 211(3) specifically recognizes the 
right of port States to establish their own requirements relating to 
vessel source pollution as a condition of entry of foreign vessels into 
their ports or internal waters or for a call at their offshore 
terminals. It obligates States to give due publicity to any such 
requirements and to communicate them to the International Maritime 
Organization (IMC).
    Therefore, implementation of the double hull provisions in OPA 90 
for oil tankers, whether foreign-flagged or domestic, is fully 
consistent with and supported by the Convention.

    Question 7. When does the administration expect to submit to the 
Congress proposed implementing legislation for Annex VI of the 
International Convention for the Prevention of Pollution from Ships?

    Answer. The draft implementing legislation for Annex VI is 
scheduled to undergo interagency review and clearance in December 2003. 
Pending resolution of any issues identified in the review and 
procedural considerations for formal submittal of the legislation, we 
expect the draft legislation will be ready for consideration by 
Congress in early 2004.

                                 ______
                                 

  Responses of Rear Admiral John E. Crowley, Chief Counsel and Judge 
  Advocate General, U.S. Coast Guard, to Additional Questions for the 
            Record Submitted by Senator Joseph R. Biden, Jr.

                               article 27
    Question 1. Article 27 indicates that a coastal State has criminal 
jurisdiction over a foreign ship that is passing through the 
territorial sea if the consequences of the crime extend to the coastal 
State.

   How is this interpreted with respect to transnational crimes 
        that we believe affect all states, like terrorism and the 
        illicit trafficking of people and arms?

   Is there any corollary right on the high seas or in the 
        contiguous zone? If not, are there other legal regimes that do 
        provide such a right?

    Answer. Article 27, concerning criminal jurisdiction on board a 
foreign ship, is taken almost verbatim from Article 19 of the 1958 
Territorial Sea Convention, to which the United States is a party. As 
such, it continues the codification of a longstanding principle of 
international law.
    This Article attempts to strike a reasonable balance between the 
criminal jurisdiction of the coastal State and that of the flag State. 
On the one hand, States with shipping interests wish to suffer as 
little disruption or interference as possible as their vessels transit 
through the territorial waters of another State. On the other hand, 
coastal States may regard certain actions by or aboard the transiting 
ship as so inimical to their interests that they require invocation of 
their criminal laws. Article 27 is the result of international 
negotiation that resolves these competing interests.
    Article 27 sets forth several bases for coastal State exercise of 
criminal jurisdiction on board a foreign ship passing through the 
territorial sea, including crimes where the consequences of the crime 
extend to the coastal State and where the crime was of a kind to 
disturb the peace of the country or the good order of the territorial 
sea. Depending upon the particular facts, there are a host of criminal 
statutes primarily contained within Title 18 of the United States Code 
that could be applied to prosecute those involved in terrorist acts and 
the trafficking of persons and arms in our territorial sea.
    On the high seas, there are various circumstances under which the 
United States could exercise jurisdiction over a foreign flagged 
vessel, including, among others, where the flag State consents, or in 
situations involving acts of piracy, unauthorized broadcasting, or 
slavery. In the contiguous zone, a coastal State may, without flag 
State consent, exercise the control necessary to prevent infringement 
of its customs, fiscal, immigration or sanitary laws and regulations 
within its territory or territorial sea.
    It should also be noted that the Convention does not affect the 
inherent right of self-defense under international law.
                article 99: slave trader ship boardings
    Question 2. Article 99 allows for the boarding of ships on the high 
seas if they are engaged in the slave trade.

   Is this right being used to effectively help stem the tide 
        of trafficking of women and girls? If not, are there other 
        legal regimes that do provide such a right?

   Is there any similar right on the high seas if the ship is 
        thought to be preparing for an act of terrorism? If not, are 
        there other legal regimes that do provide such a right?

    Answer. Article 99 is identical to Article 13 of the High Seas 
Convention and relates to the Convention to Suppress the Slave Trade 
and Slavery of September 25, 1926, 46 Stat. 2183, TS No. 778, 2 Bevans 
67, 60 LNTS 253; the Protocol of December 7, 1953 Amending the Slavery 
Convention of September 25, 1926, 7 UST 479, TOAS No. 3532, 182 UNTS 
51; and the Supplementary Convention on the Abolition of Slavery, the 
Slave Trade and Institutions and Practices Similar to Slavery of 
September 5, 1956, 18 UST 3201, TIAS No. 6418, 266 UNTS 3. This 
obligation is implemented in 18 U.S.C. Sec. Sec. 1581-88 (1982), and 
gives effect to the policy enunciated by the Thirteenth Amendment to 
the Constitution of the United States. The Slavery Convention, Amending 
Protocol, and Supplementary Convention do not authorize non-consensual 
boarding of foreign vessels. Nevertheless, Article 22(1) of the High 
Seas Convention authorized non-consensual boarding by a warship where 
there exist reasonable grounds for suspecting that a vessel is engaged 
in the slave trade. Article 110(1)(b) of the LOS Convention reaffirms 
this approach. Given that the instruments cited above authorize 
boarding of ships that are engaged in the slave trade, those provisions 
can be used to authorize boarding of ships used to traffic any person 
for any type of forced labor.
    The Protocol to Prevent, Suppress and Punish Trafficking in 
Persons, Especially Women and Children, which is a supplement to the UN 
Convention Against Transnational Crime, includes ``slavery or practices 
similar to slavery'' as a form of ``exploitation'' that the Protocol 
seeks to prevent. See Article 3(a), UN Doc. A/55/383, pages 54-55 
(2000). This Protocol does not contain provisions on the boarding of 
ships in international waters. In addition, since this Protocol (1) 
addresses a wide range of human exploitation and (2) has not yet 
entered into force, the non-consensual boarding provisions of Article 
110 are dependent upon the particular facts.
    It should also be noted that the Protocol Against the Smuggling of 
Migrants by Land, Sea and Air, another supplement to the UN Convention 
against Transnational Organized Crime, provides a framework for States 
parties to request and obtain authorization to stop and board vessels 
engaged in the smuggling of migrants by sea. Additionally, any State 
may request from any other State on an ad hoc basis authorization to 
board and search the other State's vessels on the high seas. Thus, the 
ship-boarding provisions of Migrant Protocol could be used if the 
persons being transported are believed to be smuggled migrants. Because 
many, if not most, trafficking victims are smuggled migrants, the ship-
boarding provisions of the Migrants protocol could be effective tool in 
identifying trafficking victims and combating trafficking in persons.
    With respect to ships on the high seas that are preparing for an 
act of terrorism, the Convention does not affect the right of self-
defense under international law.
                             article 19(2)
    Question 3. Article 19(2) provides that a foreign ship shall be 
considered prejudicial to the peace, good order, or security of the 
coastal State if it engages in any of the enumerated activities.

   Who determines whether the foreign ship is undertaking any 
        of the proscribed activities?

   Would, in the case where the ship's purpose was clearly a 
        terrorist act or an act threatening to the coastal State, the 
        provision of subparagraph (a) apply?

    Answer. The Convention does not accord priority to either the 
coastal or flag State in terms of determining whether a ship is engaged 
in one or more of the activities set forth in Article 19(2). To the 
extent that a coastal State sought to assert authority beyond that 
provided in the Convention with respect to innocent passage, for 
example, it would need to conclude that a ship was engaged in 
activities rendering its passage non-innocent within the meaning of 
Article 19. As appropriate, a coastal State that questions whether the 
particular passage of a ship through its territorial sea is innocent 
might inform the ship of the reasons why it questions the innocence of 
the passage and provide the ship with an opportunity to clarify its 
intentions or change its conduct in a reasonably short period of time.
    As to the applicability of Article 19(2)(a) to a terrorist act or 
act threatening the use of force, this subparagraph would likely apply, 
recognizing that it would ultimately depend upon the precise facts.
    It should also be noted that nothing in the Convention restricts 
the inherent right of individual or collective self-defense or rights 
during armed conflict, and the administration is recommending that the 
United States express such an understanding.

                                 ______
                                 

 Responses of Mark T. Esper, Deputy Assistant Secretary of Defense for 
 Negotiations Policy, to Additional Questions for the Record Submitted 
                    by Senator Joseph R. Biden, Jr.

    Question 1. Please elaborate on the basis of your assertion, on 
page 4 of your testimony, that it is ``clear'' that whether an activity 
is ``military'' is for each State Party to determine for itself.

    Answer. Article 298(1) (Section 3 of Part XV) of the Convention 
unambiguously allows a State to ``declare in writing that it does not 
accept any one or more of the procedures provided for in section 2'' of 
Part XV with respect to disputes involving, among other things, 
military activities and certain law enforcement activities.
    The determination of whether an activity is of a military nature 
inherently involves subjective as well as objective elements and the 
evaluation of potentially sensitive and important national security 
activities and information. Whether a State's particular activity 
constitutes a ``military'' activity is thus a determination that the 
State Party undertaking the activity is uniquely situated to make.

    Question 2. I understand that, during the last administration, an 
analysis was prepared by the General Counsel of the Department of 
Defense regarding the effect of the Convention on intelligence 
activities. Please provide a copy of this analysis.

    Answer. The document to which you refer was prepared in response to 
a classified inquiry by the Chairman and Vice Chairman of the U.S. 
Senate Select Committee on Intelligence. We will communicate with you 
separately regarding this document.

                                 ______
                                 

Responses of Admiral Michael G. Mullen, Vice Chief of Naval Operations, 
Joint Chiefs of Staff, Department of the Navy, to Additional Questions 
        for the Record Submitted by Senator Joseph R. Biden, Jr.

    Question 1. Article 50 states that activities in the EEZ must be 
done with ``due regard to the rights and duties of the coastal State 
and shall comply with the laws and regulations adopted by the coastal 
States . . .''

          a. What happens when a coastal State claims that military 
        exercises are being performed that do not meet this criteria?

          b. In particular, if a coastal State's environmental 
        protection laws conflict with the operation of military 
        equipment, how is this resolved?

    Answer. First, it is the duty of the flag State, not the right of 
the coastal State, to enforce the ``due regard'' obligation to comply 
with laws and regulations adopted by a coastal State.\1\ The Convention 
reflects the particular sensitivity of military activities and the 
special status of warships and other sovereign immune vessels (see, 
e.g., Articles 95, 236 and 298). Consistent with U.S. policy, the 
Department of Defense operates with the appropriate ``due regard.'' The 
Department dedicates the resources necessary to operate in a 
responsible manner, including from an environmental point of view, as 
well as to set a standard that other nations will follow.
    The concept of ``due regard'' in the Convention balances 
obligations of both the coastal State and other States in the exclusive 
economic zone (see, e.g., Articles 56 and 58). This balance permits 
coastal States to adopt certain measures to protect the marine 
environment close to their shores and the right of a flag State to 
exercise its high seas freedoms in waters beyond the territorial sea.
    Article 58 preserves recognized high seas uses including the full 
range of military activities, such as anchoring, launching and, landing 
of aircraft, operating military devices, intelligence collection, 
exercises, operations, and conducting military surveys. Under Article 
58, all States have the right to conduct military activities within the 
exclusive economic zone, and may do so consistent with the obligation 
to have due regard to coastal State resource and other rights, as well 
as the rights of other States as set forth in the Convention.
    Despite the status of warships and other sovereign immune vessels 
as reflected in the convention (see, e.g., Articles 95, 96 and 236), in 
accordance with U.S. policy, the Department of Defense has emphasized 
that protection of the marine environment is an integral component of 
the national security strategy. This commitment is consistent with the 
obligation of all parties, under Article 236, to ensure that their 
public vessels and aircraft operate in a manner consistent with the 
Convention, insofar as is reasonable and practicable and does not 
impair operations or operational capabilities of such vessels and 
aircraft. As discussed above, the Department of Defense had dedicated 
significant resources to operate in an environmentally sound manner 
worldwide.

    Question 2. What would be the difference in scope and duration of 
the biennial reviews and the comprehensive evaluations you describe in 
your testimony?

    Answer. The question of periodic reviews of the Convention involves 
matters of national policy on which I would defer to our civilian 
leadership.

    Question 3. What are the advantages and disadvantages of a sunset 
provision that you reference on page 10 of your testimony?

    Answer. The advantages and disadvantages of a sunset provision is a 
matter of national policy on which I would defer to our civilian 
leadership.

--------------
    \1\ U.S. Commentary on the LOS Convention, Sen. Treaty Doc. 103-39, 
at 24, 34 ILM 1411 (1995), Appendix 7.

                                 ______
                                 

Responses of Hon. John F. Turner, Assistant Secretary of State, Bureau 
 of Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

    Question 1. What is the purpose of the Commentary regarding Article 
10(6) (set forth at pages 11-12 of Treaty Doc. 103-39) regarding the 
Delaware and Chesapeake Bays?

    Answer. The referenced portion of the Commentary notes that, while 
the United States in the past has claimed Delaware Bay and the 
Chesapeake Bay as historic bays, these bodies of water satisfy the 
criteria for juridical bays reflected in Article 10 of the Convention.
    The U.S. claim to the waters of the Delaware and Chesapeake Bays 
dates back to the late 17th and 18th centuries. See 4 Whiteman, Digest 
of International Law 235 (1965). Prior to 1958 there was no accepted 
international rule, except the law pertaining to historic bays, as to 
the circumstances in which the waters of a bay could be considered as 
internal waters.
    Article 7 of the 1958 Convention on the Territorial Sea and the 
Contiguous Zone provides that the waters of a bay meeting specified 
geographic criteria (including a mouth no more than 24 nautical miles 
wide) may be considered internal waters. Article 10 of the 1982 
Convention similarly sets forth criteria for considering the waters of 
a bay as internal waters.
    The Delaware and Chesapeake Bays have mouths 10 and 12 nautical 
miles wide respectively, and meet the other criteria for a juridical 
bay set forth in Article 10. Thus, these waters are indisputably 
internal waters of the United States.

    Question 2. The Commentary also indicates that there is a 
``prohibition on regional agreements in areas that restrict the 
exercise of these rights and freedom by third States without their 
consent.''
          a. What areas are referred to?
          b. How does this affect regional agreements aimed at 
        controlling immigration flows or countering terror?

    Answer. The quotation is apparently from page 13 of the Commentary, 
which includes ``the prohibition on regional arrangements in areas that 
restrict the exercise of these rights and freedoms by third States 
without their consent'' as one of five elements of the Convention 
essential to maintaining the balance between freedom of navigation and 
protection of offshore areas.
    This passage provides one example of the type of agreement that 
would not be consistent with Article 311(3) of the Convention. That 
Article, which reflects customary international law of treaties, allows 
two or more States Parties to conclude agreements modifying or 
suspending the operation of provisions of the Convention; however, such 
agreements may not, among other things, affect the enjoyment by other 
States Parties of their rights or the performance of their duties under 
the Convention.
    For example, coastal States bordering an international strait could 
enter into an agreement establishing a regime to reduce pollution from 
ships in the strait, but could not include any measures that, e.g., had 
the practical effect of denying or impairing the right of transit 
passage.
    Regional agreements and arrangements aimed at immigration control 
can be, and have been, constructed within the framework of 
international law of the sea, as reflected in the Convention. (It 
should be noted that, among other things, the Convention accords 
coastal States considerable control over loading and unloading of 
persons. See Articles 19(2)(g), 21(1)(h), 33(1)(a), and 42(1)(d).) 
Likewise, regional and international arrangements for effective 
counter-terrorism measures can be, and have been, constructed within 
the framework of the international law of the sea as reflected in the 
Convention.

    Question 3. Article 61 of the Convention says that a coastal state 
shall determine the allowable catch in its EEZ. It also makes reference 
to determining the ``maximum sustainable yield, as qualified by 
relevant environmental and economic factors.''
          a. What method does the United States use to determine 
        allowable catch in the EEZ?
          b. How does the United States define maximum sustainable 
        yield? Is it consistent with the provision in Article El?
          c. Is there any way in which another nation could use the 
        Convention to change or alter U.S. determinations and 
        definitions in this area?
          d. What other methodologies are available to measure the best 
        method of protecting fisheries? (For example some have 
        suggested that the model must be based on fishing below the 
        maximum sustainable yield as essential due to advances in 
        technology and increased consumer demand).
          e. Would other methodologies be allowed under the Convention?

    Answer. The Regional Fishery Management Councils established by the 
Magnuson-Stevens Fishery Conservation and Management Act, in 
conjunction with the Secretary of Commerce, determine the allowable 
catch for EEZ fisheries. The allowable catch must be consistent with 
the ``optimum yield' specified in an approved fishery management plan. 
16 U.S.C. 1853(a)(3). Optimum yield is based on maximum sustainable 
yield, as reduced by any relevant economic, social, or ecological 
factor. 16 U.S.C. 1802(28). The Secretary of Commerce issues 
regulations to implement an approved fishery management plan or 
amendment.
    Maximum sustainable yield (MSY) ``is the largest long-term average 
catch or yield that can be taken from a stock or stock complex under 
prevailing ecological and environmental conditions.'' 50 C.F.R. 
600.310(c)(1)(i). Article 61 does not define MSY, but the definition in 
the NOAA guidelines quoted above is the generally accepted one.
    Article 61 gives each coastal State the discretion to determine the 
allowable catch within its EEZ, to ensure that resources are not 
overexploited, and to determine its capacity to harvest such resources.
    No other party to the Convention could bring the United States to 
binding dispute resolution with respect to the living resources in its 
EEZ, including its discretionary powers for determining the allowable 
catch, its harvesting capacity, the allocation of surpluses to other 
States, and the terms and conditions established in its conservation 
and management laws and regulations. Article 297(3)(a). Another party 
could, however, request submission of a dispute on certain of these 
issues to conciliation. Article 297(3)(b).
    With respect to other methodologies for protecting fisheries, the 
Sustainable Fisheries Act of 1996, Pub.L. 104-297, recognized that 
setting catch levels above those that would produce MSY, as allowed in 
the original Magnuson-Stevens Act, allowed too much fishing effort and 
sometimes resulted in overfished stocks. The definition of ``optimum 
yield'' was amended so that the allowable catch cannot be set above 
MSY.
    NOAA guidelines (50 C.F.R. 600.310(c) (2) and (3)) offer numerous 
options for estimating MSY through choice of an MSY control rule (e.g., 
removal of a constant catch; removal of a constant fraction of the 
biomass; allowance of a constant level of escapement; variance of the 
fishing mortality rate as a function of stock size). In mixed-stock 
fisheries, or where there is insufficient data, an indicator or proxy 
MSY is acceptable. The guidelines also list a number of factors that 
can be used to set the allowable catch (``optimum yield'') below MSY.
    These and other methodologies are acceptable under Article 61. 
Article 61(3) provides that measures are to be designed to maintain or 
restore fish populations to levels that can produce MSY, but lists many 
factors that may qualify that requirement, in either direction. Other 
paragraphs in the same article require managers to take into account 
the best scientific evidence available, to consider the effects of the 
fishery on bycatch species and predator-prey relationships 
(``associated or dependent species''), and to ensure that living 
resources are not over-exploited. Article 61 thus gives coastal States 
a great deal of discretion in methods of setting allowable catches and 
methods of measuring the success of management measures.

    Question 4. Article 62 of the Convention indicates a coastal State 
``shall . . . give other States access to the surplus of allowable 
catch.''
          a. Who determines if there is surplus allowable catch?
          b. How would another State enforce its right to that surplus?

    Answer. The coastal State determines if there is surplus allowable 
catch. Article 62(2). In the United States, the Regional Fishery 
Management Council or the Secretary of Commerce makes that 
determination. 16 U.S.C. 1853(a)(4). Another State cannot force the 
United States to identify surplus or to allocate it (see Answer 3 
above).

    Question 5. Article 210(5) requires the express prior approval of 
the coastal State for dumping within the territorial sea and the EEZ or 
the continental shelf. The provisions of the Ocean Dumping Act (e.g., 
33 U.S.C. 1411) with regard to material outside the United States 
extend only to the territorial sea and the contiguous zone. What legal 
authority exists for the United States to implement this provision?

    Answer. Article 210(5) does not require a coastal State to have a 
mechanism in place to grant its approval for dumping in the EEZ. To the 
extent a coastal State has not exercised its authority to grant such 
approval, dumping would not be permitted. The Ocean Dumping Act 
currently applies to ocean dumping in the EEZ (and beyond) of matter 
transported from the United States for the purpose of dumping, or of 
matter transported from any location by a vessel or aircraft registered 
in the U.S. or flying the U.S. flag. It also prohibits the dumping of 
industrial waste and sewage sludge in the territorial sea and EEZ. The 
President has inherent authority to grant permission on behalf of the 
United States but, of course, cannot waive any applicable restriction 
under domestic law.

    Question 6. Article 210(6) requires that national laws, regulations 
and measures to implement that article shall be ``no less effective'' 
than ``global rules and standards'' in this regard. What is the meaning 
of the term ``global rules and standards'' as used in this paragraph?

    Answer. The analysis of whether there are ``global rules and 
standards'' needs to be carried out on a case-by-case basis, taking 
into account a variety of factors, such as: whether the rule/standard 
has been formally adopted; whether it is in force; the number and type 
of the States adopting the standard; the extent to which the group 
represents States whose vital interests are affected by the standard; 
and State practice. The global regime addressing pollution of the 
marine environment by dumping is long-established; the Convention on 
the Prevention of Marine Pollution by Dumping of Wastes and Other 
Matter (the London Convention) governs the ocean dumping of all wastes 
and other matter.

    Question 7. Article 211(2) requires States to adopt laws and 
regulations for the prevention, reduction and control of pollution of 
the marine environment from vessels flying their flag, and that such 
laws and regulations shall ``at least have the same effect as that of 
generally accepted international rules and standards established 
through the competent international organization or general diplomatic 
conference.'' Does the term ``generally accepted international rules 
and standards'' have a different meaning than the term ``global rules 
and standards'' in Article 210(6)? Please elaborate.

    Answer. Despite the difference in phraseology between ``generally 
accepted international rules and standards'' and ``global rules and 
standards,'' it does not appear from the negotiating history or 
relevant commentary that a legal distinction was intended. It appears, 
rather, that the absence of the term ``generally accepted'' before 
``global rules and standards'' in the article on pollution by dumping 
reflected the fact that the 1972 London Convention already covered the 
relatively narrow (compared to vessel source pollution) field of ocean 
dumping. With respect to new ocean dumping rules and standards, the 
same analysis would apply as for generally accepted international rules 
and standards.

                                 ______
                                 

Responses of Hon. William H. Taft, IV, the Legal Adviser, Department of 
  State, to Additional Questions for the Record Submitted by Senator 
                          Joseph R. Biden, Jr.

    Question 1. On September 19, 1996, Secretary of State Christopher 
wrote to Chairman Helms to urge favorable action on the Convention, and 
stated ``we have reviewed existing laws and have determined that 
implementing legislation is not necessary before United States 
accession.''
          a. Does the Executive Branch continue to support the 
        statement by Secretary Christopher?
          b. Please elaborate on the basis of this statement by 
        Secretary Christopher. Describe the scope of the review 
        undertaken, the period of time during which the review was 
        conducted, and whether it was conducted on an inter-agency 
        basis, by each relevant agency separately, or by the Department 
        of State only.
          c. Seven years have passed since Secretary Christopher's 
        letter was sent to the committee. Has a review of domestic law 
        as compared to the obligations of the Convention been conducted 
        since 1996? If so, please elaborate. If not, why not?
          d. Did the Bush administration's review of the Convention in 
        2001 or in the last year (as described by Mr. Esper) focus, in 
        any respect; on the current domestic legal framework for 
        implementing the Convention? Please elaborate.
          e. Please provide a copy of the 1996 review, and any 
        subsequent review.

    Answer. The Executive Branch continues to consider that 
implementing legislation is not necessary before U.S. accession. Given 
that the U.S. is a party to the 1958 law of the sea convention, that 
the U.S. heavily influenced the development of the 1982 Convention, and 
that the U.S. has since 1983 been acting in accordance with the 
provisions of the Convention governing traditional uses of the oceans, 
U.S. law and practice are already compatible with the Convention.
    Between the time the Convention was transmitted to the Senate in 
1994 and Secretary Christopher's letter in 1996, Executive Branch 
agencies reviewed the provisions of the Convention in light of U.S. law 
and practice and concluded that implementing legislation was not 
necessary before U.S. accession. The involvement of particular agencies 
depended upon the provisions in question. NOAA was particularly 
involved, for example, in considering whether U.S. obligations related 
to deep seabed mining could be met under the Deep Seabed Hard Minerals 
Resource Act. Concerning Part XII on protection of the marine 
environment, many agencies were engaged in an interagency review led by 
the State Department.
    The Administration is considering whether Article 39 of Annex VI of 
the Convention (concerning the Sea-bed Disputes Chamber) needs to be 
implemented through legislation and may be proposing an understanding 
in this regard. In any event, given the current undeveloped state of 
deep seabed mining, such legislation would not be necessary before U.S. 
accession.
    Although the Administration's decision to support the Convention 
did not specifically address the current domestic legal framework, its 
support for the Convention was facilitated by the longstanding ability 
of the United States to act in accordance with the Convention within 
the framework of U.S. domestic law and practice.

    Question 2. In submitting the Convention to the Senate, the 
Executive Branch provided an extensive Commentary on the Convention.
          a. Is this Commentary to be considered an authoritative 
        representation of the Executive Branch insofar as any 
        information in the Commentary is directing to the meaning and 
        legal effect of a term or provision of the Convention?
          b. Has the Commentary been reviewed since 1994 by the 
        Executive Branch? Is it still accurate, or does it require 
        modification? If it requires modification, please provide it to 
        the committee.

    Answer. Generally, the Commentary appropriately analyzes and 
interprets the Convention. The Administration has engaged in a detailed 
multi-agency review that has resulted in an initial package of proposed 
declarations and understandings that further refine the Commentary; the 
Administration's proposed declarations and understandings will prevail 
over the Commentary in the case of any inconsistency.
    In addition, certain factual points have been overtaken by more 
recent events. For example, there are now 145 Parties to the 
Convention; additional agreements have been concluded (e.g., Annex VI 
to the MARPOL Convention, which is before the Senate as Treaty Doc. 
108-7); and the United States claimed a 24-nautical mile contiguous 
zone by Presidential Proclamation 7219, 2 September 1999.
    It should also be noted that the GPO print of the treaty texts and 
the Commentary contained some typographical errors and omitted the text 
of Article 19 of Annex VI (Expenses of the Tribunal); these errors were 
corrected in the version contained in the Dispatch Supplement of 
February 1995.

    Question 3. Does the Executive Branch regard any of the provisions 
of the Convention as self executing? If so, which provisions? Please 
elaborate.

    Answer. The Convention does not itself create private rights of 
action in U.S. courts. (Although Article 39 of Annex VI might be read 
to create such a right directly, the Administration's view is that it 
does not. However, it would obligate the United States to render Sea-
bed Disputes Chamber decisions enforceable in U.S. courts, including 
through private causes of action. As noted in the answer to Question 1, 
the Administration is considering an understanding concerning this 
provision.)
    Whether a Convention provision would otherwise be self-executing, 
including whether it would be directly enforceable as U.S. law, would 
depend upon the provision in question, as well as upon whether the 
Senate and Executive Branch express a view concerning such provision. 
In this connection, some provisions of the Convention would clearly not 
be self-executing, such as those contemplating future action by a State 
Party or those addressing administrative or institutional matters. The 
Administration would consider as self-executing those provisions 
setting forth various privileges and immunities to be accorded by 
States Parties (such as Articles 177-183); such provisions are 
generally treated as self-executing, and current U.S. law would not 
otherwise be adequate for the U.S. to implement its obligations under 
such provisions.
    With respect to other provisions, the Administration will be 
proposing language for the Senate's resolution of advice and consent 
that would ensure, among other things, that criminal defendants in U.S. 
courts, such as those accused of environmental pollution, will not be 
able to invoke the Convention's provisions.

    Question 4. Does the Executive Branch believe that any provisions 
of the Convention may pre-empt state laws? If so, which provisions? 
Please elaborate.

    Answer. Most of the Convention addresses marine areas that are 
beyond the purview of the states. Within the territorial sea, the 
Convention contains certain obligations, such as with respect to 
innocent passage of foreign flag vessels. Such provisions are 
reflective of the 1958 Geneva Convention on the Territorial Sea and the 
Contiguous Zone, to which the United States is already a party, and 
customary international law. We are not aware of any state laws that 
infringe upon freedom of navigation in the territorial sea.
    Concerning Article 39 of Annex VI, while this provision might be 
read to be directly enforceable some instances, potentially preempt 
state contract would otherwise be applicable to deep seabed mining 
transactions, the Administration does not consider it directly 
enforceable. However, it would obligate the United States to make Sea-
Bed Disputes Chamber decisions enforceable through some means, e.g., 
implementing legislation, and enforceable Sea-bed Disputes Chamber 
decisions would prevail over any otherwise applicable state laws. As 
noted in the answer to Question 1, the Administration is considering an 
understanding concerning the provision.

    Question 5. Does the Executive Branch expect to issue any Executive 
Orders following U.S. accession to the Convention in order to implement 
U.S. obligations under the Convention? If so, please elaborate on the 
subjects that would be addressed in such Executive Orders and the 
relevant obligations of the Convention that would be covered by such 
Orders.

    Answer. The Administration does not have current plans to issue any 
particular Executive Orders following U.S. accession. The Executive 
Branch may decide over time to make more formal various mechanisms for 
ensuring that U.S. Executive Branch actions are consistent with the 
provisions of the Convention; however, if so, there are a variety of 
mechanisms from which to choose, ranging from informal guidance 
documents to more formal Executive Orders.

    Question 6. Does the Executive Branch believe that any provisions 
of the Convention provide a private right of action? If so, which 
provisions?

    Answer. The Convention does not itself provide for private rights 
of action in U.S. courts. Article 187 provides for access by private 
parties to the Sea-bed Disputes Chamber. Article 292(2) would not 
preclude a private person from seeking the prompt release of a vessel 
on behalf of the flag State in an international tribunal, as set forth 
in Article 292(1). As noted in the answer to Question 3, although 
Article 39 of Annex VI might be read to create such a right directly, 
the Administration's view is that it does not; however, it would 
obligate the United States to render Sea-bed Disputes Chamber decisions 
enforceable, including through private causes of action, through some 
means, e.g., implementing legislation. As noted in the answer to 
Question 1, the Administration is considering an understanding 
concerning this provision.

    Question 7. Which agencies and departments of the Executive Branch 
will have the lead responsibility for interpreting and enforcing the 
provisions of the Convention? Please provide details by Part of the 
Convention.

    Answer. As has been the case during the past two decades of 
following the Convention as a matter of policy, numerous agencies and 
departments are actively engaged in developments regarding, and 
implementation of, the Convention's provisions. We would expect this to 
continue.
    State will continue to lead U.S. delegations to international 
negotiations and meetings regarding the Convention, as well as 
coordinate U.S. positions on many aspects of the Convention. NOAA has a 
lead role in the elaboration of international rules regarding deep 
seabed mining, as well as domestic implementation; NMFS has a lead role 
regarding fisheries management; State and DOD have lead roles in 
implementing the diplomatic and operational components of the U.S. 
Freedom of Navigation Program, which enforces navigational provisions 
of the Convention; NOAA, Coast Guard, EPA, and Justice have lead roles 
regarding marine pollution regulation and enforcement; and Coast Guard 
and Justice also have lead roles regarding other types of enforcement, 
e.g., drugs.
    Specifically regarding non-military actions that could have 
implications under international law, including the law of the sea 
(such as enforcement actions against foreign flag vessels), existing 
interagency mechanisms are routinely employed to ensure full 
consideration of international law obligations of the United States.

    Question 8. What does the Executive Branch understand to be the 
meaning of the relevant ``generally accepted international rules or 
standards'' under Article 21(2)?

    Answer. The analysis of whether there is a ``generally accepted'' 
international rule or standard needs to be carried out on a case-by-
case basis, taking into account a variety of factors, such as: whether 
the rule/standard has been formally adopted; whether it is in force; 
the number and type of the States adopting the standard; the extent to 
which the group represents States whose vital interests are affected by 
the standard; and State practice.

    Question 9. How does the Executive Branch interpret the prohibition 
on laws relating to the ``design, construction, manning or equipment of 
foreign ships'' in Article 21(2) with respect to environmental 
regulation of matters like contaminated ballast water and double-hulls?

    Answer. A double-hull requirement would be considered a law 
relating to the ``design, construction, manning or equipment'' (or 
``CDEM'') of a ship. With respect to potential restrictions on the 
discharge of ballast water for ships transiting the territorial sea, 
there are many types of restrictions that would, in fact, not apply to 
the design, construction, manning or equipment of a ship. For example, 
we would not consider prohibitions on the discharge and/or uptake of 
ballast water to apply to CDEM of a ship. Thus, the United States could 
potentially establish no-discharge zones and/or specially designated 
discharge zones for vessels in transit through the territorial sea or 
impose a requirement that such ships perform ballast water exchange 
prior to discharge, without hampering innocent passage. Moreover, most 
foreign vessels in the U.S. territorial sea are traveling to or from 
U.S. ports; the United States can and does impose CDEM restrictions as 
a condition of entry to U.S. ports.

    Question 10. Is there any conflict between the Convention and 
enforcement of the Oil Pollution Act of 1990 with regard to, in 
particular, the requirements related to double-hulled vessels? If so, 
what is it?

    Answer. There would be no inconsistency with the Convention 
concerning the double-hull requirement of the Oil Pollution Act of 
1990. The House Conference Report indicates that section 3703(a) ``. . 
. is not intended to apply to vessels transiting U.S. waters or 
transiting the Exclusive Economic Zone . . . .''

    Question 11. Article 33 allows coastal states to exercise the 
control necessary in the contiguous zone to prevent and punish 
infringement of its ``customs, fiscal, immigration or sanitary laws and 
regulations.''
          a. How does the United States interpret ``sanitary laws,'' as 
        used in this article?
          b. Does ``sanitary laws'' include all the direct and indirect 
        protection of human health and the marine environment?
          c. How does the United States interpret ``customs and fiscal 
        laws,'' as used in this article?

    Answer. The term ``sanitary laws'' is not a defined term in the 
Convention. It tracks Article 24 (the contiguous zone provision) of the 
1958 Territorial Sea and Contiguous Zone Convention, to which the 
United States is already a party. The term does not have as wide a 
scope as all laws aimed at the protection of human health and the 
marine environment, although there are likely areas of overlap. 
Regarding the term ``customs and fiscal laws,'' this is also not a 
defined term but would include, for example, illegal importation of 
drugs.

    Question 12. Article 56 provides a coastal state the right to 
protect and preserve the marine environment in the EEZ. Article 211, 
paragraphs 5 and 6, regulating pollution in the EEZ provide specific 
rules for regulating pollution in the EEZ.
          a. Do any current U.S. laws regulate pollution by ships in 
        the EEZ?
          b. Does the Executive Branch anticipate that, within the 
        first five years of U.S. accession to the Convention, it would 
        invoke the provisions of Article 211(6)(a)?

    Answer. Several U.S. laws, e.g., the Clean Water Act (as amended by 
the Oil Pollution Act of 1990), the MPRSA, the Act to Prevent Pollution 
from Ships, and the Outer Continental Shelf Lands Act, apply to marine 
pollution in the EEZ in various circumstances. There is no currently 
anticipated need to seek additional authority under Article 211(6)(a).

    Question 13. Article 69 provides for specific access rights for 
land-locked states in a region.
          a. For purposes of the Convention, how is a region defined?
          b. Does the region in which the United States is located 
        contain any land-locked states?

    Answer. The Convention does not define ``region'' for the purposes 
of Article 69. In the context of an article providing for access rights 
to the surplus of living marine resources in the EEZs of coastal States 
in the same ``region,'' it is reasonable to interpret the term to 
extend, at most, to the continent of the land-locked State.
    As set forth in the Commentary, there are 42 landlocked States, 39 
of which are in Africa, Asia, and Europe. In the western hemisphere, 
the land-locked states are Bolivia and Paraguay. The United States has 
interests in trade with landlocked states and in their economic 
development; those interests are furthered by Part X of the Convention.

    Question 14. Article 70 provides for specific access rights for 
geographically disadvantaged states in a region.
          a. Does the region in which the United States is located 
        contain any geographically disadvantaged states?

    Answer. Article 70(2) defines a geographically disadvantaged State 
as one that either can claim no EEZ of its own or one whose 
geographical situation makes it dependent upon the exploitation of 
living resources in the EEZs of other coastal States in its region or 
subregion. The Convention does not define ``region'' for purposes of 
Article 70, which, like Article 69, concerns exploitation of the 
surplus of living marine resources in EEZs. In this context, as in the 
context of Article 69, it would be reasonable to interpret the term to 
extend, at most, to the continent of the geographically disadvantaged 
State. The United States is not located in a region containing 
geographically disadvantaged states.

    Question 15. Article 196 requires States to prevent or control the 
accidental or intentional introduction of alien or new species which 
may cause significant and harmful changes to the marine environment.
          a. Does this Executive Branch regard this Article as the only 
        provision in the Convention permitting regulatory measures with 
        regard to invasive species?
          b. How will the United States satisfy its obligations under 
        this provision?
          c. What is the standard that will be used to determine 
        ``significant and harmful changes''?

    Answer. Other provisions of the Convention (e.g., in Section 6 of 
Part XII) potentially provide authority with regard to invasive 
species, depending upon, among other things, the method by which the 
invasive species are introduced into the marine environment.
    The United States has taken steps, both domestically and 
internationally, to address invasive species. Domestically, ships bound 
for the St. Lawrence Seaway and the Great Lakes or the upper Hudson 
River are required to conduct a mid-ocean exchange of ballast water, 
outside the U.S. EEZ, to minimize the risks of introducing aquatic 
invasive species into the Great Lakes and Hudson River ecosystems. 
Ships unable to conduct this exchange for safety reasons are required 
to retain their ballast water onboard. Regulations are being developed 
to adopt a mandatory national program as soon as possible for ships 
calling at any port in the United States. Work is also being done to 
promote acceptable ballast water treatment technologies for use in 
meeting national ballast water discharge standard for ships calling on 
the United States.
    Internationally, the United States is actively participating in the 
negotiation of a new agreement under IMO auspices to address ballast 
water management. This agreement, scheduled to be adopted in February 
2004, is likely to establish a stringent ballast water discharge 
standard for ships and require other important shipboard ballast water 
management practices, as part of a global regime to reduce the spread 
of aquatic invasive species from international shipping.

    Question 16. Article 211(4) permits coastal states, within the 
territorial sea, to adopt laws and regulations for the prevention, 
reduction, and control of marine pollution from foreign vessels, 
provided such laws and regulations do not ``hamper innocent passage'' 
of such vessels. Would, in the view of the Executive Branch, current 
U.S. laws affecting the territorial sea that regulate marine pollution 
hamper the right of innocent passage?

    Answer. No. We would not regard existing U.S. laws and enforcement 
practices as hampering the right of innocent passage. It should be 
noted, in this regard, that passage is not considered innocent under 
Article 19 of the Convention if a foreign ship engages, in the 
territorial sea, in any act of willful and serious pollution contrary 
to the Convention in the territorial sea.

    Question 17. Article 226 limits the physical investigation of 
foreign vessels. What is the U.S. interpretation of the meaning of the 
term ``clear grounds'' as used in paragraph (a)(1)(i)? How does it 
compare to the standard currently used by the Coast Guard for 
inspecting foreign vessels of ``probable cause'' and/or ``reasonable 
suspicion''?

    Answer. Both Articles 220 and 226 use the term ``clear grounds for 
believing.'' When the Convention was transmitted to the Senate, it was 
determined that the United States could legitimately interpret the 
``clear grounds'' requirement as being satisfied by our domestic 
``reasonable suspicion'' standard. The Letter of Transmittal notes the 
issue, and we continue to take this view in a proposed understanding 
that the Administration has recommended to the Senate. The 
understanding harmonizes U.S. law and practice with the Convention.

    Question 18. Article 228(1) provides for suspending of proceedings 
related to enforcement of rules against pollution by foreign vessels in 
certain instances if the flag state is undertaking proceedings against 
the vessel. How would this provision be implemented in the United 
States?

    Answer. The United States could move to continue, stay, or dismiss 
an enforcement action without prejudice to allow the flag State an 
opportunity to take proceedings to impose penalties in respect of 
corresponding charges. Based on the significant experience in enforcing 
U.S. law and the limited scope of this provision, we anticipate that 
such a case will be exceedingly rare. In policy and practice, the 
United States has the greatest interest in enforcing domestic law 
closest to its shore. Article 228(1) is strictly limited to enforcement 
actions involving pollution from foreign flag vessels beyond the 
territorial sea, i.e., beyond 12 nautical miles from shore. As such, 
Article 228(1) has no bearing on an enforcement action involving 
pollution from foreign flag vessels within the territorial sea or 
internal waters.
    Additionally, and as is reflected in proposed understandings, 
Article 228(1) has no impact on enforcement actions brought against 
foreign flag vessels for non-pollution offenses, such as the making of 
false statements in ship records (even when those statements are about 
pollution that may have occurred outside U.S. waters).
    Article 228(1) would be implemented after consultation among 
cognizant federal agencies and after careful consideration of the 
exceptions to this provision (a case of major damage to the coastal 
State or if the flag State in question has repeatedly disregarded its 
obligation to enforce applicable international rules and standards in 
respect of violations committed by its vessels).

    Question 19. Article 228(2) provides for a three year statute of 
limitations with regard to penalties on foreign vessels for pollution. 
What is the current U.S. statute of limitations in this regard? If the 
statutes are different, which will govern? Does the Executive Branch 
intend to propose legislation to harmonize them?

    Answer. Article 228(2)'s three-year statute of limitations, which 
is shorter than the five-year statute of limitations that applies to 
many criminal environmental offenses, would apply to a narrow category 
of cases (e.g., involving foreign flag vessels and pollution beyond the 
territorial sea of the United States). Article 228(2) can be 
implemented by Executive Branch action rather than by a limitation on 
existing environmental statutes, which apply to a larger class of 
offenders.

    Question 20. Article 230 allows for non-monetary penalties if 
violations of law are committed in the territorial sea that are ``a 
willful and serious act of pollution'' in the territorial sea.
          a. Please describe the current U.S. legal framework governing 
        enforcement of measures related to marine pollution in the 
        territorial sea.
          b. Does current U.S. law permit civil penalties or use of a 
        court's injunctive powers? Are such penalties permitted under 
        Article 230?
          c. How does the United States interpret ``willful and serious 
        act of pollution''? What is the applicable standard under U.S. 
        law? Are these standards, in the view of the Executive Branch, 
        equivalent? Why or why not?
          d. Are there any applicable state laws in this regard? How, 
        if at all, would they be affected by Article 230?

    Answer. There are a variety of U.S. environmental statutes that 
regulate pollution from vessels in the territorial sea. Not all of 
these statutes are relevant to Article 230, which applies only to 
pollution from foreign flag vessels and not, for example, to other 
types of pollution, such as by dumping. Most of these domestic statutes 
authorize a range of penalties, sanctions, and other remedies, 
including administrative, civil, and criminal.
    Consistent with the Commentary submitted to the Senate in 1994, and 
with a proposed understanding on Article 230, we interpret the 
references to ``monetary penalties only'' to exclude only imprisonment 
and not the range of other administrative, civil, and criminal 
penalties, sanctions, and other remedies available under domestic 
statutes.
    The ``willful and serious'' standard set forth in Article 230(2) 
uses terminology different in two respects from relevant U.S. 
environmental criminal laws:
   most environmental statutes make it a crime to ``knowingly'' 
        engage in the conduct; the Clean Water Act, as amended, also 
        criminalizes certain negligent violations of that statute; and
   most environmental statutes do not impose a requirement that 
        an offense be ``serious,'' although some prohibit pollution 
        that is harmful or hazardous.
    In essence, however, U.S. law is largely consistent with the 
Convention, and U.S. interpretations of key terms, as reflected in the 
proposed understandings, will harmonize the terminology.
    We have recommended that the United States express its 
understanding, with respect to Article 230:
   that it applies only to natural persons aboard the foreign 
        vessels at the time of the act pollution;
   that the references to ``monetary penalties only'' exclude 
        only imprisonment;
   that the requirement that an act of pollution be ``willful'' 
        in order to impose non-monetary penalties would not constrain 
        the imposition of such penalties for pollution caused by gross 
        negligence;
   that, in determining what constitutes a ``serious'' act of 
        pollution, a State may consider, as appropriate, the cumulative 
        or aggregate impact on the marine environment of repeated acts 
        of pollution over time; and
   that, among the factors relevant to the determination 
        whether an act of pollution is ``serious,'' a significant 
        factor is non-compliance with a generally accepted 
        international rule or standard, e.g., such a rule or standard 
        under the MARPOL Convention.
    In addition, the Administration has recommended that the United 
States express its understanding that sections 6 and 7 of Part XII 
(which include but are not limited to Article 230) do not limit the 
authority of a State to impose penalties, monetary or non-monetary, for 
nonpollution offenses, such as false statements, obstruction of 
justice, and obstruction of government or of judicial proceedings, 
wherever they occur, or for any violation of national laws and 
regulations or applicable international rules and standards for the 
prevention, reduction, and control of pollution of the marine 
environment that occurs while a foreign vessel is in the internal 
waters or in any port or offshore terminal under the jurisdiction of 
that State.

    Question 21. The Secretary of State's Letter of Submittal indicates 
that when the United States signed the Agreement, it stated that doing 
so would ensure the implementation of regimes that would be consistent 
with U.S. seabed mining interests and consistent with existing U.S. 
laws and regulations.
          a. Please describe existing U.S. seabed mining interests and 
        how the regime is consistent with them.
          b. Please detail which U.S. laws and regulations impact 
        seabed mining and how the regime is consistent with them.

    Answer. The United States is interested in both a secure supply of 
the materials found in manganese nodules (nickel, copper, manganese, 
and cobalt) and in an acceptable law of the sea regime covering a broad 
range of ocean uses, including deep seabed mining. A full presentation 
of U.S. deep seabed mining interests, how the Convention and the 
Agreement meet these interests, and the relationship to domestic law 
and regulations can be found on pages 33-43 of the Commentary 
accompanying the 1994 Letter of Transmittal.
    There is one U.S. company with a U.S. deep seabed mining license. 
The 1994 Agreement provides for recognition of the exploration rights 
of this consortium by considering it under the treaty regime based on 
arrangements no less favorable than those granted to holders of claims 
already registered by Japan, France, Russia, India, Japan, China, South 
Korea, and an Eastern European consortium. If the United States, as a 
party to the Convention, certified that the U.S. license holder is 
financially and technically qualified, and the license holder paid a 
$250,000 application fee, the consortium would be entitled to 
exploration rights to areas as large as 150,000 sq. km. for 15 years, 
rights that can be renewed in five-year increments.
    The Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401-1473; 
``DSHMRA'') and its implementing regulations (15 CFR Parts 970, 971) 
establish the permitting and licensing regime governing the U.S. 
citizens engaged in exploration and commercial recovery of deep seabed 
hard mineral resources. Although the DSHMRA predated the Convention and 
Agreement, basic principles embodied in the Convention and the 
Agreement are consistent with those in the DSHMRA (e.g., disclaimer of 
sovereignty over the deep seabed; establishment of a mining regime 
based on first-in-time priority of right; nondiscriminatory criteria; 
and security of tenure through granting of exclusive rights for a fixed 
period of time and with limitations of the ability to modify 
authorizations).
    The DSHMRA also provides for transition to an international 
agreement that enters into force for the United States, with a view to 
assuring continuity of any ongoing U.S. mining operations (30 
U.S.C.1442). The only one existing U.S. exploration license holder has 
not applied for commercial development permits under the DSHMRA. At 
this time, there is no conflict between the area covered by the 
existing U.S. license and those authorized for other States under the 
Convention.

    Question 22. Article 312 allows amendments to be adopted as part of 
the Convention if a conference is convened. Article 313 allows 
amendments to be adopted as part of the Convention if no nation objects 
in a 12 month period. Article 316 provides for the ratification of 
amendments by State parties.
          a. Please describe the U.S. understanding of the process that 
        would be used during a conference to accept or reject 
        amendments.
          b. What process will be used to ensure adequate Senate 
        consultation prior to an amendment conference convened under 
        Article 312?
          c. What process will be used to ensure adequate Senate 
        consultation prior to a U.S. decision to object or not object 
        to a proposed amendment under Article 313?
          d. Would any amendment approved under Article 312 and 313 be 
        submitted to the Senate for its advice and consent?

    Answer. Concerning a conference convened pursuant to Article 312, 
the decision-making procedure would be the same as that applicable at 
the Third UN Conference on the Law of the Sea, unless decided otherwise 
by the conference. The procedure used at that Conference, which is set 
out in the Rules of Procedure contained in UN Document A/CONF.62/30/
Rev.3, provided for decision-making on matters of substance by 
consensus wherever possible, with voting to take place only when a two-
thirds majority had determined that all efforts at reaching agreement 
had been exhausted; in such case, approval of decisions required a two-
thirds majority. Decisions on matters of procedure are taken by 
majority vote.
    The Executive Branch would expect to consult with the Senate 
regarding amendments proposed under either Article 312 or Article 313. 
Amendments adopted under Articles 312 and 313 would be subject to 
ratification or accession, noting that Article 316(5) provides that two 
categories of amendments are to enter into force for all States Parties 
one year following the deposit of instruments of ratification or 
accession by 3/4 of the States Parties; such an amendment would under 
the terms of the Convention enter into force for the United States even 
where the Senate had rejected it. The Administration is considering the 
constitutional aspects of this provision.

                                 ______
                                 

 Responses of William H. Taft, IV, Legal Adviser, Department of State, 
  to Additional Questions for the Record Submitted by Senator John F. 
                                 Kerry

    Question 1. If the U.S. becomes a party to UNCLOS, it will become 
the ``law of the land.'' Please provide a detailed analysis of all 
provisions that could raise issues of consistency with current U.S. 
laws and regulations, including our enforcement practices, with respect 
to the protection of the marine environment. Please include a 
description of any obligations under UNCLOS for which additional 
domestic authorities will be needed. Will the Administration be seeking 
implementing legislation for any of these provisions and, if not, will 
any steps be taken to address any such inconsistencies?

    Answer. The Executive Branch, through the Department of Justice, 
the Coast Guard, and the Environmental Protection Agency, has pursued a 
vigorous, successful enforcement initiative to detect and deter 
pollution from ships. In line with the policy of successive 
Administrations since 1983 to act in accordance with the balance of 
interests reflected in the Convention's provisions regarding 
traditional uses of the oceans, U.S. marine pollution enforcement 
efforts have been undertaken in a manner consistent with the Convention 
as a matter of policy, including through appropriate consultations with 
the State Department.
    The United States has bean able to maintain an affective marina 
pollution enforcement program consistent with the Convention's 
provisions.
    Part XII of the Convention establishes a legal framework for the 
protection and preservation of the marine environment. It addresses 
sources of marine pollution, such as pollution from vessels, seabed 
activities, ocean dumping, and land-based sources. It promotes 
continuing improvement in the health of the world's oceans. It also 
effectively balances interests of States in protecting the environment 
and natural resources with their interests in freedom of navigation and 
communication.
    The United States would implement Part XII through a variety of 
U.S. laws, regulations, and practices, as noted below. We do not see a 
present need for implementing legislation in this regard.
    The provisions in Sections 1 through 4 of Part XII are quite 
general, relating to, e.g., global and regional cooperation, technical 
assistance, and monitoring and do not raise issues concerning 
implementation under U.S. law.
    Section 5 of Part XII sets forth the framework for the substantive 
rules applicable to various sources of marine pollution. The provisions 
contain a variety of obligations and authorizations relating to coastal 
States, flag States, and/or all States (such as to cooperate to develop 
global standards). The United States would meet its obligations under 
these provisions through a host of existing laws, including, e.g., the 
Clean Water Act; the Marine Protection, Research, and Sanctuaries Act; 
the Solid Waste Disposal Act; CERCLA; FIFRA; the Coastal Zone 
Management Act of 1972; the Outer Continental Shelf Lands Act; the Deep 
Seabed Hard Minerals Resources Act; the Ports and Waterways Safety Act; 
the Act to Prevent Pollution from Ships; the Oil Pollution Act; the 
National Environmental Policy Act; and the Clean Air Act. The United 
States is also an active participant in the development, principally 
through the IMO, of cooperative agreements and arrangements to address 
various sources of marine pollution.
    Concerning Section 5's provisions on pollution from ships, you 
specifically ask, in Question 4 below, about the double hull 
requirement in the Oil Pollution Act of 1990 and its consistency with 
Article 211. The United States applies and enforces these requirements 
with respect to all ships entering the ports of the United States and 
has that right under the Convention and general principles of 
international law. Article 211 provides that coastal States may, with 
respect to their EEZs, adopt laws to regulate pollution from vessels 
``conforming to and giving effect to generally accepted international 
rules and standards. . . .'' As noted in the answer to Question 4, the 
House Conference Report relevant to the double hull requirement 
indicates that section 3703(a) ``. . . is not intended to apply to 
vessels transiting U.S. waters or transiting the Exclusive Economic 
Zone. . . .'' As such, there would be no inconsistency between the U.S. 
requirement and Article 211 of the Convention.
    Concerning Section 6, these provisions deal specifically with the 
allocation of enforcement responsibilities among coastal States, flag 
States, and port States in various situations. In line with the policy 
of successive Administrations since 1983 to act in accordance with the 
balance of interests reflected in the Convention's provisions regarding 
traditional uses of the oceans, U.S. practice has been to enforce its 
marine pollution laws in a manner consistent with the Convention, 
including the provisions in Section 6.
    Certain issues do arise concerning the interaction between 
provisions of Section 6 and U.S. law. As noted in your Question 5 
below, both Articles 220 and 226 use the term ``clear grounds for 
believing.'' When the Convention was transmitted to the Senate, it was 
determined that the United States could legitimately interpret the 
``clear grounds'' requirement as being satisfied by our domestic 
``reasonable suspicion'' standard. The Letter of Transmittal notes the 
issue, we continue to take this view, and the Administration will 
recommend to the Senate that this understanding be among those 
reflected in the resolution of advice and consent.
    Concerning the safeguards set forth in Section 7:

          As you note in your Question 5 below, there are a few issues 
        raised by Article 230. For example, certain interpretations of 
        this provision were attached to the Letter of Transmittal, such 
        as that the ``willful'' requirement would not constrain 
        penalties for gross negligence and that Article 230 applies 
        only to natural persons aboard the vessel at the time of the 
        discharge (and not, for example, to shore-based personnel or 
        corporate entities). The Administration will recommend to the 
        Senate that these understandings be among those reflected in 
        the resolution of advice and consent.

          As you note in your Question 5 below, Article 228 sets forth 
        certain limitations on the institution or continuation of 
        proceedings, consistent with the notion that the flag State is 
        primarily responsible for ensuring compliance with the 
        Convention by vessels flying its flag or of its registry. 
        Article 228(2)'s three-year statute of limitations, which would 
        be shorter than the federal five-year statute of limitations, 
        would apply to a narrow category of cases and would not require 
        implementing legislation.

    Sections 8 through 11 of Part XII, such as provisions related to 
liability, sovereign immunity, and ice-covered areas, do not raise 
particular issues of conflicts with U.S. law.

    Question 2. Article 21 provides strong authorities to coastal 
States to adopt laws and regulations for ships in innocent passage that 
pass through their territories related to the management and protection 
of living marine resources and the marine environment. However, it also 
provides that such laws and regulations shall not apply to the 
``design, construction, manning or equipment of foreign ships,'' unless 
they are implementing ``generally accepted international rules or 
standards.''

   Are the terms ``design, construction, manning or equipment'' 
        defined in the Convention?

   Please provide examples of measures that the U.S. would 
        clearly view as not constituting ``design, construction, 
        manning or equipment'' measures.

   Please discuss whether any restrictions on the discharge of 
        ballast water are necessarily ``design, construction, manning 
        or equipment'' standards that would prevent the U.S. from 
        regulating the discharge of ballast water from transiting ships 
        without international approval.

   If the IMO does finalize an international agreement 
        addressing ballast water discharges, please confirm that the 
        U.S. will be able to enact measures that are more stringent 
        than those in the agreement.

    Answer. The LOS Convention does not define the phrase ``design, 
construction, manning or equipment'' or its constituent terms. Examples 
of measures that the United States would not view as applying to the 
design, construction, manning or equipment of ships (commonly referred 
to as ``CDEM'') would include reporting requirements, record-keeping 
requirements, quantitative restrictions on discharge of substances, 
regulation of dumping of substances, ship routing measures, traffic 
separation schemes, and speed limits.
    With respect to potential restrictions on the discharge of ballast 
water for ships transiting the territorial sea, there are many types of 
restrictions that would, in fact, not apply to the design, 
construction, manning or equipment of a ship. For example, we would not 
consider restrictions on the discharge and/or uptake of ballast water 
to apply to CDEM of a ship. Thus, the United States could potentially 
establish no-discharge zones and/or specially designated discharge 
zones for vessels in transit through the territorial sea or impose a 
requirement that such ships perform ballast water exchange prior to 
discharge, without hampering innocent passage. Moreover, most foreign 
vessels in the U.S. territorial sea are traveling to or from U.S. 
ports; the United States can and does impose CDEM restrictions as a 
condition of entry to U.S. ports.
    Concerning the IMO ballast water agreement currently under 
negotiation, the United States is pushing for stringent standards to 
address the environmental challenges posed by ballast water discharges. 
Although we are hopeful that the agreement will be sufficiently 
rigorous that additional measures will not be necessary, the agreement 
would not affect the right of the United States under the Convention to 
put in place a variety of more stringent measures, e.g., with respect 
to U.S. vessels; as a condition of entry into U.S. ports; and with 
respect to non-ODEM measures regulating innocent passage through the 
territorial sea.

    Question 3. There is an increasing focus on the oceans as a vector 
for health risks to humans and the marine environment. Articles 21 and 
33 provide that coastal States can prevent the infringement of their 
sanitary laws and regulations. The Convention does not define 
``sanitary measure.'' However, other international instruments, such as 
the WTO agreement on sanitary and phytosanitary measures, include 
measures to protect animal or plant life or health from ``risks arising 
from the entry, establishment or spread of pests, diseases, disease-
carrying organisms or disease-causing organisms,'' as well as from 
risks arising from ``additives, contaminants, toxins or disease-causing 
organisms in foods, beverages or feedstuffs.''

   Consistent with this language, please discuss whether the 
        U.S. could enforce laws aimed at restricting the introduction 
        of invasive species into the environment, discharges from 
        vessels of pollution such as sewage that can carry diseases, 
        and similar measures? Under this provision, could the U.S. also 
        enforce laws aimed at protecting fisheries, as a major source 
        of food, from discharges from ships of contaminants and 
        diseases?

    Answer. The question refers to two articles of the Convention, 
which present somewhat different issues. Article 21 addresses the 
authority of a coastal State to adopt laws and regulations relating to 
innocent passage through its territorial sea. Such laws may relate to 
many coastal State interests, including, for example, conservation of 
living resources of the sea, prevention of infringement of its 
fisheries laws, preservation of the marine environment and the 
prevention of pollution thereof, and prevention of infringement of its 
sanitary laws and regulations. The hypothetical examples you give would 
appear to fall within one or more of these categories of permissible 
coastal State laws and regulations, provided they are applied in a 
manner that is consistent with various other provisions of the 
Convention (such as those relating to non-discrimination and non-
impairment of innocent passage).
    Article 33 addresses the so-called ``contiguous zone,'' which is an 
area adjacent to and seaward of the territorial sea that may extend out 
to 24 nautical miles from coastal baselines. In the case of the United 
States, which has declared an EEZ, the contiguous zone is located 
within the EEZ. Article 33 provides that, in the contiguous zone, the 
coastal State may exercise the control necessary to ``prevent 
infringement of its customs, fiscal, immigration or sanitary laws and 
regulations within its territory or territorial sea (emphasis added).'' 
In this respect, Article 33 tracks almost verbatim (``laws and 
regulations'' versus ``regulations'') Article 24 of the 1958 
Territorial Sea and Contiguous Zone Convention, to which the United 
States is a party. Accordingly, one of the purposes of this provision 
is to permit the coastal State to take certain actions against foreign 
vessels in its contiguous zone to prevent infringement of the coastal 
State's sanitary laws and regulations within its territory or 
territorial sea. In the case of the examples you cite, the location and 
nature of the conduct would be relevant to the consideration of which 
provisions of the Convention would apply. With respect to activities 
subject to Part XII of the Convention, the regime of the EEZ set forth 
in the Convention includes elaborate provisions regarding the right of 
the coastal State to protect and preserve the marine environment. 
Moreover, most foreign vessels in the U.S. contiguous zone are 
traveling to or from U.S. ports; consistent with the Convention, the 
United States can and does impose restrictions as a condition of entry 
to U.S. ports.

    Question 4. Article 56 provides that in the EEZ, the coastal State 
has sovereign rights for the purpose of ``exploring and exploiting, 
conserving and managing the natural resources, whether living or non-
living,'' and jurisdiction with respect to the ``protection and 
preservation of the marine environment.'' Please provide examples of 
such measures.

    Answer. Your question refers to subparagraphs 1(a) and 1(b) of 
Article 56 of the Convention. Examples of measures implementing 
subparagraph 1(a) include those asserting exclusive management 
authority over fisheries. For the United States, such measures are 
contained, for example, in the Magnuson-Stevens Fishery Conservation 
and Management Act, which provides for exclusive U.S. fisheries 
management authority over all fishery resources up to the 200-mile 
limit of the U.S. EEZ. Concerning Article 56(1)(b), which accords 
jurisdiction as provided for in the relevant provisions of the 
Convention with regard to the protection and preservation of the marine 
environment, an example of a measure would be a coastal State law 
regulating pollution by dumping in the EEZ, consistent with Articles 
210 and 216 and other relevant aspects of Part XII of the Convention.
    For the United States, dumping is controlled by the Marine 
Protection, Research, and Sanctuaries Act (Ocean Dumping Act), which 
implements U.S. obligations under the Convention on the Prevention of 
Marine Pollution by Dumping of Wastes and Other Matter (the so-called 
London Convention). Oil and gas operations in the U.S. EEZ are 
controlled by the Outer Continental Shelf Lands Act, which establishes, 
among other things, rigorous pollution prevention requirements.

    Question 5. Article 211 states that coastal States may adopt laws 
and regulations for the prevention, reduction and control of pollution 
from vessels in EEZ ``conforming to and giving effect to generally 
accepted international rules and standards established through the 
competent international organization.''

   Is it clear that this clause means that in the absence of 
        any international agreement, the U.S. could regulate pollution 
        from vessels not entering a U.S. port in the EEZ, outside of 
        the territorial sea? Would the double-hull requirements of the 
        Oil Pollution Act of 1990 be consistent with this clause? Is it 
        clear whether ``conforming to'' sets a ceiling or merely a 
        floor on what the U.S. can do domestically?

    Answer. The Convention's provisions relating to pollution from 
vessels are a significant part of the overall balance between coastal 
and maritime interests the Convention is designed to maintain over 
time. Paragraph 1 requires States to establish international rules and 
standards to prevent, reduce and control vessel source pollution. In 
that regard, the IMO has developed several conventions that, directly 
or indirectly, address vessel source pollution, including the MARPOL 
Convention and its several annexes, as well as the SOLAS Convention, 
the International Convention on Standards of Training, Certification 
and Watchkeeping (STCW), and the International Convention on Oil 
Pollution Preparedness, Response, and Cooperation.
    In recognition of a coastal State's sovereignty within its 
territorial sea, Article 21 affirms the authority of the coastal State 
to establish requirements relating to pollution from foreign vessels, 
including vessels exercising the right of innocent passage, with 
certain provisos. In the EEZ, where all States' interest in navigation 
is greater than in the territorial sea, a coastal State's requirements 
relating to pollution from foreign vessels must conform to and give 
effect to generally accepted international rules and standards. This 
approach is designed to avoid a global patchwork of unilateral 
requirements in various EEZs and to protect freedom of navigation.
    There are two respects in which generally accepted international 
rules and standards (or the absence of any such rules and standards) 
set a ``floor:''

   First, States are free to adopt laws for the regulation of 
        pollution from vessels flying their flag that have ``at least'' 
        the same effect as that of generally accepted international 
        rules and standards; thus, a State could choose to impose more 
        stringent standards upon its own vessels.

   Second, where the international rules and standards are 
        inadequate to meet special circumstances and a coastal State 
        considers that a particular area of its FEZ requires greater 
        protection, a coastal State may pursue IMO approval for 
        designation of one or more special areas, as well as mandatory 
        measures that exceed international rules and standards.

    Concerning the double-hull requirement of the Oil Pollution Act of 
1990, there would be no inconsistency with Article 211. The House 
Conference Report indicates that section 3703(a) ``. . . is not 
intended to apply to vessels transiting U.S. waters or transiting the 
Exclusive Economic Zone in innocent passage . . . .''

    Question 6. UNCLOS includes a number of provisions that seem to 
have the potential to limit our ability to enforce domestic law, e.g., 
the requirement of Article 220(5) of a showing of ``substantial 
discharge causing or threatening significant pollution of the marine 
environment,'' the requirement of Article 226 that inspections of 
foreign vessels be limited to a paper review, unless there are ``clear 
grounds'' for believing that the vessel condition does not comport with 
its certificates, and the restriction in Article 230 of non-monetary 
(e.g., criminal penalties) for violating national pollution laws to 
cases of ``willful or serious acts.'' Please explain how the U.S. can 
interpret Articles 220, 226, 228 and 230 in a manner that will not 
limit our current practices and our ability to enforce U.S. laws.

    Answer. See answer to Question 1.
    The Convention's provisions relating to pollution from vessels, 
including its provisions concerning coastal State enforcement against 
foreign flag vessels, are a significant part of the overall balance 
between coastal and maritime interests. In line with the policy of 
successive Administrations since 1983 to act in accordance with the 
balance of interests reflected in the Convention's provisions regarding 
traditional uses of the oceans, U.S. practice has been to enforce its 
marine pollution laws in a manner consistent with the Convention.
    The specific issues you raise were considered in the context of 
transmitting the Convention to the Senate and were addressed in the 
commentary attached to the Letter of Transmittal:

   Concerning the ``clear grounds'' requirement in Articles 220 
        and 226, when the Convention was transmitted to the Senate, it 
        was determined that the United States could legitimately 
        interpret the ``clear grounds'' requirement as being satisfied 
        by our domestic ``reasonable suspicion'' standard. The Letter 
        of Transmittal notes the issue.

   Concerning Article 230, the Letter of Transmittal noted that 
        ``[t]he requirement that the act be `willful' would not 
        constrain penalties for gross negligence'' and further that 
        ``Article 230 applies only to natural persons aboard the vessel 
        at the time of discharge.''

   The Letter of Transmittal further notes, with respect to 
        Article 228, that the requirement that a coastal State suspend 
        enforcement proceedings against a foreign vessel if the flag 
        State institutes its own proceedings within a specific time 
        period is consistent with the notion that the flag State is 
        primarily responsible for ensuring compliance with the 
        Convention of vessels flying its flag or of its registry.

    The Administration will recommend to the Senate that these 
understandings be among those reflected in the resolution of advice and 
consent.

    Question 7. Please discuss whether UNCLOS could be used to 
challenge U.S. trade measures under the Pelly Amendment, Section 609 of 
P.L. 101-162, and other laws to protect species such as sea turtles and 
dolphins from destructive fishing practices?

    Answer. The Convention would not provide a basis for a challenge to 
U.S. trade measures designed to promote or require compliance with 
conservation and environmental laws, norms, and objectives, such as the 
protection of sea turtles and dolphins. The Administration will 
recommend to the Senate that the resolution of advice and consent 
reflect that nothing in the Convention limits the right of a State to 
prohibit or restrict imports into its territory in order to, inter 
alia, promote or require compliance with environmental and conservation 
laws, norms, and objectives.

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