Current Oceans Policy: United States Perspectives

I feel quite honored to have been invited to speak at a gathering of so many illustrious experts on international oceans law. As a relative newcomer to this field, I am looking forward to learning a great deal from the other participants, many of whom have vast expertise in energy, navigation, and other issues that I am only beginning to learn about.

I believe the organizers of this conference chose the title of my remarks, "Current Oceans Policy: United States Perspectives," to enable me to address just about any subject I felt comfortable discussing. I therefore propose to review "current oceans policy" first at the global level; then at the regional level, with particular attention to the Arctic region; and then at the national level, to bring you up to date on developments within the United States.

Global Oceans Policy

Next November will mark the 10th anniversary of the coming into force of the United Nations Convention on the Law of the Sea, the overarching framework within which virtually all policies relating to the oceans are developed. The parties to the Convention total 145, a number that supports a claim of near-universality.ⁱⁱ I will speak in a few minutes about prospects for increasing that number before the anniversary date.

During the past 10 years the three institutions created under the Convention have found their homes, set up their procedures, and begun to carry out the functions assigned to them. The International Tribunal on the Law of the Sea has dealt with almost a dozen cases in an efficient and restrained manner. Under the skilled leadership of Ambassador Nanden, the International Seabed Authority finalized plans of work for the seven pioneer investors; adopted regulations on prospecting and exploration of polymetallic nodules; and organized workshops to collect data and information, which are stored in its database. The Commission on the Limits of the Continental Shelf has reviewed the first submission, from the Russian Federation, has recently received a submission from Brazil that will be considered at the end of this summer, and will have at least one more submission, from Australia, by the Convention’s anniversary date.

The most important global institution for promoting maritime safety and protection of the marine environment, the International Maritime Organization, has addressed recent terrorist threats by adopting a new maritime security regime that is on the verge of entering into force,ⁱⁱⁱ and by working on a draft protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The IMO has also recently accelerated its phase-out schedule for single-hull tankers, reviewed proposals for designating Particularly Sensitive Sea Areas, and adopted a convention for control of ships’ ballast water and sediments. Realizing that international agreements are of little value unless they are implemented and enforced, IMO members are developing an Audit Scheme to gauge the effectiveness of flag states, port states, and coastal states in carrying out their obligations under IMO instruments.

Another indicator of the maturing of oceans policy is the coming into force of the 1995 United Nations Fish Stocks Agreement, and the revisions that are being made to regional fisheries management agreements to incorporate its principles. And yet, overfishing and habitat destruction continue to threaten the long-term health of the world’s fish stocks. States that license vessels to fish within their own exclusive economic zones or on the high seas must be held accountable when those vessels engage in illegal, unregulated, or unreported (IUU) fishing. Implementation of the Food and Agriculture Organization’s international plans of action relating to fisheries will be a big step in the right direction.

The United Nations General Assembly’s deliberations on oceans have also matured, through the evolution of the Informal Consultative Process held each spring for the past 5 years. This week-long session provides a forum for delegates to learn about new developments in the oceans world and to discuss possible approaches to maritime issues. The report of this meeting now forms the basis of the annual UNGA resolution on oceans and law of the sea, which has become a less repetitive and more forward-looking and useful document in the last few years.

The Informal Consultative Process meeting that concluded earlier this month was to focus on protection of high seas biodiversity and on new uses of the oceans for energy production. High seas biodiversity attracted much more attention than new energy sources, as environmental groups called for the participants to recommend that the General Assembly establish a moratorium on bottom-trawling in areas beyond national jurisdiction, and a large number of delegations proposed that deep-sea genetic resources should be considered part of the "common heritage of mankind" under Part XI of the Convention. This interpretation, which has little foundation in the text or negotiating history of the Convention, would equate living organisms found at hydrothermal vents or around other seabed features with the carefully defined mineral resources to which the Part XI regime applies. The United States and other delegations vigorously refuted this proposition, but the proponents persisted in trying to raise the subject at the States-Parties meeting the following week.

A day and a half during the Informal Consultative Process was allocated to an international workshop on the Global Marine Assessment. The workshop reviewed a draft document on a process for global reporting and assessment of the marine environment, including peer review, a secretariat, capacity-building, and funding. Unfortunately, a dispute over the scope of the Assessment -- whether it should include living marine resources -- is standing in the way of launching this initiative.

Regional Oceans Policy

Turning from the global to the regional level, I have already mentioned the work of Regional Fishery Management Organizations, which are promoting the sustainability of fisheries through the use of increased knowledge of fish stocks and their interactions with the marine environment, through ecosystem management and precautionary approaches, and through creative means of enlisting port States and importing nations in the effort to combat IUU fishing.

Regional approaches are also critical in protecting the marine environment. UNEP’s regional seas programs are active, to varying degrees, in increasing the capacity of coastal States to combat the major causes of environmental degradation. Due to our special ties to two regions, the United States participates most actively in the Pacific and the Caribbean programs. The Caribbean Environment Programme recently joined with the United States, and with many other governments, international organizations, universities, financial institutions, non-governmental organizations, and corporations, to form the White Water to Blue Water Initiative.

White Water to Blue Water aims to stimulate partnerships that will advance integrated watershed and marine ecosystem-based management. It promotes regional cooperation and strengthens developing country capacity:

• to address land-based sources of marine pollution (e.g., sewage and industrial discharges, agricultural run-off)
• to build sustainable fisheries
• to improve agricultural and forestry practices
• to meet challenges associated with tourism
• to prevent degradation of coastal areas

White Water to Blue Water, launched at the World Summit on Sustainable Development, first focused on the Wider Caribbean region. A Partnership Conference was held last March in Miami, with more than 700 people from 32 countries attending. More than 100 partnerships have been formed in the past 2 years in connection with this initiative. We believe the White Water to Blue Water outcomes in the Caribbean may serve as a blueprint for future efforts in Africa, in the South Pacific, and elsewhere.^iv

As we will be focusing our attention later on in this conference on the Arctic, let me take a moment now to describe two initiatives in the Arctic -- one dealing with energy and one with ocean policy. Both initiatives are activities of the Arctic Council, the intergovernmental forum consists of eight member States, each with Arctic territory, as well as representatives of people indigenous to the Arctic. The United States is fully engaged in both activities. I bring these to your attention because they illustrate the ways in which voluntary cooperation among like-minded States can contribute to good governance in the Arctic.

The first initiative is the "Assessment of Potential Impacts of Oil and Gas Activities in the Arctic." The Assessment is being prepared in response to a request from the Ministers and Senior Arctic Officials of the Arctic Council. They have asked for a report, to be prepared in time for the Ministerial meeting in 2006, that builds on and expands an earlier assessment completed in 1997. The United States and Norway have agreed to co-chair the Assessment Steering Group. An Alaska-based official of the Minerals Management Service of the U.S. Department of Interior will serve as the U.S. co-chair. A team of international authors will address four types of impacts or effects from oil and gas activities in the Arctic:

• Social and economic consequences
• Environmental impacts from pollution
• Environmental effects of physical disturbances
• Effects on human health

The team of authors will consider the full range of oil and gas activities. These include leasing or licensing, seismic and drilling exploration, production drilling and development construction, continuing production operations, all facets of transportation, and the eventual decommissioning of facilities. The intent of the Assessment, in keeping with the directions from Ministers, is to provide a comprehensive and balanced view of the positive and negative socio-economic consequences associated with oil and gas development in the Arctic.

Arctic Council organizers of the Assessment plan to hold a symposium here in St. Petersburg in the summer of 2005. The symposium will bring together experts in all relevant fields on the current state of the science and technology relating to oil and gas activities in the Arctic. It will be designed to promote dialogue among the experts, government officials, and Arctic residents, as well as to identify critical information that may be missing from the draft assessment.

The Arctic Council’s Oil and Gas Assessment illustrates how eight nations, plus observer states such as the United Kingdom, France, and Germany and the indigenous people represented by six organizations can come together on an energy issue of critical importance. Stakeholders will have an opportunity to compare best practices in every aspect of oil and gas development -- from new technologies for cleaner production, to benefit sharing with local residents, to preparing for oil spill recovery in ice conditions. We look forward to providing leadership for this activity and certainly to the symposium next year in Russia.

The second activity I will describe is the "Arctic Marine Strategic Plan." Iceland and Canada have taken the lead on this Arctic Council initiative, which will be reported out to Ministers in Reykjavik this coming November. The United States is an active member of the drafting team. Representatives from the National Oceanic and Atmospheric Administration, the Coast Guard, and the Arctic Research Commission participate for the United States.

Ministers recognized that existing and emerging activities in the Arctic warranted a more coordinated and strategic approach to the challenges facing Arctic coastal and marine environments. Climate change and variability and increased economic activity are identified as the principal drivers of change in the Arctic Ocean and along its coasts. Scientific interest in ecosystem approaches to resource management and new national commitments to the goals outlined in the Johannesburg Plan of Implementation following the World Summit on Sustainable Development also sparked interest in the Arctic Marine Strategic Plan.

The Plan in its current form addresses four key areas: pollution, biodiversity and ecosystem integrity, communities and human health, and marine resource use. Drafters will make a strong case that regional cooperation has great potential both for addressing the opportunities and avoiding the problems of degradation at the ecosystem level.

Within the Arctic Council framework the Strategic Plan will highlight key issues for regional cooperation. The Marine Strategic Plan may also spark new interest at the national and regional levels in taking a more holistic approach to ecosystem management in the Arctic. Several studies to date in the Arctic identify the gaps in our capacity to understand Arctic ecosystems, particularly in coastal and marine environments. The deepening international cooperation among scientific researchers at Svalbard may offer opportunities to study one or more marine ecosystems.

The Arctic Marine Strategic Plan is not prescriptive or binding. Instead it represents the best thinking among national oceans policymakers in the Arctic -- thinking to be shared with all who will listen.

These are but two international activities in the energy and oceans arenas. They are examples of what eight nations and other stakeholders can do together on a voluntary basis to promote sustainable development in the Arctic.

Another example of regional coordination on oceans issues is adoption of the Pacific Islands Regional Oceans Policy, another initiative developed in 2002 in conjunction with the World Summit on Sustainable Development, and the first such regional policy on oceans.^v The Policy identifies five principles and strategic actions: improving understanding of the oceans, sustainably developing and managing the ocean’s natural resources, maintaining the health of the ocean, promoting the peaceful use of the ocean, and creating partnerships and promoting cooperation. It reflects the region’s collective awareness of the increasing threats to the ocean environment, and the reality that sustainable economic and social development in the Pacific Islands depends on the wise use of the ocean and its shared resources.

Delegates from the Pacific Islands met in Suva last February to begin implementing the Policy by developing a Framework for Integrated Strategic Action. The Framework is scheduled to be completed by the end of this summer.

National governments are beginning to develop formal oceans policies, as well. Canada claims that its Oceans Act of 1997 was the first comprehensive ocean management legislation.^vi Australia’s Oceans Policy was published in 1997, and provided a framework with goals, principles, and policy guidance, under which Regional Marine Plans are being developed.^vii New Zealand and Portugal are also working on national oceans policies,^viii as are Norway, the United Kingdom, and India.^ix

In the United States, Congress directed the formation of a Commission on Ocean Policy in the Oceans Act of 2000. Its charge was to establish findings and make recommendations for a comprehensive, long-range national policy for the responsible use and stewardship of ocean and coastal resources.^x President Bush appointed the 16 Commissioners, whose work was Federally funded but was independent of any government oversight. The Commission held its first meeting in Washington in September 2001, and in the following 2 1/2 years held nine hearings around the country and several more public meetings in Washington.

On 20 April 2004, the Commission issued its preliminary report, more than 400 pages plus appendices. The report went to all 55 Governors of U.S. States and Territories, who were to submit comments on it by 4 June 2004. The Commission intends to issue its final report by the end of July. Under the Oceans Act, the Administration must submit to Congress within 90 days a statement of proposals to implement or respond to the Commission’s recommendations.

The preliminary report contains a great many recommendations, but the Commission identified the following as the most critical:

• Establish a National Ocean Council, chaired by an Assistant to the President, and create a Presidential Council of Advisors on Ocean Policy
• Strengthen NOAA and improve the federal agency structure
• Develop a flexible and voluntary process for creating regional ocean councils
• Double the nation’s investment in ocean research
• Implement the national Integrated Ocean Observing System
• Increase attention to ocean education
• Strengthen the link between coastal and watershed management
• Create a coordinated management regime for federal waters
• Create measurable water pollution reduction goals, and strengthen incentives, technical assistance, and other management tools to reach those goals
• Reform fisheries management by separating assessment and allocation, improving the Regional Fishery Management Council system, and exploring the use of dedicated access privileges
• Establish an Ocean Policy Trust Fund based on revenue from offshore oil and gas development and other new and emerging offshore uses to pay for and implement the recommendations
• Accede to the United Nations Convention on the Law of the Sea

The Council on Environmental Quality is coordinating the Bush Adminstration’s response to the Commission’s report. The only comment I can appropriately make at this time is that the response surely will heartily endorse the recommendation on U.S. accession to the Law of the Sea Convention!

With that transition, I come full circle to the topic I promised to address at the beginning, our efforts to join the current 145 Parties to the Convention.

As all of you are undoubtedly aware, the United States has accepted and acted in accordance with all the provisions of the Convention since 1983 -- with the exception of Part XI. Informal negotiations to modify Part XI were launched in 1990 during the first Bush Administration and continued into 1994, when the United States both signed the Part XI Agreement and submitted it and the Convention to the Senate.

The Senate Foreign Relations Committee, under the leadership of Senator Richard Lugar, ended years of Committee inattention to the Convention by scheduling hearings last October. At the first hearing, on October 14, a panel of experts on the law of the sea testified, including one of its most indefatigable and persuasive champions, our host John Norton Moore.

At the second hearing, on October 21, a panel of Administration witnesses from the State and Defense Departments and the United States Coast Guard testified in strong support of U.S. accession, as did a second panel of representatives of the oil and gas industry, environmental groups, fisheries organizations, and the shipping industry.

After the October hearings, Bush Administration officials worked closely with Committee staff on the draft Resolution of Advice and Consent. The Committee’s effort was coordinated with great dexterity and patience by Mike Mattler, who is on the next panel. The draft Resolution contains declarations related to dispute settlement fora and subject matter, as specifically called for by the Convention. Other declarations and understandings contain interpretations of the Convention; harmonize terminology in the Convention with U.S. terminology, particularly in the area of marine pollution enforcement; and address procedural and constitutional issues.

The Senate Foreign Relations Committee favorably, and unanimously, reported the Convention to the full Senate on March 11 of this year.

At that point, a small but determined group of treaty opponents emerged, as Mike will explain more fully. As a result of the concerns they raised, other Congressional committees scheduled hearings on the Convention: the Senate Committee on Environment and Public Works, on March 23; the Senate Armed Services Committee, on April 8; and the House International Relations Committee, on May 12.

Administration witnesses appeared at each of these hearings, and continued to express strong support for the Convention. They expressed the view, or rather the conviction, that accession will greatly benefit the United States by affirming and extending our sovereignty over vast resources; by protecting the navigational freedoms that are so essential to our national security; and by verifying the legal framework for protection and preservation of the marine environment that supports vital economic interests.

These witnesses acknowledged that U.S. leadership in oceans policy is gradually being undermined by our status as a non-Party to the Convention, and that the United States cannot rely on indefinite continuation of the status quo. Thus, they emphasized the need for the United States to be "at the table" of the Convention’s institutions, in order to influence and shape future outcomes that will affect our vital economic and security interests, including the delimitation of continental shelves. They have also responded, patiently and persuasively, to a multitude of unfounded and inaccurate assertions about the Convention’s provisions.

The Senate calendar in this election year is both short and crowded. Mike Mattler is in a better position than I to predict the chances for consideration of the Resolution by the full Senate before the end of this session of Congress; but accession, this year, is unquestionably in the best interests of the United States and of oceans policy -- nationally, regionally, and globally. Thank you.

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ⁱThis presentation was prepared for a conference June 24-25 in St. Petersburg, Russian Federation, sponsored by the University of Virginia’s Center for Oceans Law and Policy, the Russian Academy of Liberal Arts Education, and the Russian Law of the Sea Association.

ⁱⁱBurkino Faso and Morocco have recently announced their intent to accede to the Convention in the near future.

ⁱⁱⁱSeveral amendments to the Convention on Safety of Life at Sea will enter into force on 1 July 2004.

^ivInformation about White Water to Blue Water is available at www.ww2bw.org.

^vSee also the Putrajaya Declaration of Regional Cooperation for the Sustainable Development of the Seas of East Asia, 12 December 2003.

^viInformation about Canada’s Oceans Act is available at www.dfait-maeci.gc.ca/sustain/environissu/canocean.

^viiSee www.oceans.gov.au/the_oceans_policy_overview.jsp.

^viiiSee www.oceans.govt.nz/policy and http://icm.noaa.gov/country/portugal/portugal.html.

^ixAuthor’s notes from a pre-conference working group meeting on national oceans policies at the Global Forum on Oceans, Coasts, and Islands, Paris 2003.