Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention

[Senate Treaty Document 103-39; Senate Executive Report 108-10]

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.

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 Convention 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 decision-making procedures of Part XI to accord the United States, and others with major economic interests at stake, decisive influence over future decisions on possible deep seabed mining. The United States is guaranteed a seat on the critical decision-making 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.

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.

Reasons 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.
• 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 decision-making 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.

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 UN 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.
• 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.
• 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.