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UNITED NATIONS CONVENTION ON THE LAW

OF THE SEA

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

MARCH 23, 2004

Printed for the use of the Committee on Environment and Public Works

(
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

JOHN CORNYN, Texas

LISA MURKOWSKI, Alaska

CRAIG THOMAS, Wyoming

WAYNE ALLARD, Colorado

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

(II)
(III)

CONTENTS

Page

MARCH 23, 2004

OPENING STATEMENTS

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island .................. 12

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 2

Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska ........................... 29

WITNESSES

Gaffney, Frank, Jr., president and CEO, The Center for Security Policy .......... 19

Prepared statement .......................................................................................... 77

Responses to additional questions from:

Senator Inhofe ........................................................................................... 80

Senator Jeffords ......................................................................................... 83

Senator Murkowski ................................................................................... 82

Kelly, Paul L., senior vice president, Rowan Companies, Incorporated; member, U.S. Commission on Ocean Policy ............................................................... 21

Prepared statement .......................................................................................... 85

Responses to additional questions from:

Senator Inhofe ........................................................................................... 88

Senator Jeffords ......................................................................................... 91

Senator Murkowski ................................................................................... 90

Leitner, Peter, author, ‘‘Reforming the Law of the Sea Treaty: Opportunities

Missed, Precedents Set, and U.S. Sovereignty Threatened’’ ............................ 24

Article, A Bad Treaty Returns ..................................................................... 129–145

Prepared statement .......................................................................................... 92

Report, Law of the Sea Treaty: A Defective Document That Should Not

Be Ratified ................................................................................................... 95–126

Responses to additional questions from:

Senator Inhofe ........................................................................................... 147

Senator Jeffords ......................................................................................... 152

Oxman, Bernard H., professor of law; director, Ocean and Coastal Law Program, University of Miami School of Law .......................................................... 27

Article, The American Journal of International Law, Vol. 88:477; Vol.

88:488; Vol. 88:687 .................................................................................... 166–187

Prepared statement .......................................................................................... 155

Responses to additional questions from:

Senator Inhofe ........................................................................................... 188

Senator Jeffords ......................................................................................... 191

Turner, John F., Assistant Secretary, Bureau of Ocean and International

Environmental and Scientific Affairs, U.S. Department of State: Accompanied by: William H. Taft IV, Chief Legal Counsel, U.S. Department

of State .................................................................................................................. 13

Prepared statement .......................................................................................... 66

Responses to additional questions from:

Senator Inhofe ...........................................................................................73, 77

Senator Jeffords ......................................................................................... 75
Page

IV

ADDITIONAL MATERIAL

Letters from:

American Petroleum Institute, International Association of Drilling Contractors and National Ocean Industries Association ................................. 4

Benton, David, Benton and Associates ........................................................... 193

Clark, Vern, Admiral, U.S. Navy .................................................................... 65

Cox, Joseph, J., president, Chamber of Shipping of America ....................... 194

Leaders of 11 major environmental groups .................................................... 9

Panetta, Leon E., chair, Pew Oceans Commission ........................................ 11

Powell, Colin L., Secretary of State ................................................................ 64

Simonds, Kitty M., executive director, Western Pacific Regional Fishery

Management Council .................................................................................... 196

Watkins, James D., Admiral, U.S. Navy (Retired), chairman, U.S. Commission on Ocean Policy ......................................................................... 58, 62–63

Resolution of the Commission on Ocean Policy ..................................................... 62

Statements:

Cox, Joseph J., president & CEO, Chamber of Shipping of America,

given before the Senate Committee on Foreign Relations on the U.N.

Convention of the Law of the Sea, October 21, 2003 ................................. 194

Kelly, Paul L., senior vice president, Rowan Companies, Inc., on behalf

of the American Petroleum Institute, The International Association

of Drilling Contractors, and The National Ocean Industries Association

before the Committee on Foreign Relation, October 21, 2003 .................. 4

Stevens, Hon. Ted, U.S. Senator from the State of Alaska........................... 11, 55

Watkins, James D., USN (Retired) chairman, U.S. Commission on Ocean

Policy, October 14, 2003 ............................................................................... 59
(1)

UNITED NATIONS CONVENTION ON THE LAW

OF THE SEA

TUESDAY, MARCH 23, 2004

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The committee met, pursuant to notice, at 2 o’clock p.m. in room

406, Senate Dirksen Building, Hon. James M. Inhofe (chairman of

the committee) presiding.

Present: Senators Inhofe, Chafee, Jeffords, Murkowski, Thomas

and Warner.

Also present: Senator Stevens.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. We will call the hearing to order. We have a

policy of starting exactly on time, and we want to be consistent

with that.

I want to open this hearing by thanking our witnesses in advance for their testimony. The committee will receive testimony

this afternoon regarding the United Nations Convention on the

Law of the Sea. The United Nations Convention on the Law of the

Sea represents an international agreement. The party nations are

to comply with mandatory rules related to the navigation of the

seas, the use of the marine resources, and the protection of the marine environment.

The Foreign Relations Committee held two hearings on this last

fall. It appears that the two hearings only vetted one side. Everyone who was testifying was for it, so we thought we would try to

get a balanced hearing, and that is why we are having the hearing

today.

This committee is conducting the oversight hearing because we

have an obligation to ensure that this Convention is consistent

with protecting human health and the environment, and does not

adversely affect the sovereignty of the United States. It is time to

slow down and take a critical evaluation of this Convention that

deals with the outer continental shelf, which is in the jurisdiction

of this committee.

I have many concerns about the flawed provisions in this Convention, specifically Article II, Section 3 that states, ‘‘The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.’’ Also, when a Coastal

State exploits non-living resources such as oil permits on the continental shelf beyond the 200 nautical miles, the Convention re-
2

quires a Coastal State to make annual payments starting in the

sixth year of production to the International Seabed Authority.

This Authority is also granted immunity and accountability from

legal process, from search, and any form of seizure wherever located and held, and exempted from restrictions, regulations, controls and moratoria of any nature.

We need to critically examine these concerns to ensure the Authority cannot conduct itself in a matter outside the recommendations of the Convention.

This Convention also contains numerous provisions relating to

the protection of the maritime environment, specifically addressing

pollution from multiple sources including land-based pollution,

ocean dumping vessels, and atmospheric pollution and pollution

from off-shore activities.

We need to take a closer look at these provisions, such as Articles 208 and 210 of the Convention which requires Coastal States

to adopt laws and regulations that are no less effective than international rules and recommended practices to prevent, reduce and

control pollution in the maritime environment from seabed activities and dumping.

Furthermore, Article 207 requires states shall adopt laws and

regulations for pollution from land-based sources to minimize to

the fullest extent possible the release of toxic, harmful and noxious

substances into the marine environment.

Article 196 of the Convention addresses the issue of invasive species, which is a major environmental issue facing this country. This

committee recognizes the detrimental effects from introduction of

invasive species and we are currently reviewing legislation to address this issue independently. Although the Convention appears to

have affirmed a coastal nation’s exercise of its domestic authority

to regulate the introduction of invasive species into the marine environment, we must critically evaluate the ability to fully address

this problem.

Although the focus of today’s hearing, as a senior member of the

Senate Armed Services Committee, I am very troubled about implications of this Convention on our national security, particularly in

view of our continuing war on terrorism. I want to make it clear

today that I intend to look into these issues more fully before the

Senate considers this Convention.

I think that is essentially why we are doing this. There have

been two hearings before. I want to get a broader approach, hearing all sides. I am probably more than anything else concerned

about perhaps some national security problems that could come up

with the adoption of this Convention.

With that, I will give it to the Ranking Member of the Environment and Public Works Committee, Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Thank you, Senator.

I want to express my strong support for the U.N. Convention on

the Law of the Sea. I would urge that the full Senate give its advice and consent to the Convention as soon as possible. The United
3

States can no longer afford to postpone full participation in this important international agreement.

Simply put, becoming a party to the Convention is vital to our

national security interests. It is vital to our economic interests. It

is vital to our efforts to conserve ocean resources and to protect the

marine environment.

Time is running out. The Convention will be open for amendment

later this year. If the United States is not a party by that time,

we will not be at the table when important decisions are made regarding the future direction of the Convention. This will obviously

inhibit us from pursuing and protecting our interests.

I want to thank Senator Lugar and the rest of the Foreign Relations Committee for the fine job they did in crafting a resolution

for advice and consent. That resolution and the declaration that it

contains regarding the official U.S. interpretation of certain provisions should dispel any concerns that Senators might have with

U.S. participation in the Convention.

This is an issue that I care about a great deal and one that I

have been involved in for a long time. As a former Navy officer on

the first U.S. military ship to navigate the Suez Canal when it reopened, I understand the importance of freedom of navigation to

our national security interests. During my tenure in the House of

Representatives, I served as an adviser on the U.S. delegation to

the Law of the Sea negotiations.

Since that time, I have maintained a strong interest in the Law

of the Sea as a comprehensive legal framework for managing the

many uses of the oceans.

My work in the Congress on environmental issues has also reinforced the importance of promoting the obtainable management of

ocean resources and the protection of the marine environment.

I would also remind my colleagues that this is not a partisan

issue. We must beat back any effort to make it one. Nor is this an

issue that caters to the interests of one particular constituency. Indeed, I have seldom seen an issue marked by such widespread

agreement across the political spectrum. A bipartisan, Presidentially appointed U.S. Commission on Ocean Policy has expressed the unanimous support for all U.S. participation, a full

U.S. participation. I am sure that Paul Kelly who is here today on

behalf of the Commission will have more to say on this.

I would also ask unanimous consent to submit for the record a

letter from retired Admiral James D. Watkins, the chairman of the

Commission, reiterating the Commission’s support. I would also

point out that the U.S. Department of Defense supports this treaty.

Key segments of the U.S. industry, including the oil and gas industry, support the treaty. The environmental community supports it.

How often does this happen in this age? The U.S. Department of

Defense, and especially the U.S. Navy, favor full U.S. participation

because the Law of the Sea protects and enhances the global movement of military operations that is so critical to our national security.

As evidence of this, the Navy support, I would ask unanimous

consent to submit a letter from Admiral Vern Clark, the current

Chief of Naval Operations, expressing the strong support of full

U.S. participation in the Law of the Sea.
4

Senator INHOFE. Without objection, both the Watkins and the

Clark statements will be made a part of the record.

[The referenced documents can be found in Additional Material:]

Senator JEFFORDS. Thank you, Mr. Chairman.

Similarly, key industrial and commercial interests also support

U.S. participation in the Law of the Sea for several reasons. The

Convention codifies important navigation rights and freedoms. It

confirms that Coastal States such as the United States enjoy exclusive rights to the resources of the 200-mile exclusive economic zone.

It secures the sovereign rights of coastal rights such as the United

States to explore and develop the natural resources of their continental shelf areas.

As testament to the support that the Convention enjoys from various segments of industry, I would unanimous consent to submit

letters of support from the American Petroleum Institute, the

International Association of Drilling Contractors, the National

Ocean Industries Association, the Chamber of Shipping America,

and the Western Pacific Regional Fishery Management Council.

Senator INHOFE. Without objection.

[The referenced documents follow:]

March 19, 2004.

Senator JAMES M. INHOFE,

Senator JAMES M. JEFFORDS,

U.S. Senate,

Washington, DC.

DEAR SENATORS INHOFE AND JEFFORDS: The American Petroleum Institute (API),

the International Association of Drilling Contractors (IADC) and the National Ocean

Industries Association (NOIA), are pleased to provide for the Senate Environmental

and Public Works Committee a copy of our statement in support of U.S. ratification

of the United Nations Law of the Sea (LOS) Convention. The statement was delivered during an October 2003 hearing before the Senate Foreign Relations Committee. We would ask that our statement be made part of your committee’s record

for the March 23, 2004 hearing on the LOS.

Thank you for considering the views expressed in this statement.

AMERICAN PETROLEUM INSTITUTE.

INTERNATIONAL ASSOCIATION OF

DRILLING CONTRACTORS.

NATIONAL OCEAN INDUSTRIES

ASSOCIATION.

STATEMENT BY PAUL L. KELLY, SENIOR VICE PRESIDENT, ROWAN COMPANIES, INC.

ON BEHALF OF THE AMERICAN PETROLEUM INSTITUTE, THE INTERNATIONAL ASSOCIATION OF DRILLING CONTRACTORS, AND THE NATIONAL OCEAN INDUSTRIES ASSOCIATION BEFORE THE COMMITTEE ON FOREIGN RELATIONS, HEARING ON THE

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, OCTOBER 21, 2003

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.
5

1 John Westwood, Barney Parsons and Will Rowley, Douglas Westwood Associates, Canterbury, United Kingdom, Oceanography, vol. 14, no. 3/2001.

The offshore oil and natural gas industry is a multibillion-dollar industry. A recent economic survey of global ocean markets done in the United Kingdom1 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.

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 U.S. 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.
6

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 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. 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 1 percent and is structured

to increase at the rate of 1 percent per year to a maximum of 7 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
7

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.

EEZ. 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 toward 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
8

2See ‘‘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.

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 (EIA), 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 20 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 EIA, 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.
9

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.

Senator JEFFORDS. All of these are urging the United States to

become a party to the Law of the Sea. Finally, the environmental

community also supports U.S. participation in the Law of the Sea.

This is because the Convention sets forth a comprehensive legal

framework obligating states to conserve and manage living marine

resources and to protect the marine environment from all other

sources of pollution.

As evidence of the environmental community’s strong support for

the full U.S. participation, I ask unanimous consent that the following letter signed by the leaders of the 11 major environmental

groups be placed in the record.

Senator INHOFE. Without objection.

[The referenced document follows:]

THE OCEAN CONSERVANCY, OCEANA, CENTER FOR INTERNATIONAL

ENVIRONMENTAL LAW, IUCN/WORLD CONSERVATION UNION, NATURAL

RESOURCES DEFENSE COUNCIL, SCENIC AMERICA, ENVIRONMENTAL DEFENSE,

NATIONAL ENVIRONMENTAL TRUST, PHYSICIANS FOR SOCIAL RESPONSIBILITY,

U.S. PUBLIC INTEREST RESEARCH GROUP, LEAGUE OF CONSERVATION VOTERS,

March 22, 2004.

DEAR SENATORS INHOFE AND JEFFORDS: On behalf of the undersigned organizations and the millions of members we represent, we urge your support for the Senate’s advice and consent on the resolution of ratification developed by the Foreign

Relations Committee for U.S. entry into the United Nations Convention on Law of

the Sea (hereinafter UNCLOS or Convention).

UNCLOS 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. There is general agreement in the environmental community that, with the understandings and declarations recommended by the Committee on Foreign Relations, UNCLOS serves the environmental interests of the

United States in providing a stable legal framework for the promotion of environmental decisionmaking over time. We urge 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. In large measure, UNCLOS is considered customary international law by the United States; therefore, we gain nothing by our

failure to commit to the treaty, while we lose much.
10

The United States must fully engage our fellow nations and secure the cooperation of the international community if we are to be successful in protecting the

oceans and their resources. 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. Both the Commission

on Ocean Policy and the Pew Oceans Commission have recommended accession to

secure a positive 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.

We applaud the bipartisan leadership provided by Chairman Richard Lugar and

Senator Biden in, developing interpretive language, with the help of the Administration, clarifying how UNCLOS provisions will be implemented by the United States.

Because of their efforts, U.S. full authority to protect our marine environment and

resources will be preserved and remain capable of being exercised in the future. We

urge you to fully support expeditious ratification of this international agreement to

allow the United States to guide and shape international ocean policy for future

generations.

Sincerely,

Roger T. Rufe, President and CEO, The Ocean Conservancy; Daniel B.

Magraw, Jr., President, Center for International Environmental Law;

Frances Beinecke, Executive Director, Natural Resources Defense

Council; Andrew F. Sharpless, Chief Executive Officer, Oceana; Fred

Krupp, Executive Director, Environmental Defense; Meg Maguire,

President, Scenic America; Phillip E. Clapp, President, National Environmental Trust; Scott Hajost, Executive Director, IUCN–US,

International Union for the Conservation of Nature; Robert K. Musil,

Executive Director, Physicians for Social Responsibility; Gene

Karpinksi, Executive Director, U.S. Public Interest Research Group;

Deb Callahan, President, League of Conservation Voters.

Senator JEFFORDS. I would ask also unanimous consent to submit to the record a letter from Pew Oceans Commission supporting

the Convention and urging Senator Frist to schedule floor action at

the earliest possible date.

Senator INHOFE. Without objection.

[The referenced document follows:]

CENTER FOR SEACHANGE,

Arlington, VA, March 15, 2004.

Hon. WILLIAM H. FRIST, Majority Leader,

U.S. Senate,

Washington, DC.

DEAR SENATOR FRIST: We write to urge you to schedule a vote on the resolution

of ratification for the United Nations Convention on the Law of the Sea (the Convention) at the earliest opportunity, Ratifying the Convention is of both substantive

and symbolic importance in protecting and restoring the health of our oceans.

Numerous recent studies and reports, including the report of the Pew Oceans

Commission, on which we served, have articulated serious concerns about the state

of our living oceans. The increasing, and often conflicting, demands human society

places on the oceans have resulted in problems ranging from polluted beaches to collapsed fisheries to disrupted coastal and ocean ecosystems.

Fortunately, there are solutions at hand for these problems. Their implementation

will require strong leadership and commitment. An important step in exercising

U.S. leadership would be ratification of the Convention, as recommended by the Pew

Oceans Commission and the congressionally chartered U.S. Commission on Ocean

Policy.

The United States is the world’s greatest maritime power, with strong international interests in military and commercial navigation, communications, research,

stewardship of living and non-living marine resources, and marine environmental

protection. We exercise jurisdiction over the world’s largest exclusive economic

zone—an area more than 20 percent larger than our nation’s land area. Yet the

United States has not acceded to the treaty that provides the fundamental framework for international ocean governance.

The Convention secures the United States’ rights to protect, manage and utilize

the resources of its EEZ. The establishment of 200-mile EEZs, combined with nations’ rights and obligations under the treaty for management and conservation of

marine resources, promote international cooperation in fisheries management. Its
11

regime for access for scientific research supports our efforts to understand the

oceans, including their significant role in regulating weather and climate.

The oceans are a public trust and we believe it is our ethical and civic responsibility to provide for their stewardship. Ratifying the Convention would affirm the

United States’ commitment to protection and management of the oceans and reassert our leadership on international ocean policy. We urge the Senate to act

promptly to ratify the Convention.

Sincerely,

LEON E. PANETTA,

Chair, Pew Oceans Commission.

On behalf of:

John Adams, President, Natural Resources Defense Council; Carlotta

Leon Guerrero, Co-Director, Ayuda Foundation; Geoffrey Heal, Ph.D.,

Garrett Professor of Public Policy and Business Responsibility, Columbia Business School; Tony Knowles, Former Governor, Alaska;

Julie Packard, Executive Director, Monterey Bay Aquarium; Joseph

P. Riley, Jr., Mayor, Charleston, South Carolina; Roger T. Rufe, Jr.,

President & CEO, The Ocean Conservancy; Eileen Claussen, President, Pew Center on Global Climate Change; Mike Hayden, Secretary, Kansas Department of Wildlife and Parks; Charles F. Kennel,

Ph.D., Director, Scripps Institution of Oceanography; Jane

Lubebenco, Ph.D., Wayne and Gladys Valley Professor of Marine Biology, Oregon State University; Pietro Parravano, President, Pacific

Coast Federation of Fishermen’s Associations; David Rockefeller, Jr.,

Vice Chairman, National Park Foundation; Kathryn Sullivan, Ph.D.,

President & CEO, COSI Columbus; Patten D. White, CEO, Maine

Lobstermen’s Association.

Senator JEFFORDS. To conclude, I want to emphasize the achieving our oceans policy objectives in all of these areas requires international cooperation. The full participation in the Law of the Sea

provides the best opportunity for the United States to engage in

such cooperation in a manner that protects and extends the U.S.

interest. Unilateralism is simply not a viable option on this matter.

Thank you very much, Mr. Chairman.

Senator INHOFE. Thank you, Senator Jeffords.

We have been joined by Senator Stevens. I know he is a supporter of this treaty and wanted to make a statement. If it is all

right, I would recognize you at this time, Senator Stevens, to make

any statement you wish to make.

OPENING STATEMENT OF HON. TED STEVENS, U.S. SENATOR

FROM THE STATE OF ALASKA

Senator STEVENS. Thank you very much, Mr. Chairman, and

members of the committee.

I did want to testify today. My position on Law of the Sea has

been varied. I recall when I came here in 1969 as a freshman minority Senator, Senator Magnuson asked me to be the member of

the Commerce Committee that monitored the Law of the Sea negotiations. I did that for a considerable period of time.

I would ask that my full statement appear in the record as so

read and let me just take a few minutes of your time of my history

on this.

Senator INHOFE. Without objection.

Senator STEVENS. I really gained a great perspective from those

trips, traveling with many members of the Senate, including Senator Claiborne Pell and so many others that were involved in that

Law of the Sea negotiation as the majority at that time. I really

was focused on fisheries and mining because of my State having
12

half the coastline of the United States and such a tremendous potential from the point of view of mineral resources.

I in the past have opposed this treaty because of the limitations

it put on both fishing and other resources of the sea. I think that

has been modified now and as pointed out in my statement, what

has been done during the period of time that has passed since 1969

to modify this treaty so it does protect American interests in both

fishing and mining, in my opinion. I am pleased with the declarations that have been worked out with the Foreign Relations Committee and with the Administration that go along with this treaty.

I think these confirm the right and sovereignty of the United

States to manage their natural resources, and they certainly do in

view of the things I have elaborated on in my statement, protect

the fishery resources off our shores that are so vital to the interests

of my State.

I urge that you go along with the concept and help us get this

treaty ratified. I feel that with the passage of time, we might lose

some of these agreements we have not, and I think the agreements

do protect our interests in resources and in fisheries, in particular.

If you would, I would appreciate it if you would put into the

record following my statement, the statement I made at the international fisheries, the Law of the Sea Convention, at the time

when I was opposed to it. So you will see where the opposition that

I articulated then and why I and my State now support the ratification of this treaty.

Senator INHOFE. Without objection, that will be included in the

record following your remarks.

Senator STEVENS. If you have any questions for me, I would be

pleased to respond.

Senator INHOFE. I do not have any questions. Do you have any

questions?

Senator JEFFORDS. I have no questions.

Senator STEVENS. Thank you for your courtesy.

Senator INHOFE. Thank you very much for your statement. We

appreciate that.

We have been joined by Senator Chafee. Senator Chafee, do you

have an opening statement you would like to share?

Senator Chafee. Yes, Mr. Chairman.

Senator INHOFE. You are recognized.

OPENING STATEMENT OF HON. LINCOLN CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. I would like to just say as a member of the Foreign Relations Committee, we did hold hearings on this treaty and

approved it in committee 19 to nothing. It is not often these days

where we get a 19 to nothing unanimous vote, but we did do that

on the Foreign Relations Committee in favor of this treaty.

I would like to also just quote from Secretary Turner on behalf

of the Administration in his submitted testimony in which he says,

‘‘As of today, 145 parties including almost all of our major allies have joined the

Convention.’’

He goes on to say,

‘‘It is in the interest of the United States to become a party to the Convention

because of military, economic and environmental benefits to the United States, and
13

because U.S. adherence will promote the stability of the legal regime for the oceans

which is vital to the U.S. national security, and because U.S. accession will demonstrate to the international community that when it modifies the regime to address

our concerns, we will join that regime.’’

So I support the treaty and welcome the witnesses.

Senator INHOFE. Thank you, Senator Chafee.

Mr. Turner, would you take the table up here? We have two panels today. The first will be the Administration, Mr. Turner, and

then that will be followed by four individuals who are divided

equally, both supporting and opposing the treaty.

So Mr. Turner, thank you very much for being here. You are recognized for whatever time you want to take, although your entire

statement will be made a part of the record. We never encourage

people to talk for a long time.

STATEMENT OF JOHN F. TURNER, ASSISTANT SECRETARY, BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL

AND SCIENTIFIC AFFAIRS, U.S. DEPARTMENT OF STATE ACCOMPANIED BY: WILLIAM H. TAFT IV, CHIEF LEGAL COUNSEL, U.S. DEPARTMENT OF STATE

Mr. TURNER. Chairman Inhofe, Senator Jeffords and Senator

Chafee, it is a pleasure for me to appear before you today to testify

on Law of the Sea.

Indeed, last October, I was able to join four other Administration

witnesses who testified before the Senate Foreign Relations Committee in strong support of the Law of the Sea Convention. I am

pleased to say again today that the Administration continues to believe that there are compelling reasons for the United States to become a party to this Convention. A wide variety of ocean-related

business groups and associations of environmental organizations

have endorsed the Administration’s position.

Mr. Chairman, I want to briefly emphasize three things in my

initial statement: No. 1, the historical U.S. support for a comprehensive Law of the Sea Convention; No. 2, some of the benefits

the United States will receive in joining this Convention; and No.

3, offer clarification of one critical misunderstanding about the

Convention that has surfaced recently.

The United States has historically had a very strong interest in

codification of the international law of the sea. We are already

party to four Law of the Sea Conventions established in 1958, but

we have long felt these treaties left some unfinished business.

Thus, beginning with President Nixon, the United States played a

prominent role in development of the comprehensive 1982 Convention. In 1983, President Reagan announced that the United States

would abide by all, all of the Law of the Sea Convention’s provisions except Part XI dealing with deep seabed mining.

Thus, the United States has acted in accordance with this treaty

for more than 20 years. Part XI has been fundamentally reworked

in a legally binding manner to address the mining concerns. The

1994 agreement provides for reasonable access by U.S. industry to

deep seabed minerals, overhauls the decisionmaking rules, restructures the regime to embrace free market principles, and includes

the elimination of mandatory technology transfers.
14

As the world’s leading maritime power with the longest coastline

and largest exclusive economic zone in the world, the United States

will benefit more than any other Nation from this Convention. Far

from taking away our sovereignty, the Convention affirms and extends U.S. sovereignty over vast resources. It gives the U.S. sovereign rights over living marine resources in our EEZ, including

our fisheries out to 200 nautical miles.

The Convention also gives the United States sovereign rights

over mineral resources, including oil and gas found in the seabed

and subsoil of the continental shelf, both within and beyond 200

miles. As a party, the United States would be able to establish with

legal certainty the outer limits of our very extensive shelf, including off Alaska, off the Atlantic Coast and the Gulf of Mexico.

The Convention also protects the freedom of U.S. entities to lay

submarine cables, fiber optic networks and pipelines, of increasing

importance to global communications, whether they be military or

commercial.

Part XII of the Convention establishes the legal framework for

the protection and preservation of the marine environment that

supports vital economic activities for this country. As a party, the

United States would be able to implement Part XII through a variety of existing U.S. laws, regulations and practices that are fully

consistent with the Convention and would not need to be changed

in any way.

Mr. Chairman, there is another benefit of U.S. accession that I

feel very strongly about. The United States must be at the table

of the Convention’s institutions that are already up and running in

order to influence and shape future outcomes that will affect our

vital economic and security interests such as the delineation of continental shelves.

Turning to misunderstandings about the Convention, my written

testimony responds to many of these incorrect assertions. I want to

highlight one: the false assertion that the U.S. accession to the

Convention would adversely impact the Proliferation Security Initiative, the PSI, launched by President Bush last May in Krakow.

The 14 nations participating in PSI are committed to combating

trafficking involving weapons of mass destruction, their delivery

systems and related materials. Far from impeding PSI, joining the

Convention would actually strengthen the United States’ PSI efforts. PSI operating rules specify that activities are undertaken

consistent with relevant international law and frameworks, including the Law of the Sea Convention.

The Convention provides a solid legal basis for taking enforcement action against vessels and aircraft suspected of engaging in

proliferation of weapons of mass destruction. All our PSI partners

are parties to the Convention and observe its provisions. The Navy

believes that U.S. accession would greatly strengthen its ability to

support PSI objectives by reinforcing and codifying freedom of navigation rights on which the Navy depends for operational mobility.

Mr. Chairman, in summary, as of today 145 parties, including almost all our major allies, have joined this Convention. It is in the

interests of the United States to become a party now, to take full

advantage of its military, economic and environmental benefits; to

promote the stability of a legal regime for the oceans, and to dem-
15

onstrate to the international community that when it modifies the

regime to address concerns of the United States, that we will join

that regime.

The Administration strongly recommends that the Senate give

its advice and consent on the basis of the proposed resolution before you.

Thank you very much, Mr. Chairman. I am pleased to have accompanying me here today William Taft, Chief Legal Counsel for

the State Department and Secretary Powell, who with your permission is available to join to answer any questions you or the committee may have.

Senator INHOFE. All right, Mr. Taft, why don’t you just join Mr.

Turner at the table.

Mr. Taft. Thank you, Mr. Chairman.

Senator INHOFE. We will go ahead and maybe do 5 minutes of

questions, and go longer if you want to.

I notice, Mr. Turner, in the Wall Street Journal and in the New

York Times, and I am going to read this. It says,

‘‘The Bush Administration retreats from effort to win ratification of the U.N. Convention on the Law of the Sea under pressure from conservatives who contend it

gives too much power to the United Nations, but proponents say approval of the

treaty is key to winning allied support for Bush’s Proliferation Security Initiative

and interdicting shipments of weapons of mass destruction.’’

Could you explain that? Is that a change of position? Could you

explain the accuracy of that statement?

Mr. TURNER. Mr. Chairman, I can certainly say that I would not

be here today testifying before you if there were any retreat or

changed position of the Administration. I appear before you today

with the full support of the President, the Vice President, Secretary

Powell, and key Agencies within this Administration that have to

deal with the important security and intelligence, military and

commercial concerns of this country.

There are just many compelling reasons for us to become a member. I might relate one story to you, Mr. Chairman. A year ago, the

Russian Federation filed a claim on a great deal of the Arctic as

a part of their continental shelf. I find it inconceivable that the

United States would not be a member of the Continental Shelf

Commission, not even in the room. The Nation with the most at

stake in oil and gas, that has the most geological information, not

even in the room as the Russian Federation and other countries

start staking out claims to their continental shelf. Indeed, the

United States will want to file their claim and will want to be a

member.

Senator INHOFE. You made the statement in your opening statement that the United States will benefit more than any other nation.

Mr. TURNER. The Law of the Sea Treaty is becoming an arena

for the world community to meet on several issues vital to the

United States, certainly access to oil and gas; the laying of communication cables; the rights of commercial navigation; access the

military; how we are going to address the depletion of our fisheries;

addressing the issues of global pollution. These are vital interests

of the United States and we ought to be at the table in charting

those.
16

I might say, Mr. Chairman, that many old-time diplomats question whether today we could negotiate a treaty this favorable, this

balanced to meet the interests of the United States. In November,

the treaty will be open for amendments and there are certainly

pressures that might want to change this balance. It would seem

to me that the United States should join now.

Senator INHOFE. OK, well, Mr. Turner, you heard me say that

one of the concerns, and one of the reasons I wanted to have this

hearing was to look at national security ramifications. You are contending that this actually enhances our ability to protect those interests. As a non-party to the Convention, we are allowed to search

any ship that enters this 200-nautical-mile area to determine if it

could harm the United States or pollute the maritime environment

and so forth. But under the Convention, the U.S. Coast Guard or

others would not be able to search any ship until the United Nations notifies and approves the right to search a ship. Is that accurate or is that inaccurate?

Mr. TURNER. I am going to ask Mr. Taft to respond to that.

Senator INHOFE. OK.

Mr. Taft. I will have to look at that specific provision, Mr. Chairman. I am not familiar with that, I am afraid to say, but I think

we ought to look at that.

Senator INHOFE. I think we should. Here we are in the middle

of a war and a very important function would be our ability to

search vessels. It seems rather strange to me that you do not have

a real good, fast, pat answer about that. I am going to ask the second panel to maybe address that.

Senator Jeffords.

Senator JEFFORDS. Mr. Turner, if the United States becomes a

party to the Convention, will there be any need for new environmental laws or regulations to meet our obligations under the Convention?

Mr. TURNER. Senator Jeffords, after a very careful analysis, the

treaty is in full accord and supportive of all the comprehensive

laws and regulations and programs that the United States now has

to protect the environment. In fact, it is my contention that because of the leadership of the United States to address coastal pollution, to manage its fisheries and so forth, that our experience

with our domestic law into the international arena will benefit, but

there is no need for any accompanying legislative changes in our

becoming a member of Law of the Sea.

Senator JEFFORDS. Thank you.

Is the Law of the Sea consistent with the President’s Proliferation Security Initiative? Is there any basis for the assertion that

full U.S. participation in the Law of the Sea will undermine this

important initiative in any way?

Mr. TURNER. Senator, the nations that have now joined us in the

President’s important PSI are all members of this treaty, PSI.

None of its activities are prohibited by Law of the Sea. As Admiral

Mullen, Vice Chief of Naval Operations, testified before Senator

Lugar’s committee, he said, ‘‘The LOS would greatly strengthen the

Navy’s ability to support the objectives of PSI.’’ The rules are completely compatible with the LOS and as we look with our partners

to maybe strengthen the regime of boarding and intercepting ves-
17

sels, that will be done more easily and be facilitated if in fact we

are all working within the dialog and the platform of the Law of

the Sea Convention.

Senator JEFFORDS. Thank you.

Would full U.S. participation in the Law of the Sea require any

changes in current United States practices regarding enforcement

of our environmental laws?

Mr. TURNER. It would require no changes in the enforcement of

our current law.

Senator JEFFORDS. Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Jeffords.

We have been joined by Senator Thomas. Senator Thomas, do

you have an opening statement you would like to share with us?

Senator Thomas. No, sir, fortunately I do not.

Senator INHOFE. All right.

Senator Thomas. But I do want to say hello to my friend John

Turner, who comes from Wyoming, as I do. We have the oceans

there, you know, so we need to be concerned. John, welcome.

Mr. TURNER. Senator, good to see you. Thank you for coming.

Senator Thomas. Thank you, sir.

Senator INHOFE. Senator Chafee.

Senator CHAFEE. As you know, Mr. Chairman, I do support the

treaty. I am in coordination with the Secretary’s remarks.

Senator INHOFE. Any questions?

Senator CHAFEE. No, I do not.

Senator INHOFE. All right.

Let me just get back to something that Senator Jeffords brought

up when he was talking about the enforcement, any changes. Article 212 of the Convention requires States to adopt laws and regulations for pollution from the atmosphere. I guess the question would

be, what laws that we have on the books right now might have to

be changed if we were to become a party to the Convention?

Mr. TURNER. As I understand those provisions, and maybe Mr.

Taft would like to speak, it encourages all the members, and I

think these were provisions helped negotiated by the United

States, that we all be better caretakers of these common properties,

marine resources and oceans; that we all work to prevent coastal

pollution; do a better job of watershed management; of controlling

our fisheries; of protecting coral reefs.

I think the United States does have good comprehensive law enforcement. In fact, other parties to the Convention can look to the

United States and their leadership. So there is nothing in this particular treaty that would compel the Congress of the United States

or resource agencies, the Administration, to change policy or put

forth new proposals.

Senator INHOFE. Would it mean, though, that other countries

could use a provision maybe to force us to change a policy, that is

to maybe regulate CO2? I do not want to get Senator Jeffords too

excited here, but would that be a possibility?

Mr. TURNER. Mr. Chairman, I do not see anything in here that

would address people dictating to us, especially in the arena of climate change.

Senator INHOFE. All right.
18

Mr. TURNER. We would hope that other nations would be better

stewards and follow the U.S. leader in trying to protect its important ocean resources.

Senator INHOFE. Senator Thomas, I am sure you have questions.

Senator Thomas. No, sir, I do not.

Senator JEFFORDS. I have one additional one.

Senator INHOFE. Yes, of course.

Senator JEFFORDS. Isn’t it true that Part XII provides only some

of the many provisions on protection of the marine environment

and protection of marine natural resources? For example, the treaty supports the right of a port State to impose environmental conditions as a condition of coming to a U.S. port. Is that correct?

Mr. TURNER. There are several povisions which would encourage

all parties to be better stewards of resources, and specifically in answer to your question, the United States now exercises its authority on ballast water coming into port. Any ships coming to U.S.

ports must exchange their ballast water at least 200 miles out. The

United States will look at increased standards on invasive species

and perhaps new standards for ship ballast and ocean dumping.

This is within the full rights of the United States and it is in accord and embraced by the treaty.

Senator JEFFORDS. Thank you.

Senator Thomas. Mr. Chairman, I would say to the Secretary

that I was in Jackson over the weekend and interestingly enough

I had not thought or talked much about this, but ran into a number of people who raised the issue. I guess they were people that

were concerned about the U.N.-type of arrangement where we

enter into something and other people then can make the decision

for us. So it kind of takes away some of our autonomy, and you

have probably commented on that, but would you briefly tell me

how you would answer those folks?

Mr. TURNER. Senator, the nice thing about this particular treaty,

we feel it embraces our sovereignty. It embraces U.S. control over

our natural resources, our continental shelf, our right to regulate

our fisheries, embark on oil and gas, and the right of our military

to have maximum flexibility out and around the globe. So it protects and embraces U.S. sovereignty in every category I can think

of.

Mr. TAFT. If I could just add, I think there was a concern in the

original treaty that certain activities regulating the international

seabed would have had a possibility of having the United States be

subject to laws that it did not agree with, so we refused to join it.

That has been fixed, as the Secretary said in his statement. So it

was the case, and that may have been what these people were

thinking about. The 1994 work that was done changed the Convention and solved that problem.

Senator INHOFE. Senator Thomas, I brought this up earlier, that

the argument that we better do this because everyone else is doing

it always scares me a little bit. In so many of these agreements,

we have had lengthy discussion in this committee and on the floor.

On the Kyoto Treaty, the argument was used there. Then you really examine it and find out that there would be terrible economic

consequences were we to have to comply with that.
19

So I would like to look at these things independently. One reason

I wanted to have this hearing is because there was no one at the

two hearings before the Senate Foreign Relations Committee who

was opposed to it. I think that there are, anytime you are dealing

with something like this, I still want to look and see if there are

any laws that we have on the books that could be changed. I am

concerned about this being able to board and search ships. That is

something that would be, particularly right now when we are in

the middle of a war. So these things we do want to pursue, and

I appreciate it.

Are there any other questions of Mr. Turner? Mr. Turner, I appreciate very much your being here and articulating your position.

We would ask you to retire the table, and our four witnesses for

panel two come forward.

Mr. TURNER. Mr. Chairman?

Senator INHOFE. Yes, of course.

Mr. TURNER. Thank you for allowing us this time. I would concur

with you that the last reason to join a treaty is because others are

members. I submit that joining this treaty is in the best interests

of the United States.

Thank you very much.

Mr. TAFT. Thank you, Mr. Chairman. I will get an answer for

that question.

Senator INHOFE. OK, thank you so much.

The second panel consists of Mr. Frank Gaffney, president and

CEO of the Center for Security Policy; Mr. Paul Kelly, senior vice

president of Rowan Companies, Incorporated, a member of the U.S.

Commission on Ocean Policy; Mr. Peter Leitner, author, Reforming

the Law of the Sea Treaty; and Mr. Oxman, professor at law, director, Ocean and Coastal Law Program at the University of Miami

School of Law.

We will go ahead and start in the order that I just introduced

you, starting with Mr. Gaffney.

Mr. Gaffney.

STATEMENT OF FRANK GAFFNEY, JR., PRESIDENT AND CEO,

THE CENTER FOR SECURITY POLICY

Mr. GAFFNEY. Mr. Chairman, members of the committee, thank

you very much.

Senator INHOFE. I would say the same things to you folks. Since

there are four of you, try to confine your opening remarks to about

5 minutes, but your entire statement will be made a part of the

record.

Mr. GAFFNEY. I appreciate that, Mr. Chairman. Mostly, I appreciate having an opportunity to testify on this treaty. As you have

pointed out several times, that opportunity was not afforded us,

those of us who are critical of the treaty, concerned about its provisions, during the deliberations of the Foreign Relations Committee.

I think given what is at stake here, which I would respectfully

submit are infringements upon the sovereignty and the freedom of

action on the seas and in some cases elsewhere of this treaty, imposing on the United States. It is a travesty not to have a much

more rigorous, much more fulsome, much more informed debate

than has been possible to this point.
20

So I appreciate your accommodating us and I look forward very

much to expressing some of the concerns that I and my colleagues

have and answering your questions about them.

One fundamental question which the committee needs to think

about, and the Senate needs to deliberate about, is this question

of what did the 1994 agreement do to the underlying treaty? It is

my understanding that that treaty, that agreement has not been

formally ratified, certainly not in the way that the underlying treaty has been; that it therefore cannot modify in the way that you

are being told it has modified; the concerns that we have had going

back to President Reagan’s day about both the seabed mining provisions contained in Part XI, but more generally the sort of edifice

of a new supra-national organization called the International Seabed Authority, which is really at the core of many of our concerns

about sovereignty and relinquishing sovereignty and submitting

this country and its maritime interests, both military and otherwise, to some new international control.

Related thereto, of course, is the International Tribunal, which is

also spawned under the International Seabed Authority. The kinds

of questions that you pose today it seems to me may be true at this

moment, but what I think we need to do, what the Senate most especially needs to do, is to look down the road as this institution

with American membership, with our fealty, if you will, to the treaty begins to kick in and begins to have both decisions made by this

International Seabed Authority and by this Tribunal impinge, as I

frankly submit they will inevitably on the decisionmaking and the

kinds of standards and the policies even of the U.S. Government

and certainly Members of the Congress.

I have to tell you that even before the recent reports about what

has been going on with the Iraqi Oil for Food Program, I was concerned about this supra-national agency and the authority that

would be conferred upon it to determine in no small measure what

would be done with the resources of some seven-tenths of the

world’s surfaces.

When you now have evidence accruing that vast kleptocratic behavior was taking place in the United Nations under this international-mandated activity, it has to raise additional questions, I

believe, as to whether this is an activity that we wish to entrust

to what are at the end of the day unaccountable, unelected bureaucrats in the United Nations, that will nonetheless be able to make

far-reaching and commercially very important decisions.

A question here about the rule of law. Judge Robert Bork has

written recently expressing concern about the extent to which

international judges and rulings are being increasingly cited in our

domestic jurisprudence. That raises questions going to I think a

point that you addressed, Mr. Chairman, earlier about how does

this thing evolve over time. Are we like to see greater and greater

infringement on the way we have traditionally done business,

whereby judges will on the basis of laws you and your colleagues

enact and the President signs? Or do they do it on the basis of

something else that somebody unelected, unaccountable, and perhaps corrupt dictates?

I am frankly very troubled by what you have been told today

about this Proliferation Security Initiative, and the ability that we
21

will have to exercise the kind of authority that we have to this

point with respect to vessels on the high seas, to say nothing of in

our exclusive economic zone or territorial waters, and whether we

can stop them, whether we can search them, whether we can seize

them. It is not clear from the reading of the treaty that what you

have just been told, that the PSI will be absolutely consistent with

this treaty; that it will be strengthened by this treaty. It is not

clear that that is true. It certainly seems to me, while this is not

strictly speaking in the jurisdiction of this committee, certainly the

probability that we will in the future, as we now see increasing evidence of tankers passing through places like the South China Sea

being hijacked, that you could see us concerned not only about

what is happening on ships plying the world’s oceans that might

be moving weapons of mass destruction-related material, which is

of course the focus of the PSI, but that are in effect environmental

terrorist instruments of mass destruction, and whether we will be

able, in fact, to stop them.

If they are not pirates; if they are not flying no flag at all; if they

are not engaged in radio broadcasting, which as I read it are the

three conditions under which the treaty allows you to do these

kinds of seizures.

Senator INHOFE. Mr. Gaffney, you have gone over your time.

Mr. GAFFNEY. I know I have, Mr. Chairman. May I just wrap up

with one final point, because I know it is a particular concern to

this committee, the question of research on global warming. I am

advised that this is being interfered with by the Russians as we

speak in their Arctic areas. One of the previous witnesses spoke to

this. I believe this is a matter of, if we are interested in finding

out whether there is anything to this, clearly monitoring what is

going on in the Arctic areas, including in the Russian areas, is

something that we will want to be able to do. It is not clear that

you can do it under this treaty. In fact, I think the treaty is going

to give the Russians excuses not to do it and encumber our ability

to pursue it.

So Mr. Chairman, finally, thank you very much for taking the

time this afternoon to give these sorts of concerns and a great

many more that time will not permit us to talk about today, perhaps, some illumination. I hope that other colleagues of yours and

other committees that also have equities in this treaty will also

take the time to look into it before the Senate is asked to consider

it and give it its advice and consent.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Mr. Gaffney.

Mr. Kelly, feel free to go over a little bit.

STATEMENT OF PAUL L. KELLY, SENIOR VICE PRESIDENT,

ROWAN COMPANIES, INCORPORATED; MEMBER, U.S. COMMISSION ON OCEAN POLICY

Mr. KELLY. Thank you, Mr. Chairman. I appreciate your inviting

me to testify before the committee today on this important topic.

I am here representing the U.S. Commission on Ocean Policy.

This Commission 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 with 12 coming
22

from a list of nominees submitted by the leadership of Congress in

both parties. We represent a broad spectrum of ocean interests. My

background is actually in the field of off-shore oil and natural gas

production. I know the Chairman has some questions on this topic

which I would be glad to get into later.

The Oceans Act of 2000 specifically charged our Commission with

developing recommendations on a wide 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 our

second meeting held in November 2001, 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 Law of the Sea

Convention.

After reviewing these statements and related information, our

Commissioners unanimously passed a resolution in support of

United States accession to the 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 attached a copy of this resolution

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.’’ Admiral Vern Clark, Chief of Naval Operations, stated that he ‘‘strongly believed that acceding to the 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 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. First, the Law of the Sea 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 re-shaping the seabed mining provisions in the early 1990’s. As a consequence, the Convention contains many provisions favorable to U.S. interests. The oceans provide vital food and energy supplies, facilitate waterborne commerce, and create valuable recreational opportunities. It is in

America’s interest to work with the international community to

preserve the productivity and health of the oceans and to secure cooperation among nations everywhere in managing marine assets

wisely.

There are a series of issues currently being considered by parties

to the Convention which could have tremendous economic implica-
23

tions for the United States. Of particular interest is the work of the

Convention’s Commission on the Limits of the Outer Continental

Shelf, which is charged with reviewing claims and making recommendations on the outer limits of the 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 participation in this process

would be beneficial. Namely, first, the LOS Convention sets up

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 a broad continental margin, so we have a lot of potential acreage for development to be gained from this provision.

The continental margins beyond the U.S. exclusive economic zone

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 in the future.

The work of the Continental Shelf Commission is now at a critical stage. The Russians have submitted a claim in the Arctic and

have received comments on their claim from the Commission.

Other States are preparing their submissions which are due in

2009 or within 10 years of a State becoming a party, whichever is

later. Considering the technical work to be done in order to delineate our own shelf, 10 years is a short time horizon.

Here in the United States, the University of New Hampshire

Center for Coastal and Ocean Mapping Joint Hydrographics Center, in conjunction with NOAA and the USGS, has already identified regions in U.S. waters where the continental shelf is likely to

extend beyond 200 nautical miles and is developing strategies for

surveying these areas. Bathymetric and seismic data will be required to establish and meet a range of other environmental, geological, engineering and resource needs.

The Minerals Management Service has estimated that there

could be just under 300,000 square miles that could be added to the

sea floor for potential resource development by the United States

once this delineation is done. I might add that we are the leaders

in technology in terms of knowing how to make these determinations with our advanced sonar and computer and computer graphics technology.

I also want to make the point which would be of particular interest to this committee that the 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 off-shore activities.

The principles, rights and obligations outlined in this framework

are the foundation on which more specific international agreements

is based.

Senator INHOFE. We are going to have to wind up here.
24

Mr. KELLY. Let me just make the point in wrapping up that the

Ocean Commission as I indicated has been directed by our enabling

legislation to make recommendations to preserve the role of the

United States as a leader in ocean activities. But in our opinion,

we cannot remain a leader without playing a role in the process.

For this reason, we renew our Commission’s unanimous call for

United States accession to the treaty.

Senator INHOFE. Thank you, Mr. Kelly.

Mr. Leitner, feel free to go ahead and take 7 minutes or so if you

need.

STATEMENT OF PETER LEITNER, AUTHOR, ‘‘REFORMING THE

LAW OF THE SEA TREATY: OPPORTUNITIES MISSED, PRECEDENTS SET, AND U.S. SOVEREIGNTY THREATENED’’

Mr. LEITNER. Thank you, sir.

Mr. Chairman, Mr. Jeffords, I really appreciate the opportunity

to be here today. I think you are giving a chance to air some concerns which have been basically excluded from the Senate Foreign

Relations Committee hearings, and from what I hear, also from the

National Ocean Policy Commission hearings, where it is hard to believe that if an extensive job was done of finding diverse opinion,

that opponents of the treaty would not have been surfaced in the

Commission hearings as well.

The Convention is a seriously flawed document. It was rightly rejected by President Reagan because it represents and embodies a

wide range of precedents, obligations and restrictions that are deleterious to American national and economic security interests.

The treaty has many precedent-setting provisions that are a direct assault on the sovereignty of the United States and the supremacy of the nation-state as the primary actor in world affairs.

None of these things have changed with the spurious 1994 agreement notwithstanding. The treaty is based upon a couple of fundamental principles which through to today. One is the common heritage of mankind principle, which asserts that the oceans or the

areas beyond national jurisdiction are the common heritage of mankind, meaning they cannot be appropriated by a particular country

and must be shared by the global commons. That philosophy, which

was the clarion call of the new international economic order back

in the 1970’s and the early 1980’s, is still embodied in and is still

a basic subtext of this agreement.

In addition, the treaty and the organizations that it brings forth

are based upon the one-nation-one-vote principle, which means

that the United States will have the same voting power in the assembly of the International Seabed Authority as Guinea-Bissau. It

does not represent American economic interests at all and it gives

a disproportionate weight to small irresponsible states who have

very little stake in the oceans or in the world economic system at

large.

I was first hired to get involved in the Law of the Sea Treaty

back in 1976 by the General Accounting Office. Then I was assigned as an observer to the U.S. delegation for several of the negotiating sessions, including the final session of the Conference. My

mission was to provide an alternative delegation report to the Congress, to several congressional committees, including House Mer-
25

chant Marine and Fisheries, the International Relations Committee

and others, because they felt that the delegation reports being

given by the State Department were inaccurate, misleading and

presented an overly rosy picture of the status of negotiations. After

hearing the prior speaker on the first panel from the State Department, I think they are still suffering from the same affliction.

The treaty has a range of ramifications that are not wholly related within the context of the treaty itself. It does have collateral

damage. In my position in the Defense Department for many years,

I have been dealing with high-tech transfers to Third World countries, potential adversaries and trying to control such trade in hightech to terrorist sponsors as well. Several years ago, the Chinese,

came in asking for the most advanced side-scan sonars, deep-sea

bathymetric equipment, remotely operated vehicles, cameras, sleds

and other equipment that they asserted they were going to use to

help survey their mine site in the mid-Pacific. They were using

their status as a pioneer investor under the Law of the Sea Treaty

to acquire a level of technology which is a direct threat to U.S. national security.

The technology that they wound up eventually getting approved

was exactly what they asked for. It basically provided the PRC

with the ability to engage in the deepest ocean areas to find, locate,

disrupt, salvage or destroy U.S. sensor webs and other types of

equipment that we put on the ocean floor in order to be able to

monitor hostile traffic. We gave the Chinese the ability to find, locate and destroy these systems.

The Chinese were using their status as a pioneer investor in

order to acquire technology they could not justify any other way.

When we fought this in the interagency process, we immediately

had lines drawn between treaty supporters and treaty opponents

where the argument was made in the State Department, NOAA

and some other Agencies that we need to provide this technology

to the Chinese as a sign of good faith in the Law of the Sea Treaty

and the development of international law. It will have a consequence that will outlive us all, unfortunately.

Much of the data that Mr. Kelly described in terms of the surveys, the high-end computer simulations, the graphics, and the

high-resolution sonar images that will be required in order to make

claims under the Law of the Sea Treaty to areas of the outer continental shelf, currently beyond 200 nautical miles, would be the

same type of data that an adversary can use in order to get critical

information about the physiography of our coastline, in order to develop submarine routing schemes, find underwater bastions or hiding places where a potential hostile can implant sensors, and use

a cruise missile launching submarine in order to menace our coast.

Unfortunately, the resolution of the images acquired in the year

2004 is a whole heck of a lot better than was able to be acquired

in 1980, when the treaty was negotiated. It puts that data in an

entirely different class of threat to the United States.

The treaty and its environmental provisions I believe are a relic

of an earlier era, an era where environmental damage was presumed to be accidental or incidental to economic activity. In the

post-9/11 era, however, the world is defined by the nonconventional

use of all tools available to a non-state or state-sponsored terrorist
26

or proxy warrior to create a weapon of mass destruction. The very

environment that we cherish and that this committee seeks to protect and preserve is a likely battleground in this new era. The presumptions that underlie the environmental provisions of the Law

of the Sea Treaty and other key elements of the document are woefully inadequate to handle the post-9/11 threats.

We have ample evidence of terrorists targeting maritime commerce as a means of waging their worldwide attacks. A critical aspect of their planning is to cause as much environmental degradation as is possible. The method of fighting turns western war-fighting doctrine based upon limiting collateral damage as much as possible on its head. Terrorists and their State sponsors have high regard for the environment, but unfortunately they see it as a force

multiplier, not as a treasure to be preserved.

You can recall very well the oil well fires in Kuwait set by

Saddam’s retreating troops and the use of the environment as a

weapon; also the attack on the French tanker Limberg, carrying

158,000 tons of crude oil where the object was to create as large

an oil spill as possible and cause as much collateral damage as possible.

As Mr. Gaffney was describing earlier, using a supertanker, an

LNG tanker as an environmental weapon is not beyond the pale.

It is also something that is actively being considered by

counterterrorism officials, by the Department of Homeland Security, by the Coast Guard and others. It is a reality. If a supertanker, for instance, was scuttled along our coast, possibly near a

nuclear powerplant, the ability of the powerplant to operate would

be shut down or cause catastrophic damage to the powerplant because its water intake, critical for its cooling system, would be

fouled and would probably be fouled for decades. The plant would

either have to be shut down or suffer direct damage.

Senator INHOFE. OK, Mr. Leitner, your time has expired. Do you

want to wrap up here?

Mr. LEITNER. Yes. I want to very quickly summarize that it is

absolutely critical for the Senate to focus all of its oversight power

on this treaty for very close scrutiny under the various jurisdictions

of the different committees. The treaty has taxation; it has miliary;

it has intelligence; it has judicial and other impacts beyond simply

foreign policy and environmental issues. It is absolutely critical for

the Senate to take a good look at this in all of its respects and look

at the full flower of the treaty, and hopefully do what has not been

done, and that is do an overall assessment of the treaty against all

of these equities. At the present moment what we have seen is a

constellation of narrow interest groups, single interest groups for

the most part, advocating on behalf of the treaty, without a collective judgment and overall impact assessment, an overall cost and

benefit assessment for the United States really being done. That

sorely needs to be done.

Thank you.

Senator INHOFE. Thank you, Mr. Leitner.

Mr. Oxman.
27

STATEMENT OF BERNARD H. OXMAN, PROFESSOR OF LAW; DIRECTOR, OCEAN AND COASTAL LAW PROGRAM, UNIVERSITY

OF MIAMI SCHOOL OF LAW

Mr. OXMAN. Thank you, Mr. Chairman.

Mr. Chairman, members of the committee, it is an honor to appear before you today to urge you and your colleagues to support

the resolution of advice and consent. The unanimous recommendation of the Foreign Relations Committee reflects the fact that the

Law of the Sea negotiations were a long-term, successful, bipartisan effort to further American interests that engaged successive

Administrations and I might add distinguished members of both

houses of Congress, including the distinguished Ranking Member

of this committee.

Mr. Chairman, President Bush has emphasized that we cannot

wait for the terrorists and their weapons to reach us. We need to

reach the sources of the threats. For that, we need reliable navigation and overflight freedoms throughout the world.

Mr. Chairman, in my opinion, we have ample sources of legal

and moral authority at our disposal to do what we need to do when

our forces reach their operational destinations, including the boarding and inspection of foreign vessels. The crucial contribution of the

Convention is that it facilitates our ability to deploy and move our

forces around the world in the first place.

It is all but impossible to carry out most operational missions

without traversing and using the 200-mile exclusive economic zones

of many other countries, but Coastal States are tempted to think

of their exclusive economic zones as belonging only to them. We

face a significant threat to our global mobility and operations in

the coming decades from the gradual erosion of high seas freedoms

of navigation and overflight and related military uses of the exclusive economic zone.

To deal with that threat, we need the greatest possible influence

over the perception of foreign governments regarding the source, legitimacy and content of their obligations to respect high seas freedoms in their exclusive economic zones. We achieve that best in my

opinion with a widely ratified Law of the Sea Convention to which

the United States is party, and with respect to which the voice and

practice of the United States are prominent authoritative evidence

of what the Convention means. The alternatives are likely to be

less effective and more costly.

Mr. Chairman, a significant part of my career has been devoted

to negotiating, drafting and writing on the Law of the Sea. I had

the privilege of representing the United States in the Nixon, Ford,

Carter and Reagan administrations in the Law of the Sea negotiations. The criticisms that we have heard today and have read recently are in my opinion misplaced and many of them are out of

date. They bear little resemblance to the Law of the Sea Convention text as I understand it, as modified by the 1994 agreement for

the specific purpose of resolving the problems identified by President Reagan. I should note that the 1994 agreement is a binding

agreement that modifies the Convention. From the first day it met,

the International Seabed Authority has acted in accordance with

and under the 1994 agreement.
28

In the text with which I am familiar, Mr. Chairman, there is unlikely to be much if any oil in the international seabed area beyond

the continental shelf. There is no all-powerful supranational Seabed Authority and no transfer of sovereignty or wealth to the Seabed Authority.

We will have control over the funds and other major decisions of

the Seabed Authority with our decisive vetoes on both the Council

of the Authority and in its Finance Committee. The implementing

agreement expressly discourages bureaucracy. There is no mandatory transfer of technology. On top of that, the Convention expressly states, ‘‘No party to the Convention is required to disclose

information contrary to the essential interests of its national security. There are no production limitations.’’ There is more, not less,

environmental protection in the sea and on the seabed.

The Convention gives us greater rights to board and inspect foreign vessels off our coast than we have under the Law of the Sea

treaties to which we are party today.

President Reagan did not reject the entire Convention. Quite to

the contrary, he embraced all of it except for the deep seabed mining provisions, instructed the U.S. Government to act in accordance

with it, and made it quite clear that he was prepared to use force

against foreign governments that did not respect the Convention.

Today, every neighbor of the United States, every other permanent member of the U.N. Security Council and every other major

industrial State in the world is among the 145 parties to the Convention. The issue is no longer whether there will be a Seabed Authority. That exists. The issue is whether the United States should

and will assume the privileged seat expressly reserved for it in the

text.

Mr. Chairman, I think this has three important implications. No.

1, the system is regarded as workable by other industrial states

that share many of our interests as consumers and potential seabed producers of hard minerals. No. 2, it is unlikely that major

sources of private capital would be particularly comfortable making

substantial new investments in deep seabed mining carried out in

defiance of the Convention. No. 3, we need to assume our guaranteed seat on the Governing Council of the Seabed Authority and

the Finance Committee, and the decisive voting power that goes

with it, as soon as possible to ensure that the system evolves in

ways satisfactory to the United States. This includes protection of

our environmental and economic interests as a Coastal States

whose continental shelf abuts the international seabed area in

three oceans.

Mr. Chairman, my prepared remarks address some of the matters to which you referred in your opening statement. I would be

happy to comment on some of the other questions that you posed

and any other questions that you and your colleagues may have.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Mr. Oxman.

We have been joined by Senator Murkowski. Senator Murkowski,

would you have an opening statement you would like to share?
29

OPENING STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM THE STATE OF ALASKA

Senator MURKOWSKI. Thank you, Mr. Chairman. I appreciate

your scheduling this hearing this afternoon. I am sorry that I was

not able to attend for most of the testimony, but since this is an

issue that strikes so close to my home State, I would like to take

the opportunity this afternoon to enter my comments into the

record.

Some of my colleagues might not be aware, but over half of the

United States coastline is in Alaska. Likewise, the Arctic Ocean

covers only 3 percent of the area surface, yet it accounts for over

25 percent of the world’s continental shelf area. So when we are

considering a treaty that governs the planet’s oceans and the ocean

floor, we in Alaska have a very strong, a very keen interest.

There are some who do not see the point in joining the rest of

the world in ratifying the Convention on the Law of the Sea. They

say that the United States already enjoys the benefits of the treaty,

even though we are not a member. They suggest that by not becoming a party to the treaty, we can pick and choose which sections of the treaty we abide by, while not subjecting our actions to

international review.

I would point out that while the situation may be favorable now,

it may not always be the case. The treaty is open to amendment

later this year and the question is, ‘‘Do we want a seat at the table

to ensure that our voice is heard, or do we place our interests in

the hands of other nations?’’

There are several topics I would like to comment on relating to

the treaty and its potential impact on Alaska, the first being claims

over the continental shelf. In the 1958 Convention on the Continental Shelf, to which the United States is a party, the issue of

limitations on the continental shelf was not resolved due to lack of

information about the continental shelf. With, technological advances and greater knowledge, the Law of the Sea provides that a

Coastal State’s continental shelf can extend for 200 nautical miles,

with a potential to extend that claim even further.

I understand that Russia submitted a claim in 2002 to the Commission on the limits of the continental shelf that would grant

them 45 percent of the Arctic Ocean’s bottom resources. I also understand that the Commission has so far withheld its approval of

the Russian claims.

According to the U.S. Arctic Research Commission, if we were to

become a party to the treaty, the United States stands to lay claim

to an area in the Arctic of about 450,000 square kilometers, approximately the size of California. But if we do not become a party

to the treaty, our opportunity to make this claim and have the

international community respect it diminishes considerably, as

does our ability to prevent claims like Russia’s from coming to fruition. Not only is this a negligent forfeiture of valuable oil, gas and

mineral deposits, but also the ability to perform critical scientific

research.

The Arctic Ocean is probably the most poorly understood ocean

on the planet. There are reports about the thinning of the polar cap

and open waters during the summer months. If the polar cap is in-
30

deed changing, now is the time to be studying it to determine its

impact on the global climate, as well as our fisheries.

Also in relation to the Arctic Ocean and the potential thinning

of the polar cap is the opening of the polar routes for maritime

commerce. There are predictions that the Arctic Ocean will be icefree for 90 days or more in the summer by the year 2050, which

in turn translates to greater access and greater utilization. By utilizing a polar route, the distance between Asia and Europe is 40

percent shorter than current routes via the Suez or Panama Canals, and is in a much more stable part of the world.

But with greater usage comes greater responsibility. A number

of nations have Arctic research programs. Alaska’s coastline on the

Arctic Ocean is over 1,000 nautical miles. The United States can

either exercise sea control and protection in this area of the world,

or cede that role to whichever Nation is willing to assume it. As

a party to the Law of the Sea, the United States’ ability to enforce

our territorial waters and our EEZ in the Arctic Ocean is strengthened even further.

Mr. Chairman, the Convention on the Law of the Sea also provides a basis for several international treaties with great relevance

to our Nation’s most productive fisheries, which occur off the coast

of Alaska and are of significant value to the economies of Alaska

and the other Pacific Northwest states.

The Convention on Straddling and Highly Migratory Stocks provides both access to and protections for fish stocks which migrate

through the high seas and the jurisdictions of other countries.

Among the stocks for which this agreement is of paramount significance is the Bering Sea stock of Alaska pollock, which is the basis

for this country’s largest single fishery.

The Convention on Fisheries in the Central Bering Sea is another critical piece, which allows us an unprecedented degree of

control over the activities of other fishing nations in the central

portion of the Bering Sea beyond both the United States and the

Russian exclusive economic zones. Without the influence of the

Law of the Sea, neither of these important fishing agreements

would likely have come into being.

I would also like to note the importance and the somewhat fragile status of our maritime boundary agreement with Russia. As you

may know, this agreement delineates a specific boundary between

our two countries. It is necessary because the agreement under

which the United States acquired what is now the State of Alaska

was interpreted differently by the two parties. Both the boundary

agreement and the fisheries enforcement mechanisms that stem

from it are critical to the conduct of fisheries policies in the United

States and Russian EEZs in the Bering Sea.

Although the United States ratified the Maritime Boundary

Agreement shortly after it was presented to the Senate, the Russian government has yet to do so, under pressure both from nationalist political interests and Russian Far-East economic interests.

While observing the provisions of the boundary treaty, the Russian government also has attempted to persuade the United States

to make a number of significant concessions regarding Russian access to U.S. fishery resources, suggesting that such concessions

would improve the atmosphere for Russian ratification. The terms
31

of the boundary treaty are widely regarded as highly favorable to

the United States and are themselves consistent with the Law of

the Sea. However, rejection of the latter by the United States could

trigger similar rejection by the Russian Duma of the boundary

treaty.

Senator INHOFE. Senator Murkowski, could you try to wrap up

pretty quickly?

Senator MURKOWSKI. I have one more paragraph, Mr. Chairman,

if you would allow me.

Senator INHOFE. All right, thank you.

Senator MURKOWSKI. If that were to occur, it would be extremely

difficult to renegotiate the boundary treaty with similar positive results for the United States. The United States and Alaska have tremendous interests in the Arctic Ocean. Our technological capabilities in calculating the extent of the continental shelf are welcomed

by other nations. As a party to the Law of the Sea Treaty, we have

the opportunity to stake our claim to a significant chunk of real estate that has the potential for impact on our economy and our national security.

Mr. Chairman, I appreciate the opportunity to make these comments, place them in the record, and again, as I mentioned at the

outset, Alaska has a keen interest in what goes on with this treaty

and I appreciate the opportunity to speak to the gentlemen that

are here today and to listen to their perspectives.

Thank you.

Senator INHOFE. Thank you, Senator Murkowski. Senator Stevens was here and made some similar comments.

First of all, let’s do 5-minute rounds and see what happens here.

Mr. Kelly, would you go into this thing. You had stated something about that area between 200 nautical miles and 350 nautical

miles, that this treaty could offer exploration or some production in

that area. Explain that to me, would you please?

Mr. KELLY. Yes, sir. Under the treaty, a Nation has a right to

claim sub-sea territory beyond the traditional 200-mile limit by

making a case to the Continental Shelf Commission of the United

Nations that our continental shelf actually extends beyond 200

miles. This is done by judging various elements of physical oceanography. If the claim is approved by the Continental Shelf Commission, the Coastal State, in this case the United States, could actually hold a lease-sale beyond 200 miles. The quid pro quo when

that was negotiated was that there would be a royalty paid to the

International Seabed Authority by the Coastal State for any minerals produced.

Senator INHOFE. By the government?

Mr. KELLY. Yes, it would be paid by the government. It is a royalty that only commences 5 years after initial production and it begins at 1 percent.

Senator INHOFE. OK, but the question I had is, in the absence

of becoming a party to this treaty, how could you get at that particular exploration? Can you do it now without this?

Mr. KELLY. Not really, without violating the Convention.

Senator INHOFE. No, forget about the Convention, if we are not

a party to it. Can you do it anyway?

Mr. KELLY. I do not believe so.
32

Senator INHOFE. So this would open up exploration, in your opinion, in areas we cannot explore right now.

Mr. KELLY. That is correct. You can ask, well, are we there yet

in terms of technology?

Senator INHOFE. No, I do not care about that.

Mr. KELLY. I just wanted to tell you that there are wells that

have been drilled recently in the Gulf of Mexico that are within 2.5

miles of the edge of the exclusive economic zone, so technology has

gotten us out to that distance. Whereas in 1994, it was not, but

today the technology is available to go beyond 200 miles. It has not

happened yet, but we are just about there in terms of the potential.

Senator INHOFE. All right.

Mr. Oxman, you heard me ask Mr. Turner when he was in here

the question in terms of being able to board vessels in our national

security’s interest. Twice in your testimony, you emphasized that

you can do that under this treaty. I would like to have you explain

that because Mr. Turner was not aware of that.

Mr. OXMAN. Thank you, Mr. Chairman. I will do my best.

Senator INHOFE. After that, I am going to ask Mr. Leitner and

Mr. Gaffney if you agree with his explanation here.

Mr. OXMAN. First, let me emphasize that we are already in

everybody’s opinion bound by the rules of high seas law that are

in question. The Law of the Sea Convention copies virtually verbatim the rules of high seas law that are contained in the 1958

Convention on the High Seas to which we are a party, having received the advice and consent of the Senate.

So those rules are the same. They are also the rules that President Reagan specifically announced that we would respect and that

we expected everybody else to respect, and every subsequent Administration has applied President Reagan’s declaration of 1983.

Now, those rules lay out specific circumstances under which a

ship can be boarded on the high seas in general. Under the Convention, we gain additional opportunities to board ships off our own

coast, not for security reasons, but for economic reasons, but nevertheless those can relate to security concerns. Thus for example,

while Senator Murkowski and I would agree, and would be interested in our power to board fishing vessels off Alaska to inspect for

fishing purposes, nevertheless our right to do so will carry with it

a right to make sure that we have nobody on board who is interfering with our security or might attack one of our fishing boats.

Similarly, we are going to have extensive boarding rights for

anti-pollution purposes. Once again, I am not suggesting pretext

here, but if we were to board a foreign vessel to make sure and

check under our pollution laws as to whether there has been a violation, it would be a dereliction of duty for the people on board not

to notice that there might be someone there who might be trying

to commit an act of terrorism either on one of our cities or the kind

of ecoterrorism to which there has been a reference.

In addition, we are party to other treaties that deal with terrorism. Finally, most important, Mr. Chairman, this Convention

does not affect our right of self-defense. It does not deal with the

rules of international law regarding armed conflict.

Senator INHOFE. All right. Thank you, Mr. Oxman.
33

Now, I would like to ask if there are any other members, the

other three here, that would like to express a position or challenge

anything that Mr. Oxman said.

Mr. LEITNER. First of all, terrorism is not really directly applicable to the rules of armed conflict. It is a totally different way of

fighting. It is a totally different creature. It is also basically a

peacetime engagement. What we normally consider as peacetime is

when terrorism actually flourishes. You do not have states to

blame. You do not have cities to attack. You do not have areas to

retaliate against.

The Proliferation Security Initiative is an attempt to go off-shore

to interdict what will otherwise be considered legal movement on

the high seas. Ships engaged in transit passage, not stopping, not

loitering, not polluting, would not be subject to boarding under The

Treaty if they are not engaged in certain restricted activities that

are enumerated in the Law of the Sea Treaty; if they are not engaged in the slave trade and if they are not engaged in broadcasting; if they are not flying a false flag; if they fail to fly any flag.

The Chinese have already come out very forcefully and asserted

that the Proliferation Security Initiative is illegal under the Law

of the Sea Treaty. They cited the various provisions and the various strictures that determine the particular events and particular

circumstances where boarding or interdiction is allowed. So the

Chinese are making it a matter of State policy now to use the Law

of the Sea Treaty to try to nullify the Proliferation Security Initiative.

They are trying to also, sub-rosa, intimidate allies like Singapore

and some other countries, Thailand and others who are part of PSI

from supporting it as well.

Senator INHOFE. All right. Thank you very much.

Mr. Gaffney, did you want to make any comment concerning that

issue?

Mr. GAFFNEY. Mr. Chairman, I would just encourage the committee to probe further on this, to investigate the treaty. A number

of things that are being said here today by some of its supporters,

I have not found in the treaty. Maybe it is just a poor reading on

my part, but I do not know where it says we have a guaranteed

place at the table, let alone a veto. That point has been made here

several times.

Senator INHOFE. OK. I am going to start with you.

Mr. GAFFNEY. I am trying to make sure that as promises are

made here, that we will be secure in whatever surrender of sovereignty or whatever adjustments we are making, the kind that

Peter has talked about or otherwise, that the Senate is dealing

with the treaty as it stands, first and foremost, and is very clear

on the extent to which if at all it has been formally modified with

the consent of all of the parties through an agreement negotiated

and signed in 1994.

Senator INHOFE. All right. Mr. Gaffney, my time has expired. We

have been joined by Senator Warner. Would it be all right if we deferred to Senator Warner?

Senator JEFFORDS. No problem whatsoever.

Senator WARNER. Yes, in a moment.

Senator INHOFE. All right, that is fine.
34

Senator Jeffords, for your questions.

Senator JEFFORDS. To followup, Mr. Gaffney, in your opening

statement you said that you were ‘‘troubled’’ by the testimony given

by the Administration’s witness. You also said that part of the testimony was simply, ‘‘not true.’’ Are you insinuating that Mr. Turner

and Mr. Taft misled this committee?

Mr. GAFFNEY. I hope the committee will sort this out, Mr. Chairman, because it is not consistent with the reading of the treaty

that I have done; the studying of the treaty that I have done. It

is not clear to me how you square the circle. I am not suggesting

that they are deliberately misleading the Senate. I just want the

Senate not to be misled. If I am wrong, I hope that will be pointed

out and corrected here and I am sure it will, but I do not think

I am.

If I am not, it raises the question as to whether the treaty that

you are being asked to ratify is really the 1982 treaty with I think

acknowledged defects and warts, or whether it is something different; and if it is something different, Senator, whether it is something different in the eyes of all of the parties to the treaty; or

whether it is only different in the eyes of the U.S. Government and

you will be asked to ratify it on that understanding and basis, and

lo and behold it turns out as the treaty is implemented by all those

other countries as well as ourselves, especially if I am right, that

we are not in fact guaranteed a seat at the table, let alone a veto,

but these understandings, these interpretations, this expectation

proves wrong.

If I may, specifically on this question, you have been told repeatedly that this is going to work out OK because we will be at the

table. The problem with the 1982 agreement was it did not work

out OK because we were at the table and we were consistently outvoted. Maybe it will work out better this time because we are now

the world’s only superpower, or because we will be more assertive

or we will have better, smarter negotiators than we did in 1982.

I do not know.

But I submit to you, sir, this is one of those questions that the

Senate ought to weigh very carefully if you are being asked to

think about a permanent commitment here. This is not something

we will do for a couple of years and see how it works out. This is

forever and sets a model for I suggest not only the Law of the Sea,

but probably for space and perhaps, who knows, for supranational

agencies that will do other things.

It bears emphasis there will be no Security Council to intervene

if it turns out the votes go against us as they typically do in places

like the General Assembly, and I think they would in the Seabed

Authority.

Senator JEFFORDS. Mr. Oxman, could you explain the purpose

and function of the International Seabed Authority? If the United

States became a party to the Convention, what would be the nature

of our participation in ISA? Does ISA have unconstrained enforcement potential as claimed by Dr. Leitner?

Mr. OXMAN. Thank you, Senator. I will try.

First, let me say that most of the answer is dependent upon the

1994 agreement. Were any Senator to assert that the Convention

can only be understood as modified by the 1994 agreement, that as-
35

sertion would be completely consistent with the declarations of the

U.N. General Assembly, with the practice of all other industrial

states, and with the practice of the Seabed Authority from the very

first day it met. There is no doubt whatsoever that the 1994 agreement has already modified the Convention. If you felt, Senator,

there was any need to clarify this, there would be no quarrel with

such an assertion.

Under the implementing agreement, the United States is automatically guaranteed a seat on the Executive Council. That seat

goes to a State which was identified as of the data of entry into

force of the Convention and everyone knows that is the United

States and can be only the United States.

Second, most important regulatory decisions, including how you

collect money, how you spend money, is made by regulations of a

limited Council of the Seabed Authority by consensus. We cannot

be outvoted. If we vote no, there is no regulation. That power is reposed in the Council of the Authority.

On top of that, we will have a guaranteed seat on the Finance

Committee so long as the United States is making contributions.

That committee functions by consensus and once again any budgetary decisions would have to be based on the decisions of the Finance Committee.

Finally, I want to note that Senator Warner was among those

when he was in the executive branch that insisted on this position,

the Seabed Authority has a role only with respect to mining; not

with respect to military activities; not with respect to scientific research; not with respect to fisheries. It is a very, very limited role

indeed. Once minerals are extracted under a permit that is

achieved under specified conditions from the Seabed Authority,

title to the minerals passes to the miner.

Senator JEFFORDS. Mr. Chairman, I see my time is up. I have another question prepared for later on.

Senator INHOFE. All right, that is fine.

Senator JEFFORDS. Mr. Oxman, are there any mandatory technology transfer provisions in this treaty? How would you respond

to the claims that the treaty somehow provides cover for hostile

foreign powers to acquire sophisticated technology that cannot otherwise be justified?

Mr. OXMAN. There were, Senator, mandatory technology transfer

provisions in the Convention as adopted in 1982. That was one of

the reasons President Reagan objected to the deep seabed mining

provisions. They have been removed. The specific language is in the

implementing agreement that they shall not apply. All that is left

are very general statements that we will cooperate in attempting

to facilitate transfer of technology. They do not affect any rights

with respect to intellectual property. We already cooperate in our

foreign aid and other cooperative efforts all over the world today.

Senator JEFFORDS. Thank you, Mr. Chairman.

Senator INHOFE. Senator Warner.

Mr. GAFFNEY. Senator, might I respond on that?

Senator INHOFE. Certainly.

Mr. GAFFNEY. Again, this goes to the heart of this question of

does the 1994 agreement eviscerate parts of the Law of the Sea

Treaty. You have heard testimony from Peter Leitner about the ap-
36

plication of the modified Law of the Sea Treaty in a specific export

control proceeding by the U.S. Government. The interpretation or

the practice, more to the point, was of course, under the Law of the

Sea Treaty either as modified by the 1994 agreement or under its

initial incarnation, it is our duty to provide the Communist Chinese advanced technology of a directly military character.

Some of this requires, I guess, reflection. Knowing that this is

the world’s greatest deliberative body, my hope is that it will in

fact reflect not narrowly on what is on the paper in front of you,

though I think in some cases, as in this issue, of did the 1994

agreement modify the treaty, the paper is not all that clear itself.

It should be. I would offer as a constructive suggestion, if you wish

to ensure there is no problem, explicitly condition your resolution

of ratification if you choose to advise and consent to this treaty, on

the changes that that 1994 agreement makes to the underlying

document.

I would be willing to bet you will find there is more opposition

to that than you think or than you have been told, partly because

there are no rights of changing this treaty, no reservations may be

added to the resolutions of ratification of its parties.

But more to the point, sir, I would again respectfully suggest

that the process that is being adopted here is one that opens the

door to new commitments, new responsibilities, that we have had

some hard experience with in the past. The President of the United

States just a couple of months ago talked about the loophole in the

nonproliferation treaty, which as you know was called the Atoms

for Peace provision whereby we gave countries atomic technology if

they promised not to make bombs with it, only to discover in case

after case after case, they did.

The technologies that we will, even under the 1994 agreement,

have an obligation to be as forthcoming with as possible, I suspect

will wind up being injurious to our national interest; national security perhaps; perhaps commercial; to say nothing of what happens

if we wind up being either dragooned or voluntarily going as we did

in this previous exercise down the road of feeling obliged to give

anybody anything they wanted. Because just as we have some very

eminent spokesmen here for certain interests, you can bet, you

know yourself, Senator, there are certain interests that will want

to sell any comer some of the site-scanning sonars or some of the

bathymetric technologies or some of the other deep-sea sensors and

mining and other equipment that may be used to our detriment.

What I just hope you will do, as a body, is look past the immediate assurance; apply some common sense to where the inexorable

logic of this treaty takes you, and on the balance, as Peter said, on

balance evaluate whether, yes, there are some things that we like

about this treaty, but it nets out in our overall interest. I suggest

to you it does not.

Senator INHOFE. Thank you.

Mr. GAFFNEY. Thank you, sir.

Senator INHOFE. Senator Warner.

Senator Warner. Mr. Chairman, thank you.

Mr. Oxman, I appreciate your reference to the fact that I think

we were associated together when I was the Under Secretary and

then Secretary of the Navy. I was that Navy Secretary for 5 years,
37

4 months and 3 days. Secretary Laird appointed me as his personal

representative at the Law of the Sea talks in Geneva. In my recollection, we were associated in those days. I worked extensively with

Mr. Stevenson, who was then the Chief Counsel to the Secretary

of State. So I think you and I have a little bit of a track record in

this, do we not?

Mr. OXMAN. Indeed, Senator, and it was a great honor to work

for you, sir.

Senator WARNER. I don’t know that you worked for me, but anyway, we did work on it.

The years 1969 to 1974, where were you, Mr. Gaffney?

Mr. GAFFNEY. I was in knickers, Mr. Chairman.

Senator WARNER. That is right. I think you were in knickers

when you wrote this statement in your opening paragraph to the

effect that after all, but for Senator Inhofe’s initiative, the Senate

may well have taken no testimony at all from critics of the Law

of the Sea Treaty.

You know that I had scheduled a hearing of the Armed Services

Committee, do you not? You were invited to testify.

Mr. GAFFNEY. Mr. Chairman, in my prepared remarks, which

were submitted and are more fulsome——

Senator WARNER. I am talking about this, which is here before

the members.

Mr. GAFFNEY. I believe in my prepared remarks, it makes reference to the fact that you and your staff had contacted me about

a hearing.

Senator WARNER. That is correct.

Mr. GAFFNEY. I think it is referred to there, sir.

Senator WARNER. You were invited to attend.

Mr. GAFFNEY. I explained that I could not do so, sir.

Senator WARNER. That is correct.

Mr. GAFFNEY. Yes, sir.

Senator WARNER. It seems to me statements like this taint your

whole statement.

Mr. GAFFNEY. I beg your pardon, Senator, but I do not have the

prepared remarks in front of me, but my recollection is I said your

committee has undertaken to schedule a hearing, and I commend

you for that. I said, there are several other committees that have

not and my hope is that they will before this is done. I regret that

I will not be able to testify, but I am delighted that you are going

to hold a hearing.

Senator WARNER. You have been associated a long time. You just

got to control sometimes the extremism of some of these attacks.

Mr. GAFFNEY. Senator, with respect, I do not know what extremism you are referring to.

Senator WARNER. When you say here that only this distinguished

Member of my committee and Chairman of this committee is the

one holding hearings, that is a misrepresentation.

Mr. GAFFNEY. I do not think that is the full paragraph, Senator,

if you will read the whole paragraph.

Senator WARNER. After all, but for Senator Inhofe’s initiative, the

Senate may well have taken no testimony from critics of the Law

of the Sea.
38

Mr. GAFFNEY. If you would continue reading, Senator, with respect, I think the rest of it makes clear my point.

Senator WARNER. Where do I continue to read?

Mr. GAFFNEY. I believe the rest of that testimony. Again, you

have the benefit of me. You have it in front of you. I do not.

Senator WARNER. Somebody just passed this down.

Mr. GAFFNEY. I would be happy to make the point. In the submitted version of this, Senator, I said very clearly I understood you

were preparing to hold one; you have not held one yet. That was

my only point.

Senator WARNER. It has been scheduled and you were invited to

testify.

Mr. GAFFNEY. I appreciate that, sir.

Senator WARNER. We are having a panel on those who hold views

different than that of the Administration.

Mr. Leitner, there was some discussion about your being included in that panel, but I understand you are an employee of the

Department of Defense. Is that correct?

Mr. LEITNER. Yes, sir, I am.

Senator WARNER. You are free to express your views, but we

have a policy in our committee that unless it is an extraordinary

circumstance, which I do not view this one as being, the Administration, you are in the employ of the Administration. I cannot understand in what capacity you are here.

Mr. LEITNER. I will clarify that. I am here as an author, private

citizen, and former observer to the delegation to the Law of the Sea

Conference; basically as an outside expert. I have testified probably

seven times before the House and Senate over the last 6 or 7 years

on various issues relating to export controls, the COCOM export

control regimes.

Senator WARNER. I do not question your expertise or your professionalism, it is just that it is unusual that you are drawing a salary

at taxpayer expense and the Department of Defense and the Secretary of Defense is on record as supporting this treaty. Am I not

correct?

Mr. LEITNER. Absolutely, sir. That is the beauty of this country

in that we still have freedom of speech even though you are a government employee as long as we are not representing the Department.

Senator WARNER. Mr. Gaffney, when he offered you as a substitute for himself, I felt that it was inappropriate at that time.

So Mr. Chairman, I hope you will join in my hearings.

Mr. GAFFNEY. Mr. Chairman, may I have your indulgence just to

read the relevant section toward the end. You actually highlighted

it as well, Mr. Chairman.

While staff of the Senate Armed Services Committee have indicated that Chairman Warner intends to hold a hearing on this subject next week, the Intelligence, Commerce, Energy, Governmental

Affairs and Finance Committee have yet to evidence any interest

in following suit.

I want to make sure, Mr. Chairman, that you know of my strong

support for your having this hearing. I commend you for it. I just

wish that you would enable what I consider to be one of the most
39

knowledgeable experts on the subject to participate in it, and I regret that I cannot do so myself due to family business.

Senator WARNER. I have no further comment.

Senator INHOFE. All right, thank you, Senator Warner.

Senator WARNER. I would say, at that hearing, we will take testimony from a series of witnesses who will address those aspects of

the relationship between the treaty and our national security policy. These are individuals who, like myself, who have had a long

experience in this area.

Senator INHOFE. Senator Warner, I look forward to participating

in those hearings. I know they will concentrate on the national security ramifications. This committee is concerned about those, but

also the environmental concerns that I think are the purview of

this committee and things that we should be addressing. Prior to

your coming, I did in my opening statement mention that I had the

opportunity to look at the format of the two Foreign Relations

hearings. There were no witnesses at that time who were opposed

to it. I thought this would be a good balance to have, in this case

a panel where two are opposed and two are supporting.

Senator Murkowski, you are recognized for questions.

Senator MURKOWSKI. Thank you, Mr. Chairman.

Mr. Gaffney, in your testimony you had suggested that the International Seabed Authority could issue permits for deep sea oil and

gas exploration or exploitation without regard to our environmental

concerns. This is despite the fact that the Council adoption of rules

concerning seabed mining must be done by consensus of the Council. Doesn’t it make sense that if the Council were to issue permits

that the United States opposes when we hold a seat on the Council,

that they would even be more likely to do so if we are not a party

to the Convention?

Mr. GAFFNEY. That is a possibility, Senator. I want again to raise

a concern that if you buy into the treaty, things may not turn out

to be as they are being represented to be. There is no question that

if you are not in the treaty, there are some downsides. What basically I think Dr. Leitner and I are suggesting is, those need to be

evaluated by members of this body in their totality.

I think in this case, frankly Senator, one of my insights from government service was finding that objecting to consensus is often

harder to do than it would seem; that there is a certain desire,

whether log-rolling is a term that I am sure you are accustomed

to and is used up here. But there is also a certain sense that, well,

it is better than the alternative; indeed, that is pretty much the argument that you hear from some less-than-enthusiastic proponents

of this treaty, is that it is better than the alternative.

I am just suggesting to you that it is not necessarily the same

thing as a veto. It does not necessarily work the same way. It does

not operate in terms of our own government councils the same way.

But even vetoes, look at our practice in the United Nations where

we actually do have a U.N. Security Council veto. We are very reluctant to exercise it.

Senator MURKOWSKI. Let me ask you one more. You express concern that the United States would not be able to continue its activities under the PSI to stop and search vessels suspected of transporting illegal weapons. Yet many of the United States’s partners
40

in this effort are already partners to the Law of the Sea. How is

it that these nations are not in violation of the Convention then?

Mr. GAFFNEY. It is a very good question. You have heard, or perhaps you did not hear because I think you may have been out of

the room when this was addressed a moment ago, there seem to

be some differences as to whether or not this will be an impediment to these sorts of inspections. Dr. Leitner pointed out, and this

is something I hope the Chairman will focus on in the Armed Services Committee hearing, the Communist Chinese government is

saying that PSI is impermissible under this treaty. Some of those

that are in its area of influence, if you will, notably some whose

interests in the South China Sea are being affected by the citation

of the Law of the Sea by the Chinese government to extend its

sway through the use of artificial islands over more and more of

its waters. Some of these governments seem to be now uneasy,

shall we say, about participating in the Proliferation Security Initiative.

So again, you need the facts and hopefully they will be expressed

as well in the Armed Services Committee. There is clearly a formal

U.S. Government position that this is not a problem. My concern

is that in I think a number of these cases, we are going to find out

it is a problem. I would just assume have the Senate know that it

might be or even is before it signs off on this treaty.

Senator MURKOWSKI. Mr. Oxman, both Mr. Gaffney and Mr.

Leitner have suggested that the United States will not have discretion in regards to certain articles. Can you give me your view or

your opinion on that?

Mr. OXMAN. Senator, I am not entirely sure. I can comment on

a few of the things that may be relevant to the question. Taking

the last comment first, Senator, I am reading from the text, artificial islands installations and structures do not possess the status

of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone, or the continental shelf. It is true that the

Chinese are attempting to extend their claims based on land territory. They claim islands, but that is of course a different question.

In terms of the Proliferation Security Initiative, in my view the

success of that initiative is entirely dependent upon our capacity to

move our forces around the world without interference by the

states past whose coasts they move. Once we get there, I think we

have more than ample bases for legal authority to board. Those

would be a variety of different bases depending on the particular

circumstances. With Liberian ships, we now have a new agreement

pursuant to which we will be able to board. I detailed some of

these, Senator, a few minutes ago when I believe you were busy

with some other matters.

I hope that is responsive, Senator.

Senator MURKOWSKI. I see that my time has expired, Mr. Chairman. I appreciate that. I might have some other questions if we

have another round here.

Senator INHOFE. We will give you another round here in a

minute.

Senator MURKOWSKI. OK, thank you.

Senator INHOFE. Senator Warner.
41

Senator WARNER. Thank you, Mr. Chairman.

Senator INHOFE. All right. I would like to ask a question of Mr.

Oxman and then ask Mr. Leitner to respond to it also.

Do the environmental provisions of the Convention protect or expose the high seas and the U.S. coastline to environmental threats?

Which way is it?

Mr. OXMAN. I think that they increase the protection of the environment.

Senator INHOFE. Of the environment.

Mr. OXMAN. Of the environment in general and the U.S. coast in

particular. The question of ecoterrorism is of course a completely

separate question from the provisions on environmental protection.

I entirely agree that we have to deal with it, and once again, I

think that the Convention will facilitate our capacity to deal with

it. I want to make clear, Mr. Chairman, that I share Mr. Leitner’s

concern, but we have the capability to deal with it.

Senator INHOFE. Mr. Leitner?

Mr. LEITNER. I disagree. I think we are more deeply exposed

than we would be otherwise than we would be outside the treaty

than we would be inside the treaty.

You have to think of the treaty in a number of ways. In every

article on the treaty, it is a double-edged sword. It all depends

upon interpretation. Our interpretation, and I think we have seen

a lot of that today and we certainly saw that in the Senate Foreign

Relations Committee, there is a great deal of group-think that

seems to be afflicting the United States team, the technical team,

the policy team, as it pertains to the Law of the Sea Treaty. We

are seeing it from one side as if there is one vector that we are all

going to walking on and it has some inexorable momentum and everybody is going to agree with us as we go down this path.

I think that is wrong. I think that there are 140-something countries who are party to this, so you are going to get at least 140 separate views on a particular issue at a particular time in a particular place. This is not a treaty that is going to solve all problems. The Chinese in the South China Sea, for instance, are erecting, we call them artificial islands; the Chinese do not consider

them artificial. They consider them real islands. They are using

coral reefs; they are using semi-submerged lands as footings in

order to build islands above the water line. At some times of the

day, the islands are actually above the water line, at least portions

of them. They are building military platforms. These are like little

aircraft carriers all throughout the South China Sea that are being

erected.

It is a very serious threat. There is a great potential for a

flashpoint in the South China Sea between the Philippines, between Malaysia, Vietnam, Taiwan and China in terms of potential

conflicts. There is a tremendous amount of oil at stake in the South

China Sea, as well as the shipping routes that are absolutely vital

to the United States, as well as Japan and some other allies.

So these are issues that are all there that have to be dealt with.

We cannot deal with these issues. We cannot prognosticate. We

cannot do a real overall assessment if we are simply thinking the

same way and wishful thinking that the way we interpret the treaty is the way other people are going to interpret it. It is not true.
42

In terms of Frank Gaffney’s comment on consensus being a very

difficult thing to work with as opposed to an up and down vote, I

share that opinion very closely because I spent many years in

COCOM in Paris, back and forth as a COCOM negotiator on behalf

of DOD. That was a consensus-driven organization. It was a consensus-driven organization and it was almost impossible to get consensus on anything. You had individual nations acting in the final

account in their national interest, as a matter of national discretion. That is what we will have here. National power will trump

the agreement, where it is in the interest of the particular State

party to trump the agreement.

We have a very serious issue of the Freedom of Navigation Program. That is a program where the United States maintains constant challenges by the Navy and the Air Force to excessive claims

of Coastal States, whether a Coastal State is claiming a particular

body of water to be a historic bay, such as the Gulf of Taranto or

the Gulf of Sidra in Libya or Italy, respectively, or whether a

Coastal State is claiming straight baselines in terms of measuring

their territorial sea that do not comport with the Law of the Sea

Treaty, such as China. They are trying to enclose huge areas of

their coastal zone as territorial sea.

What do we do with this? Well, we send ships in. A ship will deviate from its path going from point A to point B in order to enter

that area and see whether it provokes a challenge, or at least document that we do not accept that claim.

The Chinese have also promulgated, even though they are a

party to the Law of the Sea Treaty, even though they are not allowed to do this under the treaty, a demand for prior notification

by warships entering their territorial sea. That is not allowed

under the treaty, yet the Chinese are doing it and so are other

states, many other states.

When the treaty first began in 1973 in earnest in terms of the

Third U.N. Conference on the Law of the Sea, one of the issues of

the day, and I am sure Senator Warner will remember this, was

the seizure of U.S. tuna boats by Chile, Ecuador and Peru. It was

a constant problem. As we have an extensive continental shelf, we

claimed 200 miles under the Truman Doctrine.

The countries on the west coast of Latin America claimed a patrimonial sea going out to 200 miles, saying that they did not have

the resources, the continental shelf, because they have a big trench

off the west coast of Latin America, that they were geographically

disinherited from the shelf, therefore they claimed that the region’s

anchovy and tuna fishing was essential for their economies. So they

were seizing our boats because we did not recognize their 200-mile

territorial sea.

Senator INHOFE. Did you have something to say, Mr. Kelly, on

this?

Mr. KELLY. Yes, a brief comment. With respect to, would we be

better off in terms of environmental conservation with this treaty

or without? I think it is well to think about the Law of the Sea

Treaty in a sense as a large umbrella instrument. It encourages cooperation among nations on a world and on a regional basis in environmental protection. As a result of that, a number of agreements have been spawned. As Senator Murkowski indicated, the
43

Straddling Stocks Agreement is a good example of the kinds of

agreements with respect to fisheries that have come out of the Law

of the Sea Treaty.

Likewise, if you take issues like the question of invasive species

from ballast water; if you look at various other agreements that

have been reached under the umbrella of the Law of the Sea Treaty, often through the International Maritime Organization, IMO, in

London, we have been able to achieve real progress on a number

of these issues.

There have been standards dealing with safety and environmental protection on ships and mobile offshore drilling rigs that

have come out of this whole process that would not be there today

if it were not for the Law of the Sea Treaty.

So we have to look at it in a larger sense. The U.S. Coast Guard

has done an excellent job representing us at IMO and with respect

to other international meetings, but they told our Commission that

they certainly felt like their hand would be considerably strengthened if we were a party to the treaty.

Senator INHOFE. All right. Thank you, Mr. Kelly.

Senator WARNER. Could I make one note?

Senator INHOFE. Certainly.

Senator WARNER. Thank you, Mr. Chairman.

I would like to say that Admiral James Watkins, former Chief of

Naval Operations, is the chairman of your group. He, together with

you and others have performed a very valuable service for the

country. I thank you.

Mr. KELLY. Thank you, Senator. I will pass that along to the

other Commissioners.

Senator INHOFE. Thank you.

Senator Murkowski?

Senator MURKOWSKI. One final question, Mr. Chairman.

Mr. Leitner, this is directed to you. Your written testimony suggests that the United States resume the practice of authorizing private vessels to arm themselves and sail as privateers. I am told

that this has not been practiced since the War of 1812. Are you

suggesting that this would be a legal and acceptable act if we are

not a party to the Law of the Sea?

Mr. LEITNER. I think it would be an acceptable act regardless of

whether we are a member of the Law of the Sea Treaty or not.

From the perspective of using the oceans and using privateers as

an instrument of foreign policy, I see them being directly an instrument of the courts. One of the things that I do as well, outside of

my government employ, is that I work on a great many terrorism

lawsuits that have come up in the course of the years, including

the 9/11 case, Khobar Towers, the USS Cole case, and a variety of

other lawsuits where American courts have awarded judgments to

American citizens because they were victimized by terrorist actions, and very often state-sponsored terrorism. Usually, Iran is behind it and legal court orders in the United States are awarded,

allowing a judgment to be collected, both compensatory and punitive damages.

I see that it would be a great service to the families who are victims of terrorism, as well as the victims of terrorism themselves,

if we would enable private collection activities to take place on the
44

high seas or elsewhere to satisfy judgments and raise the costs of

engaging in international terrorism directly to the State party who

sponsored the terrorist act.

So this is a novel form of collection, because right now people are

really inhibited from collecting. They have judgments that cannot

be enforced. They are meaningless judgments and the State sponsors of terrorism pay nothing.

Senator MURKOWSKI. Mr. Chairman, I have no further questions.

Thank you.

Senator INHOFE. Thank you, Senator Murkowski.

Mr. GAFFNEY. Mr. Chairman, if you are about to wrap up, I just

wanted to make one other point.

Senator INHOFE. I am not about to wrap up.

Mr. GAFFNEY. Excellent.

Senator INHOFE. I hear Senator Warner and Mr. Oxman and others talk about having been exposed to this all the way back to the

Nixon administration. This is all new to me, so I may be looking

at this from a little different perspective than some of the others

are.

You all four heard me ask Mr. Turner about the understanding

I have that Article 212 of the Convention requires states to adopt

laws and regulations for pollution from the atmosphere. Now, do

any of you have in your mind now any specific domestic policies

that would need to be changed, or domestic laws that we would

have to change should we become a party to this? Anyone? Yes, Mr.

Leitner.

Mr. LEITNER. I was surprised when the State Department representative said ‘‘no, there were none,’’ because off-hand I think of

the Deep Seabed Hard Mineral Resources Act. That law was enacted after the United States rejected the treaty so as to enable

ocean mining to take place with a reciprocal state’s regime. Basically it brings in other countries, like-minded countries to recognize

claims to deep ocean areas so we would not have claim-jumping

and any sort of conflict at sea in the absence of a treaty.

That is a law that I would think would have to change, at a minimum that will have to change or it would be disbanded if we become a party to the treaty. That is a pretty major effort.

Senator INHOFE. One of the things I had in mind, and I think

I may not have specifically said it, but we have been going around

this CO2 thing for a long time. Is there any way that this could be

used to force the United States to regulate CO2? Any comments on

that? Yes, Mr. Oxman.

Mr. OXMAN. Mr. Chairman, no. All it does is require that we

have air pollution regulations in effect with respect to our territory

and with respect to our vessels and aircraft. It does not specify

what those measures must be. That is quite important. It simply

requires that we do things. There is legislation, I would like to do

a little research on how much, but clearly the Clean Air Act and

other legislation that we have satisfies this obligation.

Similarly, the Deep Seabed Hard Minerals Act which was enacted by Congress while we were negotiating the Convention, in an

attempt to induce a dose of realism in the negotiators, specifically

contemplated the possibility that we would become party to a treaty.
45

Thank you, sir.

Senator INHOFE. Yes.

Mr. GAFFNEY. Mr. Chairman?

Senator INHOFE. Yes?

Mr. GAFFNEY. I just again want to encourage some second-order

thinking about this. When Mr. Oxman says we are undertaking to

do certain things, but they are not specified, that plays into what

I consider to be one of the really worrying things about this treaty,

when it is pointed out that the International Seabed Authority has

very circumscribed responsibilities at the moment. For the purposes of discussion, let’s just say that is true.

The second-order problem is, these things take on a life of their

own. Now, I think Peter would agree with me, there is a certain,

call it cynical belief on my part, at least, that people have behaved

with greater circumspection and constraints on what they ultimately would like to see this supranational agency do, so as to not

to queer the deal on getting the Senate to go along with the ratification of this treaty.

I submit to you, if this treaty is ratified, I hope you will have us

back in 5 years time to reevaluate this, but I would be willing to

wager that what will happen will be vastly greater duties and responsibilities imputed to this institution; greater authority exercised in its own right and through its tribunal, and the promised

veto not protecting our equities the way we thought they would.

Senator INHOFE. OK. That is something I would like to ask all

four of you about, because I am not familiar with that.

Let’s say that we were to become a part of this and we would

be the 146th country to do it. Do we have one vote? How is it set

up in terms of our participation as a country?

Mr. GAFFNEY. At best, we have one vote.

Mr. OXMAN. Senator, we have one vote, but the power in the Seabed Authority is held by the Council of the Seabed Authority. The

Council of the Seabed Authority and its regulatory decisions must

function by consensus. Our one vote therefore constitutes a veto, as

does the one vote of every other member of the Council. On certain

other kinds of decisions, consensus is not required, but there is a

complex chamber system pursuant to which any three industrial

States could block a decision. Again, we have only one vote, but if

we are joined by two of our friends, the decision is blocked.

Furthermore, Mr. Gaffney is correct that consensus decisionmaking processes, as I am sure any Senator is aware, involve not

only negative power, but affirmative power. President Reagan demanded both. I am quite confident that the United States would

use its veto on the Council in order to further our own affirmative

agenda, for example with respect to the environment.

In effect, our vote is the same as any other country’s, but its effect is quite different.

Senator INHOFE. Mr. Leitner?

Mr. LEITNER. I would just like to add, there is a certain element

of wishful thinking that is embodied in what our assumptions are

in terms of what the U.S. role is going to be; what will it be if we

accede; what will it be over time. The United States is not called

out anywhere, not anywhere does it say the United States shall be

a member of this body, period. Instead, it is done by other terms;
46

the country with the highest and the greatest GNP at a certain

date; the country with the largest consuming of a certain type of

mineral; that sort of thing. So it is all measured indirectly and it

is all assumed that the United States will be that party. Under

current rules, perhaps it is, but there is no ‘‘United States shall

have a seat on this particular body.’’ It is not written anywhere.

In addition, there are other things that are really quite disturbing. In the Tribunal, for instance, of which Mr. Oxman, by the

way, was a visiting judge in the Tribunal at Hamburg; it is a pretty distinguished position, the way the judgeships are awarded in

the Tribunal, which is the dispute settlement mechanism in the

treaty, Africa has five judges; Asia has five judges; Eastern Europe,

we still call it Eastern Europe, even though it is post-cold war,

three judges; Latin America and the Caribbean, four judges; Western Europe and Others, four judges.

Basically, if we were to assume, if you just look at this, I added

up this morning the percentage of world GDP represented by that

small group called Western Europe and Others, the four seats, and

the percentage of GDP for the world is 50 percent of the world’s

GDP is made up of this Western Europe and Others group, but we

only have four votes.

Basically, it gives the equivalent of 19 percent of the votes. We

represent 50 percent of the world’s GDP, but we only get 19 percent of the voting power in the Tribunal.

This same pattern is evident elsewhere in the International Seabed Authority in terms of the economic interests of the United

States not really being adequately represented. Our power in the

world, the fact that the United States will contribute according to

the United Nations share of contributions, that same formula,

about 25 percent at least of the operating budget, that is what we

are obligated to pay as a subscription.

It is totally disproportionate to our actual influence and our status in the world. We have a negative disproportionate share of the

votes compared to our economic influence and the importance of

the United States in the world. The single superpower on the planet does not anywhere in this treaty have a direct called-out seat on

any body, on any of the judicial or administrative bodies in this

treaty. It is just not there. It is all indirect.

Senator INHOFE. Mr. Kelly.

Mr. KELLY. Mr. Chairman, while we are discussing all the possible things that could go wrong, let me add a little more optimistic

note to this whole scenario. During the past 2 years, I have attended at least two meetings where there were officials from the

Seabed Authority, United Nations representatives and representatives of other countries who were gathered together to talk about

these issues and about U.S. participation in the treaty. This is all

outside of my Ocean Commission responsibilities.

I want to tell you that we are being asked for help. In the developing nations of the world, they need food sources from fish. They

want to protect their environment. They want energy resources and

they want to learn how to do it right; to do it with good stewardship practices and good environmental sensitivity. As an American

attending these meetings, the communications I get through these

meetings has been, please get on board; join the Law of the Sea
47

Treaty. We know you have 50 universities who specialize in ocean

science. We want them over here teaching us how to do it right.

So I would close my comments with the note that we have a wonderful opportunity to establish some leadership here in all these

fields and we are being asked to do it.

Senator INHOFE. Thank you, Mr. Kelly. I think that is an excellent statement.

Let me just share with you my concern that I have when these

things come along. I am not likening this to other treaties, but if

you take the Kyoto Treaty, the train is going so fast and everyone

is saying, yes, all these good things are going to happen, only to

find out from the Wharton Econometrics that ratification would

end up costing us 1.4 million jobs. It would cost us a doubling the

cost of energy. It would add 65 cents to a gallon of fuel. Each family of four would have to pay $2,710 more. Then we find out that

since 1999, the science has been on the other side. In fact, anthropogenic gases are not causing climate change.

So I see this treaty coming up and I am thinking this is pretty

far-reaching. I just want to be sure within the purview of the committee that I chair that there are not problems that we are going

to have to adhere with. I have been deeply concerned about the

sovereignty of this Nation. I know that sounds perhaps a little prosaic, but I really believe when we get into these multinational

things that we need to be first and foremost looking out after the

interests of our country and making sure that any treaty in which

we engage does the same thing.

Let me just ask any of you to take whatever time you want, because this is a very significant thing, a very important thing. This

is covered by a lot of media and I do not want anyone to walk out

of here feeling that they did not have ample opportunity to thoroughly express their concerns and their interest in this treaty.

Let’s go ahead and start with you, Mr. Oxman.

Mr. OXMAN. Thank you, Senator.

Lawyers, as you know, Senator, are paid to worry about what

happens if things go wrong. That explains a lot of the verbiage in

legal documents.

Senator INHOFE. They normally hope they will go wrong.

[Laughter.]

Mr. OXMAN. Things could go wrong, Senator. I cannot preclude

that. We foresaw that. Unlike the 1958 Conventions on the Law of

the Sea to which we are already a party; we are party to all four;

this convention contains a denunciation clause. It contains a denunciation clause because we insisted on it. It was my job to negotiate it. My colleagues were not happy about it, but we got it. If

we find that something goes wrong and seriously, adversely affects

our interests, we have a legal right to pull out.

Moreover, the resolution of advice and consent rightly in my

view, worrying about that possibility, contains some provisions regarding review that are designed to protect the United States and

protect the prerogatives of the Senate.

My second point is a positive note, and I will end on that one,

which I addressed in my prepared remarks. It is directly related

to some of the concerns you have expressed, Senator. For many

years in the Law of the Sea negotiations and in other negotiations,
48

the United States has tried to make clear that environmental treaties must be carefully framed to produce a reasonable accommodation of diverse interests. Some people have characterized this as opposition to environmental protection. Some of the extreme rhetoric

used abroad has been particularly damaging to our reputation in

important allied countries.

The Senate now has a signal opportunity to set the record

straight. Its approval of the Convention and the implementing

agreement together, would suggest that there is every reason to ensure that the multilateral 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 to the world that

when that is done, America will be on board.

Thank you, Senator.

Senator INHOFE. Thank you, Mr. Oxman. You have been an excellent witness.

Mr. Leitner.

Mr. LEITNER. Thank you, sir.

I would like to begin by saying that there are tradeoffs with a

treaty like this. The assertion that we are going to enhance our

sovereignty by becoming part of the Law of the Sea Treaty I think

turns reality on its head. I think it is an absurd statement and if

anything we are going to be trading off an awful lot of sovereignty,

an awful lot of freedom of action, an awful lot of discretion on the

part of the United States to act in its national interest by getting

away from a traditional system of traditional rights and freedoms,

to a system of statutory regulation.

One of the things we have seen time and time again is that once

you go to a statutory system, a rule-bound system, your own lawyers, State Department lawyers, DOD lawyers and others, are

going to hamstring, are going to constrain, and are going to strangle the ability of the United States to act in a unilateral way. It

simply their nature; it is the nature of the game. It is something

that gets repeated consistently.

The issue of creeping jurisdiction is one that really we need to

look at in great detail. What I mean by this is allowing this international organization to get its nose under the tent, so to speak,

and further erode sovereignty by intruding into areas that it really

does not have direct jurisdiction.

I found it interesting that there was a case before the Law of the

Sea Tribunal back in November of 2001 called the MOX case, for

mixed oxide fuels. It was a case where the British were building

a mixed oxide fuel plant to use in control rods and nuclear reactors,

radiological material. It was on their national territory within

Great Britain. Ireland objected to it and Ireland was trying to stop

it and trying to get environmental impact statements and other

things. They went to the Law of the Sea Tribunal in order to try

to bring a case to enjoin the British from not operating this plant.

The British Government argued that the Tribunal does not have

any jurisdiction in this area. It is a terrestrial system. It is not on

the ocean. It is not on the high seas. It is not adjoining any high

seas. It is right in the land territory of Britain. But the court ruled

anyway; the Tribunal took the case even though it had nothing to
49

do with the high seas other than possible incidental pollution from

runoff.

Like Frank Gaffney has stated, we think that these bodies are

on their best behavior right now while trying to woo the United

States into joining the treaty, basically trying to sucker us into the

treaty, and then the real excesses will start coming out later. Do

we know this for a fact? No. There is no way of knowing what the

future is going to hold, but we do see trends now. The creeping jurisdiction in the MOX case I think is a good example of the type

of power-grab that will be later on. It will be even more intrusive

and we will have to live with it if we are part of it.

In terms of denunciation clauses, it is nice to have a denunciation clause. A country can always act in its national interest anyway. It can always walk out of a treaty whether there is a denunciation clause or not. We all see the result of North Korea trying

to use its denunciation clause under the Nonproliferation Treaty,

where the whole world is jumping all over their neck trying to keep

them inside the treaty, even though they have a right to walk away

from that treaty, as any Nation would. I am not saying they

should. I am just saying they can and we will be in a similar position.

Also, the comments about PSI, Proliferation Security Initiative.

Based upon my reading of the treaty, my understanding of the

naval policy, my understanding of the Freedom of Navigation programs, my understanding of how the Defense Department works,

the Chinese are right. The PSI would be illegal if we acceded to the

Law of the Sea Treaty because the motivations, the pretext, and

the jurisdictional areas that we would exercise our rights, or supposed rights, of interdiction, interception and boarding simply do

not apply in the context of the Law of the Sea Treaty. It does not

allow it.

In fact, the Law of the Sea Treaty specifically states that traffic

in weapons is a normal commercial activity engaged in by states.

So a country like North Korea shipping missile parts to Venezuela,

let’s say, that might eventually be used against us, or shipping

them to Cuba, we would have no right to interdict it on the high

seas. There could be radiological material. It could be CBW. It

could be almost any sort of weapon of mass destruction. We have

no right under the treaty to interdict it because it does not fall

within any of those categories that the treaty allows.

We can always do it as a matter of national power. That is without question and that is what we would do. But what is the point

of acceding to a treaty that we know we are going to have to violate

on a regular basis in order to protect our citizens? This treaty puts

us in that position. We do not need to be put in this position. I do

not think it is beneficial at all.

I think many of the benefits that accrue from our potential membership in the treaty fall into the ‘‘nice to have’’ category. They are

nice to have, the environmental provisions, some of the issues that

Mr. Kelly raised, they are all nice to have. Are they essential to

this nation? No. Can we achieve every one of those goals outside

of the treaty? Yes.

But what do we have to tradeoff in order to get those ‘‘nice to

have’’ things which are not essential? We have to tradeoff sov-
50

ereignty. We have to create this international body, basically help

provide the wherewithal for an international body to be created

that has taxation powers; that has the ability to regulate seventenths of the earth’s surface; has all kinds of supranational implications of world government, which even though we act in a very

sophisticated way, at root those are the issues that are still there;

that have been there from day one; that are still there today. We

called it something different. We added a lot of ambiguity with the

1994 agreement, but we have not gotten away from these basic

facts.

I would really like to express my appreciation for being invited

to speak today. I think you have done a great service by allowing

some of these issues to be aired that were not allowed to be aired

in the Senate Foreign Relations Committee.

Thank you.

Senator INHOFE. I thank you, Mr. Leitner. You have been a very

excellent professional witness and I appreciate your time.

Mr. Kelly.

Mr. KELLY. Before closing, I would like to address one comment

that was made by one of my colleagues here at the table that some

of the interests that were characterized as supporting the treaty

were characterized as having a narrow interest. I would like to

make the point that when we talk about adding a potential 450,000

square kilometers that Senator Murkowski mentioned to our potential resource base, that that is not a narrow interest, that is a national interest.

I do not have to tell you as an Oklahoman, that you never know

whether there is a resource there until you drill a well. That is certainly the case here. No one knows what is out there at those distances and depths, but we have been surprised recently with a well

being drilled in 10,000 feet of water in the Gulf of Mexico. We have

been surprised at the resources that appear to be far off shore in

the ultra-deep water, so we shall see.

The other comment I wanted to make is that on April 20, the

U.S. Commission on Ocean Policy will issue its first draft report;

21⁄2 years in the making. Under the Oceans Act of 2000, we are required to deliver a draft to the Governors for their comments before

we deliver it to the President and Congress. So we are about there.

When we issue the Governors draft on the 20th, it will be the first

time that our complete report is available to the public for reading.

Our responsibility was to look at the potential of the ocean and

coastal areas of the United States in terms of both need for stewardship and economic development potential. We will be addressing

a lot of those issues; on the stewardship side, the need for better

watershed management in this country; the need to look at watersheds in terms of ecosystems; the need to look at non-point source

pollution in the watersheds and elsewhere; and a range of stewardship issues dealing with the land, the water and living marine resources.

In addition, we will be pointing out how fast world commerce on

ships is growing and the pressure that puts on our ports and waterways. That also makes the point that as we have more and more

ships plying the world waters, these issues of freedom of navigation

become more important.
51

Indeed, 45 percent of the total tonnage coming into the United

States is in the form of petroleum products. We know how rapidly

our imports are growing. We are going from the 50 percents up to

the 60 percents very shortly. So we are somewhat vulnerable there,

and I think one of the reasons that the downstream sector of the

petroleum industry supports the treaty is that they would like to

have the security of freedom of navigation on the high seas and

through the straits and archipelagos because the whole world is

going to be getting more dependent on the security of the shipment

of energy. We have liquefied natural gas ships coming on as well,

which will add another dimension to shipping.

Then there is all the new potential products that are being developed from ocean resources; aquaculture, a very interesting and rapidly growing industry that could serve to take some of the pressure

off of the fish stocks that are depleted. We have interesting new

pharmaceutical products including cancer cures that are being discovered in marine organisms.

So we live in an extremely interesting time in terms of ocean resources and our Commission hopes to issue a wake-up call on all

these issues. I would just like to say to you that part of our mission

is to bring knowledge on these issues and show leadership with respect to them on a global basis.

In concluding, I would just say that we think we can do a better

job of that if the United States accedes to the treaty.

Senator INHOFE. Thank you very much, Mr. Kelly. I can certainly

identify with you in the concern about the energy problem that we

have in this country and the frustration that I, from an oil State,

feel in not having been able to partially resolve it when there are

some very obvious solutions to the problem.

As you well know, we are quite a marginal well State, and people

do not realize the vast reserves that are there, the potential that

is there in some of the shallow production that I worked on some

50 years ago. So hopefully, we will do a better job. Thank you for

your participation.

Mr. Gaffney?

Mr. GAFFNEY. Mr. Chairman, I particularly appreciate the opportunity to summarize some of my thoughts at this point, as I will

not have a chance to speak to the Armed Services Committee or

perhaps other committees.

As I think Dr. Leitner said, I want to stipulate that people want

us in the treaty at the moment. I do not think there is any disputing that, whether they want us in there for the best of reasons

or for some of the more sinister ones that we can, I think, reasonably anticipate. This is not just a question of could things go

wrong, but like you, I think, Mr. Chairman, I have been very concerned to see the growing insistence, for example in Iraq, that the

United Nations be the organization that supplants the United

States in trying to bring about the liberation and consolidate it.

That is not something going wrong. That is sort of a trend that we

have seen, and lots of our allies, many of your colleagues for that

matter, want that to go forward.

Similarly, as I mentioned in my opening remarks, we have seen

in the Oil for Food scandal things going wrong, where the U.N. bureaucracy, or at least parts of it, relatives in some cases of senior
52

officials apparently enriching themselves through a process that

has far smaller amounts, still significant to be sure, but far smaller

amounts at stake than this treaty could possibly result in over

time, particularly if Mr. Kelly is right that we wind up seeing

whole new industries that are currently gleams in the eye or in

their infancy developing in the world’s oceans.

As to this question of whether or not we will enjoy this new sort

of gold rush, if you will, bonanza off the coast of Alaska, if I understood him right, and I think I did, that is entirely possible if we

get the permission of one of these commissions associated with the

treaty. Maybe we will. Maybe we will get it under certain conditions and restrictions. Maybe we will get a piece of it. Maybe they

can have a piece of it. Because again going back to something Dr.

Leitner said at the beginning based on his experience, which I

gather is almost as lengthy as Mr. Oxman’s, the genesis of this

treaty, at least in the minds of many of its proponents decades ago,

was how do we distribute the wealth from the industrialized world

to the not industrialized world? Again, that is part of the concern

that goes to your question about multilateralism versus sovereignty.

On this matter, we keep touching on it, of the freedom of the

seas. I believe we are less likely to be assured of all of the good

things that are presented here, of free passage transit through

straits and so on, if we rely predominantly on international law

rather than the power and the credibility of the United States

Navy. Maybe Senator Warner would call that an extreme remark.

I do not know.

I happen to believe it, and I think given his history in the United

States Navy, maybe he would, too, but that is one of those questions that the Senate ought to deliberate long and hard about. I believe the two are incompatible here. It pains me to say that because, of course, we have had a number of admirals cited as supporters of this treaty, including the current Chief of Naval Operations. In the committee, I gather you will hear from him over on

the Armed Services side.

I am concerned that what the Navy has bought into here is a notion that on the face of it seems consistent with their interests and

will over time be counterproductive to those interests. That is a

sort of second-order problem, but I will be interested to see several

years down the road how this sorts out.

In regard to that, Mr. Chairman, there are two provisions that

I think Peter and I both alluded to that this committee, other committees, the Senate as a whole needs to address. Are there impacts

as a result of provisions of this treaty on the collection of intelligence and submerged transit in territorial waters? The proponents assure us rather blithely, I am afraid, that there are no

such problems. I think a straightforward reading of it suggests that

there will be problems. Particularly, going back to something Peter

said, since this treaty was drafted, decades before 9/11, the Senate

has an obligation to evaluate it in light of a post-9/11 world. I suggest to you that is a world in which we need as much intelligence

and we need to be operate submarines that among other things do

the collection of intelligence, as you know, in territorial waters. We

would not want there to be new inhibitions, and by the way, some
53

of those may be self-imposed inhibitions, once there is a treaty to

which we are party.

Finally, Mr. Chairman, if nothing else, I hope today’s hearing

has illuminated that there are real questions. With all due respect

and I worked for Secretary Taft in his biggest incarnation in the

Defense Department. I do not know Mr. Turner, but I find it troubling that when you asked the direct question, what happens if we

have to stop a ship, they do not have a ready answer. They will

have a ready answer I am sure in due course, but this should not

be something about which there is any uncertainty at all. Neither

should there be uncertainty about the numerous other points that

we have raised. Is the 1994 agreement something that supersedes

in effect, because if it is correct, it fundamentally alters this treaty.

I do not know, but I think you need to.

I think, Mr. Chairman, just going back to my opening point, you

deserve great credit for having convened this hearing. I must tell

you that I am not sure Senator Warner would have convened this

hearing but for the fact that you indicated that you were going to.

My initial feedback from his staff, who I mentioned in this testimony, was that they did not think a hearing was necessary in the

Armed Services Committee. That continues, as best I can tell, to

be the case in the Commerce Committee, in the Intelligence Committee, in the Finance Committee, in the Governmental Affairs

Committee, the Energy Committee and the Judiciary Committee.

Each of whom, I suggest to you, have an interest or will have interests affected by this treaty.

So again, I commend you, Mr. Chairman, for taking the time to

do this; for bringing it before your panel; for giving us who are

skeptical about the all this a chance to testify. Since what is in my

estimation at stake here is nothing less than the sovereignty of the

United States, this kind of attention is the least that the American

people can expect from their elected representatives in this body.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Mr. Gaffney. That was an excellent

statement.

I thank all of you for your patience. I am not known for long

hearings. I prefer short hearings, but in this case I thought it was

necessary to get a real education and I think I have accomplished

that. Hopefully, others did, too.

Thank you very much for your time.

We are adjourned.

[Whereupon, at 4:45 p.m. the committee was adjourned, to reconvene at the call of the chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. TED STEVENS, U.S. SENATOR FROM THE STATE OF ALASKA

Chairman Inhofe, thanks for inviting me to testify at this hearing today on ratification of 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. I gained valuable perspectives on the need

for international cooperation on the management of the world’s oceans at meetings

held in Caracas, Paris, London, Geneva, and at the United Nations in New York.

I traveled with John (‘‘Jack’’) Stevenson the Legal Adviser for the State Department
54

from 1969 to 1973 to many of these places and worked with former Senator Claiborne Pell during the 1990’s on the Law of the Sea.

My objections to the Law of the Sea Treaty during those times focused largely on

fisheries concerns, and namely protecting U.S. interests in living marine resources

off our coastline.

It was these concerns that led to the work on the Magnuson-Stevens Act and extending coastal State jurisdiction to 200 miles. Before passage of the Magnuson-Stevens 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 moves on to another fishery and decimates those stocks. This practice was devastating for our fisheries, and until the 200mile exclusive economic zones were established there was very little international cooperation to manage or to protect

shared fisheries.

Now, 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. In addition, the current resolution of advice and consent that Chairman

Lugar of the Foreign Relations Committee has developed for ratification includes

understandings and report language that further protect U.S. interests in abundant

and sustainable fisheries. This is critical for fisheries off the coast of Alaska in the

North Pacific where there are extremely conservative harvest caps in place that

have allowed for increased abundance of fisheries resources.

These understandings provide the exclusive right for coastal States 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—such determinations are not subject to binding dispute resolution under the Convention.

Other protections for our Nation’s fisheries have also been included in the Convention on the Law of the Sea, some of particular interest to me in my career in

the Senate are:

1. The Moratorium on High Seas Drift Nets.—In 1987, the Driftnet Impact Monitoring, Assessment, and Control 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 United Nations adopt our suggestion for a global moratorium on large-scale driftnet fishing on the high seas.

2. 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 know 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 United States did the right

thing by ratifying it in August 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.

The agreements have proven to be critical first steps toward cooperative international management of transboundary stocks.

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.

I am pleased with the declarations for U.S. accession to the treaty that the Administration worked out with the Foreign Relations Committee. Specifically, these

declarations confirm the right and sovereignty of the United States to manage our

natural resources, both living and nonliving, in our exclusive economic zone. 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. Thank you.
55

*U.S. Senator, Alaska

INTERNATIONAL FISHERIES AND THE LAW OF THE SEA CONVENTION

TED STEVENS*

I am delighted to have an opportunity to be here with you and extend my thanks

to the University of Virginia School of Law and particularly to Professor John Norton Moore, Director of the Center for Oceans Law and Policy. If I have been successful, John, it is because I have been blessed with a long string of able Alaskans, including Earl Comstock of my staff who is here tonight.

This seminar serves as a tribute to John R. (‘‘Jack’’) Stevenson, and I have a special spot in my heart for Jack. As you know, Jack was the Legal Adviser for the

State Department from 1969 to 1973, and I met with him often in those days. That

was my first real year in the Senate, in 1969, and I remember so well when Senator

Warren Magnuson, with whom I had contact during the Eisenhower days, asked me

whether I would like to monitor the Law of the Sea negotiations. Of course I did,

so he assigned me as a freshman minority member to attend all of those negotiations, and working with Jack Stevenson was one of the rewards of that assignment.

We met often in New York, Geneva, and Caracas. I hope you will carry to him my

best wishes. We do have great admiration and fondness for Jack Stevenson in my

office.

It may seem like an exaggeration to some people to describe to you the Senate

movement as ‘‘towards’’ consideration, much less ratification, of the Law of the Sea

Convention. I have talked to Senator Helms, Chairman of the Senate Foreign Relations Committee, about it. He has a pretty clear expression so far about his concerns

with the Convention. They are not new issues. I do not think they have scheduled

any hearings yet and I seriously doubt that we will get any soon. I know that you

know I have some reservations about some aspects of the Convention and I appreciate your inviting me to be here. I do want to tell you that in my judgment the

Senate is not simply ignoring the advantages of having the United States formally

adopt the Law of the Sea. We have listened to presentations by Ambassador David

Colson and others in support of ratification, and are reviewing the contents. And

Senator Claiborne Pell has had a series of meetings, as have others, with those who

are involved in negotiations to try to generate more interest in moving the Convention in the Senate. Also, we are now aware fully, of course, of the military’s position

in support of ratification.

Tonight, I ask you to allow me to set aside the concerns that many have concerning the deep seabed mining provisions, and address, the area that is of great

concern to me and important to my home state of Alaska—the portion of the Convention that deals with fisheries. I know that two people are here tonight who have

done a great deal in this area—Maggie Hayes of NOAA [National Oceanic and Atmospheric Administration] and David Balton of the Department of State. These two

have worked with us on these international issues and they deserve a great deal

of credit for the success that I am going to speak to you about. First, I will review

briefly for you the history of the 200-mile exclusive economic zone and then the recent international fishery agreements, which I believe must be fully protected in the

Convention if we are to ratify the Convention. I worked with Howard Baker for 8

years as the assistant [Republican] leader when he was leader and he used to say

to me, ‘‘Teddy, if you don’t toot your own horn no one will toot it for you.’’ If I am

tooting here, a little bit, I hope you remember that there are many other people,

including the two I just mentioned, who did a lot of the work that I am talking

about.

I have taken the time to mentally review things along with my assistant, Earl

Comstock, and I think this goes back literally to that first year, 1969, when I first

took the role that Senator Magnuson asked me to take on. It was then that I was

fortunate enough to meet Jack Stevenson. Fisheries around the world, including the

fisheries off Alaska, were very much over-fished primarily by distant water fleets.

There was very little international cooperation to manage or to protect those fisheries. We were a new state. We had only been a state for 10 years in 1969 and we

knew we had to have more protection for our fisheries. After all, fisheries then and

now are the No. 1 area of employment for Alaskans. I remember debating on the

Senate floor in 1969 and in the early 1970’s whether we should extend coastal State

jurisdiction to 200 miles. I was not certain that we could implement that south

enough to protect our fisheries.

It was not until 1971 that I introduced the first 200-mile bill, S. 46, although we

had discussed it many times before. S–46 really was a unilateral offer by the United

States to extend jurisdiction to 200 miles. At that time my thoughts were very ex-
56

treme. By 1975, I had enlisted Senator Magnuson’s help, and he sponsored the bill

in that Congress and said he would work with me to get it done. There were others

urging that we should not move forward to the 200-mile bill until we had ratified

the product of the Law of the Sea negotiations. Those of us who supported passing

that bill by then had named it the Fishery Conservation and Management Act.

Later I was the one who offered the motion to name it in honor of Senator Warren

Magnuson. I believe now we were ahead of the game by at least 20 years.

The Magnuson Act passed in 1976, yet we are still in the position where we have

not ratified the Law of the Sea Convention for many other reasons. In fairness I

think we would all agree that we do abide by most of the principles that have been

the result of the negotiations we have all watched over these years. In my judgment,

the fisheries off the United States received a significant increase in protection when

we did extend our national jurisdiction Fisheries in other parts of the world also

have received increased protection as they have extended their jurisdiction similarly. And now, 90 percent of the fisheries that are harvested off the United States

are within the fishery conservation zone, which we call the ‘‘exclusive economic

zone.’’

We have tried now to move beyond that 200-mile limitation, as you know, to stop

fishing on the high seas. Ambassador Satya Nandan and I were talking about that

and his efforts as chairman the U.N. Conference on Straddling Fish Stocks and

Highly Migratory. Fish Stocks. As you know the salmon fishery is very important

to us. We fought hard to stop the high seas interception salmon by the Japanese,

Koreans, and Taiwanese. At first we had an international agreement on high seas

fishing for salmon in North Pacific—an agreement entered into by the United

States, Japan, and Canada in 1954. In 1978 and 1985 it was renegotiated and

strengthened in an attempt to stop over-fishing.

In the early 1980’s, a young fisherman from Alaska took an airplane to Seattle

and flew here to Washington, bringing with him a large box which he put in the

middle of my desk. I had met him just once before, and that was my first introduction to a piece of a driftnet. He had lost his complete propeller unit because he had

run into a driftnet that had been cut loose in our Alaska waters. After that we received increasing information about the significant impact that the large-scale

driftnets were having on our fisheries.

I was Chairman, at that time, of the Ocean Subcommittee in the Senate, and we

had hearings on the high seas driftnets. We received some opposition from the State

Department spokesmen because they thought that the actions that we sought to

take would violate the general rights of fishing vessels to fish on the high seas, embodied in article 116 of the Convention. We did back up a little bit and then passed

another bill. I introduced the Driftnet Impact Monitoring, Assessment, and Control

Act 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. At that time I viewed the Driftnet Act as consistent with article 118 of

the Convention,’ which says that ‘‘States shall cooperate with each other in the conservation and management of living resources’’ on the high seas. That action by the

United States is still considered extreme by many nations who continue to oppose

any high seas fishing restrictions, and they have often argued that the Convention

did not allow any restrictions on high seas fishing.

Once the Driftnet Act, was passed, we began to learn more about the impact of

driftnets, particularly on other sea life—sea birds and many other species—and we

enlisted the aid of many organizations. I went to the United Nations to see if we

could completely ban the use of driftnets worldwide. Other nations were concerned,

too, particularly about the unrestricted use of such fishing gear, and they began to

support the ban. We have this fraternity of people who go to various negotiations.

They have made fast friendships with many people, as I have with Tom Pickering,

who is now in Moscow. In 1989, he was at the United Nations as our Ambassador

and he led a successful fight to stop driftnets. Ten other Senators had joined with

me in approaching Ambassador Pickering to request such action by the United Nations. I think that was a significant action—one for which Tom Pickering deserves

a lot of credit and so does Earl Comstock. He wrote the resolution on which the

United Nations took action.

In 1989, the U.N. General Assembly adopted a resolution to establish a global

moratorium on large-scale driftnet fishing on the high seas. Since then they have

adopted two more resolutions and have made three decisions to strengthen that

moratorium. The driftnet ban and extension of the exclusive economic zone (EEZ)

to 200 miles were the two most important initiatives, in my opinion, in the past

quarter-century to conserve the fishery resources of the’ world: the 200-mile limit

because it gives the adjacent nation, which has the most direct stake, authority to

conserve the fisheries close to its shore; and the driftnet ban because it sets the
57

precedent that, even on the high seas, destructive fishing practices will not be tolerated by the world. . The 200-mile limit was explicitly adopted by the Convention;

however, the U.N. action imposed by the moratorium on driftnets could be challenged sunder the Convention’s mandatory dispute settlement procedures. As, I understand it, under Part XV of the Convention, any dispute concerning the interpretation or application of the invention is required, at the request of any signatory,

to be submitted to compulsory dispute settlement proceedings. A dispute can be

heard by an international tribunal under Annex VI, a general arbitration panel

under Annex VII, or a special arbitration panel under Annex VIII. As most of you

probably know, the decisions made under the tribunal or two panels cannot be appealed If challenges are made and dispute panels favor unrestricted high seas fishing, precedents such as the U.N. resolutions banning driftnets could be weakened

or overturned by such challenges. That kind of vulnerability is, what worries me

and what brings me before you tonight.

In the past 5 years, we have witnessed the development and maturity of a new

kind of regional high seas fishery agreement. These agreements also may be vulnerable under the Convention. Regional internationals agreements are to me the key

to improved fishery conservation in the next 25 years. Like the 200-mile limit, regional agreements provide nearby nations, working together and driven by an immediate interest, to form a forum in which to strive for sound conservation and

management measures. Some of you, as Ambassador Satya Nandan and I discussed,

are familiar with the treaty in the Central Bering Sea, the Doughnut Hole as it is

commonly known, which is the patch of international waters between the 200-mile

limit off the coast of Russia and 200-limit off of our state of Alaska. Negotiations

began in 1998 when the Senate adopted a resolution that I offered to call for a moratorium on fishing in the international waters in the Central Bering Sea. Foreign

fishing vessels were using the Doughnut Hole as a staging area for illegal fishing.

These vessels would fish on the periphery of the United States or Soviet 200-mile

zone and when the enforcement vessels were not looking would dart into our waters

and use these large trawl nets with staggering impact on the stocks of Aleutian

Basin pollock which were then collapsing. The Senate resolution did lead to initiation of the negotiation between six nations that had’ fished in the Doughnut Hole:

the United States, Russia, Japan, China, Korea, and Poland.

In 1992, Congress went further, passing another bill that I crafted that would

deny U.S. port privileges to any foreign vessel that fished in the Doughnut Hole unless the fishing was done under an agreement to which both the United States and

Russia were parties. This law, called the Central Bering Sea Fisheries Enforcement

Act, also prohibited U.S. vessels from fishing in the Doughnut Hole in the absence

of an international regime. We closed it to everyone. That .was passage of a tough

law with enforceable sanctions and, like the passage of the Driftnet Enforcement

Act before it, it got the attention of fishing nations. They agreed to a 2-year moratorium on fishing in the Doughnut Hole, and during that time the parties entered intense negotiations.

Even then many observers did not believe an agreement between these different

nations was possible or that other nations would respect it. At the end of the 2-year

moratorium—in June 1994—the six nations signed a new treaty to conserve and

manage pollock within the Central Bering Sea. The Doughnut Hole Treaty set the

precedent of authorizing the United States and Russia, as the coastal States nearest

the Central Bering Sea, to establish harvest levels for the area if harvest levels

could not be agreed to by all six countries. That treaty also set the precedent of allowing officials from Russia and the United States to board vessels suspected of violating the Doughnut Hole agreement. Aleutian basin pollock stocks in the Doughnut

Hole are now recovering, and fishing is expected to commence again under a new

regional agreement in just a year or two. These stocks could not have recovered

without the type of cooperation or the potential sanction that was involved in the

action by the U.S. Congress.

We believe the Doughnut Hole Treaty is consistent with the Convention, in particular article 63, dealing with fish stocks that occur both within and beyond a nation’s EEZ (which are known, as you know, as ‘‘straddling’’ stocks). Article 63 says

that the coastal State and any State whose vessels fish for the straddling stock

should seek, either directly ‘‘or through appropriate subregional or regional organizations,’’ to conserve the stock. However, the Doughnut Hole Treaty provisions

which allow the United States and Russia to set the harvest levels and to board

vessels are not specifically addressed by the Convention. If weakened or overturned

by the Law of the Sea dispute panel, we would have no recourse for appeal. It would

be a major, major setback for the nations of the North Pacific if agreements such

as the U.N. driftnet moratorium and the Doughnut Hole Treaty were to be overturned by procedures contained within the Law of the Sea Convention.
58

Despite these concerns, which I hope you understand, I have always been open

to debate on whether the Senate should commence ratification procedures for the

Convention. Some argue the United States could be more effective in protecting fishery agreements, which I have addressed tonight, by adopting the Convention. I am

willing to listen and willing to be shown that it is true. I am also considering arguments made by those who believe we would be better off by involving ourselves in

the initial administrative decisions under the Convention rather than being outside

of that process. They mention, for instance, selection of judges for dispute settlement

panels. As you know, having been around for more than a quarter century, it does

not seem to me that we should ever base a judgment on a convention, treaty, or

an act of Congress that derives a temporary security from the participation of particular individuals in the initial administrative decisions. Agreements like the Convention must be clear enough to prevent misinterpretation by succeeding officials.

We cannot rely entirely on the decisions and precedents set by the initial participants.

My personal feeling is that, notwithstanding continued reservations, members of

the Senate may be and, I believe are, gradually warming up to the idea of ratifying

the Convention. Though my focus is on fisheries, the primary reason I think the

United States has not joined the Convention still lies in the same place it did in

President Carter’s days—our concerns about the Convention’s deep seabed mining

provisions. Proponents, including the present Administration, tell us that the now

agreement reached last year on seabed mining addresses these past concerns; the

key to Senate ratification is simply to convince those who believe otherwise. The

United States was heavily involved in the development of many basic concepts included in the Convention, and, for the most part, I think we all support the Law

of the Sea principles. As I said, we have not interfered with the assumption that

we should live under those principles as a general agreement with the world.

As you know, there is a negotiation currently underway at the United Nations in

New York to address the straddling stock and the highly migratory species issues.

I understand that tomorrow morning’s panel will address that specifically. It is the

position of the United States, and of the Chairman’s draft of the proposed treaty,

that this new agreement would be consistent with all of the provisions in the Convention. I certainly hope that the final agreement clearly and unequivocally states

the position that statement reflects. If the negotiation in New York on the straddling stocks issue is successful in incorporating the advances that have been made

through the U.N. moratorium on driftnets and the Doughnut Hole Treaty in a new

agreement that is broadly supported, then I think the concerns I have tried to articulate here will have been answered. And hopefully we will obtain similar clarification with respect to the seabed mining issues, which others continually raise as

I have indicated. I have not raised, those concerns, but I do believe we should get

the clarification so that the Senate of the United States should give its full consent

to this Convention that we have all lived with over these past almost 30 years. It

is nice to be with you and I appreciate your interest. Thank you very much.

REFERENCE LETTERS TO SENATOR JEFFORDS’ OPENING STATEMENT

U.S. COMMISSION ON OCEAN POLICY,

Washington, DC, March 19, 2004.

Hon. JAMES M. JEFFORDS, Ranking Member,

Committee on Environment and Public Works,

U.S. Senate,

Washington, DC.

DEAR SENATOR JEFFORDS: Thank you for inviting Commissioner Paul L. Kelly of

the U.S. Commission on Ocean Policy to testify before your Committee on the important subject of United States accession to the Unite Nations Law of the Sea Convention.

On October 14, 2003, I appeared before the Senate Committee on Foreign Relations concerning United States accession to the Law of the Sea Convention. I am

forwarding herewith a copy of my testimony on that occasion together with associated documents I submitted for the record as additional information which I hope

will be helpful to your Committee. Commissioner Kelly and I share the unanimous

and strongly held position of all 16 Presidentially appointed members of the U.S.

Commission on Ocean Policy in favor of United States accession to the United Nations Law of the Sea Convention.
59

Thank you again for seeking the views of the U.S. Commission on Ocean Policy

on this important matter.

Sincerely,

JAMES D. WATKINS,

Admiral, U.S. Navy (Retired),

Chairman.

ATTACHMENT

STATEMENT BY ADMIRAL JAMES D. WATKINS, USN (RETIRED), CHAIRMAN, U.S.

COMMISSION ON OCEAN POLICY, OCTOBER 14, 2003

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
60

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 ter-
61

ritorial 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 of jurisdiction

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.
62

ATTACHMENTS TO STATEMENT BY ADMIRAL JAMES D. WATKINS, USN (RET.),

OCTOBER 14, 2003

COMMISSION ON OCEAN POLICY,

November 28, 2001.

The President,

The White House,

Washington, DC.

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 2 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,

Admiral U.S. Navy (Retired),

Chairman.

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, DC.

COMMISSION ON OCEAN POLICY,

November 26, 2001.

Hon. JOSEPH R. BIDEN, JR., Chairman,

Committee on Foreign Relations,

U.S. Senate,

Washington, DC.

DEAR MR. CHAIRMAN: 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, DC on November 13–

14, 2001, the Commissioners heard testimony on a broad range of ocean and coastal
63

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 nonparty status and the benefits of the Convention to the United States.

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 United

States 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,

Admiral, U.S. Navy (Retired),

Chairman.

COMMISSION ON OCEAN POLICY,

November 26, 2001.

Hon. JESSE HELM, Ranking Minority Member,

Committee on Foreign Relations,

U.S. Senate,

Washington, DC.

DEAR SENATOR HELMS: 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
64

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, DC. 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 nonparty status and the benefits of the Convention to the United States.

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,

Admiral, U.S. Navy (Retired),

Chairman.

THE SECRETARY OF STATE,

Washington, December 12, 2001.

Admiral JAMES D. WATKINS, USN (Retired), Chairman,

Commission on Ocean Policy,

Washington, DC.

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.
65

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, 2 weeks later, announced at the U.N. 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,

December 5, 2001.

Admiral JAMES D. WATKINS, USN (Ret),

Commission on Ocean Policy,

Arlington, VA.

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.

DEPARTMENT OF THE NAVY,

Washington, DC, March 18, 2004.

Hon. JAMES M. JEFFORDS, Chairman,

U.S. Senate,

Washington, DC.

DEAR SENATOR JEFFORDS: I write to express my strong support for United States

accession to the Law of the Sea Convention. It has been the consistent, longstanding

position of the Navy that accession to the Convention will benefit the United States

by advancing our national security interests and ensuring continued U.S. leadership

in the development and interpretation of the law of the sea.

The Law of the Sea Convention helps assure access to the largest maneuver space

on the planet—the sea—under authority of widely recognized and accepted law and

not the threat of force. The Convention protects military mobility by codifying favorable transit rights that support our ability to operate around the globe, anytime,

anywhere, allowing the Navy to project power where and when needed. The Convention also provides important safeguards for protecting the marine environment

while preserving operational freedoms.

Although the Convention was drafted over 20 years ago, the Convention supports

U.S. efforts in the war on terrorism by providing important stability and codifying

navigational and overflight freedoms, while leaving unaffected intelligence collection

activities. Future threats will likely emerge in places and in ways that are not yet

known. For these and other as yet unknown operational challenges, we must be able

to take maximum advantage of the established navigational rights codified in the

Law of the Sea Convention to get us to the fight rapidly. The diversity of challenges

to our national security combined with a more dynamic force structure makes strategic mobility more important than ever. The oceans are fundamental to that ma-
66

neuverability and, by joining the Convention, we further ensure the freedom to get

to the fight, twenty-four hours a day and 7 days a week, without a permission slip.

I appreciate your continued strong support of the Law of the Sea Convention and

the Navy.

Sincerely,

VERN CLARK,

ADMIRAL, U.S. NAVY.

STATEMENT OF 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’’), which, with 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’’), was reported favorably by the Senate Foreign Relations Committee on March 11, 2004.

OVERVIEW

Last October five Administration witnesses testified before the Senate Foreign Relations Committee in strong support of the Law of the Sea Convention. I said then,

and I reiterate: This Administration has concluded that there are important reasons

for the United States to become a party to this Convention and we urge Senate action on it.

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 last thirty years. The United States is already a party to four 1958 conventions regarding various aspects of the law of the

sea. While a step forward at the time as a partial codification of the law of the sea,

those conventions left some unfinished business; for example, they did not set forth

the outer limit of the territorial sea, and they did not contain a dispute settlement

mechanism that the United States could use to push back illegal maritime claims

of other countries. The United States played a prominent role in the negotiating sessions that culminated in the 1982 Convention, which sets forth a comprehensive

framework governing uses of the oceans that is strongly in the U.S. national security, economic, and environmental interest and is supported by affected industries,

associations, and environmental groups.

When the Convention was adopted in 1982, the United States recognized that its

provisions were favorable to U.S. interests, except for Part XI on deep seabed mining, which I will discuss later on. In 1983 President Reagan announced in his

Oceans Policy Statement that the United States accepted, and would act in accordance with, the Convention’s balance of interests relating to traditional uses of the

oceans. He instructed the Government to abide by all the provisions other than

those in Part XI.

Part XI has now been fixed, in a legally binding manner, to address the concerns

raised by President Reagan or successive Administrations. We urge the Senate to

give its advice and consent to this Convention, to allow us to take full advantage

of the many benefits it offers. As noted in the March 1, 2004, letters from State Department Legal Adviser William H. Taft IV to the Chairman and the Ranking Member of the Senate Foreign Relations Committee:

U.S. law and practice are already generally compatible with the Convention.

Except [with respect to the enforcement of certain deep seabed mining decisions, which would be necessary at some point after U.S. accession], 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 .[t]he 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.
67

JURISDICTION AND NAVIGATION

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 any

other Nation from the provisions of the Convention, which 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, 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. U.S. Armed Forces rely on these navigation and

overflight rights daily, and their protection is of paramount importance to U.S. national security.

ENVIRONMENTAL INTERESTS

The United States’ coastal waters and EEZ 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.

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, in a manner that effectively balances interests of States in protecting the

environment and natural resources with their interests in freedom of navigation and

communication. The provisions contain a variety of obligations and authorizations

relating to coastal States, flag States, and/or all States. As a party, the United

States would be able to implement Part XII through a variety of existing U.S. laws,

regulations, and practices (including enforcement practices) that are consistent with

the Convention and that would not need to change in order for the United States

to meet its Convention obligations. For example, because our laws already provide

for the protection of rare and fragile ecosystems and the habitat of depleted, threatened, or endangered species, no amendment to the Endangered Species Act or the

Marine Mammal Act would be required. Nor would the Convention impose any restrictions or requirements on U.S. citizens in addition to what is already required

by statute.

With respect to protection of the U.S. coastal marine environment in particular,

I would note that the executive branch, through the Department of Justice, the Department of Homeland Security, 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, including its allocation of enforcement responsibilities among coastal States,

flag States, and port States in various situations.

In order to ensure that the relationship between U.S. law and the Convention’s

enforcement provisions is a seamless one, the Administration recommended, and the

proposed resolution of advice and consent contains, a number of understandings

that, among other things, harmonize certain domestic terminology with the Conven-
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tion and confirm the longstanding right of a State to impose and enforce conditions

for entry of foreign vessels into its ports. The Convention’s support of a State’s ability to exercise its domestic authority to regulate the introduction of invasive species

into the marine environment and to regulate marine pollution from industrial operations on board foreign vessels is also highlighted.

LIVING MARINE RESOURCES

As noted, a coastal State has sovereign rights over living marine resources in its

exclusive economic zone, i.e., out to 200 nautical miles from shore. The Convention’s

provisions on fisheries are entirely consistent with U.S. domestic fisheries laws as

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.

CONTINENTAL SHELF

The Convention also 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. It lays down specific criteria and procedures for determining the outer limit of the continental shelf. The Convention improves on the 1958 Continental Shelf Convention by giving all coastal States a continental shelf out to 200 nautical miles, regardless of geology; by allowing for extension of the shelf beyond 200 nautical miles if it meets certain geological criteria; and

by providing more precise standards (favorable to the United States) to replace the

1958 ‘‘exploitability’’ standard.

By becoming party to the Convention, the United States would be better able to

protect its interests in several ways, including by nominating a U.S. citizen to serve

on the Commission on the Limits of the Continental Shelf, and by submitting data

on our very extensive continental shelf beyond 200 miles to establish the outer limits as final and binding in accordance with article 76(8).

The Convention also protects the freedom to lay submarine cables and pipelines,

of increasing importance to global communications, whether military, commercial, or

research. Its provisions are favorable to U.S. security and economic interests. The

United States would retain the right under the Convention to set conditions for cables and pipelines entering our territorial sea, as well as for those used in connection with oil and gas activities on our continental shelf.

DEEP SEABED MINING

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. Informal negotiations were launched in 1990 during the first

Bush Administration, under the auspices of the United Nations Secretary General,

and continued into 1994. The Agreement, signed by the United States on July 28,

1994, contains legally binding changes to that part of the Convention dealing with

mining of the deep seabed beyond the limits of national jurisdiction. It is to be applied and interpreted together with the Convention as a single instrument.

The changes set forth in the 1994 Agreement meet our goal of guaranteed access

by U.S. industry to deep seabed minerals on the basis of reasonable terms and conditions. The Agreement overhauls the decisionmaking 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 United States

is guaranteed a seat on the critical decisionmaking body; no substantive obligation

can be imposed on the United States, and no amendment can be adopted, without

its consent.

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. The International Seabed Authority has

no regulatory role other than administering the mining regime, and no ability to

levy taxes.
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A future decision, which the United States and other investors 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. Of particular

importance, 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 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.

DISPUTE SETTLEMENT

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 is pleased that its recommendation that the United States elect arbitration under Annex VII and special

arbitration under Annex VIII is included in the proposed Resolution of Advice and

Consent. I would note that, while the Administration previously raised a concern

regarding dispute resolution, that concern has been satisfactorily addressed by the

proposed Resolution.

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 is

similarly pleased that the proposed Resolution of Advice and Consent follows its recommendation that the United States elect to exclude all three of these categories

of disputes from dispute settlement mechanisms.

The ability of a party to exclude disputes concerning military activities from dispute settlement has long been of importance to the United States. The U.S. negotiators of the Convention sought and achieved language that creates a very broad

exception, successfully defeating attempts by certain other countries to narrow its

scope. The United States has consistently viewed this exception as a key element

of the dispute settlement package, which carefully balances comprehensiveness with

protection of vital national interests.

The Administration recommended, and the proposed Resolution includes, a statement that our consent to accession to the Convention is conditioned on the understanding that 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. Disputes concerning military activities, including intelligence activities, would not be subject to dispute settlement under the Convention.

REASON TO JOIN

As a non-party to the Convention, the United States has actively sought to

achieve global acceptance of, and adherence to, the Convention’s provisions, particularly in relation to freedom of navigation. At home, President Reagan’s 1983 Oceans

Policy Statement directed the United States to abide by the non-deep seabed provisions of the Convention. Abroad, the United States has worked both diplomatically

and operationally to promote the Convention as reflective of customary international

law.

While we have been able to gain certain benefits of the Convention from this approach, formal U.S. adherence to the Convention would have many advantages: • 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 those provisions.
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• 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 is being implemented in various forums, both those established

by the Convention and certain others (such as the International Maritime Organization). While the Convention’s institutions were not particularly active during the

past decade since the Convention entered into force, they are now entering an operational phase and are elaborating and interpreting various provisions. The United

States would be in a stronger position to defend 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.

• As a party, the United States could get the legal certainty with respect to its

continental shelf claim beyond 200 miles that will facilitate activities in those areas

by the U.S. oil and gas industry.

• 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. It is worth noting that the Convention will be open to amendments

beginning next November. 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 20 years largely due to the

Convention’s stable, widely accepted legal framework. It would be risky to assume

that it is possible to preserve indefinitely 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.

RESPONSES TO ARGUMENTS AGAINST

Certain arguments have recently been put forward suggesting that it would not

be in the U.S. interest to join the Convention. I would like to address these arguments in turn.

President Reagan thought the treaty was irremediably defective

• President Reagan expressed concerns only about Part XI’s deep seabed mining

regime.

• In fact, he believed that Part XI could be fixed and specifically identified the

elements in need of revision.

• The regime has been fixed in a legally binding manner that addresses each of

the U.S. objections to the earlier regime.

• The rest of the treaty was considered so favorable to U.S. interests that, in his

1983 Ocean Policy Statement, President Reagan ordered the Government to abide

by the non-deep seabed provisions of the Convention.

The 1994 Agreement doesn’t even pretend to amend the Convention; it merely establishes controlling interpretive provisions

• The 1994 Agreement contains legally binding changes to the Convention.

• The Convention could only have been ‘‘amended’’ if it had already entered into

force.

• It would not have been in our interest to wait until the Convention entered into

force before fixing it, as it would have been more cumbersome to effectuate the

changes that we sought.

• The Agreement unambiguously changes Part XI in a legally binding manner.

The problems identified by President Reagan in 1983 were not remedied by the 1994

Agreement relating to deep seabed mining

• Each objection has been addressed.

• Among other things, the 1994 Agreement:

• provides for access by U.S. industry to deep seabed minerals on the basis

of non-discriminatory and reasonable terms and conditions;

• overhauls the decisionmaking rules to accord the United States critical influence, including veto power in some cases, over future decisions;

• restructures the regime to comport with free-market principles, including

the elimination of the earlier mandatory technology transfer provisions and all

production controls.
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U.S. adherence to the Convention is not necessary because navigational freedoms are

not threatened (and the only guarantee of free passage on the seas is the power

of the U.S. Navy)

• It is not true that our navigational freedoms are not threatened. There are more

than one hundred illegal, excessive claims affecting vital navigational and overflight

rights and freedoms. • The United States has utilized diplomatic and operational challenges to resist

the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But

these operations entail a certain amount of risk e.g., the Black Sea bumping incident with the former Soviet Union. • Being a party to the Convention would significantly enhance our efforts to roll

back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict.

The Convention gives the U.N. its first opportunity to levy taxes

• The Convention does not provide for or authorize taxation of individuals or corporations. There are revenue sharing provisions for oil/gas activities on the continental shelf beyond 200 miles and administrative fees for deep seabed mining operations. The amounts involved are modest in relation to the total economic benefits,

and none of the revenues would go to the United Nations or be subject to its control.

U.S. consent would be required for any expenditure of such revenues.

The Convention mandates another tribunal to adjudicate disputes

• The Convention established the International Tribunal for the Law of the Sea.

However, Parties are free to choose other methods of dispute settlement. The United

States would elect two forms of arbitration rather than the Tribunal.

• The United States would be subject to the Sea-bed Disputes Chamber, should

deep seabed mining take place under the regime established by the Convention. The

proposed Resolution of Advice and Consent, however, makes clear that the Sea-bed

Disputes Chamber’s decisions ‘‘shall be enforceable in the territory of the United

States only in accordance with procedures established by implementing legislation

and that such procedures shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United

States.’’

Other Parties will reject the U.S. ‘‘military activities’’ declaration as a reservation

• The U.S. declaration is consistent with the Convention and is not a reservation.

U.S. adherence will entail history’s biggest voluntary transfer of wealth and surrender of sovereignty

• Under the Convention as amended by the 1994 Agreement there is no transfer

of wealth and no surrender of sovereignty.

• In fact, the Convention supports the sovereignty and sovereign rights of the

United States over extensive maritime territory and natural resources off its coast,

including a broad continental shelf that in many areas extends well beyond the 200-

nautical mile limit.

• The mandatory technology transfer provisions of the original Convention, an

element of the Convention that the United States objected to, were eliminated in

the 1994 Agreement.

The International Seabed Authority has the power to regulate seven-tenths of the

earth’s surface, impose international taxes, etc.

• The Convention addresses seven-tenths of the earth’s surface. However, the

International Seabed Authority (ISA) does not.

• The authority of the ISA is limited to administering mining of minerals in areas

of the deep seabed beyond national jurisdiction, generally more than 200 miles from

the shore of any country. At present, and in the foreseeable future, such deep seabed mining is economically unfeasible. The ISA has no other role and has no general

regulatory authority over the uses of the oceans, including freedom of navigation

and overflight.

• The ISA has no authority or ability to levy taxes.

The Convention was drafted before and without regard to the war on terror and what

the United States must do to wage it successfully

• It is true that the Convention was drafted before the war on terror. However,

the Convention does not prevent the United States from waging a successful war

on terror.
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• On the contrary, maximum maritime naval and air mobility that is currently

assured by the Convention is essential for our military forces to operate effectively.

The Convention provides the necessary stability and framework for our forces,

weapons, and materiel to get to the fight without hindrance and is the best guarantee that our forces will not be hindered in the future.

• Thus, the Convention supports our war on terrorism by providing important

stability for navigational freedoms and overflight. It preserves the right of the U.S.

military to use the world’s oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and

not be contingent upon approval from nations along the routes. A stable legal regime for the world’s oceans will help guarantee global mobility for our Armed

Forces.

The Convention adversely affects activities to be undertaken pursuant to the Proliferation Security Initiative

• On the contrary, joining the Convention would strengthen PSI efforts.

• PSI’s own rules require that PSI activities be consistent with relevant international law and frameworks, which include the Convention’s navigation provisions.

• The Statement of Interdiction Principles pursuant to which the PSI operates explicitly specifies that interdiction activities under PSI will be undertaken ‘‘consistent

with national legal authorities and relevant international law and frameworks.’’ The

relevant international law framework for PSI includes customary international law

that is codified in the Law of the Sea Convention.

• The Convention provides solid legal bases for taking enforcement action against

vessels and aircraft suspected of engaging in proliferation of WMD, e.g., exclusive

port and coastal State jurisdiction in internal waters and national airspace; coastal

State jurisdiction in the territorial sea and contiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which the flag State may, by agreement,

waive in favor of other States); and universal jurisdiction over stateless vessels.

• All of the United States’ partners in the PSI are parties to the Convention and

accordingly observe its provisions.

• As Admiral Michael Mullen, Vice Chief of Naval Operations, testified before the

Foreign Relations Committee, being party to the Convention ‘‘would greatly

strengthen [the Navy’s] ability to support the objectives’’ of PSI by reinforcing and

codifying freedom of navigation rights on which the Navy depends for operational

mobility.

Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as anti-submarine

warfare technology)

• No technology transfers are required by the Convention. Mandatory technology

transfers were eliminated by Section 5 of the Annex to the Agreement amending

Part XI of the Convention.

• Article 302 of the Convention provides that nothing in the Convention requires

a party to disclose information the disclosure of which is contrary to the essential

interests of its security.

The PRC asserts that the Convention entitles it to exclusive economic control of the

waters within a 200 nautical-mile radius of its artificial islands—including waters transited by the vast majority of Japanese and American oil tankers en route

to and from the Persian Gulf

• We are not aware of any claims by China to a 200-mile economic zone around

its artificial islands.

• Any claim that artificial islands generate a territorial sea or EEZ has no basis

in the Convention.

• The Convention specifically provides that artificial islands do not have the status of islands and have no territorial sea or EEZ of their own. Sovereignty over certain Spratly Islands (which do legitimately generate a territorial sea and EEZ) is

disputed among Brunei, China, Malaysia, the Philippines, and Vietnam. China has

consistently maintained that it respects the high seas freedoms of navigation

through the waters of the South China Sea.

The Convention, specifically articles 19 and 20, prohibit two functions vital to American security: collecting intelligence in, and submerged transit of, territorial waters

• This assertion is not correct.

• The Convention does not prohibit U.S. intelligence activities, nor would it have

any negative effect on those activities.
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• In the 1958 Convention, Article 14 provides that passage is innocent ‘‘so long

as it is not prejudicial to the peace, good order or security of the coastal State’’ and

that ‘‘submarines are required to navigate on the surface and to show their flag.’’

• The United States is already a party to the 1958 Territorial Sea Convention,

which contains provisions very similar to articles 19 and 20 of the 1982 Convention.

• The 1982 Convention’s specification of activities that are considered to be ‘‘prejudicial to the peace, good order, or security of the coastal State’’ are more favorable

than the provisions of the 1958 Convention both because the list of activities is exhaustive and because it generally uses objective, rather than subjective, criteria in

the listing of activities.

• Since President Reagan’s 1983 Oceans Policy Statement, the United States has

conducted its activities consistent with the non-deep seabed provisions of the 1982

Convention.

• U.S. accession to the Convention supports ongoing U.S. military operations, including the continued prosecution of the war on terrorism.

CONCLUSION

As of today, 145 parties, including almost all of our major allies, have joined the

Convention. It is in the interest of the United States to become a party to the Convention, because of the military, economic, and environmental 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. The Administration recommends that the

Senate give its advice and consent to accession to the Convention and ratification

of the Agreement, on the basis of the proposed Resolution of Advice and Consent.

Thank you very much.

RESPONSES BY JOHN F. TURNER TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1a. Article 2(3) of the Treaty states ‘‘the sovereignty over the territorial

sea is exercised subject to this Convention and to other rules of international law.’’

What is your interpretation of this provision?

Response. This provision, which is the same as article 1(2) of the 1958 Convention

on the Territorial Sea and Contiguous Zone, to which the United States is already

a party, means that a coastal State’s sovereignty over the territorial sea is qualified

in two ways: by other provisions of the Convention and by other rules of international law.

Question 1b. Do you think all parties of this Treaty will interpret this provision

the same?

Response. We have no reason to believe that this interpretation would not be

shared by all Parties. The other provisions of the Convention provide for rights of

passage—innocent passage, transit passage through straits, and archipelagic sea

lanes passage—that are critical to U.S. global mobility, national security, and economic interests.

Question 1c. How could this Treaty interfere with the United States’ sovereign exercise of freedom of the seas and in what ways will that have an adverse effect on

national security and the environment?

Response. Article 2(3) would not have an adverse effect on national security and

the environment. On the contrary, the rights of passage to which it refers advance

the interests of the United States. And the Convention advances U.S. military and

commercial interests in freedom of navigation and U.S. interests in protecting the

marine environment both off our own coastline and globally.

Question 2. Do you believe it is in the best interest of the United States to vest

control of seabed mining operations in countries which lack the necessary technology and capital to conduct such operations themselves?

Response. Part of the objection of President Reagan and subsequent Administrations to the original Part XI of the Convention was in fact to the decisionmaking

structure. However, the Convention as modified by the 1994 Agreement, which the

United States would be joining, fundamentally changes the decisionmaking structure to give the United States and other industrialized countries influence commensurate with their political and economic situations.

Question 3. Do you believe the Treaty’s structure of decisionmaking is in the best

political and economical interests of the United States? Please explain in detail.
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Response. It is assumed that you are referring to the Convention’s deep seabed

mining institutions, because decisionmaking is not a factor regarding the bulk of the

Convention’s provisions. The decisionmaking structure applicable to Part XI of the

Convention has been fundamentally overhauled by the legally binding 1994 Agreement to accord the United States, and others with major economic interests at

stake, decisive influence over decisions regarding deep seabed mining. The United

States would be guaranteed a seat on the critical executive body, so that any deep

seabed mining regulations or amendment to the regime would require U.S. agreement. The United States has a guaranteed seat for the foreseeable future on the

Finance Committee, in which a consensus of major contributors is required for decisions with financial or budgetary implications. Joining the Convention and Agreement, far from hurting our deep seabed mining interests, will facilitate them.

It is important to note that the alternative to the modified deep seabed mining

regime reflected in the Convention and Agreement is not that U.S. companies can

engage in deep seabed mining without going through the Convention’s institutions;

rather, to get the legal certainty they need, U.S. companies would have to go

through the Seabed Authority—but under the auspices of another country that is

a party. It is also important to note that, while some seem to be asserting that the

deep seabed mining institutions will somehow encroach on U.S. sovereignty, the

United States has never asserted sovereignty or sovereign rights with respect to

seabed areas beyond national jurisdiction or to mineral activities thereon.

Question 4. Do you believe that by acceding to the Treaty the United States would

gain an adequately effective bargaining position to protect its current and future national policies and interests relating to national defense, seabed mining and environmental protection? Please explain in detail.

Response. The United States would in fact maximize its ‘‘bargaining position’’ in

those areas by joining the Convention. Regarding national defense, while we have

been able to enjoy certain navigational benefits of the Convention through customary international law, the United States would be in a stronger position to promote and defend its navigational rights by putting them on firm treaty footing and

by strengthening the authority of our views concerning the application and interpretation of the Convention provisions reflecting the rights upon which our mobility depends.

Regarding exploitation of resources of the continental shelf beyond 200 miles, the

Convention would promote U.S. energy and other economic interests by providing

for coastal States to be able to establish an outer limit that gives legal certainty

to investors; as a party, we would also be in a position to nominate an American

expert for the Commission that plays a significant role in that process.

Regarding deep seabed mining, the United States, as a party, would certainly enhance its bargaining power through, among other things, a permanent seat on the

Council, the key decisionmaking body. Concerning environmental protection, the

United States has a strong interest in maintaining the Convention’s balance between effective environmental protection and other uses of the oceans, including

navigational freedoms; as a party, we would be in a stronger position to promote

and maintain this balance.

Question 5. Despite the clear requirements in Articles 208 and 210 of the Treaty

which specify that related national laws must be ‘‘no less effective’’ than international rules, standards and recommended practices and procedures, the Committee received testimony to the effect that the United States would not be required

to change any of its environmental laws to be in compliance with the Treaty. Are

you certain that the Treaty could not be used to impose restrictions or requirements

on the United States to limit or expand current or future U.S. laws and policies?

Response. There are currently no applicable international standards regarding the

subject matter covered by article 208, namely pollution from sea-bed activities subject to national jurisdiction. With respect to ocean dumping under article 210, the

United States is a party to, and implements, the 1972 London Convention, which

reflects the long-established global regime addressing pollution of the marine environment by dumping. Internationally agreed rules in the case of sea-bed activities

or international acceptance of new global rules in the case of ocean dumping would

not be achievable without the endorsement of the United States, the State with the

largest EEZ and the world’s dominant maritime power.

Question 6. Article 212 of the Treaty requires States to adopt laws and regulations

for pollution from the atmosphere. How would the United States’ domestic policy

need to be changed or altered to comply with the international laws, regulations,

and recommended practices to address these concerns? And does this mean that

other countries can use this provision to force the United States to regulate C02?
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Response. Article 212 does not require States to ‘‘comply’’ with international laws,

regulations, or recommended practices, does not require any particular domestic

standards, and would not require any change in U.S. domestic law or policy concerning pollution from or through the atmosphere, including with respect to carbon

dioxide. There would be no legal basis under the Convention to force the regulation

of carbon dioxide, including because the atmospheric pollution obligation under article 212 is not subject to dispute settlement under article 297(1)(c) of the Convention.

Question 7a. In your written testimony submitted to the Committee, you state

that ‘‘our laws already provide for the protection of rare and fragile ecosystems and

the habitat of depleted, threatened, or endangered species.’’ However, the protections of the Endangered Species Act only affect those species listed as ‘‘threatened’’

or ‘‘endangered’’ and does not describe or include ‘‘depleted’’ species as mentioned

in the Treaty under Article 194. What U.S. environmental law were you referring

to in your written testimony that already protects depleted species?

Response. The Marine Mammal Protection Act (MMPA) of 1972, 16 U.S.C. 1361

et seq., provides statutory authority for protecting ‘‘depleted’’ marine mammals. The

terms ‘‘depleted’’ and ‘‘depletion’’ are defined in 16 U.S.C. 1362(1) to apply to species

or populations determined to be below their optimum sustainable population, or to

species listed as ‘‘endangered’’ or ‘‘threatened’’ under the Endangered Species Act

(ESA). Some depleted marine mammal species are listed under the ESA; some are

not. For those that are not, the relevant Federal agency must prepare a conservation plan, under 16 U.S.C. 1383b(b), that is modeled on recovery plans required

under the ESA, 16 U.S.C. 1533(f). The conservation plan may include measures to

protect the habitat of marine mammal species.

Question 7b. The Federal Government is already constantly involved in the litigation-driven designation of critical habitat for species listed under the Endangered

Species Act. Does the inconsistency between the Treaty and current U.S. law have

any potential for mandating the current or future expansion of U.S. species protection? If so, how are we to know what species fall under this new, undefined category

of ‘‘depleted’’ species?

Response. The MMPA also provides authority to implement conservation or management measures to alleviate impacts on rookeries, mating grounds, or other areas

of similar ecological significance to marine mammals. 16 U.S.C. 1382(e). There is

no inconsistency between the treaty and current U.S. law. Depleted species are listed at 50 CFR 216.15.

Question 8a. The Treaty would impede marine scientific research in that a costal

State could object to granting a ship access in its territorial sea unless the ship is

just passing through. For example, as Mr. Gaffney pointed out in his testimony,

Russia has denied access to its territorial sea for ships conducing marine scientific

research.

How would this Treaty ensure that research could be conducted if there is a difference of interpretation or opinion by another Nation and that Nation can object

to a ship’s access to its territorial sea?

Response. Coastal States have sovereignty over the territorial sea, subject to certain qualifications (such as the rights of innocent passage, transit passage, and

archipelagic sea lanes passage). This sovereignty includes the exclusive right to regulate, authorize, and conduct marine scientific research, which is exercised by the

United States as a coastal State with respect to its territorial sea. While the extent

to which foreign flag vessels can conduct marine scientific research in the territorial

sea is up to the coastal State, coastal States do not have the right to object to ‘‘access’’ per se, i.e., passage that comports with the requirements for innocent, transit,

or archipelagic sea lanes passage, as the case may be.

Question 8b. What are the implications for military and intelligence research?

Response. Marine scientific research does not include military/intelligence research, and the marine scientific research provisions of the Convention do not apply.

At the same time, if a foreign vessel wanted to take advantage of the right of innocent passage, research or survey activities would be considered activities prejudicial

to the peace, good order, or security of the coastal State under article 19.

RESPONSES BY JOHN F. TURNER TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. What is the meaning and legal effect of Article 2, section 3 of the Convention, which states that ‘‘[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law’’? If the United States
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accedes to the 1982 Convention and ratified the 1994 Agreement, could this provision be used in any way to limit the sovereignty of the United States?

Response. This provision, which is the same as article 1(2) of the 1958 Convention

on the Territorial Sea and Contiguous Zone, to which the United States is already

a party, means that a coastal State’s sovereignty over the territorial sea is qualified

in two ways: by other provisions of the Convention and by other rules of international law. The other provisions of the Convention provide for rights of passage—

innocent passage, transit passage through straits, and archipelagic sea lanes passage—that are critical to U.S. global mobility, national security, and economic interests. Article 2(3) of the Convention will not limit the sovereignty of the United

States if we join the Convention; the United States is already bound by the provision under the 1958 Convention, and it also reflects customary international law.

Question 2. If the United States accedes to the Convention and ratifies the 1994

Agreement, what will be the legal effect of any declarations and understandings contained within a Senate resolution of advice and consent?

Response. The declaration under article 287 will establish the means chosen by

the United States (arbitration and special arbitration) for the settlement of various

disputes under the Convention. The declaration under article 298 will establish that

the United States does not accept any of the procedures provided for in section 2

of Part XV of the Convention with respect to specified categories of disputes and

will condition its consent to accession to the Convention 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.

With respect to the understandings and declarations under article 310, the understandings are designed to clarify, or harmonize U.S. law with, certain provisions of

the Convention; the declarations are statements of purpose, policy, or position. Neither the understandings nor the declarations purport to exclude or modify the legal

effect of the provisions of the Convention.

Question 3. Could you clarify the scope attending the imposition of corporal punishment and imprisonment under Article 230, section 2? My understanding is that

this provision, as clarified by understanding 11 in section three of the resolution of

advice and consent passed out of the Senate Foreign Relations Committee, would

require the United States to show gross negligence and a ‘‘serious’’ act of pollution

before seeking imprisonment under the criminal penalties provisions of the Clean

Water Act for acts of pollution committed by an operator or crew member of a foreign vessel in the U.S. territorial sea in cases where the vessel is not traveling to

a U.S. port. Is this consistent with current U.S. enforcement practices under the

Clean Water Act? Are there any circumstances in which the provision could be used

to restrict statutory authority regarding the imposition of criminal penalties under

the Clean Water Act or any other relevant statute?

Response. The executive branch, through the Department of Justice, the Coast

Guard, and EPA, 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 the provision you refer to. The United States has

been able to maintain an effective marine pollution enforcement program consistent

with the Convention’s provisions.

There are a variety of U.S. environmental statutes that regulate pollution 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 proposed understanding, we interpret the references

to ‘‘monetary penalties only’’ to exclude only imprisonment [and corporal punishment] and not the range of other administrative, civil, and criminal penalties, sanctions, and other remedies available under domestic statutes. The ‘‘wilful and serious’’ standard 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.
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In essence, however, U.S. law is largely consistent with the Convention; U.S. interpretations of key terms (as reflected in the proposed understandings) will harmonize the terminology; and, as noted above, U.S. enforcement practices have been

consistent with the Convention’s provisions.

Question 4. You stated in your prepared statement that ‘‘[a]s a party, the United

States would be able to implement Part XII through a variety of existing U.S. laws,

regulations, and practices (including enforcement practices) that are consistent with

the Convention and that would not need to change in order for the United States

to meet its Convention obligations.’’ This statement could be read to suggest that

if there are U.S. laws, regulations, and practices that are not consistent with the

Convention, such laws, regulations, or practices might need to change. Could you

clarify for the record whether any existing U.S. laws, regulations, or practices would

need to change in order for the United States to meet its Convention obligations?

Response. The statement was intended to mean that the applicable U.S. laws, regulations, and practices (including enforcement practices) are consistent with the

Convention. It was not intended to refer only to a subset of such laws/regulations/

practices that are consistent with the Convention. As noted in the answer to Question 3, consistent with policy since 1983 to apply the non-deep seabed provisions of

the Convention, U.S. practice has been to enforce U.S. marine pollution laws against

foreign flag vessels in a manner consistent with the Convention’s provisions.

RESPONSE BY WILLIAM H. TAFT IV TO AN ADDITIONAL QUESTION FROM

SENATOR INHOFE

Question. As a non-party to the Convention, we are allowed to search any ship

that enters this 200-nautical mile area to determine if it could harm the United

States or pollute the marine environment. Under the Convention, the U.S. Coast

Guard or others would not be able to search any ship until the U.N. is notified and

approves the right to search the ship. Is that accurate?

Response. Our answer to that question is that the description of the Convention’s

provisions on this question is not correct. The basic rules for boarding and searching

foreign ships at sea contained in the 1958 Geneva Conventions on the Law of the

Sea, to which the United States is a party, are unchanged in the 1982 Convention

on the Law of the Sea. The law of the sea gives no role in the U.N. in deciding when

and where a foreign ship at sea may be boarded.

The 1982 Convention provides additional authority for a coastal State to board a

foreign ship in its exclusive economic zone if the ship is suspected of violating its

laws for the protection of the marine environment.

As stated in the resolution of advice and consent now before the Senate, nothing

in the Convention impairs the inherent right of individual or collective self-defense

or rights during armed conflict.

STATEMENT OF FRANK GAFFNEY JR., PRESIDENT AND CEO, THE CENTER FOR

SECURITY POLICY

Mr. Chairman, Members of the Committee: It is a commonplace for witnesses to

express their appreciation for the opportunity to testify before this and other panels

of the U.S. Congress. Rarely, I suspect, has such an expression been more heartfelt

than is mine today. After all, but for Senator Inhofe’s initiative, the Senate may well

have taken no testimony at all from critics of the Law of the Sea Treaty (LOST)

before this body was asked to debate its merits and consent to its ratification.

Such a situation would be a travesty in terms of Senate procedure and would effectively have precluded what has rightly been called ‘‘the World’s greatest deliberative body’’ from being able to deliberate on this immensely significant accord in an

informed way. As a former legislative assistant for Senator Henry M. Jackson and

professional staff member for the Armed Services Committee during the chairmanship of Senator John Tower, I have enormous respect for the Senate’s constitutional

responsibility to provide a ‘‘sanity-check’’ on international treaties. That role simply

cannot be properly performed if, as the Senate Foreign Relations Committee insisted, only official and other supporters of the treaty are permitted to discuss its

attributes.

Therefore, Mr. Chairman, please accept my grateful appreciation for your efforts

to ensure that the record will reflect not only the enthusiasm for this treaty expressed by its admirers, but also the considered opinions of Americans who believe

the Law of the Sea Treaty to be fatally flawed and inconsistent with our national

interest.
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I am by training and experience a specialist in national security matters, not the

environment. As it happens, some of the concerns I have about LOST’s defects with

respect to the former could also have adverse repercussions of an environmental nature. In this brief testimony, I will try to highlight the Treaty’s deleterious implications for the Nation’s military, intelligence and self-defense capabilities while focusing principally on what might be called its negative ‘‘environmental impacts.’’

UNWISELY EMPOWERING THE U.N.

The first such impact will flow from the mandate the Law of the Sea Treaty provides for a supranational agency to regulate seven-tenths of the world’s surface.

This agency, known as the International Seabed Authority (ISA), has the exclusive

right to regulate what is done, by whom, when and under what circumstances in

subsurface international waters and on the sea-floor. In addition, it will have considerable say over what goes on upon the oceans’ surface, as well. As with all such

organizations, it will be staffed by unelected and unaccountable international bureaucrats.

Unlike other, far less powerful U.N. entities, however, the International Seabed

Authority will operate without the benefit of what amounts to ‘‘adult supervision’’

provided by the Security Council. The United States will be, at best, one among

many countries represented in the ISA. Conceivably, due to membership rotation,

there could be times when it might not even have a vote to say nothing of a veto

over decisions taken by that body.

OVERRIDING U.S. ENVIRONMENTAL CONCERNS AND PRACTICES?

What might such decisions entail? Thanks to the regulatory powers granted by

the Law of the Sea Treaty, the ISA could decide, for example, to issue permits for

deep-sea oil or gas exploration and exploitation just beyond our 200-mile Exclusive

Economic Zone—without regard for the views of members of this Committee, the

Congress more generally or the American people who may consider such activities

to be environmentally unsound.

Not only could those concerns be shunted aside as the United States would be,

at best, outvoted. An international tribunal created to adjudicate and enforce ISA

decisions could levy penalties for any efforts to impede such activities once authorized by the International Seabed Authority even if we had reason to be fearful that

such activities posed an environmental hazard to our coastal areas. Worse yet, the

ISA and its tribunal are authorized to ask member states to enforce its judgments,

possibly leading to conflict.

Environmental implications could be exacerbated by the ISA’s authority to apportion drilling and mining rights to other nations who may be less scrupulous than

American companies in complying with environmental standards and practices this

country holds dear. Such apportioning could occur even in situations where this

country’s companies provide the research, seed investment and fees the first a U.N.

agency has ever been allowed to levy associated with securing the required ISA permits.

AN INVITATION TO WORLD-CLASS GRAFT?

Worries about the sorts of decisions U.N. bureaucrats might make that could

harm American environmental and other equities have only been heightened by recent press accounts. According to successive investigative reports in the Wall Street

Journal, there is evidence of systemic corruption and malfeasance on the part of

senior U.N. personnel—and, in the case of the Secretary General, one of his relatives—in connection with the Iraq Oil-for-Food programs. The House International

Relations Committee has announced its intention to investigate this evidence. The

Senate would be well-advised to conduct its own inquiry.

At the very least, I would respectfully submit that Senators cannot responsibly

act on the Law of the Sea Treaty until they can satisfy their constituents that turning over to a new U.N. bureaucracy the authority to make decisions about and generate revenues from what could be billions of dollars worth of ocean-related commerce will not amount—literally—to a license to steal on an unprecedented scale.

ERODING AMERICA’S RULE OF LAW

Even if LOST could somehow be prevented from enabling a massive new U.N.

kleptocracy, it will likely have a corrupting effect on one of our most cherished principles: the rule of law.

The rulings of the tribunal set up by the Law of the Sea in Hamburg, Germany

will, after all, have implications for more than our sovereignty and environment.
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They could effectively supplant the constitutional arrangements that govern this

Nation.

Even without LOST, as Judge Robert Bork has recently noted, U.S. courts have

begun to inject the decisions of international judges and judicial bodies into domestic legal proceedings. LOST and its tribunal could accelerate this phenomena, corroding one of our Republic’s more fundamental principles namely, that American

laws duly fashioned by Congress and signed by the President form the ambit within

which U.S. jurisprudence predictably operates.

DISARMED AGAINST ENVIRO-TERRORISM?

Yet another ‘‘environmental impact’’ could arise from limitations the treaty imposes on measures we might take to assure our national security and homeland defense. If, for instance, foreign vessels operating on the high seas do not fit into one

of three categories (i.e., they are engaged in piracy, flying no flag or transmitting

radio broadcasts), LOST would prohibit U.S. Navy or Coast Guard vessels from

intercepting, searching or seizing them.

As you know Mr. Chairman, such constraints would preclude President Bush’s

most important recent counterproliferation measure—the Proliferation Security Initiative (PSI). The same would be true, however, if the crew of the foreign ship was

engaged not in the sort of activity the PSI is meant to interrupt (namely, the covert

transfer of weapons of mass destruction and/or related equipment), but in the shipment of heavy crude oil or other toxic materials that could cause an environmental

disaster were the vessel to be blown up or scuttled in or near our waters.

IMPEDING RESEARCH ON GLOBAL WARMING?

Finally, I understand that the Russian government is taking the position that

U.S. surface vessels may not engage in research concerning global warming—a subject I know to be of considerable interest to you, Mr. Chairman and other members

of this Committee—within the Arctic waters they have declared, pursuant to this

treaty, to be part of their territorial waters and Exclusive Economic Zone. I am informed that such data collection could be vital to the President’s efforts and yours

to understand the true nature, extent and implications of global warming.

We could, of course, assign this collection task to submerged submarines. The U.S.

Navy (which officially supports this treaty) is understandably reluctant to do this,

however, given myriad, competing demands on these vessels’ time at sea. There is

also the problem that LOST deems submerged transit and collection of intelligence

(an activity for which the Russians might consider ‘‘global warming research’’ to be

but a cover) inside territorial waters to be inconsistent with the Treaty’s requirement that foreign vessels conduct themselves in such waters only with ‘‘peaceful intent.’’

In short, our adherence to the Law of the Sea Treaty would legitimate Russia’s

objections to our research in important areas of the Arctic and complicate our ability

to perform it there.

THE BOTTOM LINE

Unfortunately, considerations like those I have mentioned are only part of what

makes the Law of the Sea Treaty incompatible with U.S. national interests. I would

ask that I be permitted to provide for the record several articles that I have recently

written that amplify on my concerns with respect to LOST’s defects from a national

security and intelligence perspective.

Suffice it to say, Mr. Chairman, a number of other Senate committees would be

very well-advised to emulate your initiative in examining the Law of the Sea Treaty’s implications for their respective oversight portfolios. While staff of the Senate

Armed Services Committee have indicated that Chairman Warner intends to hold

a hearing on this subject next week, the Intelligence, Commerce, Energy, Governmental Affairs and Finance Committees have yet to evidence any interest in following suit.

Given the stakes for the Nation’s equities in the areas for which these panels are

responsible, a failure to examine the sorts of hard questions I have raised with you

today is tantamount to a dereliction of duty. I very much hope, Mr. Chairman, that

your leadership in affording an opportunity for such questions to be posed before

this important Committee will encourage your counterparts and colleagues also to

subject the Law of the Sea Treaty to the critical examination it so clearly requires.

Such reviews will, I am confident, serve further to underscore the points I have

made here today about the inadvisability of U.S. ratification of the Law of the Sea

Treaty. I recommend that the full Senate not consider this accord until they are

completed. I further respectfully suggest that, once the necessary oversight has been
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performed, Senators vote to reject this clearly defective treaty on national security,

sovereignty and economic, as well as environmental, grounds.

RESPONSES BY FRANK J. GAFFNEY, JR. TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1a. Article 2(3) of the Treaty states ‘‘the sovereignty over the territorial

sea is exercised subject to this Convention and to other rules of international law.’’

What is your interpretation of this provision?

Response. This particular provision seems likely to be interpreted as subjecting

even the limited area of supposedly sovereign territorial sea (extending 12 nautical

miles offshore) to interference by the Law of the Sea regime. On its face, Article

2 (3) specifically incorporates this area within the jurisdiction of the International

Tribunal for the Law of the Sea and its subsidiary arbitral tribunals.

Question 1b. Do you think all parties of this Treaty will interpret this provision

the same?

Response. Undoubtedly, states parties to the Treaty who wish to constrain U.S.

freedom of action will interpret this provision—among many others—differently

than will the United States in the hope of achieving their objective. Non-state actors, moreover, will also likely seek to interpret such provisions in a manner at odds

with the U.S. interpretation and inimical to the Nation’s interests.

Question 1c. How could this Treaty interfere with the United States’ sovereign exercise of freedom of the seas and in what ways will that have an adverse effect on

national security and the environment?

Response. The Treaty could be interpreted to place all activities on, under and

over the world’s oceans—and even those occurring entirely on sovereign territory—

under the jurisdiction of mandatory, binding dispute settlement mechanisms (the

Tribunal or arbitral tribunals). Were the United States to become a party to this

treaty, it would allow sovereign control of such activities to be eroded, if not effectively taken out of American hands altogether.

It is particularly worrisome that these tribunals are certain to be politicized and

will likely prove to have majorities hostile to U.S. interests. They will, consequently,

lend themselves to being used to curtail activities vital to American security by, for

example: prohibiting certain intelligence collection activities in territorial waters;

impeding the interdiction of ships carrying WMD to rogue states and terrorists; and

compelling the transfer of sensitive, military useful technologies and information. In

addition, the Law of the Sea’s tribunals and arbitral panels will likely be used to

impose long-sought environmental regulations on the United States that could not

be gained through normal diplomatic processes.

Question 2. What are your thoughts about developing countries having the capabilities to implement international laws relating to issues of our national security

as well as regulating the marine environment?

Response. It is inconsistent with American traditional practice and vital interests

and most ill-advised for the United States to enter into a multilateral agreement

that could impinge upon its ability to project power and otherwise to safeguard its

equities on, under or above the world’s oceans. This Treaty, however, was designed

by an anti-American majority—one that repeatedly outvoted and outmaneuvered the

United States in the drafting of the document, to the detriment of American sovereignty and security. The U.S. should not become party to such an accord.

Question 3. What are the implications for the U.S. of acceding to the Treaty and

becoming a member of the International Seabed Authority?

Response. The International Seabed Authority (ISA) provides a vehicle for forcing

advanced industrialized states to obtain permission from developing ones before extracting certain resources from seabeds under international waters—resources that,

in the absence of the Treaty, industrialized states or their private companies could

exploit to the extent permitted by their technology, resources and ingenuity. Put differently, American miners must have the permission of the ISA before they exploit

the seabed.

Taken to its logical conclusion, this represents an unprecedented surrender of

U.S. flexibility and inherent Executive authority to an international organization.

It is a firm break with the Nation’s entrepreneurial traditions. It also positions the

ISA as the nascent high seas sovereign.

The ISA would also indirectly tax Americans by removing profits from the American business revenue stream for a governmental purpose—namely, to pay its own

expenses—and for distribution to developing states. The underlying goal of the Treaty is, of course, to facilitate the transfer of wealth from the industrialized to the developing world. This objective is the antithesis of free enterprise.
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Question 4. Can we predict with some degree of certainty whether the International Seabed Authority and its related tribunal will, over time, accrue any more

powers than those currently provided to it in the Treaty or which they have already

exercised?

Response. This is a point on which supporters and opponents seem to agree—that

the Treaty will continue to evolve and assume greater authority over time. As stated

by Treaty proponent Admiral James D. Watkins in testimony before the Senate Foreign Relations Committee on 14 October 2003:

‘‘[T]he foundation that the [Treaty] provides is subject to interpretation and will

no doubt continue to evolve through time.’’

This observation appears to animate proponents of speedy ratification, who contend that the U.S. must assume a ‘‘seat at the table.’’ At the very least, this appears

to be an implicit admission that the majority of states parties is intent on expanding

the current terms of the treaty to the detriment of America’s interests. Unfortunately, the same anti-American dynamic that was at work in the negotiation of the

treaty seems certain to eventuate as the Treaty ‘‘evolves’’ further since the United

States would likely be no more able to prevent unsatisfactory outcomes in the future

than it was in the past.

Question 5. Do the environmental provisions of the Treaty protect or expose the

high seas and U.S. coastline to environmental threats?

Response. While some of the Treaty’s provisions are desirable for protection of the

marine environment, they are certain to be used to expose America to problematic

pressure from radical environmentalists. As Clinton Secretary of State Warren

Christopher acknowledged when submitting the Treaty to the Senate in 1994:

‘‘[T]he Convention is the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time.’’

That reality could enable foreign powers and non-governmental organizations to

impose on America environmental regulations that the United States has otherwise

rejected, including, for example, those enshrined in the Kyoto Protocol. The Treaty’s

courts offer mechanisms for interpreting and enforcing its provisions in ways that

may prove far more onerous and intrusive than anything contemplated by Kyoto.

Question 6. Would the Treaty constrain the U.S. from acting unilaterally on the

high seas in protecting its national interests?

Response. Were the United States to become a party to the Treaty, it would agree

to abide by a number of provisions that could constrain the Nation’s ability to act

unilaterally on the high seas under circumstances short of war. Exemptions claimed

for ‘‘military activities’’ may not be available in practice if, as seems likely, the

LOST Tribunal chooses to view such activities through the prism of their environmental rather than military implications.

It is instructive that the Proliferation Security Initiative (PSI)—a multilateral undertaking involving a large number of states that are party to the Law of the Sea

Treaty—is already being constrained by this accord. Since LOST identifies only four

circumstances under which ships can be stopped on the high seas (piracy, slave-trafficking, drug-trafficking, and unauthorized broadcasting), a pretext must be found

which allows PSI operations to claim that one (or more) of those conditions applies.

If such a pretext cannot be cited, states party are not allowed to intercept and board

ships in international waters—even if there is strong reason to believe they are involved in terror or the transfer of weapons of mass destruction.

Question 7. From a national security perspective, are we better off with or without

the Treaty?

Response. From a national security perspective, we are undoubtedly better off not

being a party to the Law of the Sea Treaty. Our experience over the past twentythree years affirms that the United States has been able to observe those of LOST’s

provisions as it finds beneficial without having to submit to mandatory dispute resolution arrangements and other Treaty institutions that would restrict America’s

freedom of action or sovereignty.

The United States decision to remain outside LOST has, moreover, seemingly contributed to date to Treaty organizations remaining relatively modest in size and refraining from the sort of overreach at our expense that its principal framers had

in mind.

Question 8. Does the 1994 Agreement that President Clinton negotiated fix the

problems in the Treaty that caused President Reagan to reject it?

Response. Great confusion surrounds President Clinton’s much ballyhooed 1994

effort to ‘‘fix’’ President Reagan’s concerns about the Treaty. The Clinton effort has

been misrepresented as an ‘‘amendment’’ or ‘‘renegotiation’’ of the Treaty. Neither

characterization is correct: The Treaty’s text is exactly the same as it was when
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President Reagan rejected it. Under the Treaty’s own terms, LOST could not be

amended until 10 years after it entered into force, i.e., November 2004.

In fact, what the Clinton Administration effort actually produced in 1994 was a

second complex treaty, separate and independent of the Treaty, which purports to

govern how signatories will implement the seabed mining section of the Treaty. The

1994 Clinton agreement is very narrowly focused. Even if it did modify the underlying treaty, its ‘‘fixes’’ such as they are would not address wider concerns about the

Treaty effects on our Navy, our sovereignty and related matters.

Another problem arises from the fact that nearly 20 percent of the parties that

ratified the Treaty have not ratified the 1994 Agreement. There is no certainty, for

example, as to how the Tribunal would interpret a dispute that might arise between

parties and non-parties to the 1994 accord.

Question 9. Is there anything you would like to add?

Response. No.

RESPONSES BY FRANK J. GAFFNEY, JR. TO ADDITIONAL QUESTIONS FROM

SENATOR MURKOWSKI

Question 1. 1Mr. Gaffney, you have indicated you don’t believe the 1994 agreement is binding, while Mr. Turner says it is. Please explain the legal basis for your

opinion.

Response. Great confusion surrounds President Clinton’s much ballyhooed 1994

effort to ‘‘fix’’ President Reagan’s concerns about the Treaty. The Clinton effort has

been misrepresented as an ‘‘amendment’’ or ‘‘renegotiation’’ of the Treaty. Neither

characterization is correct: The Treaty’s text is exactly the same as it was when

President Reagan rejected it. Under the Treaty’s own terms, LOST could not be

amended until 10 years after it entered into force, i.e., November 2004.

In fact, what the Clinton Administration effort actually produced in 1994 was a

second complex treaty, separate and independent of the Treaty, which purports to

govern how signatories will implement the seabed mining section of the Treaty. The

1994 Clinton agreement is very narrowly focused. Even if it did modify the underlying treaty, its ‘‘fixes’’ such as they are would not address wider concerns about the

Treaty effects on our Navy, our sovereignty and related matters.

Another problem arises from the fact that nearly 20 percent of the parties that

ratified the Treaty have not ratified the 1994 Agreement. There is no certainty, for

example, as to how the Tribunal would interpret a dispute that might arise between

parties and non-parties to the 1994 accord.

Question 2. Mr. Gaffney, you expressed concern that the U.S. would not be able

to continue ts activities under the PSI—to stop and search vessels suspected of

transporting illegal weapons—if we become a party to the treaty. Yet many of the

United States’ partners in this effort are already parties to the LOS. How is it that

they are not in violation of the Convention? Are you saying they are operating illegally?

Response. Insofar as the text is concerned, it is a simple fact that the Treaty explicitly permits boarding of another vessel on the high seas in only a handful of limited circumstances (piracy, slavery, unlicensed broadcasting, no flag). Proliferation

is not among them. In fact, China recently opposed a United Nations Security Council resolution that even mentioned counter-proliferation and shipping in the same

document.

Currently, states party to the Law of the Sea Treaty can only board a suspect vessel for counter-proliferation or counter-terrorism purposes if they can do so under

the pretext of conducting a boarding for one of the permitted purposes. For example,

had the North Korean vessel that delivered Scud missiles to Yemen been flying its

flag and declared on its manifest the true nature of its cargo, the Spanish Navy

would have been unable to stop it without violating the Convention.

Since the United States is not a party to LOST, it is not subject to such limitations and the prospect that they might be enforced by the Treaty’s Tribunal. We

should not want to deny ourselves the option to interdict a vessel suspected of dangerous activities not covered by LOST simply because our partners in PSI find

themselves unable to do so.

It is moreover entirely possible that PSI has not yet been challenged under LOST

because its adversaries hope to first draw the United States into the Treaty.

I believe the following quotes from an article published in the European Journal

of International Law, Vol. 7 (1996) No. 3, by Bernard Oxman validate my testimony.

Professor Oxman was a U.S. negotiator of the Law of the Sea Treaty and twice testified in support of its ratification before Senate committees.
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‘‘[T]hose who wish to realize fully the contributions of the Convention to the rule

of law will need to exercise restraint and wisdom in at least the immediate future

lest they complicate the ratification process in one or more states. Politically, this

suggests caution regarding the organization, composition and budgets of the new institutions established by the Convention. Legally, this suggests restraint in speculating on the meaning of the Convention or on possible differences between the Convention and customary law.’’

‘‘From the perspective of strengthening the rule of law in international affairs and

the peaceful resolution of disputes, our primary goal must be to promote compulsory

arbitration or adjudication wherever it appears plausible for states to accept it.’’

‘‘For those of us for whom strengthening the rule of law is the goal, and global

ratification of the Convention is the means, it is essential to measure what we say

in terms of its effect on the goal. Experienced international lawyers know where

many of the sensitive nerve endings of governments are. Where possible, they

should try to avoid irritating them.’’

‘‘It is therefore ironic that while one of the most significant contributions of the

Law of the Sea Convention to the rule of law is its requirement for adjudication or

arbitration of disputes, the prospects for global ratification of the Convention may

be placed in jeopardy by litigation in this delicate interim period, particularly with

or between nonparties, over maritime jurisdictional issues.’’

‘‘I do not dissent from the view that the development of international law benefits

from more cases and decisions by the Court. My view is simply that, because of its

compromissory clauses, a globally ratified Convention promises many more cases in

the future, and that it would be unfortunate if one or two cases during this delicate

interim period, when so many governments are considering ratification, had the effect of prejudicing that promise.’’ (Emphasis added throughout.)

RESPONSES BY FRANK J. GAFFNEY, JR. TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. You stated in your prepared testimony that ‘‘[t]he rulings of the tribunal set up by the Law of the Sea . . . . could effectively supplant the constitutional arrangements that govern this Nation.’’ What is your basis for this assertion?

Are you aware of any rulings from other international tribunals that have supplanted the United States Constitution?

Response. Increasingly, the rulings of international courts and even documents

issued by various international conclaves have begun to influence American jurisprudence. Plenty of examples can be found in recent Supreme Court rulings. In Atkins v. Virginia (2002), for example, the Court reversed its earlier ruling partly out

of concern for ‘‘the world community.’’ Similarly, in Lawrence v. Texas (2003), the

court also reversed itself in part because it was concerned about the European Court

of Human Rights and the European Convention on Human Rights. And in Roper v. Simmons (2005), the court reversed itself yet again in part because of treaties

the U.S. has never ratified—the U.N. Convention on the Rights of the Child and

the International Covenant on Civil and Political Rights. Justice Anthony Kennedy,

writing for the majority, declared that [‘‘the Court must take into account international law in interpreting the [Constitution].’’

The American military’s domestic and foreign adversaries in particular clearly

recognize that such judicial activism can be used as an instrument of asymmetric

warfare against the generally vastly superior U.S. armed forces. This technique has

come to be known as ‘‘lawfare.’’ To the extent the United States subjects itself to

international agreements that contain mandatory dispute resolution mechanisms

and other court systems, it affords its foes new instruments for waging lawfare

against us.

I would also point you to testimony by treaty proponent and Legal Advisor to the

State Department, William H. Taft, before the Senate Foreign Relations Committee

on 21 October 2003, in which he acknowledges that the Treaty might present constitutional complications:

‘‘[T]he Convention includes simplified procedures for the adoption of entry into

force of certain Convention amendments and implementation and enforcement

measures that raise potential constitutional issues.’’

Question 2. You stated in your oral testimony that under the 1982 Convention,

as modified by the 1994 agreement, ‘‘it is our duty to provide the Communist Chinese advanced technology of a directly military character.’’ You also asserted in a

recent Washington Times article (2/24/2004) that the Convention mandates the

transfer of sensitive technologies. What is your basis for these assertions? Are you

aware that the Provisions in the 1982 Convention requiring industrialized nations

to transfer deep seabed mining technology to developing countries (Annex III, article
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5) were eliminated by the 1994 Agreement restructuring the Convention’s deep seabed mining regime? Specifically, have you read Section 5 of the Annex to the 1994

Agreement, which states that ‘‘[t]he provisions of Annex III, article 5, of the Convention shall not apply’’?

Response. As noted in response to Senator Inhofe’s Question 8, the Law of the

Sea Treaty could not be amended until November 2004. Consequently, the 1994

Agreement represents a separate and parallel accord that did not change the obligations parties would assume under the original treaty.

Interestingly, even if the 1994 Agreement actually had amended some provisions

of the Treaty’s seriously defective Part XI, it would have left a number of other,

troublesome commitments untouched. These include, for example:

• Article 266 mandates that states ‘‘cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine

technology on fair and reasonable terms and conditions’’ and ‘‘endeavor to foster

favourable economic and legal conditions for the transfer of marine technology.’’

• Article 268 requires states to ‘‘promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information

and data.’’

• Article 269 calls for states to ‘‘establish programmes of technical cooperation for

the effective transfer of all kinds of marine technology to States which may need

and request technical assistance.’’

Dispute settlement mechanisms, furthermore, make vulnerable valuable technology and information. Article 6 of Annex VII requires that parties to a dispute

‘‘facilitate the work of the arbitral tribunal and . . . provide it with all relevant documents, facilities and information.’’ It can thus be expected that states parties

might be tempted to bring the United States before an arbitral tribunal—even without expectation of a favorable result—in order to obtain sensitive information.

As noted in response to Senator Inhofe’s Question 8, it is also of concern that

nearly 20 percent of the parties that ratified the Treaty have not ratified the 1994

Agreement, and there is no way of knowing how a tribunal would interpret a dispute between the two.

Question 3. Your testimony suggests that you believe it is against U.S. interests

to have an international regime for administering deep seabed mining rights in

areas beyond the national jurisdiction of any state. Absent such an international regime, how could U.S. companies that wish to conduct mining in such areas have

any certainty that their claims to mine sites will be respected by others?

Response. In ocean areas where there is no recognized sovereign, the U.S. Government could effectively assert its protection over pioneering American companies

searching for mineral or other resources, an assertion backed by a strong Navy.

Question 4. The International Seabed Authority has been in existence for nearly

a decade. What steps has it taken during this period that you believe are contrary

to U.S. interests?

Response. While the ISA has been relatively inactive during its first decade of existence, U.S. funding and submission to its authority would undoubtedly expand result in efforts greatly to expand its organizational footprint, jurisdiction and powers

in keeping with the vision of LOST’s principal framers, namely that it would serve

as a means of supplanting national authorities with self-funding supranational

agencies and, over time, garrote sovereignty.

Evidence that an ulterior motive has prompted the relative quiescence of LOSTspawned organizations to date is supplied in response to Question 6 below.

Question 5. You asserted in a recent National Review article (2/26/2004) that the

Convention would give the International Seabed Authority the power to impose production quotas for deep seabed mining and oil production. What is your basis for

this assertion? Are you aware that the power of the ISA to impose production controls was eliminated by the 1994 Agreement restructuring the Convention’s deep

seabed mining regime?

At the end of the day, it is the Tribunal which will have the last word on what

the Convention means. Whether the Tribunal will even recognize the 1994 Clinton

Agreement is an open question, and there is no appeal from Tribunal decisions.

On the ‘‘production controls’’ point, it must be noted that the mere existence of

the International Seabed Authority (ISA), its accompanying regulatory scheme, and

a U.S. State Department assertion that there can be no valid title to any deep seabed tract except through the ISA are, in themselves, qualitative production controls

that will at least limit and possible create actual disincentives to developing and

exploiting seabed mining technologies.
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Question 6. You asserted at the hearing ‘‘that people have behaved with greater

circumspection and constraints on what they ultimately would like to see this supranational agency do, so as not to queer the deal on getting the Senate to go along

with the ratification of this treaty.’’ Are you suggesting that certain proponents of

full U.S. participation in the Law of the Sea are engaged in an attempt to mislead

the U.S. Senate? Who are these ‘‘people’’ to whom you are referring in your statement? What exactly is it that these ‘‘people’’ would like to see this supranational

agency do? Please provide any relevant documentation to support your answers.

Response. I believe the following quotes from an article published in the European

Journal of International Law, Vol. 7 (1996) No. 3, by Bernard Oxman validate my

testimony. Professor Oxman was a U.S. negotiator of the Law of the Sea Treaty and

twice testified in support of its ratification before Senate committees.

‘‘[T]hose who wish to realize fully the contributions of the Convention to the rule

of law will need to exercise restraint and wisdom in at least the immediate future

lest they complicate the ratification process in one or more states. Politically, this

suggests caution regarding the organization, composition and budgets of the new institutions established by the Convention. Legally, this suggests restraint in speculating on the meaning of the Convention or on possible differences between the Convention and customary law.’’

‘‘From the perspective of strengthening the rule of law in international affairs and

the peaceful resolution of disputes, our primary goal must be to promote compulsory

arbitration or adjudication wherever it appears plausible for states to accept it.’’

‘‘For those of us for whom strengthening the rule of law is the goal, and global

ratification of the Convention is the means, it is essential to measure what we say

in terms of its effect on the goal. Experienced international lawyers know where

many of the sensitive nerve endings of governments are. Where possible, they

should try to avoid irritating them.’’

‘‘It is therefore ironic that while one of the most significant contributions of the

Law of the Sea Convention to the rule of law is its requirement for adjudication or

arbitration of disputes, the prospects for global ratification of the Convention may

be placed in jeopardy by litigation in this delicate interim period, particularly with

or between nonparties, over maritime jurisdictional issues.’’

‘‘I do not dissent from the view that the development of international law benefits

from more cases and decisions by the Court. My view is simply that, because of its

compromissory clauses, a globally ratified Convention promises many more cases in

the future, and that it would be unfortunate if one or two cases during this delicate

interim period, when so many governments are considering ratification, had the effect of prejudicing that promise.’’ (Emphasis added throughout.)

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

MEMBER, 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. I am here representing the U.S. Commission on Ocean

Policy.

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

attached a copy of our resolution for the record. The responses we received have
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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. The oceans provide

vital food and energy supplies, facilitate waterborne commerce, and create valuable

recreational opportunities. It is in America’s interest to work with the international

community to preserve the productivity and health of the oceans and to secure cooperation among nations everywhere in managing marine assets wisely.

• The Convention 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.

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 interest 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 is now at a critical stage. The Russians have submitted a claim in the Arctic and have received comments on their

claim from the Commission. Other States are preparing their submissions, which

are due in 2009 or within 10 years of a State’s becoming a party, whichever is later.

Considering the technical work to be done in order to delineate our own shelf, 10

years is a short time horizon. The Continental Shelf 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.

We need to conduct extensive multi-beam sonar mapping of the U.S. continental

shelf, where substantial resources (including hydrocarbons, minerals and sedentary

species) could become available under the LOS Convention provisions concerning extensions of the continental shelf. If the United States accedes to the Convention, it

would be able to present evidence to the Continental Shelf Commission on the Limits of the Continental Shelf in support of U.S. jurisdictional claims to its continental

shelf. The University of New Hampshire’s Center for Coastal and Ocean Mapping/

Joint Hydrographic Center, in conjunction with NOAA and USGS, has already identified regions in U.S. waters where the continental shelf is likely to extend beyond

200 nautical miles and is developing strategies for surveying these areas. Bathymetric and seismic data will be required to establish and meet a range of other environmental, geologic, engineering and resource needs.
87

• 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. In 1994 an

agreement was reached addressing U.S. concerns on implementing the deep seabed

mining provisions of the Convention, after which the Administration sent the treaty

to the Senate for advice and consent. As a party to the Convention, the United

States will 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, such as the

U.S. Coast Guard, are among the strongest advocates for accession to the LOS Convention. 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.

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.’’

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 negotiations

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.

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.

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.
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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.’’

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.

145 nations are now party to the Convention. 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.

RESPONSES BY PAUL KELLY TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1a. Article 2(3) of the Treaty states ‘‘the sovereignty over the territorial

sea is exercised subject to this Convention and to other rules of international law.’’

What is your interpretation of this provision?

Response. My interpretation of this provision is that a coastal state, when exercising sovereignty over its territorial sea, must do so consistent with other provisions of the Law of the Sea Convention and with other rules of international law.

Question 1b. Do you think all parties of this Treaty will interpret this provision

the same?

Response. Article 2(3) reflects existing international law and practice. Article 2(3)

is very similar to article 1(2) of the 1958 Convention on the Territorial Sea and Contiguous Zone, which requires parties to exercise sovereignty in their territorial sea

‘‘subject to the provisions of these articles and to other rules of international law.’’

The United States is already a party to the 1958 convention. There is every reason

to believe that parties to the Law of the Sea Convention will share a common interpretation of the provision’s meaning.

Question 1c. How could this Treaty interfere with the United States’ sovereign exercise of freedom of the seas and in what ways will that have an adverse effect on

national security and the environment?

Response. The Law of the Sea Convention enhances the ability of the United

States to defend essential national security and environmental interests. The Convention contains important provisions which were not included in earlier conventions, including articles which enhance freedom of navigation by providing rights of

passage through straits and archipelagoes. These rights are critical to our military

mobility and our national security interests. They facilitate maritime commerce, including transport of oil, vital to United States economic interests and energy security. The Convention also provides a framework for regional and international cooperation in protecting and preserving the marine environment. The Ocean Commission received input from a broad range of interests, including the Chief of Naval

Operations and leading representatives from maritime transportation and offshore

energy industries, all of whom strongly supported accession to the Convention as in

the best interests of the United States.

Question 2. Do you believe it is in the best interest of the United States to vest

control of seabed mining operations in countries which lack the necessary technology and capital to conduct such operations themselves?
89

Response. In my view, changes made to the seabed mining provisions have fully

addressed earlier U.S. concerns, including concerns about the process for developing

and implementing the seabed mining regime. In 1994, Part XI of the Convention

dealing with deep seabed mining was successfully modified, consistent with freemarket principles, to address all of the concerns previously identified by President

Reagan and Congress. As a result of these legally binding changes, the United

States is now guaranteed a permanent seat on the International Seabed Authority

Council, the executive body that has primary responsibility for administering the

deep seabed mining regime. The United States is also guaranteed a seat for the

foreseeable future on the new Finance Committee, which has jurisdiction over financial and budgetary matters. The revised decisionmaking process requires consensus

and therefore effectively gives the United States a veto over, among other things,

all amendments to the deep seabed mining regime, adoption of rules and regulations, and budgetary and financial matters. Other substantive decisions are made

under a ‘‘chambered’’ voting arrangement that allows the United States and just two

other industrialized nations acting in concert to block a decision.

In presentations before the Commission on Ocean Policy, U.S. offshore industry

representatives urged ‘‘immediate’’ Senate approval of the Convention, citing concerns about our ability to protect U.S. industry interests if we remain a non-party.

The Ocean Commission agrees that the United States should become a party immediately and take advantage of the leadership opportunities, and the ability to shape

future policies, presented by the modifications to Part XI.

Question 3. Do you believe that by acceding to the Treaty the United States would

gain an adequately effective bargaining position to protect its current and future national policies and interests relating to national defense, seabed mining and environmental protection? Please explain in detail.

Response. On 14 November, 2001, the U.S. Commission on Ocean Policy unanimously adopted a resolution recommending that the United States immediately accede to the Law of the Sea Convention. This recommendation was based both on

the powerful testimony in support of the Convention from a broad range of witnesses, and on the conviction that ‘‘there are compelling national security, jurisdictional, environmental, and economic interests’’ for U.S. accession.

Regarding national defense, the Convention codifies and strengthens freedoms of

navigation and overflight essential to U.S. military mobility. The Navy and Coast

Guard have testified that joining the Convention will strengthen our ability to defend these and other important maritime rights, and enhance our national and

homeland security efforts.

Regarding seabed mining, the 1994 modifications to the deep seabed mining regime give the United States powerful means to protect U.S. interests, including a

permanent seat on the ISA Council and veto power over amendments to the regime.

The Convention also provides mechanisms to afford legal certainty for continental

shelf claims, thereby providing U.S. industries with the certainty and ‘‘security of

tenure’’ needed for capital-intensive deep-water projects offshore of the United

States and around the world.

Regarding environmental protection, the Convention is carefully crafted to balance U.S. interests in protecting and preserving our marine environment with other

important interests, such as freedom of navigation.

The United States can most effectively enhance our bargaining position and protect our current and future policies and interests by joining the other 148 nations

that are party to the Convention. We cannot be as effective while we remain outside

the convention that provides the framework for the future of ocean activities.

Question 4. What are your thoughts about developing countries having the capabilities to implement international laws relating to issues of our national security

as well as regulating the marine environment?

Response. From my perspective as a member of the Ocean Commission and a representative of the ocean industry, the United States can best protect its interests

through support for the rule of law on the oceans. A legal framework for ocean activities provides enhanced stability and certainty in support of U.S. national security interests, economic investment, and cooperation on marine environmental

issues. A widely accepted legal framework also provides the best mechanism to

counter actions taken by developed or developing countries that are inconsistent

with that framework and detrimental to U.S. national security or environmental interests.

The Law of the Sea 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.’’ All those

who testified before our Commission, including representatives from the Depart-
90

ment of Defense, industry and environmental groups, stated that we would be in

a better position to protect U.S. interests and rights under international law by joining with the other 148 nations that are party to the Convention. This would be the

case whether we were dealing with issues that impact our national security, such

as excessive maritime claims that purport to abridge our freedom of navigation, or

with actions that threaten the marine environment.

Question 5. Can we predict with some degree of certainty whether the International Seabed Authority and its related tribunal will, over time, accrue any more

powers than those currently provided to it in the Treaty or which they have already

exercised?

Response. Under the terms of the Convention, the authority of the ISA is limited

to administering the exploration and exploitation of minerals in areas of deep seabed beyond national jurisdiction, generally 200 miles from shore. The ISA has no

other role and no general regulatory authority over other ocean uses, including freedom of navigation. Under the 1994 modifications to Part XI of the Convention, the

United States is guaranteed a seat on the ISA Council in perpetuity if it becomes

a party to the Convention. Decisions on approval of amendments to the Convention’s

seabed mining provisions must be made by consensus, and are therefore in effect

subject to a U.S. veto. These provisions would apply to efforts to alter or enhance

ISA authority over time. The adoption of rules and regulations implementing the

seabed mining regime are also subject to consensus and a U.S. veto. Other substantive decisions of the Council are made under a voting arrangement that allows

the United States and just two other industrialized nations acting in concert to

block a decision. However, the United States can only take advantage of these provisions if it becomes a party to the Convention.

Question 6. Despite the clear requirements in Articles 208 and 210 of the Treaty

which specify that related national laws must be ‘‘no less effective’’ than international rules, standards and recommended practices and procedures, the Committee received testimony to the effect that the United States would not be required

to change any of its environmental laws to be in compliance with the Treaty. Are

you certain that the Treaty could not be used to impose restrictions or requirements

on the United States to limit or expand current or future U.S. laws and policies?

Response. Article 208 concerns pollution arising from seabed activities under national jurisdiction. There are no applicable international standards regarding these

activities. The United States, however, has a substantial body of domestic law in

place to protect our marine environment from possible pollution related to offshore

activities under U.S. national jurisdiction. Article 210 concerns pollution from

dumping. The United States is a party to the 1972 London Dumping Convention,

which contains requirements for ocean dumping.

As evidenced by the 1994 modifications to the deep seabed mining regime, the

international community is willing to make significant accommodations to encourage U.S. participation in international maritime regimes. The U.S. is already a recognized leader at the International Maritime Organization in developing more effective international measures to combat pollution from ships. Development of new

international marine pollution standards for seabed activities within national jurisdiction or ocean dumping would be very unlikely to be achieved without direct U.S.

participation and approval.

Question 7. Article 212 of the Treaty requires States to adopt laws and regulations

for pollution from the atmosphere. How would the United States domestic policy

need to be changed or altered to comply with the international laws, regulations,

and recommended practices to address these concerns? And does this mean that

other countries can use this provision to force the United States to regulate CO2?

Response. Article 212 does not require the United States to comply with international laws, regulations, or standards. Article 212 only requires states to adopt

laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere. The United States currently addresses these

issues through the Clean Air Act. Other countries could not use the provisions of

the Convention to force the United States to regulate carbon dioxide.

RESPONSE BY PAUL KELLY TO ADDITIONAL QUESTION FROM SENATOR MURKOWSKI

Question. Mr. Kelly, you heard me ask Mr. Leitner about his suggestion that the

U.S. authorize civilian vessels to sail as privateers, and his response that he viewed

that both as legal and as an extension of the U.S. legal system, inasmuch as vessels

seized by privateers could be sold to benefit the victims of terrorism. I recognize that

you are here on behalf of the U.S. Oceans Commission, but you have in the past
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spoken as an expert for such groups as the American Petroleum Institute and the

National Ocean Industries Association. As an expert, can you identify any

vulnerabilities that might result to the U.S. international maritime industry from

such an approach?

Response. The maritime industry has long supported U.S. efforts to develop the

rule of law in ocean activities. A predictable legal regime provides the stability and

certainty needed for capital intensive investments in offshore projects. Many of the

provisions of the Law of the Sea Convention, such as those that delineate Exclusive

Economic Zones and assist in delineation of Continental Shelf boundaries, further

industry interests by creating a more predictable investment environment. The Convention creates a more attractive business climate by providing means for peaceful

dispute resolution. The maritime industry also relies on the Convention’s guarantees of navigational freedom essential to global commerce and U.S. economic security.

The sanctioning of privateers would introduce uncertainties and instability that

run directly counter to ocean industry interests. This practice would certainly create

additional risk for those considering investment in ocean industries, including a

greatly increased potential for violence and conflict on the oceans. If other countries

were to follow suit, the assets of U.S. ocean industries could potentially be seized

and detained by privateers for whatever reasons they or their sponsors deemed appropriate, and freedoms of navigation jeopardized.

Authorizing privateers, aside from questions as to its legality, would be extremely

harmful to U.S. interests in furthering the rule of law and the peaceful resolution

of disputes around the globe. The use of privateers is also directly contrary to U.S.

ocean industry interests. I would strongly recommend against further consideration

of this idea.

RESPONSE BY PAUL KELLY TO ADDITIONAL QUESTION FROM SENATOR JEFFORDS

Question. Critics of the Law of the Sea have argued that it is against U.S. interests to have an international regime for administering deep seabed mining rights

in areas beyond the national jurisdiction of any state. Absent such an international

regime, how could U.S. companies that wish to conduct mining in such areas have

any certainty that their claims to mine sites will be respected by others?

The International seabed Authority has been in existence for nearly a decade. Do

you know of any steps it has taken during this period that are contrary to U.S. interests?

Would you state once more for the record why the oil and gas industry supports

full U.S. participation in the Law of the Sea? Does such support extend across different segments of the industry?

Response. Absent an international regime, U.S. companies can not be certain that

their claims to mine sites beyond the jurisdiction of any state will be respected by

others. Working within the international deep seabed regime provides the certainty

needed to ensure the security of tenure critical to capital-intensive, deep seabed

mining.

I am not aware of actions taken by the ISA that are unfavorable to U.S. interests.

On the contrary, the 1994 amendments to the deep seabed regime, in addition to

giving the U.S. veto power over major decisions within the ISA, also recognize the

seabed mine claims established on the basis of exploration already conducted by

U.S. companies and provides assured access for any future qualified U.S. miners.

However, the United States needs to become a party to the Convention to take advantage of these provisions and exert its leadership in implementing the deep seabed mining regime.

The offshore oil and gas industry supports the Convention for a variety of reasons.

The Convention secures each coastal nation’s rights to the living and non-living resources within the 200 mile EEZ, and broadens the definition of continental shelf

in a way that favors the United States, one of the few nations with broad continental margins. The Convention establishes objective criteria for delineating the

outer limits of the continental shelf, and provides a forum for dealing with potential

disputes and other issues. As in the case of deep seabed mining, this provides additional certainty and security for investment in costly deep-water oil and natural gas

development projects. Given the significant resource potential of the U.S. continental shelf, as well as U.S. companies’ exploration interests in waters subject to

foreign jurisdiction, the Convention clearly serves national energy security interests.

The Convention also protects navigational rights and freedoms essential to the extraction and delivery of petroleum and petroleum products.
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Support for the Convention extends throughout all segments of the offshore energy industry, ranging from production to drilling, engineering to marine and air

transport, offshore construction to equipment manufacture and supply, and telecommunications to finance and insurance.

STATEMENT OF PETER LEITNER, AUTHOR

Mr. Chairman, members of the Committee, I would like to thank you for providing me the opportunity to testify before you today concerning the dangerous momentum to ratify the United Nations Convention on the Law of the Sea. This seriously flawed document was rightly rejected by President Reagan as it embodies a

wide range of precedents, obligations, and restrictions that are deleterious to American national and economic security interests. Indeed, the Treaty and its many

precedent setting provisions is a direct assault on the sovereignty of the United

States and the supremacy of the Nation State as the primary actor in world affairs.

I am appearing before you today as a private citizen and author. Although I am

a Senior Strategic Trade Advisor in the Office of the Secretary of Defense my views

and statements are my own and do not represent the views of the Department or

the U.S. Government. I have also submitted to the Committee additional supplementary material regarding this complex and wide-ranging Treaty having been assured that it will be published as part of the record of this hearing.

Before I begin I would like to explain my bona fides. I became involved in Law

of the Sea issues first as a student in 1973 and I have pursued the topic ever since.

My first master’s thesis was entitled: The Future of the Nation State (1975) an analysis of threats to sovereignty posed by the direction the Treaty was beginning to

take as well as the rise of multinational corporations. The second thesis was entitled: The Impact of Manganese Nodule Exploitation Upon Less Developed Mineral

Exporting Nations. This economic & engineering analysis was well received as a

scene-setter for the struggles that were to come. The third thesis was a quantitative

analysis entitled: Determinants of National Claims to Territorial Seas. This collection of analytical approaches to the Law of the Sea Treaty and its impacts landed

me a job with the U.S. General Accounting Office where I was hired to be their expert on the treaty.

In 1976 GAO was requested by several Committee Chairmen to independently report on the status of negotiations as they were deeply distrustful of the official delegation reports authored by the State Department. As a result, I attended many of

the negotiating sessions in New York and Geneva as an observer attached to the

US delegation. I joined the U.S. delegation in 1977 and reported regularly to Congress on the state of negotiations through 1982. I was present in New York when

the Reagan Administration’s good faith attempt to make the Treaty acceptable was

roundly rejected by a coalition of Developing and Communist nations.

Since that time I have closely tracked the accession process and the development

of the International Seabed Authority. Having long since left the General Accounting Office and transferred to the Department of Defense I became deeply involved

in the Export Licensing process. In this capacity I was assigned a case whereby the

People’s Republic of China was using their status as a so-called ‘‘pioneer investor’’

in ocean mining to justify the acquisition of strategic/export-controlled technology

under the guise of prospecting for manganese nodules in the mid-Pacific. Unfortunately, the level of technology they were attempting to acquire greatly exceeded the

level of capability that either the United States or our industrialized allied used in

undertaking such work. The quality of the side-scanning sonar, deep-ocean bathymetric equipment, cameras, lights, remotely operated vehicles, and associated submersible technology provided them the capability to locate, reach, and destroy, or

salvage early warning and intelligence sensors vital to our national security. Additionally, such technology also imparted an offensive capability to our chief potential

military adversary by enabling them to map any portion of the ocean or continental

shelves to determine submarine routing schemes or underwater bastions where missile-launching or intelligence gathering submarines may operate undetected just off

the U.S. coast.

The ultimate nightmare would be a close-in submarine launched cruise missile attack upon the continental U.S. to which we are completely vulnerable and defenseless. I fought a long and lonely battle to prevent the Chinese from acquiring this

technology but the zealous advocates of the treaty in several government agencies

saw to it that the technology was provided to the PRC so as not to undermine the

‘‘spirit of the treaty.’’ This experience prompted me to write the book: Reforming the

Law of the Sea Treaty: Opportunities Missed, Precedents Set, and U.S. Sovereignty

Threatened. This volume is an analysis of the Treaty, the placebo 1994 Agreement,
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and the military, political and technological implications arising from them. I followed this publication with an article in World Affairs entitled: ‘‘A Bad Treaty Returns: The Case Against the Law of the Sea Treaty.’’

The specific issue before this Committee today concerns the environmental aspects of the Treaty and whether they are in the U.S. national interest. While the

Treaty represents an attempt to locate in one place many pre-existing environmental agreements it is also an attempt to codify traditional State practice. While

the environmental provisions were largely viewed as being among the less obnoxious

aspects of the Treaty it was largely because they do very little to advance the environmental protections aside from setting a symbolic and dangerous precedent by

creating a supranational regulatory and taxing organization with its own judicial

process and unconstrained enforcement potential. The creation of yet another International Court where the United States or our citizens can be dragged before politically motivated foreign jurists to adjudicate and set penalties is not a pleasant prospect.

But even more importantly, the Treaty and its environmental provisions and the

context they were negotiated in are relics of an earlier era—an era where environmental damage was presumed to be accidental or incidental to economic activity.

The current post-9/11 era, however, is defined by the non-conventional use of all

tools available to a non-state or state-sponsored terrorist, or proxy warrior, to create

a weapon of mass destruction. The very environment we cherish and this Committee

seeks to protect and preserve is a likely battleground in this new era. The presumptions that underlie the environmental provisions of the Law of the Sea Treaty and

other key elements of the document are woefully inadequate to meet the threats facing the United States in this very dangerous unconventional post-9/11 world.

We have ample evidence of terrorists targeting maritime commerce as a means

of waging their worldwide attacks. A critical aspect of their planning is to cause as

much environmental degradation as is possible. For terrorists with limited means

or desire to engage in, or sustain, combat operations this is a lucrative area for

them to attack the West. This method of fighting turns traditional Western war

fighting doctrine based upon limiting collateral damage as much as humanly possible—on its head. Terrorists and their State Sponsors have high regard for the environment but, unfortunately, they see it as a ‘‘force multiplier’’ not as a treasure

to be preserved. Recall the oil well fires in Kuwait set by Saddam’s retreating

troops. Hideous environmental and health effects resulted from intentionally using

the natural resources as a weapon. Recall the terrorist attack on the French oil

tanker Limburg (October 10, 2002) carrying 158,000 tons of crude oil where the goal

was to generate as large an oil spill as possible.

Imagine if you will, the scuttling of a Supertanker off our coast and the intentional, again think of the word intentional, release of millions of gallons of petroleum products into the water column. If done on the Grand Banks it would destroy

some of the world’s most productive fisheries for generations. If done near a coastal

nuclear power plant it can cause irreversible damage, or at a minimum, force it to

shut down for years as its coolant is dependent upon clean coastal waters. Fears

that a terrorist operation may use a ship to spread an air-borne pathogen or toxin

such as Anthrax along our densely populated coastline are very real. So too is the

possibility of utilizing an LNG tanker as an enormous Fuel Air Explosive. The several instances of Container Ships being used to mount terror attacks, such as the

suicide bombings in Israel last week is a great cause for alarm. Recalling the extensive damage Texas City, Texas and Halifax, Nova Scotia were subjected to as a result of vessel-borne accidents should never be far from our minds.

The point of all this is that the environmental provisions of the Law of the Sea

Treaty are inadequate to address the most likely and potentially most devastating,

environmental threats facing the United States today. Of course, the environmental

provisions are also closely coupled with the navigation and high seas articles found

elsewhere in the Treaty—they are, in fact, inseparable. These treaty provisions afford a measure of immunity and freedom of access to our coastlines that, in the current era, are inimical to our national interests and the health and safety of the

American public. While I am not advocating a draconian reversal of hundreds of

years of traditional state practices I am stating that we are better off, as a Nation,

relying on the ambiguities of constantly evolving traditional practice than binding

ourselves to a formal treaty that will severely constrain our ability to protect our

population from devastating attack.

The United States should take the lead in developing new practices on the oceans

that will at once facilitate commerce and peacetime deployment of warships but also

protect our shores from the terrorist scourge. The President’s Proliferation Security

Initiative is an example of such modern and creative thinking. This US-led multinational program of high seas interdiction and vessel boarding is barred by the Law
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of the Sea Treaty yet it is our overriding national security interest to execute. Ratification of the Treaty would effectively gut our ability to intercept the vessels of terrorists or hostile foreign governments even if they were transporting nuclear weapons. We must ensure that we not binding the government of the United States to

a legal regime that makes us more vulnerable and trades the lives of our innocent

citizens for the sake of participating in yet another unnecessary Treaty.

While some may offer hormone-driven arguments that the United States will pursue its interests without regard for Treaty constraints history and actual practice

show us that our legal community will over time strangle out unilateral actions in

the interest of protecting our decisionmakers from exposure to lawsuits or charges

in an international court.

Additionally, I would suggest that the U.S. may be well served by resurrecting

the historic use of Letters of Marque in both the war on Terrorism and the protection of our coastal environment. It is obvious that the Federal Government is facing

many simultaneous missions that take precedence over traditional offshore environmental protection activities. This necessary overextension, arising from the war on

terror, results in shortages of vessels and crews required for environmental patrols.

Letters of Marque, last used during the War of 1812, effectively enabled privateers

to destroy the Barbary Pirates and is a concept whose time has come, again! American Fishermen and merchant seamen idled by quotas, regulation, and predatory

foreign competition can be mobilized to patrol the marine environment. They can

also be authorized to seize terrorist assets and provide material assistance to the

families of Americans victimized by terrorism awarded punitive damages by US

courts. Such modern-day Privateers would be legally deputized to act as agents of

the US Courts, the President, Congress, or State Governors to protect the environment or fight terrorism by depriving terrorists of their economic assets.

Finally, I urge all Senators and Committee Chairmen to exercise their inherent

oversight rights and responsibilities and fully vet this Treaty for its manifold impacts upon the United States. The Treaty contains taxation, legal, borrowing, natural resource, military, and intelligence issues that need to be explored in depth by

the Finance, Judiciary, Interior, Armed Services, and Intelligence Committees. In

addition, I would further a mandatory review by Homeland Security and law enforcement interests.

The most vigorous supports of the Treaty are largely a constellation of narrow single interest groups who are willing to overlook Treaty shortcomings so long as their

pet rock is included. There is also an interesting psychological phenomenon I call

the ‘‘Unrequited Love Syndrome’’ that characterizes some experts who after 30 or

so years of involvement in the Treaty would rather accept a defective Treaty than

leave this world with an unfinished legacy. Only vigorous and complete oversight

by the Congress will provide the big-picture assessment necessary to determine

whether this Treaty is in our collective national interest.

Again, I thank you for you indulgence and stand ready to answer any questions.
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RESPONSES BY PETER LEITNER TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1a. Article 2(3) of the Treaty states ‘‘the sovereignty over the territorial

sea is exercised subject to this Convention and to other rules of international law.’’

What is your interpretation of this provision?

Response. The manner in which this article is constructed in effect appears to

‘‘grant’’ sovereignty to the Coastal State as if sovereignty didn’t exist prior to the

appearance of this Treaty. In fact, traditional practice between States has long recognized the concept of a Territorial Sea and the exercise of sovereign rights with

this area. The historic debate has been over the breadth of this coastal zone not over

its fact or the fact of sovereignty. The arrogant tone of Article 2(3) is an example

of an attempt to effectuate a reversal of the traditional concept that only States are

sovereign or can exercise sovereign powers. A strict reading of this Article reveals

an underlying belief that an international organization is superior, or above, the Nation State. This revisionist concept serves as the ideological and philosophic basis

behind imbuing the International Seabed Authority and its Agencies with sovereign

powers themselves, i.e., taxation, judicial, military, etc. Its implications go even further to imply that sovereignty is a privilege to be granted to a Nation by this U.N.

based organization rather than an inherent right of a Nation State. This superior/

inferior assertion is an attempt to undo the continuous evolution of the Nation State

that began in the 1400’s and replace it with an ideologically loaded and discredited

belief in a ‘‘global commons’’ approach.

Question 1b. Do you think all parties of this Treaty will interpret this provision

the same?

Response. No. I believe the industrialized and seafaring nations will refuse to recognize, that by acceding to this Treaty they have agreed to relegate themselves to

a subservient position vis-a-vis the Third World and Anti-Western dominated International Seabed Authority. On the other hand, those countries hostile to the existing World Order will surely use this ‘‘signing away’’ of sovereignty to their advantage. We should expect future cases and rulings in the Law of the Sea Tribunals

and elsewhere that will use this fact to weaken the existing global political structure while seeking to impose increasingly onerous redistributive policies and edicts.

Such developments will certainly be to the detriment of the United States.

Question 1c. How could this Treaty interfere with the United States’ sovereign exercise of freedom of the seas and in what ways will that have an adverse effect on

national security and the environment?

Response. There are a number of ways that US sovereign rights will be adversely

affected. For instance, in the interest of providing differential treatment for developing countries the Treaty Organization may simply decide to exempt so-called disadvantaged states from many of the environmental, wildlife management, taxation,

and burdensome resource exploitation provisions. This possibility is clearly present

in the Kyoto Protocol that was rejected by the United States as a patently unfair

agreement that placed the bulk of the burdens and sacrifices upon the industrialized

nations while exempting Communist China, and most of the Third World nations.

By inviting the misuse of environmental provisions of the treaty, they can be readily

used against the United States and our military forces around the world. For instance, the Seabed Authority may tolerate, or encourage, Coastal States to refuse

transit or innocent passage for nuclear powered warships. This is a phenomenon

that has frequently happened in the past and continues to this day. In fact, several

Treaty signatories are currently requiring prior permission for such vessels as well

as conventional warships. While the U.S. views such claims as not permitted under

the Treaty States are pressing such demands nonetheless.

Question 2. What are your thoughts about developing countries having the capabilities to implement international laws relating to issues of our national security

as well as regulating the marine environment?

Response. This Treaty clearly gives developing countries a forum to effectuate

such policies. In fact, the ‘‘one-nation, one-vote’’ bedrock principle running throughout the Treaty provides the ideological basis for dominating this organization as

well as its rulemaking and judicial bodies. The historic animosity of a large percentage of the membership of the U.N. General Assembly toward the United States has

long been part of the political machinations underlying the Law of the Sea Treaty

negotiations and has carried over into its creation, the International Seabed Authority. Given the domination of this organization by such hostile interests it should be

expected that its actions, policies, and rulings will favour redistributive ideologies

and uneven application of rules and regulations that will operate to the detriment

of the United States.
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Question 3. What are the implications for the U.S. of acceding to the Treaty and

becoming a member of the International Seabed Authority?

Response. The implications are manifold and exceedingly dangerous. On the

macro level would be our endorsement of anti-nation state provisions and philosophies that are directly inimical to the well being of our citizens. Such provisions will

have the following effects: • Erosion of U.S. Sovereignty

Ceding of sovereign powers to the ISA

Allow Direct & Indirect Taxation of U.S. citizens, entities, and Government

by an international organization.

Foster discriminatory resource exploitation policies and practices that act to

the detriment of the US economy and citizenry.

Allow direct revenue generation by an international organization so as to

minimize its exposure to US political pressure by freeing itself from their traditionally total reliance upon doinations of capital and equipment from Nation

states.

U.S. persons will likely be subjected to discriminatory and uneven Regulatory requirements intended to provide an unfair advantage to others for ideological or political reasons.

U.S. persons will likely be subjected to discriminatory and uneven Licensing

requirements intended to provide an unfair advantage to others for ideological

or political reasons.

• Self-enforcement of Decisions

The creeping jurisdiction of the law of the Sea Tribunal reveals the potential

for increasingly bold and confrontational ‘‘legal’’ rulings. As the International

Seabed Authority can determine its own jurisdiction the potential for interference with US naval missions is increasingly likely.

In addition, nothing in the Treaty precludes the International Seabed Authority from raising a Navy to enforce its own rules & regulations.

• Use of Force

The use of force on the high seas against another State is clearly outlawed

by Art. 88.

The Treaty does not ban the existence of Navy’s, but aggressive activities

they may engage in are a Treaty violation.

Art. 301—goes even further to announce that ‘‘no use of force is permitted

to include: blockades, embargos, etc., barred. It should be noted that the Treaty

does not define ‘‘military activities’’ or what constitutes ‘‘force’’ or ‘‘aggressive’’

thus providing the maximum degree of political action for the Seabed Authority.

Question 4. Can we predict with some degree of certainty whether the International Seabed Authority and its related tribunal will, over time, accrue any more

powers than those currently provided to it in the Treaty or which they have already

exercised?

Response. Yes, in fact a recent case heard by the Tribunal—called the MOX

Case—the tribunal asserted jurisdiction over activities taking place on land with no

direct contact with the oceans. In this case, the Government of Ireland sought a ruling to prevent the British from operating a Mixed Oxide nuclear fuel fabrication

plant asserting that its run off may adversely effect the environment of the Irish

Sea. Although the UK representative argued that the Tribunal had no jurisdiction

over land-based activities the Tribunal decided to take the case anyway. As a treaty

member the UK was bound by this assertion of jurisdiction and was compelled to

participate in the deliberations. This case is an early warning of future abuses that

we should expect to materialize—particularly if the U.S. ratifies the Treaty.

There is considerable concern that these judicial entities may become a back-door

attempt to create an International Criminal Court—a treaty that the U.S. strongly

rejected. It is entirely possible that the Tribunal may accept cases against US political leaders, soldiers, sailors, airmen, or marines for participating in hostile actions

that are contrary to the statements of principle embodied in Treaty Articles 88 and

301. As with the MOX affair, any Nation can petition the Tribunal to accept a

case—nothing precludes criminal charges—as there are no bounds set within the

Treaty as to the jurisdiction of this body it can decide to involve itself in any issues

it chooses. As a result, there is no limit upon the ability of the ISA to accrue powers

far beyond those it has chosen to exercise at this point in time. U.S. ratification will

bind the United States to a runaway train that is ideologically opposed to most of

the free market, human rights, and sovereignty principles so dear to our national

character.
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Question 5. Do the environmental provisions of the Treaty protect or expose the

high seas and U.S. coastline to environmental threats?

Response. The Treaty both protects and exposes the United States to environmental risks. While the Treaty recognizes a wide variety of international conventions and agreements pertaining to fisheries, marine mammals, and the environment that the US is a party to it also exposes the US to serious environmental risks

by making illegal such self-defense measures as the Proliferation Security Initiative

(PSI). The PSI is the only multinational mechanism available to defend the US

Coastline, fisheries and offshore facilities against acts of terrorism. Terrorists can

readily target environmentally sensitive of our coastal zones for attack as part of

a campaign of economic warfare. The Treaty does not include Terrorism and other

potential threats among the reasons it enumerates that justify interdicting and/or

boarding vessels on the high seas. Thus, the Treaty is outdated and irrelevant to

the contemporary threats we face compared with those envisioned in the 1970’s

when such portions of the Treaty were negotiated.

Question 6. Would the Treaty constrain the U.S. from acting unilaterally on the

high seas in protecting its national interests?

Response. Yes. The Treaty only allows interdiction and boarding of suspicious or

hostile vessels, for example, only under certain limited conditions. The so-called

‘‘Right of Visit’’ in Article 110 only allows interdiction and boarding on the High

Seas if: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting; (d) the ship is flying a false

foreign flag or refusing to show its flag.

Most of the contemporary national security problems the United States is faced

with and is likely to face in the future are not covered by those factors. For instance,

under the Treaty the US has no right to interdict vessels suspected of facilitating

terrorist activities or the illegal proliferation of missiles, Weapons of Mass Destruction (WMD), narcotics, etc. Given the deadly range of many types of WMD it is imperative to intercept such cargos long before they enter a State’s coastal zones. The

Treaty prevents the US from doing this and may assess penalties or impose punitive

measures for such actions. It is even possible that the ISA may someday provide

warships to escort proliferators so that the principle of non-interdiction will be

maintained.

Australia has been roundly criticized by Treaty members for suggesting that it is

in its national interest to declare a 1,000 mile security zone. The Australian concept

is more of a maritime identification area that recognizes the danger of seaborne terrorist threats to its population and attempts to provide strategic depth for self-defense purposes. Like the US-led Proliferation Security Initiative the Australian

identification zone was furiously criticized and objected to by many Treaty members.

Question 7. From a national security perspective, are we better off with or without

the Treaty?

Response. We are clearly better off as a Nation without the Treaty or remaining

outside of the Treaty. Several of the hoped for national security benefits that the

Treaty was purported to offer have never materialized. Many Treaty members still

require prior notification of warships entering their coastal zones. Many Treaty

members still have onerous restrictions on the movement of Nuclear Powered warships entering their coastal zones. Many Treaty members still maintain excessive

claims to offshore areas. Many Treaty members are ignoring Treaty requirements

for measuring their coastal baselines. Many Treaty members persist in making unacceptable ‘‘historic waters’’ claims in attempts to place vast ocean territory off limits to all foreign maritime, aviation, or naval activity.

These excessive claims fall into the following areas:

• Breadth of Territorial Sea

• Baselines From Which Claims are Measured

• Security Zones

• Prior Permission and Notification Regimes

• Clearance Requirements on Sovereign Immune Aircraft Over International Waters

• Restrictions on Military Activities in the EEZ

Examples of such claims are:

Selected Excessive Maritime Claims

Cuba .............................. Require state aircraft to comply with directions from air traffic control within flight information

region
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Selected Excessive Maritime Claims—Continued

Albania .......................... Prior permission for warship to enter the territorial sea

Australia ........................ Straight Baselines, & Historic Claims

Algeria ........................... Prior permission for warship to enter the territorial sea

Bangladesh ................... Excessive straight baselines; claimed security zone

Foreign warships must obtain permission prior to transiting territorial sea

Straight baseline

Jurisdiction to enforce laws/regulations in security zone

Burma ............................ Excessive straight baselines; claimed security zone

Requires prior notice for foreign warships to enter Territorial Sea & Maritime Zones

Security jurisdiction claimed within contiguous zone

Authority to subject freedom of navigation and of overflight w/in EEZ

Straight baselines

Canada .......................... Straight Baselines

Fishing jurisdiction beyond 200 nm

Cambodia ...................... Excessive straight baselines; claimed security zone

Foreign warships must obtain permission prior to transiting territorial sea. Jurisdiction over Security Zone.

Require foreign military vessels permission

Straight Baselines

China ............................. Permission reqd to enter Terr Sea or Contiguous Zone

Control in contiguous zone

Straight Baselines

Croatia ........................... Prior permission for warship to enter the territorial sea

El Salvador .................... 200 nautical miles (nm) territorial sea

India .............................. Foreign warships must provide notice prior to entering territorial sea.

Security powers in contiguous zone

Straight Baselines & Historic Claims

Permission reqd to conduct exercises in EEZ

Indonesia ....................... Foreign warships must obtain permission prior to transiting territorial sea

U.S. recognizes straight baseline est 1999

Iran ................................ Excessive straight baselines; prior permission for warship to enter the territorial sea

Kenya ............................. Excessive straight baselines; historic bay claim (Ungwana Bay)

Liberia ........................... 200 nm territorial sea

Libya .............................. Claims all waters south of 32–30 north latitude Gulf of Sidra closure line as internal waters

Korea, North .................. 50nm beyond territorial sea off east coast and to limits of EEZ off west coast.

Navigation or overflight by any vessel requires prior permission

Straight Baselines

Korea, South .................. Foreign warships must obtain permission prior to transiting territorial sea

Straight Baselines

Malaysia ........................ Permission reqd to conduct exercises in EEZ

Prior authorization for nuclear powered ships to enter territorial seas.

Maldives ........................ Prior permission for warship to enter the territorial sea

Malta ............................. Prior permission for warship to enter the territorial sea

Mauritius ....................... Prior notification for warships to transit territorial sea.

Permission required for warships and subs to transit EEZ.

Mexico ............................ Straight Baselines

Internal waters w/in Gulf of California

Nicaragua ...................... 200 nm territorial sea

Pakistan ........................ Claimed security zone; excessive restrictions on military activities in the exclusive economic zone

Philippines ..................... Excessive straight baselines; claims archipelagic waters as internal waters

Russia ........................... Innocent passage of foreign warships permitted along specified routes w/in terr sea

Foreign warships must obtain authorization prior to transiting territorial sea.

Straight Baselines

Saudi Arabia ................. Excessive straight baselines; claimed security zone

Seychelles ...................... Prior permission for warship to enter the territorial sea

Sierra Leone .................. 200 nm territorial sea

Somalia ......................... 200 nm territorial sea; prior permission for warship to enter the territorial sea

Sri Lanka ....................... Foreign warships must obtain permission prior to transiting territorial sea.

Historic waters in Palk Strait and Palk Bay (intl waters), and in Gulf of Mannar (terr sea).

Contiguous zone including claimed security jurisdiction.

Sudan ............................ Prior permission for warship to enter the territorial sea; claimed security zone

Syria .............................. 35 nm territorial sea; prior permission for warship to enter the territorial sea

Taiwan ........................... Straight Baselines

UAE ................................ Prior permission for warship to enter the territorial sea; claimed security zone
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Selected Excessive Maritime Claims—Continued

Vietnam ......................... Foreign warships must seek permission to enter contiguous zone/territorial sea at least 30 days

in advance; no more than three warships may be present in territorial sea at one time and

submarines must navigate on surface; prior to entering territorial sea or contiguous zone,

ships must place weapons in non-operative positions. Contiguous Zone claim includes jurisdiction over security matters. In contiguous zone, submarines required to navigate on the surface and show flag; and aircraft prohibited from being launched from or taken aboard ships.

Before entering territorial sea or contiguous zone, ships required to place weapons in non-operative positions.

Straight Baselines

Yemen ............................ Prior permission for warship to enter the territorial sea; claimed security zone

The implications of these Excessive Claims by Treaty members is important to

note from several perspectives: First, they reveal an underlying hypocrisy as States

are simply choosing to use those parts of the Treaty they like while ignoring the

rest; Second, the US Navy’s hope that US accession to the Treaty will obviate their

need to make Freedom of Navigation challenges is proven to be a fundamental miscalculation; Third, the financial and mobility costs to the US Navy as Treaty members manipulate various interpretations of its provisions will be very high. Finally,

the Treaty can readily be used to inhibit the United States from responding to a

crisis in a timely way thus influencing its outcome to our detriment.

The following chart illustrates the cost and delay effect of preventing our nuclear

powered warships from transiting a critical body of water due to restrictions imposed by coastal states not party to the future crisis. In this instance, our battle

group would require an additional 15 days to transit an additional 5,800 nm at a

cost of at least $7–$8 million. By the time they arrive the battle may have been

lost before we are able to influence events.

Question 8. Does the 1994 Agreement that President Clinton negotiated fix the

problems in the Treaty that caused President Reagan to reject it?
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Response. No. The legality of the 1994 Agreement that purports to fundamentally

alter the character and wording of the Treaty is highly suspect. The Treaty was set

in stone in 1982 when the Final Act was signed and negotiations ended. Article 155,

states that it cannot be modified until Fifteen years from 1 January of the year in

which the earliest commercial production commences under an approved plan of

work has passed. No commercial plan of work has been approved to date. In addition, many, about 20 percent, of those States that have ratified the Treaty have not

ratified the 1994 Agreement. In addition, many states have made declarations upon

ratification that have the effect of nullifying broad portions of the Treaty. Since ‘‘reservations’’ are not allowed under the terms of the Treaty States have been making

declarations instead. The effect is the same—States are picking and choosing which

aspects of the Treaty it will abide by and which it will ignore.

Question 9. Is there anything you would like to add?

Response. Ratification of this Treaty will assist in the creation of the first International Organization capable of raising revenue in a direct manner—that being

through direct taxation of States, imposition of user fees upon individuals or corporations, imposition of production quotas, etc. The International Seabed Authority

is an extraordinarily dangerous precedent in international relations and represents

the establishment of an uncontrollably independent entity with dominion over 3/4’s

of the Earth’s surface.

The following chart reveals that portion of the coast where petroleum recovery,

for instance, will be taxed at the rate of 7 percent by the International Seabed Authority. This ‘‘royalty’’ demand, in effect, concedes ownership of the oceans and its

resources by this new organization—a precedent we as a Nation will live to regret.

RESPONSES BY PETER LEITNER TO ADDITIONAL QUESTIONS FROM SENATOR JEFFORDS

Question 1. You referred in your oral testimony to a case in which the Chinese

government was able to obtain sensitive technology by virtue of ‘‘their status as a

pioneer investor under the Law of the Sea Treaty.’’ Did you learn of this example

in your personal capacity or as an employee of the United States Department of Defense? If you learned of this example in the course of your employment with the

Department of Defense, did you go through the proper clearance procedures before

using the example in your testimony before the Environment & Public Works Committee? Please provide any relevant documents substantiating your claims with re-
153

spect to this example and any documents regarding appropriate clearance procedures. Specifically, please provide any documents that will substantiate your implicit assertion that the Chinese government would have been unable to obtain

these technologies from any Nation other than the United States and that the Chinese government would have been unable to obtain these technologies but for their

participation in the Law of the Sea Treaty.

Response. Yes, the incident was encountered as a rep of the Department of defense. In fact, the case became a major interagency issue as I was denying the PRC

access to this technology as part of the export licensing process. Unfortunately, as

with most national security export cases that arose during the mid to late 1990’s

the technology was eventually released to the PRC.

I have formally written about this incident with the explicit approval of the Defense Department. In fact, the incident is described in my book entitled: ‘‘Reforming

the Law of the Sea Treaty: Opportunities Missed, Precedents Set, and U.S. Sovereignty Threatened’’, University Press of America, 1996. The book underwent the

full pre-publication security review process within the Defense Department and was

approved for public release. I have included some of the appropriate passages below.

If you require the official security review publication approval you are welcome to

file a Freedom of Information request with the Department of Defense.

Question 2. You stated in your oral testimony that the Convention was ‘‘rejected

by President Reagan.’’ Are you aware of President Reagan’s March 10, 1983 Statement of United States Oceans Policy, in which he stated that the ‘‘United States

is prepared to accept and act in accordance with the balance of interests [in the

Convention] relating to traditional uses of the oceans’’?

Response. I am well aware of each of these matters. President Reagan’s strategy,

upon rejection of good-faith U.S. attempts to negotiate modifications to the Treaty,

was to pick and choose those aspects of the Treaty that represent traditional international law and State practice and reject the rest. The White House was convinced

that the Treaty offered nothing new regarding naval mobility or navigation issues

and the US was able to achieve all of its essential interests while rejecting and remaining outside of the Treaty.

Question 3. Are you aware that in the same statement, President Reagan stated

that the ‘‘United States will continue to work with other countries to develop a regime, free of unnecessary political and economic restraints, for mining deep seabed

minerals beyond national jurisdiction’’? In light of these statements, would you now

concede that President Reagan rejected only the deep seabed mining provisions of

the Convention contained in Part XI and that, in doing so, he did not abandon the

U.S. interest in working with other countries to develop a deep seabed mining regime that would satisfy U.S. interests? If you will not concede these points, please

provide documentation supporting your statement.

Response. No, I would make no such concession as the nature of the little syllogism you have constructed is wrong, based upon a misinformed reading of history,

and displays a lack of understanding of not only Reagan administration intent but

a lack of awareness of their intensive efforts and initiatives to create an alternative

to the Treaty by engaging ‘‘like-minded’’ states in the pursuit of a ‘‘Reciprocating

States Regime’’. I would suggest that your Staff acquire copies of the Deep Seabed

Hard Minerals Resources Act—passed by both the House and Senate and signed

into law by President Reagan to become familiar with attempts to work with other

States to create a regime that will facilitate access to these valuable natural resources.

Question 4. You stated in your written testimony that ‘‘[t]he presumptions that

underlie the environmental provisions of the Law of the Sea Treaty and other key

elements of the document are woefully inadequate to meet the threats facing the

United States in this very dangerous unconventional post-9/11 world.’’ Are you suggesting that environmental laws and practices (national or international) rather

than specific anti-terrorism laws and practices are appropriate vehicles for dealing

with terrorist threats, including those threats that seek to utilize environmental destruction as what you refer to as a ‘‘force multiplier’’? Are your aware of any specific

provisions in the 1982 Convention or the 1994 Agreement that would prohibit States

from enacting new laws and regulations to deal with acts of environmental terrorism?

Response. The Law of the Sea Treaty prohibits participants from engaging in high

seas interdictions, vessel boarding, or seizures unless they are conducted for one of

four very narrow reasons. The conducting of such interceptions and inspections is

vital for the U.S. to protect its coastlines from being approached by vessels engaged

in Terrorist activities or vessels transporting weapons of mass destruction among
154

rogue states and proliferators. Unfortunately WMD and/or Terrorism are not among

the ‘‘legal’’ reasons for interception allowed under the Treaty. As far as the Treaty

is concerned, vital U.S. Anti-terrorist measures such as the Proliferation Security

Initiative would be deemed illegal activities. Several LOS ratifiers have already announced that PSI is illegal and not allowed by the Treaty. If these members decided

to bring the issue before the LOS Tribunal in Hamburg they would likely win a ruling stating that the PSI is a form of international Piracy. Of course while we believe

PSI to be a legitimate act of collective self-defense and counter-terrorist policy it is

likely that the 3rd World dominated Tribunal will not rule in our favor.

In addition, it is likely that the environmental provisions of the Treaty will be

used against the United States in some novel areas such as: defining SONAR, so

crucial to our military capabilities, as causing harm to whales and other marine

mammals and barring its use in all ocean areas under its jurisdiction.

Question 5. You stated in your written testimony that ‘‘[r]atification of the treaty

would effectively gut our ability to intercept the vessels of terrorists or hostile foreign governments even if they were transporting nuclear weapons.’’ What is your

basis for this assertion? Can you point to any specific provisions of the Convention

that give the United Nations a role in deciding when and where a foreign ship at

sea may be boarded? Are you aware that the basic rules for boarding and searching

foreign ships at sea, which are contained in the 1958 Geneva Conventions on the

Law of the Sea and to which the United States is already a party, are unchanged

in the 1982 Convention on the Law of the Sea? Moreover, are you aware that the

1982 Convention provides additional authority for a coastal State to board a foreign

ship in its exclusive economic zone if the ship is suspected of violating its laws for

the protection of the marine environment? Finally, are you aware that the resolution of advice and consent now before the Senate states 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’’?

Response. My answer to this portion is largely answered in my response to the

previous question. As for the Senate’s Resolution regarding self-defense during periods of armed conflict—I am distressed that you do not appear to comprehend that

the language you quoted is meaningless in the current War on Terrorism. As the

United States has not declared War—legally we are not in a state of war. The ‘‘powers’’ you believe the Treaty bestows upon coastal states during peacetime are piteously weak in preventing a terrorist or terrorist WMD attack upon the United

States.

Question 6. You stated in your oral testimony that ‘‘the Law of the Sea Treaty

specifically states that the traffic in weapons is a normal commercial activity engaged in by states’’ and that, as a result, the United States would ‘‘have no right

under the treaty to interdict [a ship carrying weapons].’’ What specific provision of

the Treaty are you referring to and what does it say?

Response. It is a long-established principle that Arms Sales are a normal feature

of international commerce. Individual States choose to regulate such commerce according to their unique legal traditions but it is normal and legitimate nonetheless.

As I replied earlier, there are only four reasons when interdiction or interception

is legitimate—the transport of arms on the High Seas to other States or private customers is not among them. Since the Treaty explicitly allows interdiction only under

certain very limited instances any other motivations during the peacetime application of the Treaty are not allowed.

Question 7. You stated in your oral testimony that the Law of the Sea creates an

‘‘international body’’ that ‘‘has the ability to regulate seven-tenths of the earth’s surface.’’ Are you referring to the International Seabed Authority? If you are referring

to the International Seabed Authority, what is your basis for the assertion that this

body ‘‘has the ability to regulate seven-tenths of the earth’s surface’’? Please provide

specific textual references from the relevant parts of the Convention and the 1994

implementing agreement. Are you aware that the regulatory authority of the International Seabed Authority is limited to regulation of deep seabed mining? Are you

aware that the International Seabed Authority has no role with respect to any other

activity on the oceans? Are you aware that the Convention provides specific protection for rights of navigation and overflight and for the conduct of marine scientific

research?

Response. Are you aware that the Law of the Sea Tribunal in Hamburg—one of

the specialized Agencies created by the Treaty—has unlimited and self-defining jurisdiction? The Tribunal has already asserted jurisdiction over non-ocean activities

that occur on land under the theory that what happens there may eventually affect
155

1Professor of Law and Director of the Ocean and Coastal Law Program, 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. Served in 2003 as Judge ad hoc of the

International Tribunal for the Law of the Sea.

the oceans. The jurisdiction of this organization is not limited to the Seabed. In fact,

its self-defining charter is unconstrained by the Treaty. The jurisdiction International Seabed Authority is likewise not limited to the deep seabed. It has authority over the vast areas Continental Shelf that lie beyond the 200 nm zone as well.

STATEMENT OF BERNARD H. OXMAN, 1 PROFESSOR OF LAW, UNIVERSITY OF MIAMI

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.

It was my privilege to submit testimony on this matter before the Senate Committee on Foreign Relations on October 14, 2003. While that testimony is included

in the Report of that Committee, I thought it would be useful to include much of

it in this statement for the benefit of this Committee, but to add additional comments that may be of particular interest to this Committee.

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.

I hope the Committee will also bear in mind that the Law of the Sea negotiations

were a long-term bipartisan effort to further American interests that engaged high

level attention in successive Administrations and distinguished members of both

Houses of Congress. President Nixon had the vision to launch the negotiations and

establish our basic long-term strategy and objectives. President Ford solidified important trends in the negotiations by endorsing fisheries legislation modeled on the

emerging texts of the Convention. President Carter attempted to induce the developing countries to take a more realistic approach to deep seabed mining by endorsing unilateral legislation on the subject. President Reagan determined both to insist

that our problems with the deep seabed mining regime be resolved and to embrace

the provisions of the Convention regarding traditional uses of the oceans as the

basis of U.S. policy. President George H.W. Bush seized the right moment to launch

informal negotiations designed to resolve the problems identified by President

Reagan. President Clinton’s Administration carried that effort through to a successful conclusion. And now the Administration of President George W. Bush has expressed its support for Senate approval of the Convention and the 1994 Implementing Agreement.

Mr. Chairman, I agree with the Administration. I urge the Senate to accept the

recommendation of the Committee on Foreign Relations, adopted by a vote of 19–

0, and approve the Resolution of Advice and Consent contained in its Report. They

have taken the right action at the right time. It is in the interests of the United

States to become party to the Convention and the Implementing Agreement 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. The challenges may change, but our

basic interests in using the sea to meet those challenges have never been more important. Our security is dependent upon the unimpeded 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.

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
156

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) (appended to this statement). 3Panel 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 NonSeabed Mining Provisions of LOS Treaty, 79 AJIL 151 (1985).

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

HISTORICAL SETTING

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.

There was an accelerating collapse of any semblance of consensus on the fundamental question: Where is there freedom and where is there sovereignty? 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.

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.’’3

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 with-
157

4 Elliot L. Richardson, Power, Mobility and the Law of the Sea, 58 Foreign Affairs 902 (1980). 5Statement by the President, United States Oceans Policy, Mar. 10, 1983, 19 Weekly Comp.

Pres. Docs. 383 (1983).

in 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 with 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 13 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.’’5

President Reagan expressly recognized that the rules set forth in the Convention

constitute the platform of principle on which we operate. 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. There is indeed no plausible alternative for the foreseeable future. What

then are the advantages of becoming a party?

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;

• the enhancement of our credibility and effectiveness when we invoke the provisions of the Convention as binding treaty obligations and insist that other

states respect our rights and freedoms under those provisions; 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;

• 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, four main advantages of widespread, including U.S., ratification have been

identified:

• 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.
158

6Panel Study, note 3 supra, at 172. 7Note 2, supra.

• 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 that 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.6

To these I might add that other coastal states that have yet to become party to

the Convention and its implementing agreements are more likely to follow suit once

we are party to all of them. Canada ratified the Convention within weeks after the

Bush Administration testified in support of the Convention last fall. Several weeks

after that, the European Union and its 15 member states became party to 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 North America 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, Ambassador Stevenson’s and my published observations on the

specific benefits to the United States of ratification of the Convention are appended

to this statement.7 These observations were prepared at a time when 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. Let me therefore elaborate a bit more.

PART XI AND THE 1994 IMPLEMENTING AGREEMENT

I once heard an informed observer say that the problem with the Law of the Sea

Convention is that in life you get only one chance to make a first impression. This

was doubtless a reference to the problem of deep seabed mining that bedeviled the

law of the sea negotiations in the 1970’s and early 1980’s. Much has changed since

then.

The question concerns the mining of the deep seabeds beyond the limits of the

continental shelf. The Law of the Sea Convention substantially expands the definition of the continental shelf to include the entire continental margin (which embraces the geographic continental shelf, continental slope, and continental rise) as

well as all areas within 200 miles of the coast even if they lie beyond the continental

margin. Because the existence of oil and gas deposits is closely associated with the

geology of the continental margin, the purpose and effect of this definition of the

continental shelf is to place seabed oil and gas deposits under coastal state control.

What remains are the hard minerals of the deep seabeds beyond the continental

shelf as defined in the Convention, including manganese nodules found at or near

the surface of deep seabeds. Even at the time the Convention was first negotiated,

some promising hard mineral deposits had been identified, but to this day commercial production of deep seabed hard minerals has yet to begin. In my view, this fact

contributed to an important anomaly in the law of the sea negotiations. The Conference was able to deal with the significant established interests of states in national defense and international security, oil and gas, navigation and overflight,

fisheries, protection of the environment, smuggling, and virtually all other matters

without serious intrusion of underlying philosophical differences and without socalled North-South confrontations.

The exception was deep seabed mining. The early draft texts issued by the chairman of the committee responsible for the deep seabed mining negotiations tended,

in one degree or another, to reflect attitudes fashionable among developing countries

at the time. These texts were not well received in the United States and other Western countries. Even the Soviets complained.

While painstaking progress was made in narrowing differences over the years, at

the time President Reagan took office there were three basic choices: (1) continue
159

8Statement by the President, U.S. Policy and the Law of the Sea, Jan. 29, 1982, 18 Weekly

Comp. Pres. Docs. 94 (1982). 9 Note 5, supra. 10See Proclamation 5030, Mar. 10, 1983, 19 Weekly Comp. Pres. Docs. 384 (1983) (footnote

added). This Proclamation implements the rights of the United States as a coastal state as set

forth in some of the most important provisions of the Law of the Sea Convention.

to attempt to whittle away at the details, (2) withdraw from the Conference, or (3)

identify and confront the most significant flaws frontally and seek basic changes.

President Reagan chose the last of these. He identified certain key objectives with

respect to the deep seabed mining regime, and stated: ‘‘The United States remains

committed to the multilateral treaty process for reaching agreement on Law of the

Sea. If working together at the Conference we can find ways to fulfill these key objectives, my administration will support ratification.’’8

Some further progress was made in the negotiations, but unfortunately there was

insufficient will to rethink certain provisions, and the text adopted in 1982 did not

adequately accommodate the points made by President Reagan.

On March 10, 1983 President Reagan made a major statement on United States

Oceans Policy. He said:9

• The United States will not sign the Convention ‘‘because several major problems in the Convention’s deep seabed mining provisions are contrary to the interests and principles of industrialized nations and would not help attain the

aspirations of developing countries.’’

• The Convention’s provisions with respect to traditional uses of the oceans

‘‘fairly balance the interests of all states.’’

• The ‘‘United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans such as navigation

and overflight. In this respect, 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 ‘‘United States will exercise and assert its navigation and overflight

rights and freedoms on a worldwide basis in a manner that is consistent with

the balance of interests reflected in the convention’’ and ‘‘will not acquiesce in

unilateral acts of other states designed to restrict the rights and freedoms of

the international community in navigation and overflight and other related high

seas uses.’’

• ‘‘I am proclaiming today an Exclusive Economic Zone.’’10

• The ‘‘United States will continue to work with other countries to develop a

regime, free of unnecessary political and economic restraints, for mining deep

seabed minerals beyond national jurisdiction.’’

The text of the Statement itself rebuts the misleading characterizations that have

been revived in recent weeks. It is evident that President Reagan rejected the deep

seabed mining provisions, not the remainder of the Convention. Indeed, he made

clear our determination to implement, abide by and ensure respect for the important

rights and freedoms the Convention elaborates. It is also evident that even in rejecting the deep seabed mining provisions of the Convention, he did not abandon our

interest in working with other countries to develop a satisfactory regime.

The truth, Mr. Chairman, is that just as President Nixon determined the basic

and ultimately successful strategy for achieving an acceptable convention with respect to most issues, so President Reagan determined the basic and ultimately successful strategy for producing a widely ratified Convention by resolving the deep

seabed mining issue: identify the flaws, refuse to accept a text that does not reasonably address those problems, and leave the door open.

It took some time before the developing countries were ready to talk again. In the

interim, communism collapsed, more market-oriented economic policies took hold

throughout the world, and it became evident that a universal convention could not

be achieved without resolving the deep seabed mining problem. The Administration

of President George H.W. Bush determined that these developments created an opportunity to resolve the problem, and undertook to explore the possibilities with a

representative group of interested countries assembled by the U.N. Secretary General. The result is the 1994 Implementing Agreement, which makes major changes

in the deep seabed mining regime.

Mr. Chairman, the 1994 Implementing Agreement reasonably resolves the problems identified by President Reagan. Appended to this statement is a copy of my
160

11 Bernard H. Oxman, The 1994 Agreement and the Convention, 88 AJIL 687 (1994) (appended

to this statement).

detailed analysis of the ways in which the 1994 Agreement accommodates the points

raised by President Reagan.11

Many of the critical comments made about the effect of the deep seabed mining

provisions are influenced primarily by decades-old impressions, not by the 1994 Implementing Agreement, which expressly provides that it prevails over any conflicting

provisions in the Convention. It is claimed, for example, that the Seabed Authority

can impose productions quotas and mandate transfer of technology. That is not so.

The 1994 Implementing Agreement removed the offensive provisions on those subjects.

Many other claims are simply misplaced. There is no transfer of sovereignty or

wealth to the International Seabed Authority.

We have never claimed sovereignty over the seabeds beyond the continental shelf,

and have consistently taken the position that any such claim would be unlawful.

This is made abundantly clear by our own Deep Seabed Hard Minerals Act. We neither have nor assert jurisdiction over the activities of foreign states and their nationals on the deep seabeds.

Nothing that could rationally be called sovereignty was conferred on the Seabed

Authority. The powers of the Seabed Authority are very carefully defined and circumscribed, and are controlled by a Council on which we will have a permanent seat

and a veto over regulations. Private companies have the right to apply for and receive long-term exclusive rights to mine sites on a first-come, first-served basis and

have legal title to the minerals they extract. All parties to the Convention are

obliged to respect those mining rights and recognize that legal title.

It was we, over the opposition of many developing countries, who successfully

sought judicial review to make sure that the Seabed Authority respects the limits

on its powers and the rights of miners, and who in addition successfully sought commercial arbitration to protect miners’ contract rights.

It was President Nixon who proposed that miners should pay a reasonable sum

in respect of the minerals they remove from the deep seabeds, as they now do on

land and in offshore areas subject to coastal state jurisdiction. No American administration, and to my knowledge no mining company, ever objected to that idea. The

question is the formula. We were successful in the Implementing Agreement in removing the complex details of the Convention on this matter, so that the Council

is in a position to adopt reasonable regulations regarding the payment formula that

do not impede investment or distort the market. We also ensured that these sums

would go first to defray the administrative costs of the Seabed Authority, and that

the distribution of any surplus is subject to regulations approved by the Council.

Regulations regarding both the payment formula and the distribution of these funds

will be subject to an American veto on the Council, whether or not American companies are the source of the funds.

Mr. Chairman, no major industrial state ratified the Law of the Sea Convention

prior to the adoption of the 1994 Agreement. Following its adoption their governments initiated the steps necessary to become party. Today every neighbor of the

United States, every other permanent member of the U.N. Security Council, and

every other major industrial state in the world is among the 145 parties to the Convention. The issue is no longer whether there will be a Seabed Authority in which

the overwhelming majority of countries from all regions are members. That exists.

The issue is whether the United States will assume the privileged seat expressly

reserved for it.

This has three important implications.

• The system is regarded as workable by other industrial states that share

many of our interests as consumers and potential seabed producers of hard minerals.

• We need to assume our guaranteed seat on the governing Council of the Seabed Authority, and the decisive voting power that goes with it, as soon as possible to ensure that the system evolves in ways satisfactory to the United

States. This includes the use of our voting power and our special rights under

Article 142 to protect our environmental and economic interests as a coastal

state whose continental shelf abuts the international seabed area in three

oceans.

• It is unlikely that major sources of private capital with interests in many

different parts of the world would be particularly comfortable making substantial new investments in deep seabed mining carried out in defiance of the Convention. A variety of factors may influence any business judgment in this re-
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12 Articles 2, 17, 19(1), and 20 of the Law of the Sea Convention correspond respectively to

Articles 1, 14(1), 14(4), and 14(6) of the Territorial Sea Convention. 13See Note 5, supra, and accompanying text. 14President Reagan declared that ‘‘the ships of all countries enjoy the right of innocent passage’’ in the U.S. territorial sea ‘‘[i]n accordance with international law, as reflected in the applicable provisions of the 1982 United Nations Convention on the Law of the Sea.’’ Proclamation

on the Territorial Sea of the United States, Dec. 27, 1988, 24 Weekly Comp Pres. Docs. 1661

(1988). The Proclamation also specifically recognizes the right of transit passage in straits. Id. 15Those articles do not, for example, affect the more liberal rights of transit passage of straits

and archipelagic sea lanes passage under Parts III & IV. Unlike innocent passage, transit passage of straits and archipelagic sea lanes passage include both overflight and submerged navigation.

gard; one is that Article 137 prohibits the parties to the Convention from recognizing any rights to deep seabed minerals not in accordance with Convention

and the 1994 Implementing Agreement.

In other words, the critics are largely either addressing texts that no longer exist

or assuming a political, economic and legal context that no longer exits. That said,

I should note that I do agree with their claim that the Law of the Sea Convention

entails history’s biggest voluntary transfer of wealth. But not in the sense that the

critics mean. That transfer of wealth is to coastal states, and the United States is

first among them. When the Law of the Sea negotiations began, we had a 3-mile

territorial sea, a 12-mile fishing zone, and a continental shelf of uncertain extent

beyond the point where the waters reach a depth of 200-meters. By the time those

negotiations ended, the Convention accorded us: • a territorial sea of up to 12 miles, • the largest 200-mile exclusive economic zone in the world in which we control

all living and nonliving resources and have important rights to control pollution, • an oil-rich continental shelf extending at least to 200-miles and beyond that to

the outer edge of the continental margin, • a ban on high seas fishing for salmon of American origin, and much more.

Few coastal states in the world enjoy rights as rich and extensive as we acquire

just off the coast of Alaska.

NAVIGATION AND NATIONAL SECURITY

One of the major achievements of the Law of the Sea Convention is that many

of its provisions regarding navigation are copied from the 1958 Convention on the

Territorial Sea and the Contiguous Zone and the 1958 Convention on the High Seas.

The United States ratified the 1958 conventions many years ago, although many

other states did not.

For example, the following rules in the Law of the Sea Convention are all copied

from the 1958 Territorial Sea Convention: the sovereignty of the coastal state extends to the territorial sea; there is a right of innocent passage in the territorial

sea; passage is innocent so long as it is not prejudicial to the peace, good order or

security of the coastal state; submarines are required to navigate on the surface in

order to enjoy the right of innocent passage.12

For many years, there was a serious difference of opinion as to what ‘‘innocence’’

meant under the 1958 formulation. This cast a shadow over our ability to rely on

the right of innocent passage in foreign territorial seas. Paragraph 2 of Article 19

specifically responds to our concerns about this ambiguity by making clear that the

question of innocence relates only to the exhaustive list of acts set forth in that

paragraph and only if those acts are committed while the ship is in the territorial

sea. The list benefits us by providing clarity and eliminating broader interpretations

of what is not innocent. It strains credulity for critics to imply that an ‘‘act aimed

at collecting information to the prejudice of the defence or security of the coastal

State’’ or any other act listed in paragraph 2 of Article 19 would be regarded as innocent by coastal states in the absence of such a list.

President Reagan twice declared that the United States respects the rules regarding innocent passage contained in the Law of the Sea Convention, once in his 1983

oceans policy statement,13 again in 1988 when he implemented the right set forth

in the Convention to extend the territorial sea to 12 miles.14 All of President Reagan’s successors have respected these declarations.

Critics seem to overlook the fact that Articles 17 to 32 of the Convention address

only the right of innocent passage.15 The preamble makes clear what would be true

in any event: ‘‘matters not regulated by this Convention continue to be governed by

the rules and principles of general international law.’’ Suffice it to say that the matters not regulated by the Convention include the right of self-defense, the international law of armed conflict, and the complex (and for understandable reasons,
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16 Note 2, supra, at 496.

rarely discussed) questions regarding the practice of states with regard to covert intelligence activities in each others’ territory.

Mr. Chairman, becoming party to the Convention will facilitate the prosecution

of the war on terrorism in general, and the implementation of the President’s proliferation security initiative in particular. President Bush has emphasized that we

cannot wait for the terrorists and their weapons to reach us. What is, or should be,

clear from this is that we must exercise our global navigation and overflight rights

and freedoms at sea anywhere in the world in order to reach our operational destinations. Not every government of the numerous countries past whose coasts our

forces must travel to reach their destinations would necessarily wish to associate

itself with every one of our operations. When we become party to the Convention,

those governments will have an easier time explaining their acquiescence in our activities to domestic or foreign critics on the grounds of their treaty obligations to

the United States, and we will have an easier time persuading them to do so without the need to expend our political or economic capital.

Those who have expressed concerns in this respect seem to overlook the fact that

the rules of high seas law set forth in the Law of the Sea Convention are copied

from the 1958 High Seas Convention. Similarly, they overlook the fact that the rules

of the Law of the Sea Convention regarding navigation and overflight and other

high seas freedoms were expressly embraced by President Reagan in his 1983 statement on oceans policy, and constitute the bedrock of the legal foundation for our

operations at sea around the world. The Administration has made it clear that it

is able to and intends to carry out the proliferation security initiative in a manner

consistent with high seas law as set forth in the Law of the Sea Convention, and

that doing so is in our interests.

Mr. Chairman, the 200-mile limit of the exclusive economic zone embraces virtually all of the semi-enclosed seas of the world, including the Caribbean Sea, the

Mediterranean Sea, the Red Sea, the Persian Gulf, the South China Sea, and the

East China Sea. It is evident that our high seas navigation and other rights in those

seas are critical if our forces are to be able to reach their destinations and perform

their missions. Perhaps most importantly for the successful prosecution of the war

on terrorism and implementation of the proliferation security initiative, the Law of

the Sea Convention provides that high seas law and high seas freedoms with respect

to navigation, overflight, and related military activities apply within the 200-mile

exclusive economic zone.

A crucial point that some critics miss is that coastal states are tempted to think

of their exclusive economic zones as belonging to them. It is unrealistic to assume

that the application of high seas law and high seas freedoms within the 200-mile

exclusive economic zone, in the hard-won terms set forth in the Law of the Sea Convention, would commend itself to coastal states around the world outside the context

of a comprehensive and universal Law of the Sea Convention designed to include

the Unites States.

One of our most important objectives in seeking a universally ratified Law of the

Sea Convention is to put a stop to the erosion of high seas freedoms in coastal areas

that characterized the development of customary international law in the twentieth

century. There is no reason to believe this erosion will not continue in the absence

of a treaty restraint. In my opinion, the most plausible way to block the gradual

erosion of high seas freedoms in the exclusive economic zone, and its eventual transformation into something much more like a territorial sea, is a widely ratified Law

of the Sea Convention to which the United States is party, and with respect to

which the voice and practice of the United States are prominent authoritative evidence of what the Convention means.

For operational planners, the essential question is not what we think our rights

are, but what foreign governments think. We need the greatest possible influence

over the perception of foreign governments regarding the source, legitimacy, and

content of their obligations to respect our high seas freedoms, especially in their exclusive economic zones. We achieve that best by becoming party to the Convention.

The alternatives are likely to be both less effective and more costly.

PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT

Mr. Chairman, I must reiterate before this Committee in particular: ‘‘The Convention is the strongest comprehensive environmental treaty now in existence or likely

to emerge for quite some time.’’16 Former Secretary of State Warren Christopher
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17See Senate Treaty Doc. 103–39, p. V, VII–VII (1994).

made the same appraisal in his Letter of Submittal of the Convention.17 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.

Thanks in no small measure to the work of this Committee, our environmental

laws are among the strongest in the world. They are fully consistent with our rights

and obligations under the Convention. The Legal Adviser of the Department of

State, William H. Taft, IV, in a letter of March 1, 2004 to the Chairman of the Senate Foreign Relations Committee, expressly stated that ‘‘the United States does not

need to enact new legislation to supplement or modify existing U.S. law . . . related

to protection of the marine environment . . . . 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.’’

It has nevertheless been suggested that the Convention may require a revision

of the Endangered Species Act. That is not so. Article 194 of the Convention requires the parties to take measures to control pollution of the marine environment.

We have done so. Paragraph 5 of Article 194 is a statement of the obvious: it specifies that among the objects of such pollution control measures is the protection and

preservation of rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Our existing laws satisfy

this obligation. I need only add that Article 194 does not specify any particular pollution control standards.

Mr. Chairman, you and your colleagues on the Committee are well aware of the

complexities involved in arriving at an effective, efficient and balanced approach to

environmental protection that reasonably accommodates and furthers both our environmental and other interests. When it comes to the oceans, these complexities are

multiplied many times because they implicate the interests and priorities of many

different countries. Permit me to cite an example.

The Law of the Sea Convention accords every coastal country, including the

United States, exclusive sovereign rights with respect to the exploration and exploitation of the continental shelf in an area vastly expanded beyond the limits specified

in the 1958 Convention on the Continental Shelf, to which the United States is

party. The Law of the Sea Convention specifies that the rights of the coastal state

with respect to the continental shelf include the power to set environmental conditions for oil and gas development, for oil rigs and all other economic installations

and structures, for pipelines, and for dumping.

While these powers give us a great deal of control over our interests in both environmental protection and the productive use of our continental shelf, in themselves

they are insufficient to protect the full range of either our environmental interests

or our energy and other interests. To protect those interests, we need to influence

the laws and practices of foreign countries. It is for this reason that the Convention

establishes a floor of generally accepted international standards that every coastal

state must apply. Among the American interests that this protects are the following:

• Our neighbors have the same exclusive rights over the continental shelf off

their coasts as we have off ours. Pollution from their activities can easily affect our

waters, our resources, and our shores. This became abundantly clear a number of

years ago when a pollution incident on the Mexican continental shelf gave rise to

extensive public concerns in Texas and other Gulf states that our waters and coastline would be polluted. As a party to the Convention, we will have increased credibility and leverage to protect ourselves from such incidents in a way that avoids any

appearance that we are bullying our neighbors.

• While every coastal state has the right to impose higher standards on its continental shelf activities, and ours are among the strongest in the world, the oil and

gas industry is a global enterprise that can achieve economic efficiencies from uniform global standards regarding equipment and operations. Those efficiencies can

of course help to keep down the cost of energy and free up additional capital for

investment. As a party to the Convention, we will have increased credibility and le-
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verage to promote stronger and more efficient international standards and their

general acceptance.

• We live in an era of instant global news. A serious pollution catastrophe on the

continental shelf anywhere in the world is likely to be reported, and its consequences televised, throughout the globe. This can stimulate public demands in

many countries for new restrictions on continental shelf development. To the extent

that this means that we all continue to learn from each others’ mistakes, this is

of course a good thing. But to the extent that public excitement can lead to hasty

and ill-considered actions either in the United States or in other countries, the economic consequences can be adverse, and the result may be an unnecessary increase

in the price of energy. As a party to the Convention, we will have increased credibility and leverage to ensure the emergence and enforcement of international standards that reduce the likelihood of such events.

• Our interest in the health of the oceans throughout the world is no mere abstraction. They comprise over two-thirds of our world, and are essential to our wellbeing and the overall ecological balance of the planet. Marine living resources from

the far reaches of the globe supply us and the rest of the world with food, with

sources of recreation, with valuable scientific knowledge, and with the promise of

new and more effective medicines. We have neither an environmental nor an economic interest in a race to the bottom in pollution regulation in other parts of the

world that destroys marine life. As a party to the Convention, we will have increased credibility and leverage to exercise the kind of balanced global leadership

in protecting the oceans that is incumbent upon the leading maritime power in the

world and that the American people expect.

This is but one example of the benefits of the approach taken by the Convention

to environmental protection. There are many others. The provisions that successfully accommodate the interests of states with respect to freedoms and rights of

navigation and their interests with respect to prevention of pollution are obviously

of great importance. The maintenance over time of a reasonable balance responsive

to both navigation and environmental interests would unquestionably be advanced

by U.S. participation in the Convention.

Mr. Chairman, the Law of the Sea Convention is a powerful and successful environmental treaty precisely because it seeks to achieve a reasonable balance between

environmental and other interests. For many years, in the law of the sea negotiations and in other fora, the United States has tried to make clear that environmental treaties must be carefully framed to produce a reasonable accommodation

of diverse interests. Some people have characterized this as opposition to environmental protection. Some of the extreme rhetoric used abroad has been particularly

damaging to our reputation in important allied countries. The Senate now has a signal opportunity to set the record straight. Its approval of the Convention and the

Implementing Agreement would suggest that there is every reason to ensure that

the multilateral 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 international protection of the environment.

CONCLUSION

Mr. Chairman, it is of particular importance that many of the 145 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 careful 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;
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• 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 modification of Part XI of the Convention in

the 1994 Implementing Agreement to accommodate the objectives articulated by

President Reagan.

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.
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RESPONSES BY BERNARD H. OXMAN TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1a. Article 2(3) of the Treaty states ‘‘the sovereignty over the territorial

sea is exercised subject to this Convention and to other rules of international law.’’

What is your interpretation of this provision?

Response. This provision is copied from Article 1, paragraph 2, of the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States

has long been party. The provision serves mainly as a clarifying reminder; as a legal

matter it adds nothing to what trained lawyers would conclude in its absence. It

has the same meaning in both Conventions: the sovereignty of the coastal state is

qualified in two respects, first as set forth in the text, and second pursuant to other

rules of international law. The first qualification relates to rights of passage in foreign territorial seas critical to the global mobility and security and economic interests of the United States; these include innocent passage, transit passage of straits,

and archipelagic sea lanes passage. The second qualification relates to rules of customary international law that would apply in any event.

Question 1b. Do you think all parties of this Treaty will interpret this provision

the same?

Response. I believe this interpretation of Article 2(3) would be shared by all parties.

Question 1c. How could this Treaty interfere with the United States’ sovereign exercise of freedom of the seas and in what ways will that have an adverse effect on

national security and the environment?

Response. Article 2(3) does not interfere with the United States’ sovereign exercise

of freedom of the seas and has no adverse effect on national security and the environment. Quite to the contrary, the provisions to which it refers significantly advance the national security and environmental interests of the United States.

More broadly, the Convention as a whole secures and advances the United States’

national security and economic interests in the exercise of the freedom of the seas

as well as its interests in protection and preservation of the marine environment

off its own shores and around the world. The greatest threat to the long-term security, economic and environmental interests of the United States in the oceans is the

misplaced and ill-informed advice of a voluble few who oppose consolidating the

rights, influence and leverage of the United States on these matters by becoming

party to the Convention.

Question 2. Do you believe it is in the best interest of the United States to vest

control of seabed mining operations in countries which lack the necessary technology and capital to conduct such operations themselves?

Response. No, and the Convention as modified by the 1994 Implementing Agreement does no such thing. Quite to the contrary, the regulatory system is controlled

by the Council of the Seabed Authority, the Council can adopt regulations only by

consensus, and the text guarantees a significant number of seats on the Council for

major industrial states, including a permanent seat for the United States.

Article 2 of the 1994 Implementing Agreement states that in the event of any inconsistency between that Agreement and the deep seabed mining provisions of the

Convention (Part XI and related Annexes), the provisions of the Agreement shall

prevail. As in the case of other industrial states, this rule is unquestionably a condition for our becoming party to the Convention. That is well understood by governments and informed observers around the world. This rule has been respected and

applied by the parties to the Convention and the Seabed Authority since the Convention entered into force in November 1994. That consistent practice has not been

questioned by the few members of the Authority that have yet to formally ratify the

1994 Agreement.

Question 3. Do you believe that by acceding to the Treaty the United States would

gain an adequately effective bargaining position to protect its current and future national policies and interests relating to national defense, seabed mining and environmental protection? Please explain in detail.

Response. Yes. In fact only by acceding to the Convention could the United States

secure an adequately effective bargaining position to protect its current and future

national policies and interests relating to national defense, seabed mining and environmental protection.

National Defense.—The particular missions and objectives of our armed forces

change in response to different challenges and threats. What does not change is the

United States interest in global mobility, that is in the capacity, on a routine daily

basis, to move its naval, air, and land forces past foreign coasts without the need

to expend political, economic or military capital to secure the acquiescence of states
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along the route. This depends on the perceptions of other states regarding the rights

of foreign ships and aircraft, including American ships and aircraft, off their coasts.

The Convention will shape those perceptions whether or not we are party. The

question is influence over the application of the Convention and the future of the

Convention. Becoming party to the Convention enhances our ability to influence foreign perceptions of our rights by solidifying them as treaty obligations and strengthening the credibility and authority of our views regarding the interpretation and application of the Convention provisions on which our rights depend in practice whether or not we are party. It also puts us in a much stronger position to avoid a destructive amendment conference that could delegitimate the Convention and the

provisions important to our national security, and thus weaken, rather than

strengthen, the perception of other coastal states regarding the rights and freedoms

we and all states enjoy off foreign coasts. Calling such a conference becomes legally

possible this year. If the United States unwisely delays becoming a party and if this

delay contributes to a decision by the parties to convene a destructive amendment

conference over which the United States voluntarily denied itself adequate control,

the burden of the ensuing collapse of the current consensus will be borne by the

American taxpayers who will be compelled to buy the foreign acquiescence we can

get for free under the Convention, and by the members of our armed forces who will

face not only the risks posed by their operational destination, but new risks along

the route to that destination.

Seabed Mining.—United States seabed mining interests involve two different

areas. The first, and in present economic terms by far the most important, concerns

the continental shelf where all offshore oil and gas are likely to be found. The

United States has an important energy interest in promoting investment in the continental shelf off our coast as well as foreign coasts. The Convention promotes that

interest by according the coastal state control over the continental margin, including

a special procedure by which a party to the Convention, if it wishes, can reassure

investors by establishing a seaward limit of its continental margin that is final and

binding on all parties to the Convention. As a party to the Convention, we would

also acquire the right, which we now lack, to nominate an American expert for

membership on the Commission on the Limits of the Continental Shelf that has an

important role in that process.

The second interest is in an activity that has yet to begin, namely deep seabed

mining beyond the limits of the continental shelf for hard minerals that can also

be found within the limits of the continental shelf. It is difficult to imagine the

United States having a less effective bargaining position to protect its current and

future national policies and interests relating to deep seabed mining than it does

at present. By contrast, once a party to the Convention, the United States will have

a permanent seat on the Council of the Seabed Authority, and thus will wield a permanent veto over the adoption of all regulations. Until the Authority becomes selfsupporting (which is unlikely to occur in the foreseeable future), the United States

will also wield a veto over budgetary decisions by virtue of its guaranteed seat on

the Finance Committee.

Environmental Protection.—By becoming party to the Convention, the United

States will in two respects acquire a more effective bargaining position to protect

its current and future national policies and interests relating to environmental protection.

The first of these relates to fisheries, and in particular our interest in ensuring

adequate conservation of living resources beyond our own exclusive economic zone.

The Convention gives us important tools, including the right to invoke compulsory

dispute settlement procedures, that will significantly enhance our bargaining leverage in dealing with foreign fishing beyond the exclusive economic zone. Moreover,

becoming party to the Convention will enhance our ability to persuade other countries to join us in becoming party to the 1995 Agreement Implementing the Convention with respect to certain fish stocks, which in turn will increase our negotiating

and enforcement leverage over foreign fishing.

The second of these relates to pollution. The key here is the maintenance of a reasonable balance that promotes effective environmental protection as well as interests in the economic, military and other uses of the oceans. As a party to the Convention, the United States will be in a far stronger position to promote a reasonable

balance of environmental and economic interests in the interpretations and actions

of foreign states, and to insist on continuing respect in future agreements and foreign laws for the Convention’s exclusion of warships from international and foreign

pollution regulations. Approval of the provisions of the draft resolution of advice and

consent recommended by the Committee on Foreign Relations would be an important step in enhancing our influence in this regard.
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Question 4. What are your thoughts about developing countries having the capabilities to implement international laws relating to issues of our national security

as well as regulating the marine environment?

Response. National Security.—Most coastal states are developing countries.

Whether or not we are party to the Convention, our naval ships and military aircraft, and oil tankers and other ships carrying vital goods to and from our shores,

will need to navigate off their coasts in order to reach their destinations. Critical

telecommunications cables will need to be laid and maintained off their coasts. The

reality therefore is that the claims and perceptions of these developing coastal states

with respect to control of areas off their coast can and do have a practical impact

on our national security interests in global mobility and communications. One of the

most important, and successful, goals of the Law of the Sea Convention was to create a legal foundation for our global mobility and communications whose legitimacy

was accepted by these countries.

Developing country leaders are not stupid. They know that the United States has

political, military or economic interests that would be jeopardized by a confrontation

with virtually any developing country. They also know that when we need their consent (for example for overflight rights over land or basing rights) we are usually prepared to pay handsomely for that consent, directly or indirectly. The question is

whether we wish every naval mission (most of which do not occur in a crisis) to comprise one mission with one price—the operational goal—or two missions with two

prices—the operational goal and the cost of acquiring the acquiescence of the developing coastal states along the way. My experience suggests that whatever the perceived costs of becoming party to the Convention, they are far outweighed by the

benefits, and indeed would pale in comparison with the true continuing cost of buying or forcing acquiescence from just one key developing coastal state along one indispensable route.

The absence of any other global maritime power at the present time, coupled with

a perception fashionable in some industrial states that trimming the sails of the

United States should be a priority foreign policy goal, means that the risk of individual or regional challenges to U.S. global mobility is likely to increase, and that

developing coastal states are likely to be goaded to move in this direction. Were the

United States, after publicly launching and advancing the Constitutional process for

becoming party to the Convention, to fail to follow through, that would further fuel

this process.

Becoming party to the Convention is not a guarantee against such developments.

But it strengthens our hand in insisting on our treaty rights, and it strengthens our

capacity to mobilize public opinion at home and abroad in support of our vigorous

routine assertion and exercise of those rights.

Environment.—We have four types of interests in adequate implementation of environmental measures by developing countries. First, adequate protection of the

health of the world’s oceans requires concerted action by all coastal and maritime

states. Second, adequate control by developing coastal states or flag states of activities under their jurisdiction is necessary to prevent pollution of our coasts and waters. Third, lax environmental regulation by developing countries might damage our

competitive economic interests and attract jobs away from the United States, or

force us to lower our own environmental thresholds. Fourth, an environmental disaster in a foreign country could spur urgent public demands for restrictive legislation in the United States and elsewhere whose economic effects are not fully foreseen.

The Convention’s powerful and carefully balanced environmental provisions

strengthen our ability to encourage developing countries to take adequate measures

to protect the marine environment. One of its most notable and attractive features

is that, unlike some other environmental instruments, the Convention applies the

same international environmental rules and standards to all countries, developed

and developing. It also contains provisions that penalize a flag state that has repeatedly disregarded its obligations to effectively enforce applicable international

rules and standards.

Question 5. Can we predict with some degree of certainty whether the International Seabed Authority and its related tribunal will, over time, accrue any more

powers than those currently provided to it in the Treaty or which they have already

exercised?

Response. Yes, we can. There is no evidence of an accretion of powers beyond

those expressly granted or that such a development is likely. The powers of the

International Seabed Authority and its related tribunal are highly circumscribed by

the Convention and the 1994 Implementing Agreement. A grant of additional powers would require an amendment to the relevant treaty provisions; this could not
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occur over the opposition of the United States (once it is a party) or other major

industrial states. The implementation of existing powers of the Seabed Authority is

subject to effective control by the Council and the Finance Committee of the Authority, whose mandatory industrial state members (including the United States once

a party) have the power to block undesirable decisions.

Question 6. Despite the clear requirements in Articles 208 and 210 of the Treaty

which specify that related national laws must be ‘‘no less effective’’ than international rules, standards and recommended practices and procedures, the Committee received testimony to the effect that the United States would not be required

to change any of its environmental laws to be in compliance with the Treaty. Are

you certain that the Treaty could not be used to impose restrictions or requirements

on the United States to limit or expand current or future U.S. laws and policies?

Response. The United States has among the strongest environmental laws in the

world. That is likely to remain true. The probability that international rules and

standards accepted by the overwhelming majority of coastal and maritime states, including most developing countries, would contain stricter requirements in respect of

Articles 208 and 210 than those acceptable to the United States and provided for

in our laws ranges from exceedingly unlikely to zero. The further probability that

a foreign government would find it in its interests to seek to impose such a requirement on the leading global maritime power with the largest exclusive economic zone

in the world (the United States), undertake to establish that our own regulations

are less effective, and succeed, itself ranges from exceedingly unlikely to zero. The

United States has been party to the Convention on the High Seas for many years,

and has never encountered any difficulty with a similar provision set forth in Article

10 of that Convention.

Question 7. Article 212 of the Treaty requires States to adopt laws and regulations

for pollution from the atmosphere. How would the United States domestic policy

need to be changed or altered to comply with the international laws, regulations,

and recommended practices to address these concerns? And does this mean that

other countries can use this provision to force the United States to regulate C02?

Response. Article 212 identifies the subject matter for national measures. Its implementation depends entirely on domestic law. It does not require any particular

measures, does not require compliance with international rules and standards, and

does not require any change in our domestic law and policy with respect to atmospheric pollution in general or CO2 in particular. I have difficulty imagining how any

country with existing air pollution regulations, let alone the United States, could

find itself in violation of this essentially hortatory text.

RESPONSES BY BERNARD H. OXMAN TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. Critics of the Law of the Sea have claimed that there is no guarantee

in the text of the Convention or in the 1994 Agreement that the United States

would, should it become a party, enjoy permanent membership and a veto on the

governing body of the International Seabed Authority. You stated in your testimony

that under the 1994 implementing agreement, ‘‘the United States is automatically

guaranteed a seat on the Executive Council’’ and that because that body takes its

decisions by consensus, the United States would enjoy veto power. Would you clarify

where in the text of the 1994 Agreement the United States does in fact enjoy a

guaranteed seat on the governing council of the ISA and a veto over any decisions

with which it disagrees?

Response. Annex, Section 3, paragraph 15(a), of the 1994 Agreement specifies that

the Council of the Seabed Authority ‘‘shall include . . . the State, on the date of

entry into force of the Convention, having the largest economy in terms of gross domestic product.’’ The Convention entered into force on November 16, 1994. There

is no doubt that on that date the United States had the largest economy in terms

of gross domestic product. There is also no doubt that the purpose of this provision

is to accord the United States a permanent seat on the Council.

Annex, Section 3, paragraph 5, of the 1994 Agreement expressly preserves the

provisions of the Convention requiring consensus in the Council. Article 161, paragraph 8(d), of the Convention requires consensus for Council decisions on amendments to Part XI and related Annexes, and for Council decisions under Article 162,

paragraph 2(o), namely all Council decisions on rules, regulations and procedures

of the Authority. Article 161, paragraph 8(e), defines ‘‘consensus’’ as ‘‘the absence

of any formal objection.’’ Accordingly, by objecting the United States could block any
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decision for which consensus is required, namely the adoption of any amendments

or the adoption of any rules, regulations, or procedures of the Authority.

In addition, Annex, Section 3, paragraph 7, of the 1994 Agreement provides that

all decisions of the Authority having financial or budgetary implications ‘‘shall be

based on the recommendations of the Finance Committee.’’ Annex, Section 9, paragraph 3, provides that so long as the Authority requires assessed contributions to

meet its administrative expenses, ‘‘the membership of the Committee shall include

representatives of the five largest financial contributors to the administrative budget of the Authority.’’ That of course includes the United States. Annex, Section 9,

paragraph 8, requires consensus for substantive decisions of the Committee. Thus

the United States could block any budgetary or financial decision.

Question 2. One of the other witnesses at the hearing referred to a November

2001 opinion from the Law of the Sea Tribunal on mixed oxide fuels as an example

of ‘‘creeping jurisdiction.’’ Do you agree with this assertion? Would you explain the

nature of the case, the court’s decision, and the reasons why the Tribunal saw fit

to exercise its jurisdiction and hear the case?

Response. I do not agree with the assertion. Far from ‘‘creeping jurisdiction,’’ the

provisional measures order of December 3, 2001 in the MOX Plant Case (Ireland v. United Kingdom) reveals the considerable circumspection of the Tribunal even

with respect to temporary provisional measures that can be changed or revoked at

a later stage of the case and in any event expire with the litigation.

The case arose from Ireland’s concerns about pollution risks from shipping radioactive materials in the Irish Sea and other activities at a mixed oxide plant in

Sellafield, England. Ireland requested the Tribunal to prescribe provisional measures pending the constitution of an arbitral tribunal to hear the case under Annex

VII of the Law of the Sea Convention.

Presumably for tactical reasons related to the particular facts and circumstances

of these proceedings, the United Kingdom did not invoke before the Tribunal the

jurisdictional limitations set forth in Section 3 of Part XV, including paragraph 1

of article 297, which significantly limits jurisdiction over coastal states in environmental and other cases. The United Kingdom’s challenge to jurisdiction raised a

limited and technical issue under Article 282, namely whether the case should be

heard by an arbitral tribunal under Annex VII of the Law of the Sea Convention,

or instead by a different arbitral tribunal under the compulsory arbitration provisions of a European treaty concerning environmental protection in the Northeast Atlantic pursuant to which Ireland was also suing the United Kingdom, or possibly

by the European Court of Justice under the relevant European Community treaties.

The Tribunal made no determination of jurisdiction to try the merits of the case

under the Law of the Sea Convention, leaving that issue to the arbitral tribunal to

be constituted under Annex VII of the Convention, and limiting itself to deciding

only that Ireland had established a prima facie case of jurisdiction for the Annex

VII arbitral tribunal.

The Tribunal refused to prescribe any of the provisional measures requested by

Ireland, and limited itself to mandating consultations between the parties. Its order

was unanimous, including the British judge on the Tribunal. With that order, the

Tribunal’s involvement ended.

Subsequent to that order, the case went to arbitration under Annex VII of the

Law of the Sea Convention. The arbitral tribunal, exhibiting similar caution, refused to order additional provisional measures, and has now suspended proceedings

indefinitely pending a decision of the European Court of Justice on whether the dispute will be handled in that Court under European Community law. Meanwhile Ireland lost its case against the United Kingdom in the arbitration under the European

treaty concerning environmental protection in the Northeast Atlantic.

Question 3. One of the other witnesses asserted that the environmental provisions

of the Convention are inadequate to deal with acts of environmental terrorism. Are

your aware of any specific provisions in the 1982 Convention or the 1994 Agreement

that would prohibit States from enacting new laws and regulations to deal with acts

of environmental terrorism?

Response. There are no provisions in the 1982 Convention or the 1994 Agreement

that would prohibit States from enacting new laws and regulations to deal with acts

of environmental terrorism. Quite to the contrary, Article 221 expressly declares

that nothing in the environmental provisions of the Convention prejudices the right

of states to act in the face of a maritime casualty, including an imminent threat

of material damage to a vessel or cargo. It should also be noted that environmental

terrorism at sea might well be carried out in a way that constitutes piracy, which

would result in very broad authority under the Convention to respond anywhere on

the high seas. Such acts might also be covered by various anti-terrorism treaties
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that are entirely compatible with the Law of the Sea Convention. Moreover, to the

extent that the response to such terrorism is regarded as coming within the right

of self-defense under the U.N. Charter and international law, the matter would fall

entirely outside the Convention.

BENTON AND ASSOCIATES,

Juneau, Alaska, March 19, 2004.

Senator LISA MURKOWSKI,

U.S. Senate,

Washington, DC.

DEAR SENATOR MURKOWSKI: I am writing you today to urge support for ratification of the U.N. Convention on the Law of the Sea (UNCLOS). Ratification is supported by the Bush Administration, as did the Clinton Administration before it. Recently, the Foreign Relations Committee unanimously approved ratification as well.

My experience with international fisheries and oceans governance has convinced me

that it is in the best interests of the United States to become a party to UNCLOS

as soon as possible.

For roughly 14 years I was the State of Alaska’s chief negotiator and representative at numerous international negotiations and conferences having to do with

oceans policy, governance, and fisheries. Among other duties I was a senior advisor

to the U.S. Mission to the U.N. during negotiations leading up to the global ban

on high seas driftnets. I was Alaska’s lead negotiator for the United States/Soviet

and later United States/Russian Intergovernmental Coordinative Committee on

oceans and fisheries. I was the senior Alaska negotiator for the successful negotiations leading up to adoption of the North Pacific Anadromous Fish Convention and

the Central Bering Sea Pollock Convention to the U. S. Mission to the U.N. during

negotiations leading up to the Convention of Highly Migratory Fish Stocks and

Straddling Stocks of Fish, a key component for implementation of UNCLOS fisheries regimes. I was also appointed by President Clinton to the U.S. Canada Pacific

Salmon Commission and worked hard to secure the 10-year agreement which ended

the ‘‘salmon wars’’ between Canada and the United States.

I retired from my position with State government in 2000, and was appointed to

the North Pacific Fishery Management Council where I served as Chair until I left

the Council in 2003. During my tenure on the Council I continued to be active in

international fishery affairs, and advised the Department of State on a number of

international issues including the discussions with the Russian Federation regarding the maritime boundary between Alaska and Russia.

Throughout these various negotiations spanning almost 20 years it was apparent

that the interests of the United States were best served under provisions of

UNCLOS dealing with maritime delimitation, navigation and transit, defense

issues, fisheries management, and enforcement. It was through the use of the terms

and condition is of UNCLOS that we were able to secure many of the international

agreements cited above, agreements which have protected Alaska’s interests to the

tune of hundreds of millions of dollars to our fishing industry and coastal communities. Ratification will only strengthen the ability of the United States, and Alaska,

to defend these interests into the future.

One issue of particular concern, and a very compelling reason to become a Party

to the convention, is the prospect of losing some off the important wins which have

been made for navigation, the rights of free passage, and maritime delimitation. The

UNCLOS comes open for amendment for the first time later this year. If the United

States is not a party, then the United States cannot participate in this process and

we stand to lose important rights and freedoms for transit, for EEZ and continental

shelf resources, and possibly boundary issues as well. The United States has several

outstanding maritime boundary delimitations that have not been solved, including

boundaries with Canada and Russia that are of the greatest importance to Alaska.

For these reasons alone, I would ask you to strongly support ratification of the

UNCLOS treaty.

Thank you for your kind attention to this issue. If I can be of any further service,

or provide additional information, please feel. free to contact me.

Sincerely,

DAVID BENTON.
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CHAMBER OF SHIPPING OF AMERICA,

March 19, 2004.

Hon. JAMES M. INHOFE, Chairman,

Senate Environment and Public Works Committee,

U.S. Senate,

Washington, DC.

Hon. JAMES M. JEFFORDS, Ranking Member,

Senate Environment and Public Works Committee,

U.S. Senate,

Washington, DC.

DEAR MR. CHAIRMAN AND RANKING MEMBER: Thank you for holding a hearing on

the U.N. Law of the Sea Treaty. The purpose of this letter is to advise that the

Chamber of Shipping of America very strongly supports ratification of the United

Nations Law of the Sea Convention (UNCLOS) as it is in the best interests of the

United States to do so.

The Chamber of Shipping of America represents 22 American companies that

own, operate or charter ships used in the domestic and international trades of the

United States. We represent all types of ships including container ships, tankers,

ocean-going tug/barges vessels, roll-on roll-off ships and bulk ships. We were founded in 1917 to coordinate U.S. shipowner positions at the initial deliberations leading

to the Safety of Life at Sea Convention. Today, we represent our members on safety,

environmental and security issues addressed domestically and at the international

fora including the International Maritime Organization and the International Labor

Organization.

UNCLOS is the codification of the traditional law of the sea and protects, inter

alia, our rights of innocent passage and freedom of navigation. We are concerned

that our status as a non-ratifying party places us in a dangerous position when the

treaty comes open for amendment in October of this year. It is simply in our sovereign interest to ensure that we are at the international negotiating table in the

strongest possible position. The U.S. should not ignore the potential for treaty

amendments that could have large negative impacts on our interests and we have

no vote.

I enclose here a copy of testimony I gave before the Senate Foreign Relations

Committee on October 21, 2003 wherein I explain some of the potential problem

areas where amendments may limit our navigation freedoms. I request that my letter and enclosure be made part of this hearing record. If you or your staff has any

questions, please feel free to contact me.

Sincerely,

JOSEPH J. COX,

President.

STATEMENT OF JOSEPH J. COX, PRESIDENT & CEO, CHAMBER OF SHIPPING OF AMERICA, GIVEN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS ON THE U.N.

CONVENTION ON THE LAW OF THE SEA, OCTOBER 21, 2003

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.
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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.

Mr. Chairman, we appreciate the opportunity to testify and would be pleased to

respond to questions.
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WESTERN PACIFIC REGIONAL FISHERY MANAGEMENT COUNCIL,

Honolulu, HI, March 18, 2004.

Hon. DANIEL K. INOUYE,

U.S. Senate,

Washington, DC.

DEAR SENATOR INOUYE: I would like to express the support of Western Pacific

Fishery Management Council for the ratification of the United Nations Convention

on the Law of the Sea by the United States. This Council, by virtue of its geography,

is the most internationally focused of the eight Regional Fishery, Management

Councils in the USA, and international fishery management is an integral part of

our Pelagic Fishery Management Plan. Thus, the provisions of UNCLOS as they

apply to the exploitation of natural resources are of key interest to the Council,

quite apart from the important security aspects and key rights of navigation enshrined within the treaty.

Many of the provisions of UNCLOS, and international instruments that have

stemmed therefrom, have been incorporated into this Council’s management of highly migratory pelagic fish. In the 1980’s, even before, the U.N. ban, the Western Pacific Council was aware of the controversy surrounding this gear and banned its use

within the EEZ of the US Flag Pacific Islands. This Council was also among those

agencies and individuals who supported you and your colleagues in having tuna included within the Magnuson Act, an initiative which recognized the rights of individual countries to manage pelagic fishery resources within their EEZs as outlined

within UNCLOS.

More recently, the Western Pacific Council has actively supported the development of an international convention for managing tuna fisheries in the Central and

Western Pacific, hosting four out of the seven seminal meetings through which this

new management initiative was crafted. This new fishery commission developed by

the convention will come into force some time in 2004. This is the first international

fishery management arrangement that fully incorporates UNCLOS principles in the

articles of the convention, and will assume responsibility for the largest tuna fishery

grounds on the globe. Such a development is timely due to the need to limit unconstrained expansion of fishing effort on these important shared economic resources.

As pointed out by your colleagues Senator Lugar and Senator Stevens in recent

correspondence with Senate members, the failure to ratify UNCLOS would mean

that the U.S. would be unable to participate in the amendment to the Convention

and safeguard aspects of concern to this country, including international fishery

agreements such as the new fishery commission in the Central and Western Pacific.

Naturally this is of paramount concern to this Council, embedded as it is within Micronesia and Polynesia, and with economies reliant to a large degree on ocean resources. The Council therefore hopes that the Senate will recognize the importance

of ratifying UNCLOS, both from a strategic and security perspective, and also from

our perspective in the US Pacific Islands, where the US voice needs to be heard in

the management of shared fishery resources in the Pacific.

Sincerely,

KITTY M. SIMONDS,

Executive Director.

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