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S. Hrg. 108-796

MILITARY IMPLICATIONS OF THE UNITED
NATIONS CONVENTION ON THE LAW OF
THE SEA

Y 4.AR 5/3:S.HRG. 108-796

Military Implications of the Un

HEARING

BEFORE THE

COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 8, 2004

Printed for the use of the Committee on Armed Services

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S. Hrg. 108-796

MILITARY IMPLICATIONS OF THE UNITED
NATIONS CONVENTION ON THE UW OF
THE SEA

Y 4.AR 5/3:S.HRG. 108-796

Military Implications of the Un

HEARING

BEFORE THE

COMMITTEE ON AKMED SERVICES
UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 8, 2004

Printed for the use of the Committee on Armed Services

SUPERINTENDENT OF DOCUMENTS
DEPOSITORY

MAY 0 6 2005

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GOVERNMENT DOCUMENTS DEPT

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COMMITTEE ON ARMED SERVICES

JOHN WARNER,
JOHN McCain, Arizona
JAMES M. INHOFE, Oklahoma
PAT ROBERTS, Kansas
WAYNE ALLARD, Colorado
JEFF SESSIONS, Alabama
SUSAN M. COLLINS, Maine
JOHN ENSIGN, Nevada
JAMES M. TALENT, Missouri
SAXBY CHAMBLISS, Georgia
LINDSEY O. GRAHAM, South Carolina
ELIZABETH DOLE, North Carolina
JOHN CORNYN, Texas

Virginia, Chairman
CARL LEVIN, Michigan
EDWARD M. KENNEDY, Massachusetts
ROBERT C. BYRD, West Virginia
JOSEPH I. LIEBERMAN, Connecticut
JACK REED, Rhode Island
DANIEL K. AKAKA, Hawaii
BILL NELSON, Florida
E. BENJAMIN NELSON, Nebraska
MARK DAYTON, Minnesota
EVAN BAYH, Indiana
HILLARY RODHAM CLINTON, New York
MARK PRYOR, Ai-kansas

Judith A. Ansley, Staff Director
Richard D. DeBobes, Democratic Staff Director

(II)

CONTENTS

CHRONOLOGICAL LIST OF WITNESSES

Military Implications of the United Nations Convention on the Law of

THE Sea

APRIL 8, 2004

Page

Clark, Adm. Vernon E., USN, Chief of Naval Operations 26

Taft, Hon. William H., IV, Legal Advisor, Department of State 31

Kirkpatrick, Hon. Jeane J., Senior Fellow and Director of Foreign and De-
fense Policy Studies, American Enterprise Institute for Public Policy Re-
search 56

Middendorf, Hon. William J., II, Former Secretary of the Navy 69

Moore, Professor John Norton, University of Virginia School of Law 77

Schachte, Rear Adm. William L., Jr., USN (Ret.), Judge Advocate General

Corps 104

(III)

MILITARY IMPLICATIONS OF THE UNITED
NATIONS CONVENTION ON THE LAW OF

THE SEA

THURSDAY, APRIL 8, 2004

U.S. Senate,
Committee on Armed Services,

Washington, DC.

The committee met, pursuant to notice, at 11:19 a.m. in room
SD-106, Dirksen Senate Office Building, Senator John Warner
(chairman) presiding.

Committee members present: Senators Warner, Inhofe, Roberts,
Sessions, Ensign, and Levin.

Committee staff member present: Judith A. Ansley, staff director.

Majority staff members present: Thomas L. MacKenzie, profes-
sional staff member; Lynn F. Rusten, professional staff member;
and Scott W. Stucky, general counsel.

Minority staff members present: Richard D. DeBobes, Democratic
staff director; William G.P. Monahan, minority counsel.

Staff assistants present: Sara R. Mareno, Bridget E. Ward, and
Nicholas W. West.

Committee members' assistants present: Arch Galloway II, as-
sistant to Senator Sessions; and D'Arcy Grisier, assistant to Sen-
ator Ensign.

OPENING STATEMENT OF SENATOR JOHN WARNER,
CHAIRMAN

Chairman Warner. The Senate Armed Services Committee will
now resume its hearing with regard to the United Nations Conven-
tion on the Law of the Sea (UNCLOS) treaty. We met in closed ses-
sion this morning, and just concluded that session to come down
and resume in open session.

We meet today to receive testimony on the military implications
of the UNCLOS. Admiral Vernon E. Clark, Chief of Naval Oper-
ations (CNO), and the Honorable William H. Taft, Legal Advisor,
Department of State, will testify on behalf of the administration on
the first panel of this hearing.

I have had the privilege of working with Mr. Taft for many
years. He is a former Deputy Secretary of Defense and former Am-
bassador to the North Atlantic Treaty Organization (NATO). So
you bring not only the portfolio of a State Department advisor, but
also one who spent many years in the full spectrum of national de-
fense issues.

(1)

The administration witnesses will be followed by Ambassador
Jeane J. Kirkpatrick, former U.S. Ambassador to the United Na-
tions and currently a Senior Fellow and Director of Foreign and
Defense Policy Studies at the American Enterprise Institute. She
will testify on the second panel. We welcome that distinguished
public servant.

Testifying on the third panel of outside witnesses, will be Ambas-
sador William Middendorf, former Secretary of the Navy. We are
privileged to have him here, a colleague and friend of many years.
Professor John Norton Moore, University of Virginia Law School,
another colleague of many years of service together; and Rear Ad-
miral William Schachte, Jr., retired. Thank you for appearing on
the third panel.

I note that two additional witnesses who were invited by the
committee to testify this morning, Mr. Frank Gaffney, President of
the Center for Security and Policy, and Doug Bandow, Senior Fel-
low of the Cato Institute, were unavailable for very good reasons.
We are sorry they could not be here, but if they would like to pro-
vide written statements for the record, those statements will be ad-
mitted.

[The information referred to follows:]

The Law of the Sea Treaty:
Inconsistent With American Interests

Testimony Submitted to the Senate Armed Services Committee

April a, 2004

by Doug Bandow^

More than two decades of negotiation culminated in 1982 when
the Third United Nations Conference on the Law of the Sea
(UNCLOS) approved the Law of the Sea Treaty. The U.S. was not
among the 117 nations (and two other delegations) that penned
their approval of the treaty. American opposition was not
without effect, however: the LOST failed to gain the 60
ratifications necessary to take effect. Even the Soviet Union,
which had proudly proclaimed its solidarity with the developing
nation lobby pushing the treaty, did not formally bind itself.
What iB the LOST?

The genesis of the treaty was President Truman's 194 5
proclamation asserting U.S. jurisdiction over America's
continental shelf, and similar extensions of national control by
other states. The First UNCLOS was opened in 1958; it drafted
conventions dealing with resource jurisdiction and fishing.
UNCLOS II convened in 1960 to take up unresolved fishing and
navigation issues. Soon thereafter the possibility of seabed
mining led the United Nations to declare the seabed to be the
"common heritage of mankind." A Seabed Committee was
established, eventually leading to UNCLOS III, which first met in
1973. Nine years and eleven sessions later a treaty was born.

The LOST, which runs 175 pages and contains 439 articles,
covers seabed mining, navigation, fishing, ocean pollution,
marine research, and economic zones. Much of the treaty is
unobjectionable, or at least unimportant when in error; the
navigation sections are a modest plus. But not so Part 11, as
the Orwellian provisions governing seabed mining are called. So
flawed was this section that it could be fixed only by tearing it
up.

The LOST's fundamental premise is that all unowned resources
on the ocean's floor belong to the people of the world, meaning
the United Nations. The U.N. would assert its control through an
International Seabed Authority, ruled by an Assembly, dominated
by poorer nations, and a Council (originally on which the then-
U.S.S.R. was granted three seats), which would regulate deep
seabed mining and redistribute income from the industrialized
West to developing countries. The Authority's chief subsidiary

^ Doug Bandow is a Senior Fellow at the Cato Institute. While serving as a
Special Assistant to President Ronald Reagan, he was a Deputy Representative to
the Third United Nations Conference on the Law of the Sea. The Cato Institute
receives no government funds.

would be the Enterprise, to mine the seabed, with the coerced
assistance of Western mining concerns, on behalf of the
Authority.

Any extensive international regulatory system would likely
inhibit development, depress productivity, increase costs, and
discourage innovation, thereby wasting much of the benefit to be
gained from mining the oceans. But the byzantine regime created
by the LOST is almost unique in its perversity. Unfortunately,
the amendments made in 1994, which I discuss below, do not change
the essential character of the treaty.

For instance, as originally written, the treaty was
explicitly intended to restrict, not promote, mineral
development. Among the treaty's objectives were "rational
management," "just and stable prices," "orderly and safe
development," and "the protection of developing countries from
the adverse effects" of minerals production. The LOST explicitly
limited mineral production, authorizing commodity agreements
(rather like OPEC) . Further, the treaty placed a moratorium on
the mining of other resources, such as sulphides, until the
Authority adopted rules and regulations- -which could be never.

The process governing mining reflected this anti-production
bias. A firm had to survey two sites and turn one over gratis to
the Enterprise even before applying for a permit, in competition
with the favored Enterprise and developing states. The Authority
could deny an application if the firm would violate the treaty's
antidensity and antimonopoly provisions, aimed at U.S. operators.
And the Authority's decisions in this area were to be set by the
Legal and Technical Commission, the membership of which could be
stacked, and the 36-member Council, which would be dominated by
developing states, making access for American firms dependent
upon the whims of countries that might oppose seabed mining for
economic or political reasons.

Who Would Want to Bid?

Indeed, it is not clear that a firm would have wanted to bid
even if it thought it could win approval. The convention
required that private entrepreneurs transfer their mining
technology to the Authority, for use by the Enterprise and
developing states. The term technology was so ill -defined that
the Authority might be able to claim engineering and technical
skills as well as equipment, yet the treaty imposes no effective
penalties for improper disclosure or misuse of transferred
technology. Miners would also have to pay their overseer, the
Authority, and competitor, the Enterprise: $500,000 to apply, $1
million annually, plus a royalty fee. The sponsoring country
would be responsible if a firm failed to pay; moreover, the
industrialized West would have to provide interest-free loans and
loan guarantees, for which Western taxpayers would be liable in
the event of a default, to the U.N.'s mining operation.

All told, the Enterprise would enjoy free mine site surveys,
transferred technology, and Western subsidies. The Enterprise
also, naturally, would be exempt from Authority taxes and royalty

payments. Also favored are developing states and 105 "land-
locked and geographically disadvantaged" countries.

Even this attenuated right to mine the seabed could have
been dropped at the Review Conference to be held to assess the
LOST 15 years after the commencement of commercial operations if
three-fourths of the member states so decided. The mere
possibility of Third World states effectively confiscating
potentially enormous investments made over more than a decade
would have discouraged potential private entrepreneurs. That, in
turn, would have given the well -pampered Enterprise and likely
state-subsidized firms of developing states a further advantage.

Admittedly, such practical objections might seem of little
import since the promise of seabed mining is far less bright
today than it was when UNCLOS convened, but operations might
still become economically feasible later this century, especially
as technological innovation makes the mining process less
expensive. But even if no manganese nodules are ever likely to
be lifted commercially from the ocean's floor, the LOST remains
unacceptable because of its coercive, collectivist underpinnings.
The New International Economic Order

UNCLOS III was held in a different era, a time when
communism reigned throughout much of the world. Third World
states were proclaiming socialism to offer the true path to
progress and prosperity, and international organizations were
promoting the "New International Economic Order, " or NIBO, to
engineer massive wealth redistribution from the industrialized to
the underdeveloped states. Indeed, much of the LOST,
particularly regarding seabed mining, was dictated by the so-
called Group of 77, the developing states' lobby.

These nations saw the LOST as the leading edge of a campaign
that included treaties covering Antarctica and outer space,
expanded bilateral and multilateral aid programs, and a veritable
gallery of UN alphabet-soup agencies--CTC, ILO, UNCTAD, WHO, and
WIPO. Commented former Maltan U.N. Ambassador Arvid Pardo, who
coined the phrase, "common heritage of mankind," American
acceptance of the sea treaty "however qualified, reluctant, or
defective, would validate the global democratic approach to
decision making."

Economic reality eventually hit many poorer states.
Developing states began to adopt market reforms and the NIEO
disappeared from international discourse, along with any mention
of the LOST.

Although American ratification of the LOST would not be
enough to resurrect the NIEO, it would nevertheless enshrine into
international law some very ugly precedents. One is that the
nation states (not peoples) of the world collectively own "all
the unclaimed wealth of this earth, " in the words of former
Malaysian prime minister Mahathir Min Mohamad. Granting
ownership and control to petty autocracies with no relationship
to the resource and nor any ability to contribute to their
development makes neither moral nor practical sense. The LOST
raises to the status of international law self-indulgent claims

of ownership to be secured through an oligarchy of international
bureaucrats, diplomats, and lawyers. And the treaty's specific
provisions, mandating global redistribution of resources,
creating a monopolistic public mining entity, restricting
competition, and requiring the transfer of technology, reflect
the sort of statist panaceas that were discredited by the
historical wave that swept away Soviet-style communism and lesser
socialist variants around the globe.

Countervailing Benefits?

Some observers acknowledged the treaty's failings, but
nevertheless contended that it had more than enough positive
benefits to warrant signing. However, gains in other areas are
limited at best. Many of the non-seabed provisions are
marginally beneficial, while a number are somewhat harmful.
Sections governing fishing and maritime research, for instance,
make few changes in current law; the boundary- setting process
strips some resources away from the U.S.; the pollution
provisions restrict America's ability to control some emission
sources; and the U.S. might eventually have to share oil revenues
from development of the outer-continental shelf. The treaty's
authorization of 200 -mile exclusive economic zones (EEZs) merely
reflects what has become customary international law.

Perceived as far more important are the navigation
provisions. A number of officials at both the Departments of
State and Defense have argued that the document is vital to
guarantee American naval rights. Yet Washington's refusal to
sign the LOST left critics predicting chaos and combat on the
high seas two decades ago- -since then we have witnessed not one
incident as a result of America's failure to join the LOST.

Nor is the treaty unambiguously favorable to transit rights.
The document introduces some new limitations on navigation
involving the EEZs, territorial seas, and water surrounding
archipelagic states. At other times the LOST's language is
ambiguous- -regarding transit rights for submerged submarines, for
instance- -limiting the value of the treaty guarantee.
International law analyst Gary Knight even argues that "the
difficulty of establishing our legal right to EEZ navigation and
submerged straits passage would be no more difficult under an
existing customary international law argument than under the
convoluted text of the proposed UNCLOS . " In short, there is only
modest theoretical advantage in this area for which to trade away
the mining provisions.

Moreover, any LOST legal protections offer little by way of
real practical gain. Few nations are likely to interfere with
commercial shipping because they have far more to gain
economically from allowing unrestricted passage. Where countries
perceive their vital national interests to be at stake- -Great
Britain in World War I and Iran and Iraq during their war
throughout the 19803- -they are not likely to allow juridical
niceties to stop them from interdicting or destroying
international commerce. Even unambiguous rights under
international law did not protect American vessels and aircraft

when North Korea seized the USS Pueblo and China held the EP-3
surveillance plane. Most coastal nations will make policy based
on perceived national interest more than abstract legal norms.

Indeed, LOST membership has not prevented Brazil, China,
India, Malaysia, North Korea, Pakistan, and others from making
ocean claims deemed excessive by some. In testimony last October
Adm. Mullen warned that the benefits he believed to derive from
treaty ratification did not "suggest that countries' attempts to
restrict navigation will cease once the United States becomes a
party to the Law of the Sea Convention."

As for military transit, with or without the LOST, America
needs to concentrate on maintaining good relations with the
handful of strategically-placed countries. The prowess of the
U.S. Navy, not the LOST, will remain the ultimate guarantor of
America's ability to roam the seas. Of course, even with
friendly states Washington would prefer not "to have to use
muscle to exercise our rights, " observed former LOST negotiator
Elliot Richardson. But the treaty is likely to matter only where
countries have neither the incentive nor the ability to interfere
with U.S. shipping. Moreover, in a world in which the U.S.S.R.
has disappeared, the Red Navy is rusting in port, China has yet
to develop a blue water navy, and Third World conflicts no longer
threaten America through their connection to the Cold War,
Washington is rarely going to have to send its fleet where it is
not wanted.

Another concern is the impact of LOST on the President's
Proliferation Security Initiative. Although treaty advocates
suggest that the LOST would provide an additional forum through
which to advance the PSI, it seems more likely that adherence to
LOST would constrain Washington's ability to intercept weapons
shipments which are problematic, even if legal under
international law, including the treaty. After all, any anti-
proliferation policy treats nations differently based upon a
subjective assessment of the stability and intention of a
particular regime. The LOST makes no such distinctions. At
best, the treaty is ambiguous regarding the seizure of WMD
shipments. Adopting such ambiguity probably does not strengthen
Washington's position.

Further, treaty advocates contend that, whatever the faults
of LOST, only participation in the treaty can prevent future
damaging interpretations, amendments, and tribunal decisions.
However, there is no guarantee that interpretations under the
LOST would not impinge upon U.S. military activities. In his
Senate testimony last fall. State Department legal adviser
William H. Taft IV noted the importance of conditioning
acceptance "upon the understanding that each Party has the
exclusive right to determine which of its activities are
'military activities' and that such determination is not subject
to review." Whether other members will respect that claim is not
so certain. Adm. Michael G. Mullen, the Vice Chief of Naval
Operations, acknowledges the possibility that a LOST tribunal

could assert jurisdiction and rule adversely, impacting
"operational planning and activities, and our security."

Moreover, American friends and allies, both in Asia and
Europe, have an incentive to protect American navigational
freedom. So long as the U.S. maintains good relations with them-
-admittedly a more difficult undertaking because of strains in
the aftermath of the war in Iraq- -it should be able to defend its
interests indirectly through surrogates. If the nations which
most benefit from American navigational freedom are unwilling to
aid the U.S. while Washington is outside the LOST, they are
unlikely to prove any more steadfast if Washington is inside the
LOST.

Collectivism or Chaos?
The final argument on behalf of the LOST is that no matter
how unfavorable it may be for international mining, it is better
than nothing. Without some security of tenure to deep sea mining
sites, it is said, companies will not invest the millions
necessary to begin operations. Certainly firms will not take the
potentially enormous risks of such a new venture if they might
face conflicting claims under a competing treaty and regulatory
regime.

However, most businessmen understand that it makes little
difference whether or not, say, Zimbabwe recognizes their right
to harvest manganese nodules in the Pacific. Indeed, given the
dynamics of seabed mining, it probably doesn't even matter if
other industrialized nations, with firms capable of mining the
ocean floor, recognize one's claim. The seabed's irregular
geography and surplus of nodules make "poaching" uneconomical --it
would make more sense to develop a new site rather than attempt
to overrun someone else's. The dynamics of other resource
development vary to some degree, but in general it would have
been quite simple to build a simple alternative to the LOST.

In 1980 the U.S. passed unilateral legislation, The Deep
Seabed Hard Minerals Act, to provide interim protection for
American miners until implementation of the LOST. The Act could
have been amended to create a permanent process for recording
seabed claims and resolving conflicts. Such legislation could
then have been coordinated with that of the other leading
industrialized states through a formal treaty. No international
bureaucracy was ever necessary.

In the end, a bad treaty is worse than no treaty. Back when
the LOST was a major political issue, the American Mining
Congress observed:

While the best of all worlds would be a comprehensive,
universally acceptable treaty, a treaty such as the current
UNCLOS draft that fails to protect American interests is no
basis for investment. We can easily do without the
"comprehensive" and "universal," but we cannot do without
"acceptable . "

A Window that Should Remain Closed
Despite predictions of doom after the U.S. refused to sign
the treaty, the world moved America's way. As mineral prices

declined, so too did the prospectg of massive mineral harvests
from the seabed. Third World states that had begun planning on
how to spend the windfall they expected to collect through the UN
began to face reality. And as developing countries started
experimenting with market economics, they backed away from the
collectivist NIEO, of which the LOST had been an integral part.
By the early 1990s some Third World diplomats were privately
admitting to U.S. officials that the Reagan administration had
been right to kill the treaty.

But in Washington bad ideas never die. They simply lie
dormant, waiting for a sympathetic bureaucrat or politician to
revive them. Moreover, international treaties attract State
Department negotiators like lights attract moths. Thus, the
Clinton administration decided to "fix" the LOST.

Negotiations followed in 1993 and 1994. After winning a few
changes in the treaty's most burdensome provisions, the State
Department enthusiastically endorsed the agreement. On July 27,
1994 before the UN General Assembly U.S. Ambassador Madeleine
Albright praised the LOST for providing "for the application of
free market principles to the development of the deep seabed" and
establishing "a lean institution that is both flexible, and
efficient. Two days later Washington formally affixed its
signature to the convention, which now sits before the Senate for
ratification.

Although the revised LOST is not as bad as its predecessor,
it would still create a Rube Goldberg system- -with International
Seabed Authority, Enterprise, Council, Assembly, and more- -that
is guaranteed to become yet another multilateral boondoggle. Its
performance so far has been mixed at best: For instance, the ISA
has been on the losing end of fights with the government of
Jamaica when the latter turned off the ISA's air conditioning.
With no seabed mining in the offing, protecting "the emblem, the
official seal and the name" of the ISA, as well as abbreviations
of that name through the use of its initial letters," has been a
matter of some concern to authority officials.

A fully-functioning ISA is likely not only to waste money,
but also to discourage ocean minerals production. Moreover, the
treaty would resurrect the redistributionist lobbying campaign
once conducted by developing states unwilling to deal with the
real causes of their economic failures. Indeed, the LOST would
essentially create a another UN with the purpose of transferring
wealth from industrialized states to the Third World voting
majority.

Of course, treaty proponents all say that the treaty was
"fixed." Actually, that's not the case. For instance, the
treaty still includes an Authority, Enterprise, Assembly,
Council, revenue sharing, international royalties. Western
subsidies for the Enterprise, a Council veto for land-based
minerals producers, and the like. The original statist framework
remains. Even the State Department has acknowledged that the new
"Agreement retains the institutional outlines of Part XI."

The Clinton administration did work hard to turn a
disastrous accord into a merely bad one. But for all of its
emphasis on the individual trees, it left the worst forests
standing. In some places it substituted ambiguity for clearly
negative provisions. The result is an improvement --and a
dramatic testament to the distance that market ideas have
traveled since the LOST was opened for signature in 1982. But
the ISA remains an unnecessary boondoggle, intended only to
hinder seabed development. The Enterprise continues to serve as
an economic white elephant. The financial redistribution clauses
remain a special interest sop to poor states. And the entire
system is likely to end up bloated and politicized, like the UN.

For instance, the treaty retains both the ISA, of
undetermined size, and the Enterprise, an international version
of the ubiquitous state enterprises that have failed so miserably
all over the world. The Authority remains almost comically
complicated, with an Assembly and Council, and such subsidiary
bodies as the Finance Committee and Legal and Technical
Commission, all with their own arcane rules for agendas,
memberships, procedures, and votes. The LOST revisions restrict
some of the ISA's discretion, but still submerge seabed mining in
the bizarre political dynamics of international organizations.
Private firms must continue to survey and provide, gratis, a site
for the Enterprise for each one they wish to mine. Anti -monopoly
and -density provisions would still apply disproportionately to
American mining firms.

ISA fees have been lowered, but companies would continue to
owe a $250,000 application fee and some level of royalties and
profit-sharing. (The "system of payments," intones the
compromise text, shall be "fair both to the contractor and to the
Authority," whatever that means. Fees "shall be within the range
of those prevailing in respect of land-based mining of the same
or similar minerals, " even though seabed production is more
expensive, riskier, and occurs in territory beyond any nation's
jurisdiction. )

The revised LOST establishes a new "economic assistance
fund" to aid land-baaed minerals producers. Surplus funds would
still be distributed "taking into particular consideration the
interests and needs of the developing States and peoples who have
not attained full independence or other self-governing status,"
such as the PLO. Theoretically America could block inappropriate
payments- -at least so long as it was a member of the Finance
Committee- -but over time the U.S. would come under enormous
pressure to be "flexible" and "reasonable."

In fact, redistribution has been an important objective for
the ISA during its short life so far. For example, a proposal
was made for an African institute of the oceans, as if that was
the highest priority for countries suffering from civil war,
economic collapse, and social chaos. Voluntary trust funds have
been established to aid developing countries, though few people
or nations have rushed forward to contribute- -forcing the ISA to
fill the fund coffers.

Even some of the specific "fixes" look inadequate. Consider
the voting system, admittedly a major improvement over that in
the original accord. According to the revised treaty, the U.S.
would be guaranteed a seat on the Council, though still not a
veto. The Council would consist of four chambers, any one of
which could block action if a majority of its members voted no.
On matters of serious interest the U.S. probably could win the
necessary extra two votes in its chamber to form a majority, but
not necessarily. The career foreign service officers likely to
represent most nations, including America, at the ISA would not
want to be forever known as obstructionists. Moreover, this
purely negative veto power does not guarantee that the ISA would
act when required, to approve rules for mining applications, for
instance.

An additional problem occurs because the land-based mineral
producers, whose interest is antagonistic to the very idea of
seabed mining, and "developing States Parties, representing
special interests," such as "geographically disadvantaged"
nations, each have their own chamber, and thus a de facto veto
over the ISA's operations. Moreover, the qualification standards
for miners are to be established by "consensus," essentially
unanimity, which gives land-based producers as much influence as
the U.S. The possession of a veto provides them with an
opportunity to extract potentially expensive concessions- -new
limits on production, for instance- -to let the ISA function.
Unfortunately, once the Authority asserts jurisdiction over
seabed mining, potential producers would be hurt by a deadlock.

Indeed, production controls, one of the most important
controversies in the original text, could recur under the new
agreement. The revision does excise most of Article 151 and
related provisions, which set a convoluted ceiling on seabed
production to protect land-based miners. However, it leaves
intact Article 150, which, among other things, states that the
ISA is to ensure "the protection of developing countries from
adverse effects on their economies or on their export earnings
resulting from a reduction in the price of an affected mineral,
or in the volume of exports of that mineral, to the extent that
such reduction is caused by activities in the area." That
wording would seem to authorize the Authority to impose
production limits. The U.S. might have to rely on its ability to
round up allied votes to block such a proposal in the Council in
perpetuity.

Funding remains a problem as well. The U.S., naturally,
would be expected to provide the largest share of the ISA's
budget, 25 percent to start. How mtuch that would be we don't
know; the budget is to be developed through "consensus" by the
Finance Committee, on which the U.S. is temporarily guaranteed a
seat ("until the Authority has sufficient funds other than
assessed contributions to meet its administrative expenses"), and
approved by the Assembly and Council. Years ago the U.N.
estimated that the ISA could cost between $41 and $53 million
annually, on top of initial building costs of $104 and $225

million. The Clinton adminiatration contended that the new
agreement provided for "reducing the size and costs of the
regime's institutions." How? By adopting a paragraph in the
revised text pledging that "all organs and subsidiary bodies to
be established under the Convention and this Agreement shall be
cost-effective. "

Similarly, states the new accord, the royalty "system should
not be complicated and should not impose major administrative
costs on the Authority or on a contractor." These sentiments
might be genuine. In fact, so far the Authority has been
spending only about $10 million annually. But then, the world's
wealthiest nation is not yet a member, and you can't pluck the
goose until you have it in hand. Moreover, the revised agreement
changed none of the underlying institutional incentives that bias
virtually every international organization, most obviously the UN
itself, towards extravagance.

In fact, concern over bloated budgets was a major factor in
Moscow's initial decision not to endorse the treaty. Russian
Ambassador H.E. Ostrovsky explained to the General Assembly that
though the revisions were "a step forward, " he doubted the new
agreement could achieve its goals. Of particular concern was the
fact that "general guidelines such as necessity to promote cost-
ef f ectiveness can not be seriously regarded as a reliable
disincentive." Even before the treaty had even gone into force.
Ambassador Ostrovsky pointed to "a trend to establish high paying
positions which are not yet required. "

Technology Transfer

Finally, there is technology transfer, one of the most
odious redistributionist clauses from the original convention.
The mandatory requirement has been discarded, replaced by a duty
by sponsoring states to facilitate the acquisition of mining
technology "if the Enterprise or developing States are unable to
obtain" equipment commercially. Yet the Enterprise and
developing States would find themselves unable to purchase
machinery only if they were unwilling to pay the market price or
preserve trade secrets. The new clause might be interpreted to
mean that industrialized states, and private miners, whose
"cooperation" is to be "ensured" by their respective governments,
are therefore responsible for subsidizing the Enterprise's
acquisition of technology. Presumably the U.S. and its allies
could block such a proposal in the Council, but, again, it is
hard to predict the future legislative dynamics and potential
log-rolling in an obscure UN body in upcoming years.

Moreover, the amended agreement leaves intact a separate,
open-ended mandate for coerced collaboration. The Authority,
states Article 144, "shall take measures":

(b) to promote and encourage the transfer to developing
States technology and scientific knowledge so that all
States Parties benefit therefrom.

2. To this end the Authority and States Parties shall
co-operate in promoting the transfer of technology and
scientific knowledge relating to activities in the Area
so that the Enterprise and all States Parties may
benefit therefrom. In particular they shall initiate
and promote:

!a) programmes for the transfer of technology to the
Enterprise and to developing States with regard to
activities in the Area, including, inter alia,
facilitating the access of the Enterprise and of
developing States to the relevant technology, under
fair and reasonable terms and conditions;

(b) measures directed towards the advancement of the
technology of the Enterprise and the domestic
technology of developing States, particularly by
providing opportunities to personnel from the
Enterprise and from developing States for training in
marine science and technology and for their full
participation in activities in the Area.

At best this suggests that Western firms would be expected
to help equip and train their competition. At worst it could end
up authorizing some sort of mandatory system- -one close to that
originally intended by LOST's f ramers . Ambiguous and obscure
grants of power in the service of a highly politicized
organization could turn out to be quite dangerous.

At issue is not just technology useful for seabed mining.
Dual use technologies with military applications might also fall
under ISA requirements. Peter Leitner, a DOD adviser, points to
"underwater mapping and bathymetry systems, reflection and
refraction seismology, magnetic detection technology, optical
imaging, remotely operated vehicles, submersible vehicles, deep
salvage technology, active and passive military acoustic systems,
classified bathymetric and geophysical data, and undersea robots
and manipulators." Acquisition of these and other technologies .
could substantially enhance the undersea military activities of
potential rivals, most notably China, which already has purchased
some mining-capable technologies from U.S. concerns.

The treaty is a solution in search of a problem. A good
international treaty would be useful, but it is not necessary.
And once Washington ratified the treaty, any future renunciation
of the LOST, resulting from misuse or misinterpretation of the
agreement, might not be considered enough to reestablish
Americans' traditional high seas freedoms.
Conclusion

All in all, the LOST remains captive to its collectivist and
redistributionist origins. It is a bad agreement, one that
cannot be fixed without abandoning its philosophical
presupposition that the seabed is the common heritage of the
world's politicians and their agents, the Authority and

Enterprise. The issue is not just abstract philosophical
principle, but very real American interests, including national
security. For these reasons, the Senate should reject the
treaty.

Chairman WARNER. In today's hearing we will examine the na-
tional security implications of the UNCLOS. It is my hope and ex-
pectation that this hearing will provide Members an opportunity to
explore in depth the concerns with this convention relating to the
national security that have been raised by a number of colleagues,
some of whom are on this panel, and further, the committee will
hear the responses to those concerns from the convention's pro-
ponents, primarily in the first panel.

I have a personal longstanding interest in the international
agreements that affect U.S. maritime interests, including the para-

mount principle of freedom of navigation. As Under Secretary and
Secretary of the Navy for 5 years from 1969 to 1974, I participated
in the early international conferences on this subject representing
at that time the Secretary of Defense (SECDEF), three secretaries
I served under, Secretary Laird and two others. I am particularly
interested in the witnesses who will follow.

So I will, at this point, put the balance of my statement in the
record.

[The prepared statement of Senator Warner follows:]

Prepared Statement by Senator John Warner

The committee meets today to receive testimony on the mihtary imphcations of
the UNCLOS. Admiral Vernon E. Clark, USN, Chief of Naval Operations and the
Honorable William H. Taft IV, Legal Adviser, Department of State, will testify on
behalf of the administration on the first panel of this hearing.

Ambassador Jeane J. Kirkpatrick, former U.S. Ambassador to the United Nations
and currently a Senior Fellow and Director of Foreign and Defense Policy Studies
at the American Enterprise Institute, will testify on the second panel.

Testifying on a third panel of outside witnesses will be Ambassador William
Middendorf II, former Secretary of the Navy; Professor John Norton Moore, Univer-
sity of Virginia School of Law, and Rear Admiral William L. Schachte, Jr., USN
(Ret.). Thank you all for appearing before us this morning.

I note that two additional witnesses who were invited by the committee to testify
this morning — Frank Gaffney, President of the Center for Security Policy and Doug
Bandow, Senior Fellow at the CATO Institute — were unavailable. If they would like
to submit written testimony, those statements will be made a part of the record of
this hearing.

The Senate Armed Services Committee traditionally conducts oversight hearings
on the military implications of treaties that could affect the national security. To-
day's hearing continues that tradition.

During these past few months when the Senate has been actively considering the
convention, a debate has arisen regarding whether accession to the convention is in
the U.S. national interest. This convention has imphcations for U.S. interests across
a wide spectrum of issues — national security, commercial, economic, environ-
mental— to name a few.

In today's hearing, we will examine the national security implications of the
UNCLOS. It is my hope and expectation that this hearing will provide Members an
opportunity to explore in depth the concerns with this convention related to national
security that have been raised by critics, and to hear the responses to those con-
cerns from the convention's proponents, first and foremost, the administration's wit-

I have a strong and longstanding interest in international agreements that affect
U.S. maritime interests, including the paramount principle of freedom of navigation.
As Under Secretary and Secretary of the Navy, I participated in the development
of U.S. policy concerning the negotiation of this convention, and served as the U.S.
Negotiator for the U.S. -Soviet Incidents at Sea Agreement of 1972. I will be particu-
larly interested in the views of our witnesses on the impact of this convention on
U.S. military — primarily Navy — operations, and on how the convention might affect
our ability to preserve our freedom of navigation around the world.

Senior administration representatives have conveyed their strong support for this
convention. In a letter I received yesterday. Chairman of the Joint Chiefs of Staff
General Myers stated: "The convention remains a top national security priority. In
today's fast changing world, it ensures the ability of the U.S. Armed Forces to oper-
ate freely across the vast expanse of the world's oceans under the authority of wide-
ly recognized and accepted international law. It supports efforts in the war on ter-
rorism by providing much-needed stability and operational maneuver space, codify-
ing essential navigational and overflight freedoms." According to General Myers,
"TTie niles under which U.S. forces have operated for over 40 years to board and
search ships or to conduct intelligence activities will not be affected." I will place
his letter in its entirety in the record of this hearing.

The view that the UNCLOS will advance the interests of the United States as
a global maritime power and will preserve and advance the right of the U.S. mili-
tary to use the world's oceans to meet national security requirements has been the
view not only of the current administration, but also of the preceding three adminis-
trations, including the Reagan administration.

That said, I take seriously the concerns that have been raised by those who do
not support this convention. I think it important for members to fully consider all
views as the Senate proceeds with its consideration of this treaty. That is why I look
forward to a serious examination, in this hearing, of the impact the convention
would have on military operations.

We have asked our witnesses to provide their testimony on a number of key ques-
tions, including:

• Will the convention advance the interests of the United States as a global
maritime power and preserve and advance the right of the United States
to use the world's oceans to meet U.S. national security requirements?

• Will the convention preserve freedom of navigation for the U.S. Armed
Forces?

• Could the convention impede critical U.S. military or military intelligence
activities?

• What are the convention's implications, if any, for the Administration's
Proliferation Security Initiative?

• Will military and military intelligence activities be excepted from the con-
vention's dispute settlement mechanisms as a matter of U.S. policy?

We had an opportunity earlier this morning to address some of these issues in
closed session. To the extent permissible, I would ask our witnesses to discuss these
matters in the open hearing as well, since important questions have been raised as
to whether the convention would prohibit or adversely impact the conduct of certain
activities critical to the U.S. national security.

We welcome our witnesses this morning and look forward to their testimony.

Senator Levin.

Chairman Warner. Senator Levin, do you have an opening
statement?

STATEMENT OF SENATOR CARL LEVIN

Senator Levin. I do. Thank you very much, Mr. Chairman. I first
want to join you in welcoming Admiral Clark and Mr. Taft here
today. I look forward to hearing their views and the views of our
other witnesses on the security implications of the 1982 UNCLOS.

I want to first commend you, Mr. Chairman, for deciding to hold
this hearing so that the concerns about the implications of the
UNCLOS on our security can be addressed. I know that Senator
Warner has made every effort to ensure that the national security
views of both supporters and critics of the convention are rep-
resented here this morning.

As far as the convention's central provisions are concerned, those
relating to freedom of navigation and overflight and other tradi-
tional uses of the oceans, our military forces have operated in ac-
cordance with these provisions for over 21 years. President Rea-
gan's 1983 Oceans Policy Staterrient established the U.S. policy,
which is still in effect today, that the U.S. would accept and act
consistent with these central provisions of the convention.

Today our Armed Forces are being asked to meet operational
challenges that demand a higher level of mobility than at any time
in recent history. Operation Enduring Freedom (OEF) in Afghani-
stan, Operation Iraqi Freedom (OIF), as well as other deployments,
create operational requirements from our shores. In addition, the
Department of Defense's global posture review involving the re-
structuring of the deployment of U.S. forces around the globe over
the coming months and years is likely to add to our military's need
for mobility.

Admiral Clark, I look forward to receiving your assessment of
whether U.S. accession to this convention will advance the ability
of our Armed Forces to meet operational challenges, including the

war on terrorism, in the years ahead. I am also interested in hear-
ing today about any concerns that the Navy might have should the
United States become a party to the convention.

Concerns have also been raised by some that accession by us to
the convention would have negative implications for another front
in the war on terrorism, the U.S. -led Proliferation Security Initia-
tive (PSI). That initiative seeks to build international cooperation
in interdicting the flow of weapons of mass destruction, their deliv-
ery systems, and related materials worldwide, whether by sea, in
the air, or on land. I expect that in the course of today's hearing
our witnesses, in particular Mr. Taft, will clarify what effect, if
any, our becoming party to the convention would have on the abil-
ity of the United States and its PSI partners to conduct operations
consistent with the PSI Statement of Interdiction Principles which
was agreed to in September of last year.

I also understand that concerns have been raised that some par-
ties to the convention might seek to use the convention's provisions
on settlement of disputes between states parties to limit or inter-
fere with U.S. military activities. I invite our witnesses to address
these concerns, to explain what protections are available to limit
the jurisdiction of the convention's dispute settlement mechanism,
in particular the ability of a party to opt out of those dispute settle-
ment procedures with regard to military activities and other speci-
fied categories of disputes. Finally, I want to emphasize how impor-
tant I believe it is that the President seize this opportunity to dem-
onstrate leadership in the development of the law of the sea. If we
do not accede to this convention, which is already in force for so
many other nations, we are out in the cold, voiceless in the imple-
mentation and possible modification of the convention. Too often, I
believe, in the past the administration has missed opportunities to
advance our interests through multilateral cooperation. In support-
ing the UNCLOS, the United States has the chance to advance
U.S. national security interests, to assume a prominent role in im-
plementing the convention commensurate with our status as the
world's largest maritime power, and to enhance our ability to work
with other states to influence the direction of maritime law for the
future.

I join you also, Mr. Chairman, in welcoming not just our two wit-
nesses on this panel, but the additional witnesses who will appear
on our subsequent panels. We appreciate very much their willing-
ness to come before us this morning.

Chairman Warner. Thank you very much, Senator Levin.

As I mentioned, within our own ranks here on the committee
there is a variance of viewpoints and I would like now to recognize
our distinguished colleague, Mr. Inhofe, for purposes of making an
opening statement.

Senator Inhofe. It will be very brief, Mr. Chairman.

We had a hearing before the committee that I chair, the Environ-
ment and Public Works Committee, and we got into a lot of these
issues that really should be discussed before this committee, and
that is why I appreciate very much your having this hearing. How-
ever, there are other issues and ramifications, such as environ-
mental ramifications, to this proposed treaty that we were able to
talk about.

I think, Mr. Chairman, you said that Doug Bandow's statement
is going to be a part of the record. I have just been given that
statement. He makes some excellent points and I think it is a good
idea to have that as a part of it.

I think this is very significant. I think there is a diverse feeling
as to what we are giving up, the fact that we are giving up some
of our sovereignty, that the treaty covers between two-thirds and
three-fourths of the entire Earth's surface, that a multinational op-
eration would be gaining these powers, and for each power they
gain in my opinion, my narrow view perhaps, that is some degree
of sovereignty that we are giving up.

I am concerned about the open-ended compulsory arbitration pro-
cedures. It is my understanding we had a choice of some three, in-
cluding international court or tribunals, and this is the one that is
being proposed by the administration. However, I am concerned
that we are dealing with 145 states or countries and we do not
know which ones they will choose.

The revenue and technology sharing is something that is a deep
concern to me and we want to proceed to talk about those. Does
the resolution declaration really protect us in the treaty? Should
we amend the text?

Then something that Senator Levin just said about the opt-out
idea, I have some thoughts on that and some questions I wanted
to ask our witnesses.

So I do have concerns and I am hoping that these three panels
will answer the concerns that I have as well as other members of
this committee. Thank you, Mr. Chairman.

Chairman Warner. Thank you, Senator. I think that under your
leadership of the Committee on Environment and Public Works, of
which I am privileged to be a member, that record was of equal im-
portance to what we will be compiling here today. So we will have
had three committees of the Senate thus far review this matter,
and I do not know whether the distinguished chairman of the Intel-
ligence Committee has under review a possible additional hearing.

I recognize the chairman of the Intelligence Committee.

Senator Roberts. Mr. Chairman, thank you for holding this
hearing, and I thank my colleagues for their comments and I thank
the witnesses.

I am not sure as to whether or not we will have a hearing in the
Intelligence Committee, but I think after listening to the closed tes-
timony and the concern of some of my colleagues, that that would
be well in order. I do not mean to be obstructionist by any means,
and I think that that could be done in an expedited fashion.

I know that there has been considerable commentary by the wit-
nesses and the supporters of the treaty that we are able to basi-
cally eliminate military activities from the reach of the treaty and
that we define intelligence-gathering as military activity and so our
activities would not be hindered. As a matter of fact, some of the
witnesses said that they would be helped by the treaty.

However, in taking a hard look at this — and I am not an attor-
ney and I am certainly not an international attorney — it seems to
me that the tribunal has very explicit rights in its text and I worry
about that, more especially with the way things are in the world
today and the global war against terrorism.

The other thing that I am concerned about is whether it serves
the Senate's treaty-making interest. We do not even create a single
reporting requirement by the executive branch to the appropriators
or the authorizers, only a duty of consultation with regard to the
Senate Foreign Relations Committee. I have eminent respect for
that committee and the leadership of that committee, but there is
no other committee involved, and I am not sure that the resolution
would even be binding on the President as drafted.

So there are some things that I am concerned about. I do not
know whether the administration would object to taking a look at
some of these concerns and possible edits to the resolution as ap-
proved by the Senate Foreign Relations Committee.

With that, Mr. Chairman, let me say thank you again for holding
the hearing, and I think that there will be a fourth committee in-
volvement. I am not sure we have any witnesses from the Intel-
ligence Community. Obviously, Admiral Clark does speak with
great authority in that respect and I understand that. But it would
be helpful to me more especially to have people in the Intelligence
Community in charge of special activities allay any concerns that
I might have, and I think that that view is shared by at least some
on the Intelligence Committee.

So I thank you for the opportunity to make these comments and
in the interest of time I will yield back.

Chairman Warner. Thank you very much, Senator. I would only,
as a member of your committee — I think you probably should take
a very close look at it, because this has significant ramifications as
it relates to our national security. I am relying primarily on the as-
surances by the Chairman of the Joint Chiefs, and I will put into
the record at this time his letter strongly endorsing the treaty.

[The information referred to follows:!

CHAIRMAN OF THE JOINT CHIEFS OF STAFF

WASHINGTON, D.C. 20318-9999

7 April 2004

The Honorable John W. Warner
Chairman, Committee on Armed

Services
United States Senate
Washington. D.C. 20510-6050

Dear Mr. Chairman.

The testimony of the Chief of Naval Operations, Admiral Vem Clark, to the
Senate Armed Services Committee regarding the Law of the Sea ConvenUon (LOSC)
reflects the views of the combatant commanders and the Joint Chiefs. We strongly
support US accession to LOSC.

The Convention remains a top national security priority. In today's fast
changing world, it ensures the ability of the US Armed Forces to operate freely across
the vast expanse of the world's oceans under the authority of widely recognized and
accepted international law. It supports efforts in the War on Terrorism by providing
much-needed stability and operational maneuver space, codifying essential
navigational and overflight freedoms.

The rules under which US forces have operated for over 40 years to board and
search ships or to conduct Intelligence activities will not be affected. The LOSC does
not require permission from the United Nations to conduct these searches and leaves
US intelligence activities unaffected. Moreover, the Proliferation Security Initiative Is
designed to be consistent with international law and frameworks. Including the LOSC.
While the Administration previously raised a concern regarding dispute resolution,
that has been satisfactorily addressed by the proposed Resolution on Advice and
Consent. Accession will provide continued US leadership in the development and
interpretation of the Law of the Sea and ensure changes are compatible with future
military initiatives.

I appreciate your continued strong support of the LOSC and the US Armed
Forces.

Sincerely,

RICHARD B( MYEf
Chairman
of the Joint Chiefs of Staff

Chairman Warner. Also a letter signed by all — and I repeat,
all — State Department legal advisors, eight of them, going back to
the Reagan administration, representing unequivocal support for
this treaty.

[The information referred to follows:]

April 7, 2004

The Honorable John W. Warner
Chairman, Committee on Armed Services
United States Senate

Russell Senate Office Building, Room 228
Washington, D.C.

Re: LOS Convention

Dear Mr. Chairman:

The undersigned comprise all the living, former Legal Advisers to the United States
Department of State. We served as general counsel to various Secretaries of State in the
Administrations of Presidents Carter, Reagan, George H.W. Bush and Clinton. We are
unanimous in oiu' view that it is in the best interests of the United States that the Senate, at its
earliest opportunity, grant its advice and consent to United States accession to the 1982 United
Nations Convention on the Law of the Sea (the "LOS Convention") and to United States
ratification of the 1994 Implementing Agreement that modifies Part XI of the LOS Convention
(the "1994 Implementing Agreement").

We write at this moment because of certain objections that have been raised, in spite of
the support of the Bush Administration and in spite of the unanimous approval of the LOS
Convention and the 1994 Implementing Agreement in the Senate Foreign Relations Committee
that was accompanied by a proposed resolution of advice and consent. This letter will not recite
the many well-known advantages of the LOS Convention to the national security, economic and
other interests of the United States, but rather will briefly address what we understand are
residual concerns of certain members of the Senate.

First, the Reagan Administration's objection to the LOS Convention, as expressed in
1982 and 1983, was limited to the deep seabed mining regime. The 1994 Implementing
Agreement that revised this regime, in our opinion, satisfactorily resolved that objection and has
binding legal effect in its modification of the LOS Convention.

Second, President Reagan, while rejecting the deep seabed mining regime as then
conceived, pronounced it United States policy in 1983 to abide by the LOS Convention
provisions dealing with traditional uses of the oceans. All Administrations since then have,
without exception, continued this pohcy. In order to gain unquestioned international acceptance
of this United States f)olicy, it is time, in our view, for the United States to take its place, and to
assert its influence and leadership, under a Convention to which there are now 145 States Parties,
including all other major industrial and maritime nations.

Third, the LOS Convention does not award any decision-making authority on any issue to
the United Nations. The fact tliat the term "United Nations" appears in the title of the LOS
Convention is legally meaningless and is an accident of history. The LOS Convention is a
multilateral agreement that governs the legal relations among the States Parties. It creates three
bodies, the International Seabed Authority, the Law of the Sea Tribunal and the Commission on
the Limits of the Continental Shelf All three are funded and organized by the States Parties to

the LOS Convention and not by the United Nations. Any monies that may uhimately flow to the
Interaatioaal Seabed Authority are under the control of the States Parties, not of the United
Nations. Because the Finance Committee of the International Seabed Authority, under the terms
of the amended LOS Convention, operates by consensus, the United States, once a State Party,
will participate m all financial and administrative decisions, which the Authority cannot take
over an objection from the United States. In addition, the United States will have a permanent
seat on the governing Council of the International Seabed Authority, where consensus is required
for the approval of all regulations, including those dealing with financial matters.

Fourth, the United States will not submit to the jurisdiction of the International Tribunal
of the Law of the Sea or the International Court of Justice in the settlement of any non-deep
seabed mining disputes arising under the LOS Convention. In addition, the United States will
opt out of all mandatory dispute settlement procedures with respect to military (which includes
intelligence) activities and certain law enforcement and international boundary matters.
Furthermore, the United States will make it clear in an understanding attached to its accession
that it will be the sole judge as to what constitutes "mihlary activities." Thus, in no way will the
LOS Convention award any control over United States military activities to any international
bureaucracy or court.

We are pleased to express our unreserved support for prompt affirmative action by the
Senate in approving adherence by the United States to this important international Convention.

Honorable Roberts B. Owen
Legal Adviser

Honorable Davis 1
Legal Adviser

Honorable Abraham D. Sofaer ^

Legal Adviser

1985-1990

Respectfully,

Honorable Edwin D. Wilhamson
Legal Adviser

Honorable Conrad K. Harper'
Legal Adviser

"Honorable David R. Andrews
Legal Adviser

Honorable Michael J. Matheson
Former Acting Legal Adviser
(on a number of occasions)

'f-

-&;

P.S. Davis Robinson has signed this letter on behalf of all those listed. Please direct any
inquiries to him at (202) 986-8049 or at drrobins@llgm.com.

Chairman WARNER. A letter from the Navy League in support of
the convention.

[The information referred to follows:]

( LEW.

Navy League

vftbc United States

Law of the Sea Convention
April 2004

Dear Senator:

The sea sen-ices of our nation must maintain their leading role in shaping global rules
and policies tliat affect our freedom of navigation and maritime mobilitv, two essential
elements of U.S. naval power. That is why it is now time for Congress to ratify the Law
of the Sea Convention and thereby strengthen our national security. The Convention
codilles access and transit rights for our ships and enhances the nation's prosecution of
the global war on teiTorism.

Our nation has much to gain and nothing to lose by becoming a part\- to the Convention.
v\liich is a comprehensi^ c iniemational legal framework governing the world's oceans.
The United States should now join 145 nations that use the Convention as a means to
assure access to the oceans. In November, tlie Convention will be opened for amendment.
As a party to the Convention, the United Slates would liave a major role in shaping
changes to come.

The Law of the Sea Convention is a complex document that touches on a wide range of
U.S. maritime concerns. Since it was finalized in 1982. a primary U.S. interest in the
Convention has been to presej-ve essential navigational freedoms and thereby enliance the
mobility of U.S. naval power. That is why even.- chief of naval operations (CNO), the
Joint Chiefs of Staff and the Depanment of Defense have consistently and strongly
supported LJ.S. ratification.

Our current CNO. .A.dra. Vem Clark, said in a Marcli 18 letter to Sen. Richard G. Lugar.
R-Ind.. chaimian of the Senate Committee on Foreign Relations, that accession to the
Convention will support "our ability to operate around the globe, anviime. anywhere,
allowing the Navy to project power where and when needed."

The Convention guarantees, for example, that ships and aircratt may transit su-aits that
otherwise may have been closed by the territorial claims of nearby states. More titan 135
straits are affected, including the Strait of Homiuz. entnway to the Persian Gulf, and the
Strait of Malacca, the main sea route between the Indian and Pacific oceans.

In fact, the United States" interest as a global naval power was behind its iniiial
participation in talks on the Convention as the United Nations conducted negotiations
from 1973 to 1982. Our policy makers were concerned that transit and access rights of
U.S. warships could be restricted by the rising number of claims I'rom other nations over
territorial seas, tlshing zones and offshore high seas areas. Today, .Adm. Clark wants the
United States to join because, he said, "the Law of the Sea Convention helps assure
access to tiie largest maneuver space on the planet — the sea - under authority of w idely
recognized and accepted law and not the threat of force,"'

Much of oiir governmenl"s initial delay in ratification was linked to objections by many
industrialized countries to sections related to deep seabed mining. However, changes to
the Convention in 1994 remedied each of the U.S. objections.

Despiie its advantages, the Law of the Sea Convention remains conti-ONcrsial because of
widespread — and erroneous — beliefs that it would adxersely affect U.S. soxereignty.
inhibit our intelligence-gathering activities or hamper the U.S. Proliferation Security
Initiative (PSl) through which our forces seek to interdict shipments of weapons of mass
destruction.

Critics point to the hiternational Tribunal for the Law of tlie Sea, created to settle
disputes, as a thi'eat to LLS. sovereignty. However, parties to the Convention are free to
agree on an>' method of dispute settlement they desire - and the U.S. will not select the
Tribunal.

Fears tliat ratification would diminish our collection of intelligence are linked to a section
of the Convention containing a list of activities that would deprive a vessel of the right of
innocent passage tlirough territorial seas. Tliese activities include the collection of certain
types of information and the requirement that submarines navigate on the surface.
However, such activity is not a violation of the Convention. Intelligence-gathering
activities are not prohibited nor adversely affected by the Convention.

The Bush Administration's PSI — potentially a major weapon in the global war on
terrorism — seeks the suppoil of all nations in intemalional efforts to board and search
vessels suspected of transporting weapons of mass destruction. .\dm. Michael G. Mullen,
vice chief of naval operations, told Lugar's committee that being party to the Con\-ention
"would greatly strengthen" the Navy's ability to support the PSI by reinforcing freedom
of navigation rights on which the sen.'ice depends for its operational mobility.

We learned in Iraq that e\en allies sometimes would block access to key battle areas. Our
freedom of navigation cannot be contingent on the approval of nations along global sea
lanes. A legal regimen for the world's oceans will help guarantee worldwide mobility for
our military.

The Law of tlie Sea Convention is good for our sea services. It strengthens our country.
The lime for ratification is at hand.

Sincerely.

Sheila M. McNeill
National President

2300 Wilson Boulevafd • Arlington. VA 22201 • 703-528-1775 ♦ 703-52S-2333 Fit • www nav> league org
Navy • Marine Corps * Coast Guard • U S.-Flag Merchant Marine

Chairman WARNER. Also, Mr. Taft, there is a letter that you for-
warded early on to the committee, which I am certain you will
cover in your testimony today, but I will put it in the record in any
event.

[The information referred to follows:!

The Legal Adviser
department of state

WASHINGTON

April 6, 2004

Dear Senator Warner:

During recent briefings of Senate staff by officials from the
Department of State, the Department of Defense, and other relevant
agencies on the Law of the Sea Convention, the question was raised
whether the Convention would prohibit or otherwise adversely affect U.S.
intelligence activities. I would like to take this opportunity to respond to
that question. I have coordinated this response with the Department of
Defense and those other relevant agencies.

U.S. accession to the Convention would support ongoing U.S.
military operations, including the continued prosecution of the war on
terrorism. The Convention reinforces our military's ability to move -
without hindrance and under authority of law - forces, weapons, and
materiel to the fight, which is critical to our accomplishing national
security objectives. The Convention does not prohibit U.S. intelligence
activities; nor would we recognize any restrictions on those activities.

Since President Reagan's 1983 Ocean Policy Statement, the United
States has conducted its activities consistent with the non-deep seabed
provisions of the Convention. Further, the Convention's "innocent
passage" provisions are actually more favorable to U.S. military and
navigational interests than those in the 1958 Convention on the Territorial
Sea and the Contiguous Zone, to which the United States is a party. Not

The Honorable
John Wamer,
Chairman,

Committee on Armed Services,
United States Senate.

only IS the Convention's list of non-innocent activities an exhaustive one
but It generally uses objective, rather than subjective, criteria in the listing
of acfc vibes. ^

Sincerely,

William H. Taft, IV

cc: Sen. Carl Levin

Sen. Richard G. Lugar
Sen. Joseph R. Biden
Sen. Pat Roberts
Sen. John D. Rockefeller, FV
Sen. James M. Inhofe
Sen. James M. Jeffords
Congressman Porter J. Goss
Congresswoman Jane Harman

Chairman WARNER. Are there other members of the committee
who desire to make a brief opening statement?

Senator Sessions.

Senator SESSIONS. Just briefly, Mr. Chairman. Thank you for
having the hearing and I hope that Senator Roberts would consider
looking more at the intelligence side of this and the implications
of it.

The Wall Street Journal certainly is not a nativist institution or
organization. They believe in trade and commerce and progress
throughout the world. They strongly condemned this treaty, said
that it would subject our oceans to an "U.N. bureaucracy," I believe
was the word. I know that the Navy has said, contrary to the char-
acterizations, that this is not a highly politicized bureaucracy, nor
would it be disposed to act against United States interests. But
when these things become intense and there is an interest here,
many of the nations that appear on the panels that might be decid-
ing these questions have no interest whatsoever in the actual dis-
pute, but they will use that for leverage or other political reasons.

So I think we ought to take oui^ time here a bit and look at it
carefully before we take a lot of our taxpayers' money and send it
off to a bureaucracy that I am not sure we can rely on.

Chairman Warner. Senator Ensign, you participated very ac-
tively in the closed session and we thank you for your continued
presence, and I hope you press some of the same questions that you
did in the closed session because I think there can be some re-
sponses in open that would be helpful.

Senator ENSIGN. Thank you, Mr. Chairman.

Just very briefly, the concerns that I want to hear from the wit-
nesses basically has to do with — I realize that we do not have to
approve any amendments, but as we have seen, just like with our
laws, you do not have to necessarily amend something to change
it. Rulings from tribunals, rulings from — we see this within the
United Nations. A lot of the rulings go against us. Especially in to-

day's world, those rulings seem to be going against us more and
more and more. Subjecting ourselves to another international insti-
tution— I think that we need to proceed cautiously and think of all
of the ramifications, not only from a military standpoint, which this
committee has jurisdiction on, but obviously from a diplomatic
standpoint and from an economic standpoint.

So I am looking forward to hearing and engaging in some cross-
examination of some of our witnesses. Thank you, Mr. Chairman.

Chairman Warner. I thank you.

We will now proceed. I just indicate I think in fairness that, hav-
ing had some experience years back — at that time I was not in
favor of the treaty — today I am of an open mind. I should say I am
persuaded to support the treaty largely at the moment as a con-
sequence of the testimony of yourself, the Chairman of the Joint
Chiefs, and others, because I believe you are going to be able to
allay, to my satisfaction, any concerns that I had some years ago.

So with that, I will open up now and invite the distinguished
Chief of Naval Operations to address these issues before the com-
mittee. You are most welcome. Admiral.

STATEMENT OF ADM. VERNON E. CLARK, USN, CHIEF OF
NAVAL OPERATIONS

Admiral Clark. Thank you. Chairman Warner and Senator
Levin and other distinguished members of the committee.

Chairman Warner. Let me interrupt to say that your entire
statement will be admitted to the record, as well as the entire
statement of the other panel members.

Admiral Clark. Thank you very much. I have a much briefer
statement to make this morning.

I get to appear before this committee many times, but never on
a subject like this, usually talking about the condition and state of
the Navy. But every time I do come up here, I talk to you about
the fact that our Navy is built to take credible, persistent, combat
power to the far corners of the Earth, and then I insert the phrase
"the sovereignty of the United States of America, to provide options
for our Commander in Chief anywhere, any time, around the world,
around the clock," and I always like to add, "without a permission
slip."

I just want to say this morning that our ability to operate freely
across this vast domain called the world's oceans — and as was said
by Senator Inhofe, we are talking about a major piece of the
Earth's surface here but to be able to operate there in peace and
war is very, very important to us. So I am keenly interested in any-
thing that could call into question our ability to exploit this free-
dom, not just for our Navy but for the Nation as well.

I am here, Mr. Chairman, to say that I fully support ratification
of the UNCLOS because in my mind it first defines and then pre-
serves our navigational freedoms, the freedoms to use international
straits and archipelagos, the exclusive economic zones, and the
high seas. It also provides the operational maneuver space that I
need for my Navy to conduct peaceful operations at sea, but also
combat operations. I also believe it is very important because it
puts the United States of America where it should be, and that is

in a position of leadership to protect these vital freedoms and to
shape the future direction of the treaty.

Now, why else would ratification be important to me? Well, the
real issue for me is people. As the CNO, I have the privilege and
I am entrusted with the task and responsibility to lead the sons
and daughters of America who have chosen to wear the cloth of the
Nation. Twenty-four/seven, 365 days a year, our sailors are operat-
ing at the tip of the spear. A third of our fleet is forward deployed
this morning. Sometimes we must place them in harm's way to do
our country's business, and they go willingly.

For many years now, we have remained outside the convention.
We have asked our young men and women to conduct freedom of
navigation operations. Mr. Taft speaks to them in his written testi-
mony. He speaks to bumping operations in the Black Sea. As a
commanding officer, I have had unfortunately the privilege of con-
ducting those kind of operations at too close of quarters.

What that means to me is that these kind of operations, because
these are what we are left with when we do not have agreements
with other Nations, sometimes put us at great risk when challeng-
ing the excessive maritime claims other states may make, to pre-
vent those claims from becoming customary international law.

Mr. Chairman, in my view we need a better venue. We do not
need to do that as much as we have had to do it in the past. As
the Chief of the Navy, I am looking for every possible guarantee
that I can find to ensure our sailors' safety and to keep them from
needlessly going into harm's way. That is why I believe we need
to join the UNCLOS, so that our people know when they are oper-
ating in the defense of this Nation far from our shores that they
have the backing and the authority of widely-recognized and ac-
cepted law to look to, rather than depending only upon the threat
or the use of force or customary international law that can be too
easily changed.

Finally, entry into the convention will support in my view our
necessary leadership role in maritime matters. We are an island
nation. This will position us to initiate and influence future devel-
opments in the Law of the Sea. Ratification puts us on the inside
of the discussion, when it occurs, to ensure that the Law of the Sea
continues to protect our people and our maritime interests, to pre-
vent excessive claims that attempt to restrict our access, and my
ability to operate anywhere I need to go operate, and to preserve
the critical navigational freedoms and freedom of the seas essential
to the national security.

That is right where I think we want to be, in a position of leader-
ship to preserve the key navigation provisions in the convention
and, if necessary, shape them for the future.

Now, Mr. Chairman, let me just add that the Navy has been
studying this convention for over 25 years. As you indicated, you
were part of it. There are those who oppose the convention that
suggest that maybe the Navy has not looked at this closely enough.
Well, I wonder if they say that in jest. The fact is that every CNO
since 1982 has had occasion to look at this very carefully for the
reasons that I said, because the stakes are high for our people.

I just want to be on record saying that we would never rec-
ommend a treaty that would require us to get a permission slip

from anyone to conduct operations or restrict our intelligence ac-
tivities around the world, because we know that those kind of free-
doms are essential to what we have to do to be successful in our
mission.

For these reasons, Mr. Chairman, I strongly support the
UNCLOS, as many of my predecessors have done, and I look for-
ward to your questions, sir.

[The prepared statement of Admiral Clark follows:]

Prepared Statement by Adm. Vernon E. Clark, USN

Chairman Warner, Senator Levin, members of the committee on Armed Services,
good morning. Thank you for the opportunity to testify today in support of the
UNCLOS.

I have been before this committee many times to talk to you about your Navy.
At nearly every one of these opportunities, I've said that your Navy is built to take
persistent, credible combat power to the far comers of the Earth, extending the in-
fluence of the United States of America as may be necessary, anywhere and at any-
time we choose to do so. It is our ability to operate freely across the vast expanse
of the world's oceans that makes this combat power possible.

The Advantage of Sea Power 21

> Exploits U.S. asymmetric strengths

^^Information superiority
v^Mobllity, reach and speed

> Fully leverages the vast domain of the sea

.Law jof tlie Sea. Of 0S0r

::Q:yiT::O0ll0fi;^

In my view, the UNCLOS supports our ability to operate in this manner under
the authority of widely recognized and accepted law. For that reason, I strongly sup-
port the UNCLOS as many of my predecessors did.

I: PROJECTING DECISIVE JOINT POWER ACROSS THE GLOBE

Today's military operations — from OEF to OIF to the global war on terrorism
(GWOT) — place a premium on our strategic mobility and operational maneuver.
U.S. Forces are forward deployed worldwide to deter threats to our national security
and can surge to respond rapidly to protect U.S. interests, either as part of a coali-
tion or, if necessary, acting independently.

In addition to OEF and OIF, our ships and aircraft have been and are deployed
overseas to interdict terrorists across the globe. They have also been deployed to the

Pacific and Indian Oceans to ensure security in vital sea lines of communication in
Southeast Asia, and are conducting operations in the waters off Central and South
America to interdict the flow of illicit drug traffic from that region.

We are also laying the groundwork for further implementation of the President's
PSI. The international partners assembled as part of the President's initiative are
all parties to the UNCLOS. In fact, the PSI is intended to be consistent with inter-
national law and frameworks. This includes relevant provisions of the UNCLOS. I
am convinced our work with these partners will help disrupt the fiow of weapons
of mass destruction, their delivery systems, and related materials throughout the
world.

As we look to the future, Sea Power 21 will provide sea basing from which to
project joint forces and joint fires. It will provide joint logistics and project defensive
power in an environment where access to land bases is denied by foreign govern-
ments or put increasingly at risk by asymmetric threats. These capabilities are im-
portant to us because they will result in a leaner footprint for joint forces ashore
and will minimize the vulnerabilities tied to foreign bases and access rights. The
convention will help preserve our ability to provide these capabilities wherever and
whenever needed well into the future.

II: PRESERVING OUR FREEDOMS

The basic tenets of the UNCLOS are clear. It codifies the right to transit through
essential international straits and archipelagic waters. It reaffirms the sovereign
immunity of our warships and other public vessels. It provides a fi^amework to
counter excessive claims of states that seek illegally to expand their maritime juris-
diction and restrict the movement of vessels of other States in international and
other waters. It preserves our right to conduct military activities and operations in
exclusive economic zones without the need for permission or prior notice.

Law of the Sea Benefits

> [Guarantees] PreliiJi^esbpf freedom pf ^ r ^

navigation

ist-v, JK^",-. *r- i. -V *, 4'- ,- =^^ . -w- V *"> ♦--., ^'j

^ Help% jpoujiter eXQi|^y€ fei^tlpje^^lafrns i v
;^ Preserves oiir ops atfffJihiBJWg^nce^ac^

. ►- r- I; ;' -» . •- ■■ r .■ V f ^ « i^ .; !r ■*. r '?. k -^ ■ ^ :- > •- ■ -' " '" '- - ■ ^ >

> Positiohs us to mflupnce future devetopment^

Most importantly, the entry into force of the UNCLOS for the United States will
support both the worldwide mobility of our forces and our traditional leadership role
in maritime matters. The customary international law we've relied upon for our
navigation freedoms is under challenge, and in some respects so is the UNCLOS
itself Our participation in the convention will better position us to initiate and in-
fluence future developments in the law of sea.

I know this committee is concerned about whether the UNCLOS prohibits our
naval operations, including the boarding and search of ships and our maritime intel-

ligence activities. It does not. The convention's rules in this regard do not change
the rules the Navy has operated under for over 40 years under the predecessor 1958
treaties to which the United States is a party, governing the territorial sea and high
seas. We would not, for example, need permission from the United Nations to board
and search ships. Likewise, the convention does not prohibit our intelligence collec-
tion activities.

Last year, before the Senate Foreign Relations Committee, administration officials
expressed their serious concerns about whether the convention's dispute resolution
process could possibly affect U.S. military activities. A review was conducted within
the executive branch on whether a Law of the Sea tribunal could question whether
U.S. activities are indeed "military" for purposes of the convention's military activi-
ties exception clause. Based on the administration's internal review, it is clear that
whether an activity is "military" is for each State party to determine for itself. The
declaration contained in the current Resolution of Ratification, stating the U.S. un-
derstanding that each party has the exclusive right to determine which of its activi-
ties are "military activities" and that such determinations are not subject to review,
has appropriately addressed this issue.

Mr. Chairman, since 1983, the Navy has conducted its activities in accordance
with President Reagan's Oceans Policy statement to operate consistent with the con-
vention's provisions on navigational freedoms. If the U.S. becomes a party to the
UNCLOS, we would continue to operate as we have since 1983, and would gain sup-
port for our leadership role in law of the sea matters. I am convinced that joining
the UNCLOS will have no adverse effect on our operations or intelligence activities,
but rather, will support and enhance ongoing U.S. military operations, including the
continued prosecution of the GWOT.

Ill: CONCLUSION

Future threats will likely emerge in places and in ways that are not yet fully
clear. For these and other undefined future operational challenges, we must be able
to take maximum advantage of the established and widely accepted navigational
rights the UNCLOS codifies to get us to the fight rapidly.

Strategic mobility is more important than ever. The oceans are fundamental to
that maneuverability; joining the convention supports the freedom to get to the
fight, 24 hours a day and 7 days a week, without a permission slip.

The convention provides a stable and predictable legal regime within which to
conduct our operations today, and realize our vision for the future. It will allow us
to take a leading role in future developments in the law to ensure they are compat-
ible with our vision.

Again, I wish to thank the committee for offering me the opportunity to appear
before you here today. I support the UNCLOS. I am happy to answer any questions
that you may have.

Chairman Warner. Thank you. I think it would be appropriate,
if Mr. Taft will indulge me, at this point to read a paragraph from
the Chairman of the Joint Chiefs of Staff which parallels in every
respect the testimony of the Chief of Naval Operations. "The Con-
vention remains" — I am reading from General Richard B. Myers'
letter dated April 7, 2004, and addressed to me as chairman:
"The convention remains a top national security policy. In
today's fast-changing world, it ensures the ability of the
U.S. Armed Forces to operate freely across the vast ex-
panse of the world's oceans under the authority of widely
recognized and accepted international law. It supports ef-
forts in the war on terrorism by providing much-needed
stability and operational maneuvering space, codifying es-
sential navigational and overflight freedoms."
Mr. Taft.

STATEMENT OF HON. WILLIAM H. TAFT IV, LEGAL ADVISOR,
DEPARTMENT OF STATE

Ambassador Taft. Thank you, Mr. Chairman, and thank you for
inserting my prepared statement in the record. I have a short sum-
mary for you.

It is a pleasure to be back testifying before this committee. I
enjoy testifying before the Senate Foreign Relations Committee and
I did so in connection with its consideration of this treaty last fall,
but this is a committee I have testified before often and it is nice
to be back.

I would like just to focus here on a very few key issues. As the
world's preeminent maritime power, the United States has had a
longstanding and consistent interest in achieving international
agreement on rules that protect freedom of navigation. It has been
the common objective of every successive U.S. administration for
the last 30 years to nail down our navigational and other ocean
rights through a widely accepted and comprehensive Law of the
Sea Treaty (LOST). The convention before you achieves that goal
and is strongly in the U.S. national security interest.

When the convention was completed in 1982, the United States
embraced its provisions except for Part 11 on deep seabed mining.
In 1983, President Reagan announced that the United States ac-
cepted and would act in accordance with the convention's balance
of interests relating to traditional uses of oceans. He instructed the
government to abide by or, as the case may be, enjoy the rights ac-
corded by the provisions of the convention other than those in Part
IL

Part 11, happily, has now been fixed in a legally binding manner
and we urge the Senate to give its advice and consent to this con-
vention to allow us to take full advantage of the many benefits that
it offers.

Turning specifically to the convention's navigational benefits:
Joining the convention will advance the interests of the U.S. mili-
tary. It preserves and elaborates the rights of the U.S. military to
use the world's oceans to meet national security requirements. It
achieves this by stabilizing the outer limit of the territorial sea at
12 nautical miles, by setting forth the navigation regime for inno-
cent passage for all ships in the territorial sea of all states, by pro-
tecting the right of passage for all ships and aircraft through,
under, and over straits used for international navigation as well as
archipelagos, and by reaffirming the traditional freedoms of naviga-
tion and overflight in the exclusive economic zone and the high
seas beyond, including the laying and maintenance of submarine
cables and pipelines.

U.S. Armed Forces rely on these navigation and overflight rights
daily and their protection is of paramount importance to U.S. na-
tional security. We have systematically promoted these critical
navigational provisions both diplomatically and operationally as
customary international law, and we have been able to enjoy some
of these benefits without becoming a party.

The question then naturally arises whether we are just as well
off from a national security point of view as a nonparty. We are
not. In fact, we run a very real risk as a nonparty of allowing the
hard-fought and favorable national security provisions which are in

the convention to be eroded. The choice is therefore not one be-
tween on the one hand joining the convention and on the other in-
definitely preserving our abihty to take advantage of favorable cus-
tomary international law. Rather, it is whether, in the face of in-
creasing coastal state pressures to constrain freedom of navigation,
the United States is in a better position to protect its interests
from inside the treaty or outside it. The answer to that question
is clear.

Now let me turn to the matter of dispute settlement. As sought
by the United States, the convention establishes a dispute settle-
ment system to promote compliance with its provisions and the
peaceful settlement of disputes. These procedures are flexible, pro-
viding options both as to the appropriate means for resolution of
disputes and as to subject matter.

In terms of forum, a state is able to choose, by written declara-
tion, one or more means for the settlement of disputes under the
convention. Under the proposed resolution of advice and consent
from the Senate Foreign Relations Committee, the United States
will elect arbitration, not the International Court of Justice and not
the International Tribunal for the Law of the Sea.

If I could respond to the question that Senator Inhofe asked in
his opening statement, our selection of arbitration panels will con-
trol in a case where the other party to the dispute might have se-
lected another forum. We will not be in that forum. The treaty pro-
vides that our forum that we have selected would be the forum we
would be in in that case.

In terms of subject matter, the system allows parties to exclude
matters of vital national concern from dispute settlement. Specifi-
cally, the convention permits a state, through a declaration, to opt
out of dispute settlement procedures with respect to one or more
listed categories of disputes, including disputes concerning military
activities. Under the proposed resolution of advice and consent, the
United States will elect to exclude all optional categories of dis-
putes from the dispute settlement under the convention.

I would note that a concern regarding resolution of disputes con-
cerning military activities has been satisfactorily addressed by the
proposed resolution. As I testified before the Foreign Relations
Committee, the ability of a party to exclude disputes concerning
military activities from dispute settlement has long been a priority
matter for the United States. The U.S. negotiators of the conven-
tion sought and achieved language that creates a very broad excep-
tion, which the United States has consistently viewed as a key ele-
ment of the package.

This administration reviewed whether the U.S. declaration on
dispute settlement should in some way particularly highlight the
military activities exception. As a result, the administration rec-
ommended and the proposed resolution includes a statement that
each party has the exclusive right to determine whether its activi-
ties are or were military activities and that such determinations
are not subject to review.

Disputes concerning military activities therefore, including intel-
ligence activities, would not be subject to dispute settlement under
the convention as a matter of law and as a matter of U.S. policy.

The question has also been raised whether the convention, in
particular its Articles 19 and 20, prohibits intelligence activities or
submerged transit in territorial sea of other states. It does not. It
would not have any negative effect on such activities, and we would
in no event recognize any attempt to restrict such activities based
on this convention.

The convention's provisions on innocent passage are very similar
to those in the 1958 convention to which we are already a party.
In fact, they are more favorable from a navigational point of view.
A ship does not of course enjoy the right of innocent passage if, in
the case of a submarine, it navigates submerged or if, in the case
of any ship, it engages in an act in the territorial sea aimed at col-
lecting information to the prejudice of the defense or security of the
coastal state.

However, such activities are not prohibited or regulated by the
convention, and in this respect the convention makes no change in
the situation that has existed for many years and under which all
states operate today.

I would also like to address the relationship between the conven-
tion and the President's PSI, which Senator Levin mentioned in his
opening remarks. I think, as he stated, the PSI is a priority activity
involving the United States and several other countries, all of
which are parties to the convention.

Joining the convention will not affect our efforts under the PSI
to interdict vessels suspected of engaging in the proliferation of
weapons of mass destruction. First, PSI activities are carried out
consistent with international law today and they are intended to
continue to be carried out in that way. Specifically, the PSI re-
quires participating countries to act consistent with relevant inter-
national law and frameworks, which includes the law that is re-
flected in the convention.

Second, the Law of the Sea reflected in the convention is no dif-
ferent from the law already applicable to the United States. The
convention's navigation provisions either derive from the 1958
UNCLOS, to which we are a party, or they reflect customary inter-
national law which has been accepted by the United States since
1983. As such, joining the convention will not affect the maritime
law or policy already applicable to the United States regarding
interdiction of weapons of mass destruction.

Third, the convention recognizes many legal bases for taking en-
forcement action against vessels and aircraft suspected of engaging
in proliferation of weapons of mass destruction. To give just some
examples, there is exclusive port and coastal state jurisdiction in
internal waters and national air space and coastal state jurisdic-
tion in the territorial sea and contiguous zone.

When a foreign vessel is operating on the high seas, boarding
and searching can take place with the consent of the vessel's flag
state. Such consent can be given in advance, such as through an
agreement, or in response to a specific request. In this regard, and
drawing on our extensive experience with counter-narcotics board-
ing agreements, the United States has developed PSI boarding
agreements which we are negotiating with key flag states and have
already concluded with Liberia, which is important in this respect
as the second largest ship registry nation in the world.

In certain circumstances boarding and searching of suspect ves-
sels can also take place without the flag state's consent. Further,
nothing in the convention impairs the inherent right of individual
or collective self-defense, a point that is reaffirmed of course in the
proposed resolution of advice and consent.

In short, the rules authorizing PSI maritime interdiction activi-
ties would not change as a result of joining the convention, al-
though, as I pointed out earlier, the convention's provisions that
enhance our mobility and flexibility to move around the world's
oceans will be helpful in this regard.

I would like to turn very briefly, Mr. Chairman, to criticisms of
the convention.

Chairman Warner. I think, Mr. Taft, we have an awful lot of
material to go through today.

Ambassador Taft. I will conclude, Mr. Chairman, just very brief-
ly to say that I have been familiar with the convention for more
than 20 years, including as my tenure as General Counsel of DOD
in 1982, and since that time I have seen every CNO support the
treaty, every Chairman of the Joint Chiefs of Staff; and I am at a
loss to see where the danger to our national security has been iden-
tified just recently that no one — people have said is there, but no
one has been able to see.

So I would submit the rest of my remarks for the record and say
that I am glad to take any questions that the Senators may have.

Chairman WARNER. I thank you for that very distinguished dis-
sertation, Mr. Taft. The balance of your remarks will be included
in the record.

[The prepared statement of Ambassador Taft follows:!

Prepared Statement by Hon. William H. Taft IV

Mr. Chairman and members of the committee:

Thank you for the opportunity to testify on the 1982 UNCLOS ("the Convention"),
which, with the 1994 Agreement relating to the Implementation of Part XI of the
UNCLOS of 10 December 1982 ("the 1994 Agreement"), was reported favorably by
the Senate Foreign Relations Committee on March 11, 2004. In my testimony before
that committee on October 21, 2003, I discussed the national security, economic, re-
source, and environmental aspects of the Convention and how they advance U.S. in-
terests. This testimony focuses on the national security aspects of the Convention.
It addresses the questions specifically posed by this committee and responds to cer-
tain misunderstandings that have arisen concerning the Convention.

BACKGROUND

The achievement of a widely accepted and comprehensive UNCLOS — to which the
United States can become a party — has been a consistent objective of successive
U.S. administrations for the last 30 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, an issue of critical importance to U.S. freedom of navigation. The
United States played a prominent role in the negotiating session 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 interest.

When the text of the Convention was concluded in 1982, the United States recog-
nized that its provisions supported U.S. interests, except for Part XI on deep seabed
mining. In 1983, President Reagan announced in his Ocean Pohcy Statement that
the United States accepted, and would act in accordance with, the Convention's bal-
ance of interests relating to traditional uses of the oceans. He instructed the Gov-
ernment to abide by, or, as the case may be, enjoy the rights accorded by, the provi-
sions of the Convention 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 also worked closely
with the Senate to ensure that the proposed Resolution of Advice and Consent satis-
fies the concerns and issues identified by the administration, including those relat-
ing to U.S. military interests. We urge the Senate to give its advice and consent
to this Convention, to allow us to take ftill advantage of the many benefits it offers.

NAVIGATIONAL ASPECTS

Joining the Convention will advance the interests of the U.S. military. As the
world's leading maritime power, the United States benefits more than any other na-
tion from the navigational provisions of the Convention. Those provisions, which es-
tablish international consensus on the extent of jurisdiction that States may exer-
cise off their coasts, preserve and elaborate the rights of the U.S. military to use
the world's oceans to meet national security requirements. They achieve this, among
other things, by stabilizing the outer limit of the territorial sea at 12 nautical miles;
by setting forth the navigation regime of innocent passage for all ships in the terri-
torial sea; by protecting the right of passage for all ships and aircraft through,
under, and over straits used for international navigation, as well as archipelagoes;
by reaffirming the traditional freedoms of navigation and overflight in the exclusive
economic zone and the high seas beyond; and by providing for the lajang and main-
tenance of submarine cables and pipelines. U.S. Armed Forces rely on these naviga-
tion and overflight rights daily, and their protection is of paramount importance to
U.S. national security.

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 both as to the appropriate means for resolution of dis-
putes and as to subject matter. In terms of forum, a State is able to choose, by writ-
ten declaration, one or more means for the settlement of disputes under the Conven-
tion. The administration is pleased that its recommendation that the United States
elect arbitration under Annex VTI and special arbitration under Annex VIII — rather
than the International Court of Justice or the International Tribunal for UNCLOS —
is included in the proposed Resolution of Advice and Consent.

In terms of subject matter, the system provides parties with means of excluding
matters of vital national concern from the dispute settlement mechanisms. Specifi-
cally, the Convention permits a State, through a declaration, to opt out of dispute
settlement procedures with respect to one or more enumerated categories of dis-
putes, including disputes concerning military activities and certain law enforcement
activities. The administration is similarly pleased that the proposed Resolution of
Advice and Consent follows its recommendation that the United States elect to ex-
clude all optional categories of disputes from dispute settlement mechanisms.

A concern raised by administration witnesses last fall regarding resolution of dis-
putes concerning military activities has been satisfactorily addressed by the pro-
posed Resolution. As I testified before the Foreign Relations Committee, 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 Con-
vention sought and achieved language that creates a very broad exception, success-
fully 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 settle-
ment package, which carefully balances comprehensiveness with protection of vital
national interests.

This administration reviewed whether the U.S. declaration on dispute settlement
should in some way particularly highlight the military activities exception, given
both its importance and the possibility, however remote, that another State Party
might seek dispute settlement concerning a U.S. military activity, notwithstanding
our declaration invoking the exception. As a result, the administration rec-
ommended, 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 "mili-
tary 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 as a matter of law and U.S. policy.

INTELLIGENCE ACTIVITIES

The question has been raised whether the Convention (in particular articles 19
and 20) prohibits intelligence activities or submerged transit in the territorial sea

of other States. It does not. The Convention's provisions on innocent passage are
very similar to article 14 in the 1958 Convention on the Ten-itorial Sea and the
Contiguous Zone, to which the United States is a party. (The 1982 Convention is
in fact more favorable than the 1958 Convention both because the list of non-inno-
cent activities is exhaustive and because it generally uses objective, rather than sub-
jective, criteria in the listing of activities.) A ship does not, of course, enjoy the right
of innocent passage if, in the case of a submarine, it navigates submerged or if, in
the case of any ship, it engages in an act in the territorial sea aimed at collecting
information to the prejudice of the defense or security of the coastal State, but such
activities are not prohibited by the Convention. In this respect, the Convention
makes no change in the situation that has existed for many years and under which
we operate today.

PROLIFERATION SECURITY INITIATIVE

I would also like to address the relationship between the Convention and the
President's PSI, an activity involving the United States and several other countries
(all of which are parties to the Convention). The Convention will not affect our ef-
forts under the PSI to interdict vessels suspected of engaging in the proliferation
of weapons of mass destruction. The PSI requires participating countries to act con-
sistent with national legal authorities and "relevant international law and frame-
works," which includes the law reflected in the 1982 UNCLOS. The Convention's
navigation provisions derive from the 1958 UNCLOS, to which the United States
is a party, and also reflect customary international law accepted by the United
States. As such, the Convention will not affect applicable maritime law or policy re-
garding interdiction of weapons of mass destruction. Like the 1958 conventions, the
Convention recognizes numerous legal bases for taking enforcement action against
vessels and aircraft suspected of engaging in proliferation of weapons of mass de-
struction, for example, exclusive port and coastal State jurisdiction in internal wa-
ters and national airspace; coastal State jurisdiction in the territorial sea and con-
tiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which
the flag State may, either by general agreement in advance or approval in response
to a specific request, waive in favor of other States); and universal jurisdiction over
stateless vessels. Further, nothing in the Convention impairs the inherent right of
individual or collective self-defense (a point which is reaffirmed in the proposed Res-
olution of Advice and Consent).

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, particu-
larly in relation to freedom of navigation. As noted. President Reagan's 1983 Oceans
Policy Statement directed the United States to abide by, and enjoy the rights ac-
corded by, the non-deep seabed provisions of the Convention. Abroad, the United
States has worked both diplomatically and operationally to promote the provisions
of the Convention as reflective of customary international law.

While we have been able to gain certain benefits of the Convention from this ap-
proach, formal U.S. adherence to the Convention would have further national secu-
rity advantages:

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

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

• The (Convention is being implemented in various forums, both those es-
tablished by the Convention and certain others (such as the International
Maritime Organization or IMO). While the Convention's institutions were
not particularly active during the past decade since the Convention entered
into force, they are now entering a more active phase and are elaborating
and interpreting various provisions. The United States would be in a
stronger position to defend its national security 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 Continen-
tal Shelf Commission. Having U.S. members on those bodies would help en-
sure that the Convention is being interpreted and applied in a manner con-
sistent with U.S. national security interests.

• Becoming a party to the Convention would strengthen our ability to de-
flect potential proposals that would be inconsistent with U.S. national secu-
rity interests, including those affecting freedom of navigation.

Beyond those affirmative reasons for joining the Convention, there are downside
risks of not acceding to the Convention. U.S. mobility and access have been pre-
served 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.

CLARIFICATIONS OF CERTAIN MISUNDERSTANDINGS

I would like to clarify certain misunderstandings that have arisen recently regard-
ing the Convention, including national security aspects. I will address them in turn.
President Reagan thought the treaty was irremediably defective.

• President Reagan expressed concerns only about Part XJ'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 Govern-
ment to abide by and exercise the rights accorded by the non-deep seabed
provisions of the Convention.

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 100 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 in 1988.

• 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 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 GWOT. However,
the Convention enhances, rather than undermines, our ability to success-
fully wage the GWOT.

• Maximum maritime naval and air mobility that is assured by the Con-
vention is essential for our military forces to operate effectively. The Con-
vention provides the necessary stability and framework for our forces,
weapons, and materiel to get to the fight without hindrance — and ensures
that our forces will not be hindered in the future.

• Thus, the Convention supports our GWOT by providing important stabil-
ity for navigational freedoms and overflight. It preserves the right of the
U.S. military to use the world's oceans to meet national security require-
ments. It is essential that key sea and air lanes remain open as an inter-
national legal right and not be contingent upon approval from nations along
the routes. A stable legal regime for the world's oceans will support global
mobility for our Armed Forces.

Obligatory technology transfers will equip actual or potential adversaries with sen-
sitive and militarily useful equipment and know-how (such as anti-submarine war-
fare technology).

• No technology transfers are required by the Convention. Mandatory tech-
nology transfers were eliminated by Section 5 of the Annex to the Agree-
ment amending Part XI of the Convention.

• Article 302 of the Convention explicitly provides that nothing in the Con-
vention requires a party to disclose information; the disclosure of which is
contrary to the essential interests of its security.

As a nonparty, the U.S. is allowed to search any ship that enters our exclusive eco-
nomic zone (EEZ) to determine whether 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 United Nations is notified and ap-
proves the right to search the ship.

• Under the Convention, the U.N. has no role in deciding when and where
a foreign ship may be boarded.

• Under applicable treaty law— the 1958 conventions on the law of the
sea — as well as customary international law, no nation has the right to ar-
bitrarily search any ship that enters its EEZ to determine whether it could
harm that national or pollute its marine environment. Nor would we want
countries to have such a blanket "right," because it would fundamentally
undermine the freedom of navigation that benefits the United States more
than any other nation.

• Thus, the description of both the status quo and the Convention's provi-
sions is incorrect. The Convention makes no change in our existing ability
or authority to search ships entering our EEZ with regard to security or
protection of the environment.

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 res-
ervation.

The 1994 Agreement doesn't even pretend to amend the Convention; it merely es-
tablishes controlling interpretive provisions.

• The Convention could only have been formally "amended" if it had al-
ready entered into force. We negotiated the 1994 Agreement as a separate
agreement in order to ensure that the Convention did not enter into force
with Part XI in its flawed state. The 1994 Agreement made explicit, legally
binding changes to the Convention and has the same legal effect as if it
were an amendment to the Convention itself.

• It would not have been in our interest to wait until the Convention en-
tered into force before fixing Part XI concerns, as it would have been more
cumbersome to get the changes that we sought.

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 over the most important future decisions
that would affect U.S. interests and, in other cases, requires supermajori-
ties that will enable us to protect our interests by putting together small
blocking minorities;

• restructures the regime to comport with free-market principles, including
the elimination of the earlier mandatory technology transfer provisions and
all production controls.

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. It does include revenue sharing provisions for oil/gas activi-
ties on the continental shelf beyond 200 miles and administrative fees for
deep seabed mining operations. The amounts involved are modest in rela-
tion 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 re-
quired for any expenditure of such revenues. With respect to deep seabed
mining, because the United States is a non-party, U.S. companies currently
lack the practical ability to engage in such mining under U.S. authority.
Becoming a Party will give our firms such ability and will open up new rev-
enue opportunities for them when deep seabed mining becomes economi-
cally viable. The alternative is no deep seabed mining for U.S. firms, except
through other nations under the Convention. These minimal costs are
worth it.

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 settle-
ment. The United States would choose two forms of arbitration rather than
the Tribunal.

• The United States would be subject to the Sea-bed Disputes Chamber,
should deep seabed mining ever take place under the regime established by
the Convention. The proposed Resolution of Advice and Consent 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 es-
tablished 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." The Cham-
ber's authority extends only to disputes involving the mining of minerals
from the deep seabed; no other activities, including operations on the sur-
face of the oceans, are subject to it.

U.S. adherence will entail history's biggest voluntary transfer of wealth and sur-
render 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, and would give us additional capac-
ity to defend those claims against others.

• 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 fore-
seeable 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 United States might end up without a vote in the ISA.

• The Council is the main decisionmaking body of the ISA. The United
States would have a permanent seat on the Council, by virtue of its being
the State with the largest economy in terms of gross domestic product on
the date of entry into force of the Convention, November 16, 1994. (1994
Agreement, Annex Section 3.15(a)) This would give us a uniquely influen-
tial role on the Council, the body that matters most.

The Peoples Republic of China (PRO asserts that the Convention entitles it to ex-
clusive economic control of the waters within a 200 nautical-mile radius of its artifi-
cial islands — including waters transited by the vast majority of Japanese and Amer-
ican 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. Sov-
ereignty over certain Spratly Islands (which do legitimately generate a ter-
ritorial sea and EEZ) is disputed among Brunei, China, Malaysia, the Phil-
ippines, and Vietnam. China has consistently maintained that it respects
the high seas freedoms of navigation through the waters of the South China
Sea.

CONCLUSION

Mr. Chairman, it is in the U.S. interest to join the Convention because of the na-
tional security benefits to the United States, even aside from the economic, resource,
foreign policy, and environmental benefits. Among other things, U.S. adherence

would promote the stability of the legal regime of the oceans, which is vital to U.S.
global mobility and national security. The administration recommends that the Sen-
ate 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.

Chairman Warner. Colleagues, in view of the fact we have a
number of panels, I am going to recommend that we do a 5-minute
round very swiftly here and then proceed to our second panel.

My first question is to the CNO. Mr. Taft covered the PSI agree-
ment. I think it is very important that you likewise be on the
record on that subject, and to introduce the subject by way of a
question from myself, I am going to refer and quote from a release
by Frank Gaffney, March 18, 2004, to pose the question to you.
From page 2: "The treaty, however, will also interfere with Ameri-
ca's sovereign exercise of freedom of the seas in ways that will have
an adverse effect on national security, especially in the post-Sep-
tember 11 world. Incredibly, it would preclude, for example, the
President's important new Proliferation Security Initiative. PSI is
a multinational arrangement whereby ships on the high seas that
are suspected of engaging in the transfer of weapons of mass de-
struction or related equipment can be intercepted, searched, and,
where appropriate, seized. Its value was demonstrated in the re-
cent interception of the nuclear equipment headed to Libya."

"Similarly, the treaty will defme intelligence collection in and
submerged transit of territorial waters to be incompatible with the
treaty's requirements that foreign powers conduct themselves in
such seas only with 'peaceful intent.' The last thing we need is for
some U.N. court or U.S. lawyers to make it more difficult for us
to conduct sensitive counterterrorism operations in the world's
littorals." End quote of Mr. Gaffney.

So I pose that as a question because this statement by Mr.
Gaffney is a part of today's record and I think there should be a
response from the Department of Defense (DOD) and particularly
the CNO.

Admiral CLARK. I think there are at least three questions there.
Let me just start by sa3dng, with regard to PSI, his claim that PSI
will not be authorized if you are a party to the UNCLOS is at odds
with the fact that there are 14 partners in PSI and all of them but
us are parties to the convention. I think it is based upon a mis-
understanding of what PSI is about and how it is executed. But
very briefly, we may board a vessel flying a flag that is from our
state. We may board a vessel that consents to our boarding. We
may board vessels entering our coastal waters, and we may board
stateless vessels under the PSI construct. There is nothing at all
in the convention that has anything to do with limiting that capa-
bility.

With regard to his discussion about conducting intelligence oper-
ations while you are passing through straits, we are now into tech-
nical definitions of particular activities. What this particular con-
vention does is it vastly broadens the protections that we sought
when this treaty was put together.

All we had before was something called "innocent passage." Inno-
cent passage rules require submarines to transit on the surface. We
wanted provisions that would authorize transits submerged
through straits and that kind of activity. We got it with something

called "transit passage" that is authorized in this convention. That
was something that we in the Navy sought because we did not
want our submarines to have to be exposed to conduct an innocent
passage.

We have made the statement that we can exclude any kind of
military activity from compulsory arbitration. In this process we
have chosen and the resolution before the Senate says that military
activities will be excluded, and that dismisses the other argument
that he is making that puts him opposed to the treaty.

Chairman Warner. In closed session, in response to I think
questions from the distinguished Senator from Nevada and myself
on the subject of naval activities, you gave a very graphic example
of transitting Gibraltar, one of the choke points. We have other
choke points: the Straits of Hormuz, and I could go on.

Admiral Clark. Yes.

Chairman Warner. There are about five of them in the world
that are critical to naval operations. I thought you gave a very
graphic example and I wonder if you could share it here in open
session.

Admiral Clark. What I am saying is that the convention gives
us new protections that did not exist before, and they are transit
passage and rights in archipelagic waters. It also gives us rights
in exclusive economic zones, which are at issue in today's world.
Fundamentally, this treaty says that we are authorized to be there.

What I was saying about passing through straits, under the old
rules before we had this convention, innocent passage was the only
thing prescribed in international law. That is the old law. Transit
passage now allows us to conduct our operations in the normal
mode and that is much better. That is where we want to be.

Chairman Warner. I understand. Quickly for Mr. Taft, under
the terms of the convention, a state is permitted to opt out of the
dispute settlement procedures with respect to three categories of
disputes: disputes regarding maritime boundaries between neigh-
boring states; disputes concerning military activities and certain
law enforcement activities; and disputes with respect to which the
United Nations Security Council is exercising the functions as-
signed to it by the Charter of the United Nations.

Will military activities, including military intelligence activities,
be excepted from the convention's dispute settlement mechanism as
a matter of U.S. policy? Second, does the administration take the
view that each state party has the right to determine whether its
activities are military activities and that such determination is not
reviewable by other parties to the convention? Third, how as a mat-
ter of U.S. policy will U.S. intelligence activities be treated with re-
spect to the convention's dispute settlement mechanisms?

Please respond quickly on each and you can expand that for the
record, because I want to hold tightly on time.

Ambassador Taft. Thank you, Mr. Chairman. Yes, as a matter
of policy we have taken, opted out of the dispute resolution system
for all of the categories that you mentioned, including specifically
military activities.

Chairman Warner. Now, if you will expand on that for the
record.

[The information referred to follows:]

As set forth in declaration 2 in section 2 of the resolution of advice and consent
approved by the Senate Foreign Relations Committee, the United States would opt
out of dispute resolution with respect to all three permitted categories in article
298(1) of the Convention, namely disputes concerning maritime boundaries, disputes
concerning military activities, and disputes in respect of which the Security Council
is exercising the functions assigned to it by the U.N. Charter.

Ambassador Taft. Very good. As to the second question, as to
what is a mihtary activity, who decides, the resolution of advice
and consent has a declaration in it establishing that that is a self-
judging determination, that we will decide that, and that it will, in
response to your second question, not be subject to review.

As I testified earlier, the military activities exemption includes
intelligence activities. Perhaps I would expand a little bit on both
those answers.

Chairman Warner. We would appreciate that for the record, and
I thank you, Mr. Taft.

[The information referred to follows:]

Yes. One of the declarations in the proposed Resolution of Advice and Consent
states the U.S. understanding that, "under article 298(l)(b), each State Party has
the exclusive right to determine whether its activities are or were 'military activi-
ties' 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 as a matter of law and U.S.
policy.

Chairman Warner. Senator Levin.

Senator Levin. Just on that one issue, is there any doubt in ei-
ther of your minds that when we exclude military activities from
the arbitration provision that we are also, because of our own dec-
laration, excluding military intelligence as well?

Admiral CLARK. There is no doubt in my mind.

Ambassador Taft. We have no doubt, and I think it should be
clear certainly as a result of this testimony and other letters that
we have written. Thank you.

Senator LEVIN. On the matter of innocent passage, I would like
to clarify one issue there. In Mr. Gaffney's brief, I believe, he says
that Articles 19 and 20, the first one relating to the meaning of "in-
nocent passage" and the second one. Article 20, relating to sub-
marines and other underwater vehicles, that, "they attempt explic-
itly to regulate intelligence activities."

First of all, does anything in either of those articles change the
current situation relative to innocent passage? Are intelligence ac-
tivities under current customary

Admiral CLARK. We do not conduct intelligence activities while
we are conducting innocent passage, so it is not applicable.

Senator Levin. So this does not change that in any way?

Admiral CLARK. No.

Senator Levin. Okay.

Ambassador Taft. The only change. Senator, I think that should
be noted is that the list of activities that deprive a state of the
right of innocent passage in this convention is exclusive and that
is it. Those are the only things that deprive you of those benefits.
They are the same as what are in there now, but in the existing
1958 Convention it is a little bit vaguer.

One of our objectives was to nail it down so that only those
things that are specified deprive you of the right of innocent pas-
sage. We got that in the convention.

Senator Levin. So that was a gain for us?

Ambassador Taft. That was a gain for us.

Senator Levin. That clarity amounts to a restriction on how that
term could be used or applied?

Ambassador Taft. That is right. We now know that only if you
are doing those things are you deprived of the benefit of innocent
passage, whereas it was a little vaguer in the 1958 Convention.

Senator LEVIN. Mr. Chairman, there was a statement regarding
drug interdiction activities that was made by Rear Admiral John
Crowley of the Coast Guard before the Foreign Relations Commit-
tee. If that October 21, 2003, statement is not already part of the
record, I would ask that it be part of the record, including the fol-
lowing statement: "Becoming a party to the convention will en-
hance our ability to conduct such interdiction operations and refute
excessive maritime claims."

He also stated that: "As the lead Federal agency for maritime se-
curity, the Coast Guard believes that acceding to the 1982
UNCLOS will benefit the Coast Guard in our efforts to ensure mar-
itime homeland security and ensure that our maritime border is se-
cure as well."

Chairman Waener. Without objection, it will be submitted.

[The information referred to follows:]

Commandant 2100 Second Street, S.W.

United Stales Coast Goard Washington. DC 20593-0001

Staff Symbol: G-ICA
PtTone; (202) 366-4280
FAX: (202) 366-7124

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

STATEMENT OF

REAR ADMIRAL JOHN E. CROWLEY JR.

ON UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS

U. S. SENATE

OCTOBER 21, 2003

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

STATEMENT OF

REAR ADMIRAL JOHN E CROWLEY JR.

ON UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS

U. S. SENATE

OCTOBER 21, 2003

Good Morning Mr. Chairman and distinguished members of the Committee. I am Rear Admiral
John E. Crowley, Chief Counsel and Judge Advocate General of the U.S. Coast Guard. It is a
pleasure to appear before you today to discuss the United Nations Convention on the Law of the Sea.

I have previously served as tlie Assistant to the Secretary of Transportation's Representative to the
United Nations Law of the Sea Conference in 1979-80, where I acquired an appreciation for the
breadth of Law of the Sea issues. I also have served on five cutters, twice as commanding officer.
My sea duty has encompassed all of the Coast Guard's Deepwater missions, including service as the
Chief Staff Officer of the Joint Task Force responding to the 1994 Haitian and Cuban mass
migrations. I have more recently sen,'ed as the Special Assistant to the Secretary of Homeland
Security and the interim Director of the Homeland Security Center. These assignments allow me to
provide comments from tlie operator's point of view as well. Following these remarks, I am
prepared to answer any questions you may have concerning the potential effects of this Convention
on the U.S. Coast Guard's missions.

.Although the 1982 UN Convention on the Law of the Sea (LOS) entered into force in 1994, the U.S.
has continued to rely upon customary international law as reflected in the Convention to advance our
oceans policy. While reliance upon customary international law has, in fact, served us well for many
years, becoming a party to the LOS Convention will enhance our position in maritime affairs. The
first UN effort at codifying the Law of the Sea took place in 1958. when the first UN Conference on
the Law of the Sea concluded four separate conventions dealing with the Law of the Sea. These four
conventions represented, in the main, codifications of customary international law at the time.
However, it must be remembered that at the time, pollution of the world's oceans was not considered
an important issue; fish stocks were thought to be inexhaustible, and the need for maritime domain
awareness was not present. Beginning in the 1960's, the world, in general, and the oceans, in
particular, began e.xpenencmg significant change in such areas as pollution .standards and fisheries
management This led to the Third United Nations Conference on the Law of the Sea (UNCLOS
III), which developed the 1982 UN Convention on the Law of the Sea. With 143 states party to the
1982 UN Convention on the Law of the Sea, the Convention will play a central role m resolving
such issues in the future It will also serve as a foundation upon which ftiture oceans agreements
will be based. For these reasons, it is particularly important for the United States to become a party
to the Convention.

On November 16, 1994, the LOS Convention entered into force. That event represented a milestone
in the United States' efforts to achieve a widely ratified, comprehensive law of the sea treaty that
protects and promotes a wide range of U.S. ocean interests, many of which affect the U.S. Coast
Guard. Because of our law enforcement and national security missions, the Coast Guard has long
been a proponent of achieving a comprehensive and stable regime with respect to traditional uses of

the oceans. The Convention aids our interests by stabilizing the trend towards expansion of national
jurisdiction over coastal waters, while furthering our efforts to protect and manage fishery resources
and to protect the marine environment. From the Coast Guard perspective, public order of the
oceans is best established and maintained by a stable, universally accepted law of the sea treaty
reflective of U.S. national interest.

One of the bedrock underpinnings of the Convention was codification of rights and responsibilities
of states as port states, flag states and coastal states. Dunng the LOS Convention negotiations, the
U.S. aggressively sought both clarification and delimitation of seaward territorial claims by coastal
states in order to ensure navigational freedoins while at the same time recognizing the U S "s interest
as a coastal state with sovereignty to protect its livmg and non-living marine resources. The result
was a limit nations could claim as a temtorial sea of no more than 12 nautical miles. Our fishery
conservation management interests, as reflected in the Magnuson-Stevens Fishery Conservation
Management Act, were instrumental in the international development of the 200 nautical mile
Exclusive Economic Zone (EEZ). In the EEZ, all nations enjoy freedoms of navigation, while the
coastal state possesses sovereign rights to protect and exploit the living and non-living marine
resources. Following the Amoco Cadi: and subsequent vessel oil spill incidents, marine pollution
was also addressed in the 1982 L^N Convention on the Law of the Sea with provisions that have beer
described as a far-reaching environmental accord. The Convention struck the appropriate balance of
competing claims, so that all nations could engage in high seas freedoms, including non-resource
related law enforcement in other nation's EEZ waters, and the coastal state enjoyed the right to
protect its marine environment, including damage from oil spills by vessels, fisheries conservation
and enforcement of domestic laws designed to conserve and protect the living marine resources in
their EEZ. The Convention also recognized a port state regime adequate to ensure their interests
were protected when vessels volimtarily entered their ports or places subject to their junsdiction.

The Coast Guard and other U.S. military forces already rely heavily on the elemental navigation
freedoms codified in the Law of the Sea Convention. These protections allow the use of the world's
oceans to meet changing national security requirements. The Convention limits a nation's territorial
sea to no more than 12 nautical miles, beyond which all nations enjoy a high seas navigation regime
that includes tlie fi-eedom to engage in law enforcement activities. The Convention codifies the right
to operate freely beyond a nation's temtorial sea and protects this right by limiting excessive
maritime claims that often have the effect of creating maritime safe havens for drug traffickers and
other criminals. In fiscal year 2003, the Coast Guard maritime interdiction operations occurring on
international waters resulted in the seizure of over 135,000 pounds of cocaine, 56 vessels, and 207
arrests. In keeping with our aggressive international crime control strategy, most of these seizures
took place on distant maritime transit routes far fi-om our shores. However, during bi-lateral
negotiations, several nations have, in the past, questioned our authority to contest certain of their
excessive tnaritime claims simply because we have yet to ratify the treaty. Becoming a party to the
Convention will enhance our abihty to conduct such interdiction operations and to refute excessive
maritime claims. Rather than only basing our law enforcement operations on customary
international law, the United States should become a conspicuous and leading party to the treaty that
codifies these important navigational rights.

The Convention also contains provisions that enhance our ability to interdict foreign flagged vessels
off our own coasts. The Convention codifies a coastal nation's riglit to establish a contiguous zone
not to exceed 24 nautical miles where it may enforce its customs, immigration, fiscal, and sanitary

laws. Adoption by the U.S. of an expanded contiguous zone has doubled the area where we can
exercise these increased authorities. The benefits of the contiguous zone against traffickers
surreptitiously shipping their illicit products to U.S. shores are cleai-.

Article 108 of the Convention requires international cooperation in the suppression of the transport
of illegal drugs. The United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988 (Uie Vienna Convention) is a fine example of this. The United States
has been at the forefront. We have aggressively pursued bilateral agreements with many nations tliat
border drug transit zones as well as Slates with large registries to facilitate the effective interdiction
of vessels suspected of transporting illegal drugs and the eventual prosecution of the drug traffickers.
During discussions with these nations, we emphasize the Convention's call for cooperation and
premise each agreement on concepts codified within the Convention; becoming a party to the
Convention will improve our position during these negotiations.

The Convention contains numerous provisions that advance the economic interests of the Umted
States as a coastal state. By codifying the 200-nautical mile EEZ, the Convention confirms U.S.
exclusive junsdiction over all the living and non-living resources in the zone. Experts agree that the
problems associated with the management of fish stocks will continue as a contentious issue for
states that rely on fishing to feed their population. The Convention provides a legal baseline that
sanctions the actions of regional fishing organizations to deal widi such conservation issues. Indeed,
the Convention imposes responsibilities on the coastal states to manage their fishery resources
responsibly, and provides the best structural fi-amework for resolving conflicts between competing
users. The Convention's provisions regarding the exclusive economic zone are fully in accord with
our fisheries policies and interest. Sunilarly, the Convention makes provision for a wider continental
shelf This is important to our oil and gas interests because they need the certainty of established
continental shelf boundaries before they begin exploration.

The Convention is also an environmental accord that provides a comprehensive framework for the
prevention, reduction, and control of maritime pollution. The Coast Guard conducts a wide-ranging
port state control program to purge our waters of substandard ships and is assisting other nations in
doing the same. This initiative will be enhanced through the consistent application of the
Convention's broad enforcement mechanisms. Additionally, the Convention carefully balances the
rights of coastal states to adopt certain measures to protect the marine environment adjacent to their
shores and the general right of a flag state to set and enforce standards and requirements concerning
the operation of its vessels. Becoming a party to the Law of the Sea Convention will strengthen the
international credibiUty of the U.S. and our efforts to guide the development of internationally
accepted vessel standards, thereby improving marine safety and protection of the marine
environment.

The Convention calls for international cooperation among states in preserving the world's high seas
fisheries. This provision on cooperation supports the UN ban on high seas drift net fishing.

As the lead Federal agency for maritime security, the Coast Guard believes that acceding to the 1982
UN Convention on the Law of the Sea will benefit the Coast Guard in our efforts to ensure maritime
homeland security, and ensure that our maritime borders are secure, as well. In that regard, in the
Maritime Transportation Security Act, the Congress found that, "it is in the best interests of the
United States to implement new international instruments that establish [the IMO International Ship
and Port Facihty Security Code and amend SOLAS to include maritime security as well as safety
among its provisions]."

The Convention recognizes that various UN subsidiary bodies may serve as competent international
organizations for the further Conventional development of the law of the sea. IMO has always been
the recognized competent international organization for maritime safety and marine environmental
protection. It has now assumed a similar role in port facility and vessel security. Acceding to the
Convention will enhance Coast Guard efforts to work in the international community through the
International Maritime Organization, the International Labor Organization and other UN subsidiary
bodies to improve our security measures and to project our maririme domain awareness, consistent
with the Convention's balance of states' rights to the uses of the oceans. Specifically, we are
working now at IMO to build upon die successes achieved by the Umted States in that body at the
December 2002 diplomatic conference. As you know, that diplomatic conference resulted in the
landmark amendments to the SOLAS Convention for vessel and port facility security contained in
Chapter XI and the International Sliip and Port Facility Security Code. We have on-going efforts in
respect of Conference Resolution 10 to enhance our maritime domain awareness through Long
Range Tracking of vessels bound for our ports and waters. These negotiations are taking place in the
context of the overwhelming number of nations at IMO being parties to the Law of the Sea
Convention. Because of this fact, the Law of the Sea Convention provides the framework for the
discussions and agreements. Although we have enjoyed success in the international security
agreements so far, those negotiations have not always been easy. Further progress will not be as
easy to achieve as our past successes. Frankly, the fact that the United States is not a party to the
Law of the Sea Convention, when the overwhelming number of our international partners are parties,
has occasionally put us in a difficult negotiating position at IMO. It is our judgment that accession
to the Convention will put us in a stronger position at the IMO than we currently enjoy.

In the view of the Department of Homeland Security and the Coast Guard, accession to the LOS
Convention helps safeguard United States security and economic interests. The LOS Convention
contains provisions that go beyond codifying existing customary international law. The LOS
Convention contains both customary international law and the provisions allowing for the
progressive development of law. Becoming a party to the Convention will help us preserve the
significant concessions we obtaiaed during the negotiations of the Convention in the area of
navigational freedoms, and help us in the development of the law of the sea as it evolves.

It IS our understanding that the Administration has, however, identified certain serious concerns
regarding accession to the Convention, but which we believe can be resolved. Those issues will be
addressed by the State Department and the Department of Defense.

Thank you for the opportunity to testify before you today. I will be happy to answer any questions
you may have.

Senator Levin. Admiral, you made reference to this, I believe,
both here and in our closed session, but I would like you to be a
little more specific: that there are trends that are negative to us
in terms of customary maritime law or that might be negative to
us, that we would like to try to stop. We are interested in mobility
and accessibility and there are some trends which could restrict
our goals in that regard and in other regards.

Could you give us a little more explicit understanding of what
you mean by that?

Admiral Clark. I sure can. Without naming nations, I will tell
you, Senator, that we know that there are nations who want to re-
strict our ability to operate in their exclusive economic zones (EEZ).
The convention gives us freedom to operate as a military in the
EEZ without restriction. Eighty percent of the world's population
happens to Hve within 200 miles of the coastline in the world we
live in today. As Senator Inhofe said, two-thirds of the world con-
stitutes my maneuver space, the world's oceans.

If we had such restrictions near the coastal region, it would very
negatively impact our ability to conduct operations, and we have
had nations tell us that they want to restrict our operations.

Senator Levin. My final question would be this: that I under-
stand that this November would be the first time since the conven-
tion's entry into force that states parties will be able to propose and
adopt amendments. How important will U.S. accession to the con-
vention this year be to our ability to influence the development of
maritime law in that respect or other respects?

Admiral CLARK. It is my view, Senator, that our absence hurts
our ability to lead, and that if we are not there we cannot lead. So
it is my view that we need to be there so that we can represent
the principles and the values regarding the free use of the sea that
happen to be imperative for our future.

Senator Levin. Is it true that amendments will be available and
possible this year?

Admiral Clark. That is my understanding, yes, sir.

Senator Levin. For the first time?

Admiral CLARK. That is my understanding, yes, sir.

Ambassador Taft. That is correct. Senator.

Senator Levin. Thank you.

Chairman Warner. Senator Inhofe.

Senator Inhofe. Thank you, Mr. Chairman. We have talked a
lot, Mr. Chairman, about the military operations being excluded
and I know that this is done, I guess by declaration; was it not?

Ambassador Taft. That is right.

Admiral Clark. Yes, sir.

Senator Inhofe. Let us just say that there is a dispute and that
the Chinese are claiming that a U.S. vessel that is in some waters,
it was mapping the coast for commercial purposes, and we were to
say no, we were doing it for military purposes. How would they re-
solve this? Let us say they want to go to an arbitrator on this.
What if the arbitrator should decide that the Chinese are right?
What would happen? Or would it be subject to arbitration?

Ambassador Taft. It would not be subject to arbitration. We
have opted out for military activities and our determination that
this involved military activities would be not subject to review.

Senator Inhofe. Would it be your understanding then that the
Chinese would say, oh, you say it is not commercial, therefore you
might be right, and just not do anj^hing? Is there any other avenue
that they could take in this particular case that I pose?

Ambassador Taft. There are many avenues, and in fact the con-
vention and the Charter of the United Nations and just normal dip-
lomatic activity suggests that long before one went into a dispute
resolution mode, even if it were available, that there should be dip-
lomatic discussions, that there should be all efforts to resolve the
issue and talk about it and try to fix it up.

Senator Inhofe. So the international community through these
would be drawn in to helping with interpretations at some point?

Ambassador Taft. No, no, not the international community.
These would be bilateral discussions between us and the Chinese.
We would have discussions with them or other states to try to re-
solve an issue, that is all.

Senator INHOFE. Okay. Ambassador Taft, Senator Warner talked
about the opting out of the treaty. Your answer I beheve was we
could at any point opt out of the treaty? Or is that not correct?

Ambassador Taft. We were discussing, I think, opting out of the
arbitration — sorry, the dispute settlement provisions. We have, in
the Senate resolution, said that we will opt out of those.

Senator Inhofe. But could we not opt out of the treaty?

Ambassador Taft. It is always open to a party and in this par-
ticular treaty it provides that there is an opportunity to withdraw
from the treaty. We are talking now, of course, obviously about get-
ting into it.

Senator Inhofe. No, I understand that. But during the hearing
that I held, one of the witnesses said: "We could always have the
option of opting out of the treaty." I just wanted to know, is that
option always there?

Ambassador Taft. Yes, it is. It is provided for

Senator Inhofe. Can you think of circumstances under which
that would happen, without taking any time?

Ambassador Taft. I think if we determined that the treaty was
not in our interest at some point — and we do have in our resolu-
tions of advice and consent and agreed, there will be reviews of
how the treaty is operating.

Senator iNHOFE. So if it was determined the treaty was not in
our interest, we

Ambassador Taft. It is open to us to withdraw from it.

Senator Inhofe. What would happen in such case if you had
someone who is — because you know, the oil and exploration indus-
try is supporting this treaty. They feel they can get into this area
outside the 200 nautical miles for that purpose. Now, what would
happen if they were able to be successfully venturing, getting in-
vestors in and drilling and exploring, and in the middle of that op-
eration, and then all of a sudden we opt out of treaty? Where would
they be?

Ambassador Taft. I think that they would be sitting there with
whatever their contract rights would be, and if I were they I would
write my contract so that I would be able to continue.

Senator Inhofe. Except that according to their testimony they
are only going to be there because of this treaty; they cannot do
it otherwise. They would — I would suggest that they would be left
out in the cold.

Ambassador Taft. No, I think that they would be there and they
would have their contract rights would survive that situation. If I
were the company, I would certainly write the contract that way.

Senator Inhofe. We have been talking a lot about the sea here.
What about the air over the sea? Is this going to affect some of our
ability to do what we are doing currently in terms of aircraft?

Admiral Clark. Senator, I am glad you asked the question. Fun-
damentally, the provisions also do in fact apply to the air and that
freedom to operate in the EEZ is critical to us.

Senator Inhofe. Under Article 39 it says "Duties of ships and
aircraft during transit passage." I think someone who is looking at
this with a concern for sovereignty, a concern — I think it goes far
beyond just the sea. I would have to ask about space policy later

My time has expired, but I would like to have you answer that
question for the record, specifically how it affects the air — we have
been talking about the sea — the air or potential space policies.

Ambassador Taft. We will provide that. Senator.

[The information referred to follows:]

The Convention does not apply to outer space, which is governed principally by
the U.N. Outer Space Treaty, to which the United States is a party. With respect
to airspace, the Convention reflects either rules set forth in the 1958 UNCLOS, to
which the United States is a party, or customary international law accepted by the
United States. The Convention's provisions affirm that the sovereignty of a coastal
state extends to the airspace over its land tenitory, internal waters, and territorial
sea. International airspace begins at the outer limit of the territorial sea. There is
no right of innocent passage for aircraft as there is for ships. However, all aircraft,
including military and other state aircraft, enjoy the right of transit passage over
straits used for international navigation and the right of archipelagic sea lanes pas-
sage over certain archipelagic waters. Beyond the territorial sea, all aircraft enjoy
high seas freedoms of overflight and other internationally lawful uses of the sea re-
lated to that freedom, including those associated with the operation of aircraft.
Other treaties, including the 1944 Chicago Convention, regulate aircraft operations.

Chairman WARNER. Let us take the time to answer that for the
record briefly.

Senator Inhofe. All right, that is fine.

Chairman WARNER. The question is before the panel.

Senator iNHOFE. The chairman said you can go ahead and an-
swer.

Ambassador Taft. I think that the general answer is that the air
space in straits and territorial sea and the EEZ is in the same
basis as the surface.

Senator Inhofe. Thank you very much.

Admiral Clark. The other rights, the rights that we spoke to in
the EEZ and transit passage and innocent passage, apply.

Senator Inhofe. Thank you.

Admiral CLARK. We need those rights.

Chairman Warner. Senator Ensign.

Senator Ensign. Thank you, Mr. Chairman. Just a quick state-
ment. One of the things that troubles me about this whole treaty
is that people that I respect a great deal have virtually opposite
opinions on the interpretation of this treaty, and I think that is the
way it is sometimes, a lot of times, with legal matters, because we
are not dealing with absolute facts, we are dealing with interpreta-
tions, and international law especially is such a highly complex
issue, that what may look one way to one person can look a com-
pletely different way to another person, which leads me to grave
concerns. What does it mean down the line?

In other words, we may look at it now one way, but down the
line, and then we are party to it, and even though we can opt out
of things, the chances of doing that, as we know, are very slim.

I realize that we have said that on military things we are not
subject, we have decided on the dispute resolution that those mat-
ters would not be subject. The reason I ask that, especially as
chairman of the Readiness and Management Support Subcommit-
tee, I have this concern. Admiral Clark, on the low-frequency
sonar. The way that the international community is going, maybe
the international environmental movement can have a tremendous
influence sometimes on some of these international bodies and de-
cides that down the line that sonar is one of those things that

should be outlawed, that the low-frequency sonar should be out-
lawed, which would be a great detriment to defending our coast-
line.

The question really is, though, to Mr. Taft: Who decides which
of these disputes? Is it Department of State or DOD?

Ambassador Taft. Senator, on that we like to think that we al-
ways reach agreement with our colleagues in the DOD.

Senator ENSIGN. We know that that does not happen all the
time. We all know that, and there is great disagreement between
Defense and Department of State many, many times. That is why
I want to know who has authority.

Ambassador Taft. The authority would be ultimately in the
President.

Senator ENSIGN. The President's hands, right.

Ambassador Taft. But the DOD would, I think, have the domi-
nant aspect, dominant place in giving him advice as to this was a
military activity, and they do military activities, they know what
they are.

Senator ENSIGN. Mr. Taft, Ireland brought a complaint against
Great Britain recently at the United Nations Tribunal on the Law
of the Sea involving a land-based nuclear power plant in Britain.
This case, I guess this was completely land-based. As the case is
going forward, I guess it raises some points on how far does this,
not just the open waterways, but this was clearly not part of the
sea.

How far could this treaty affect the United States? Are we talk-
ing about the Mississippi River? Are we talking about the Great
Lakes? Are we talking about our seaports? How far? Or waters that
feed into the Mississippi? How far exactly could one of these tribu-
nals rule that the jurisdiction of the treaty covers?

Ambassador Taft. I think the treaty covers basically the three
phases: the territorial sea and contiguous zone that is outside the
land for 12 and 24 when you take the contiguous sea; then out to
200 miles for the exclusive economic zone; and then there are the
high seas. It also governs the deep seabed, which of course no one
has sovereignty to, but it regulates the way in which the deep sea-
bed can be taken advantage of and provides means whereby compa-
nies can do mining there.

Those are the areas that the treaty covers, not internal waters.

Senator Ensign. I know my time has expired, but I think this
is an important point because, why was this even then taken up?

Ambassador Taft. As I understand it, the claim of Ireland in
that case was that the effluent from the proposed nuclear power
plant was affecting the fishing activities in the Irish Sea, and that
is their claim. The tribunal — to which, incidentally, we would not
be party to; we have not opted for that particular forum, would not
opt for that forum. But they will decide that. The United Kingdom
I should say takes a very strong position that the Irish claim is
without merit.

Senator ENSIGN. But I think it illustrates the point that there
are concerns that the creeping jurisdiction — I mean, we are seeing
that with all the international courts and the way the international
court is starting to work with this organization even. That is where
some of us have concerns, is that it is the creeping jurisdiction.

I mean, this is clearly a land-based issue that they are trying to
go after based on the effluent, potential effluent to the sea. But this
is clearly land-based on Great Britain's land.

Ambassador Taft. This is the position, I believe, that the United
Kingdom is taking. The tribunal is examining it. If it is indeed
land-based, having no effect in the sea, then they will throw it out.

Chairman Warner. Gentlemen, I will have to ask any further
dialogue on this be provided for the record.

Senator Sessions.

Senator SESSIONS. Thank you, Mr. Chairman. Jurisdiction, Mr.
Taft, is a big deal. You have occasionally some rogue judge in the
United States invalidating wars and military decisions and Con-
gressional actions, but ultimately most judges understand jurisdic-
tion and if they try to exceed their jurisdiction they fail.

But I am concerned that a court of this nature does not have the
heritage and the clarity of understanding of the jurisdiction ques-
tion as Senator Ensign just raised, and that can cause trouble in
the future. Do you dispute that?

Ambassador Taft. I do not think that we have heard from the
court at all on this subject.

Senator Sessions. They found they had jurisdiction, did they
not?

Ambassador Taft. They found they had jurisdiction to decide the
case, but they have not decided the case. They will decide in the
case whether this has something to do with the sea. That is the
claim of the Republic of Ireland.

Senator Sessions. Surely you understand that once they assert
they have jurisdiction they have the power to decide either way
they want to.

Ambassador Taft. No, sir. They have the power to decide cor-
rectly.

Senator Sessions. But that is a dangerous concept, if we're going
to assume all courts decide correctly.

Ambassador Taft. I do not see that — they have a dispute, the
United Kingdom and Ireland. Both of them have agreed that they
will be subject to the jurisdiction of this court. That is their agree-
ment. We have not proposed that we would take that approach and
we will not take that approach if we become a party.

But if they want to settle this matter as between themselves in
this court, I do not see why we should be objecting. We are not
going to go that route. We are going to go to an arbitration panel.
But I do not see that it really is an objection to the treaty that two
parties who are willing to have their dispute settled by this tribu-
nal are before that tribunal. That is the way they have agreed to
do it. We are not going to do that.

Senator Sessions. How will the arbitration work? I think that is
a positive step, but tell me how it works?

Ambassador Taft. The way in which — what we have selected is
that if we are in a dispute that we would prefer to, and it is pro-
vided for in the treaty, go before an arbitration panel, which would
be set up in the normal way of arbitration panels, where we des-
ignate an arbitrator, they do, and there is a third fellow.

Senator Sessions. Who selects the third?

Ambassador Taft. As a rule, that is designated, and I am not
sure. I have to provide that. Whether it is the parties

Senator Sessions. Well, it would be the Law of the Sea

Ambassador Taft. I am not sure whether it is the parties' rep-
resentatives or from a panel. I will have to check that for you. Sen-
ator.

[The information referred to follows:]

Article 3 of Annex VII of the Convention governs the constitution of Annex VII
arbitral tribunals. It provides that, unless the parties to the dispute agree other-
wise, a tribunal will consist of five members. The party instituting the proceedings
appoints one member, who may be its national. The other party appoints one mem-
ber, who maybe its national. The other three members are to be appointed by agree-
ment between the parties. They are to be nationals of third states, unless the par-
ties agree otherwise. If the parties to the dispute are unable to reach agreement on
the three members to be jointly appointed, they may select a person or third state
to make the appointments. As a last resort, the President of the International Tri-
bunal, in consultation with the parties to the dispute, is to make the appointments
from the list of arbitrators nominated by the Parties to the Convention, all of whom
are required to be persons experienced in maritime affairs and enjoying the highest
reputation for fairness, competence, and integrity.

Annex 3 of Annex VIII governs the constitution of Annex VTII "special" arbitral
tribunals. (Such arbitration is referred to as "special" because of the particular ex-
pertise that panelists are to have for the listed categories of disputes. The United
States would select special arbitration for the categories of disputes for which it is
available, e.g., marine scientific research.) The procedure for the selection of arbitra-
tors is slightly different from the procedure for Annex VII arbitration. For these
panels, each party to the dispute appoints two members, one of whom may be its
national. (The ability to appoint two panelists instead of one was considered impor-
tant for highly technical disputes, where parties might wish to appoint one legal and
one technical expert.) The parties by agreement appoint a fifth person to be Presi-
dent of the special arbitral tribunal. If they are unable to agree on the fifth appoint-
ment, they may select a person of third state to make the appointment. As a last
resort, the Secretary General of the United Nations, in consultation with the parties
to the dispute, is to make the appointment from the list of experts nominated by
the Parties to the Convention, all of whom are required to be persons whose com-
petence in the legal, scientific, or technical aspects of their fields is generally recog-
nized and who enjoy the highest reputation for fairness and integrity.

Senator SESSIONS. That would be, of course, very important be-
cause that would be — the third person decides the arbitration nor-
mally.

Ambassador Taft. In my experience they do have a strong vote,
but I have also seen your own arbitrator can have a great influence
on it. We would have that arbitrator

Senator SESSIONS. Will you get me in writing your understanding
of that? Would the arbitrators be bound by the decisions of the Law
of the Sea Court in making decisions on these issues?

Ambassador Taft. They would be, I think, referring back to the
sources of law, whether it is the convention itself. That would be
the main one, and outside of that I suppose they would look to the
laws of the states involved, our law and other states.

Senator SESSIONS. Would you not expect they would look to the
decisions of the Law of the Sea Court?

Ambassador Taft. They might look to those.

Senator SESSIONS. Can you say they would not see that as the
primary source of any interpretation of Law of the Sea issues?

Ambassador Taft. I think that they would look at that, but they
also have their own mind.

Senator Sessions. Mr. Taft, is it not clear that they are going to
follow the Law of the Sea Court decisions most likely?

Ambassador Taft. I do not know in the particular case what the
situation would be, whether there are — but it could be. That might
very well be to our advantage. We might argue that they should.

Senator Sessions. On the PSI, let us see if I can get it correct
on this. I appreciate your explanation of that and I think I have
it. The question when the President has sought people to join
against proliferation, join PSI with us, has not been whether or not
you are a member of the LOST; it is are you willing to help us by
agreeing to go beyond what you might otherwise be willing to do
to help us stop ships and interdict that?

In effect, some people have been reluctant to sign onto PSI. Only
14 have, I believe. Some nations have been reluctant, citing it goes
beyond the Law of the Sea; is that not true?

Admiral CLARK. Frankly, I have not researched all of the posi-
tions of other nations. My staff tells me there are a number of or-
ganizations that want to become part of this. But I think what has
been misinterpreted is the potential linkages between PSI and the
Law of the Sea and the whole set of authorities.

The point is that I outlined the authorities and this convention
does not have anything to do with what, in effect, are agreements
between nations that they are going to take on this activity

Senator Sessions. I agree with you on that.

Admiral Clark. — agreements to search a vessel, agreements to
board.

Senator SESSIONS. I agree with you. Admiral Clark, on that. But
I do think that as a practical matter we are hearing some com-
plaints that, we signed the Law of the Sea and you are asking us
to do more.

Admiral Clark. If you would, may I provide a response to that
for the record? I would be happy to.

Senator SESSIONS. Thank you.

[The information referred to follows:]

I am aware of no country taking the position that it cannot join PSI because it
conflicts with the UNCLOS. PSI is entirely consistent with international law, in-
cluding that contained in the UNCLOS. Some countries have expressed concern that
PSI may be inconsistent with the UNCLOS. Those concerns reflect a misunder-
standing of PSI and do not take into account the fact that PSI's own rules require
that PSI activities be consistent with the Convention and international law. Expla-
nations have been provided to help them better understand that the Convention
does not prohibit any activities to be undertaken pursuant to PSI.

Ambassador Taft. It would be one of the easier cases to make
to them that they do not have that problem and we would get them
on board promptly.

Senator SESSIONS. Thank you, Mr. Chairman.

Senator ENSIGN. Mr. Chairman?

Chairman Warner. Yes.

Senator ENSIGN. Could I just ask? It will be a very brief question
and they could even provide it for the record, and if you want to
comment just briefly. It is the follow-up to the British case, the
British and Ireland. Pose it this way. Let us say that we had a
President of the United States who was against nuclear power, to-
tally opposed to nuclear power. There were power plants operating
under a similar condition where, say, Mexico or another country
said the effluent from the Mississippi River was going down, affect-
ing their waterways, affecting their fishing.

We had a President who was opposed to nuclear power, says to
his State Department: Go ahead and give jurisdiction. In other
words, we want to become party to this, because that President
wants to see that power plant closed.

Is it not in fact possible to do that, for a president to do that?

Ambassador Taft. I am not sure I understand the basis of the
hypothetical. Senator. The President wants to close a power plant?

Senator ENSIGN. Yes. Let us say, yes. He cannot do it any other
way.

Ambassador Taft. There would be easier ways for him to do
that.

Senator Ensign. I did not say there were not easier ways. Is it
possible for that to happen? I mean, Britain has agreed, Britain
has agreed to the tribunal. We could have a President that agreed
to that as well.

Ambassador Taft. We could have

Senator Ensign. So it would affect territory within the United
States, is the point I am trjdng to make.

Ambassador Taft. But what you are suggesting is that the Presi-
dent would direct the State Department to lose a case that it could
actually win? I do not anticipate that.

Senator Ensign. Because it may be something that is the Presi-
dent's ideology.

Ambassador Taft. I would be very sorry to hear that. But we do
not

Senator ENSIGN. Thank you, Mr. Chairman.

Ambassador Taft. We have many cases out there and the Presi-
dent never directs us to lose them.

Chairman Warner. If you wish or desire, amplify the record.

We will now proceed to the next panel. I want to thank each of
our witnesses.

Admiral Claek. Thank you, Mr. Chairman.

Chairman Warner. I hope that you will have someone remaining
behind such that you can be fully informed as to the subsequent
testimony that this committee is about to receive.

Ambassador Taft. Thank you, Mr. Chairman.

Chairman Warner. We will now have the distinguished Jeane J.
Kirkpatrick, American Enterprise Institute for Public Policy Re-
search. Among many, many accomplishments, our distinguished
witness is former Ambassador to the United Nations and a member
of President Ronald Reagan's cabinet. So we welcome you. Madam
Ambassador. [Pause. 1

Thank you very much for accepting the invitation to appear be-
fore this committee. We will put your entire statement in the
record, but you can take such time as you desire to address not
only your statement, but such other issues you have heard this
morning on which you have another perspective.

STATEMENT OF HON. JEANE J. KIRKPATRICK, SENIOR FEL-
LOW AND DIRECTOR OF FOREIGN AND DEFENSE POLICY
STUDIES, AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC
POLICY RESEARCH

Ambassador Kirkpatrick. Thank you. Senator Warner.
Is this functioning now? Can you hear me?

Chairman Warner. Very clearly. We thank you. There should be
a slight red dot appearing there.

Ambassador KiRKPATRICK. There is not one. That is what con-
cerned me. But as long as you can hear me, that is what matters.

I was pleased to accept your invitation and I appreciate your ex-
tending it, and I am willing to testify today because I think I have
some experience that is relevant to the issue, namely my experi-
ence as U.S. Permanent Representative

Chairman Warner. Unquestionably, Madam Ambassador, you
have a distinguished record.

Ambassador KiRKPATRICK. As Permanent Representative to the
United Nations. I would really like very much to require everyone
who develops a position on this issue and proposes it seriously to
the U.S. Congress and all of the Congressmen and Senators who
are going to act on it to spend a term in the United Nations. That
is my proposal for reform.

Chairman WARNER. Then you just lost my vote. I am not going
to do that.

Ambassador KiRKPATRICK. We have in fact a program which
makes a provision for Senators and Congressmen and other influ-
ential Americans to spend a session at least in the United Nations.
It is a very interesting learning experience because what it teaches
you above all is that the United Nations is a political body. It is
as political a body as the U.S. Congress, and it is political in all
the same ways that the U.S. Congress is political.

Its decisions are made generally speaking on a political basis,
which is not to say that the law does not matter. The law matters
a lot and many issues are argued on complex legal grounds. But
finally they are settled on political grounds.

I did not even know this when I went to the United Nations ac-
tually. But I knew, I knew that it was political in the sense that
all the states in the world were represented in it, but I did not
know that they reached decisions and interacted so regularly on a
highly political basis.

I would like to say that I think I had the privilege of serving
with a President, Ronald Reagan, who was more sophisticated
about these issues than most people, and because he was more so-
phisticated about them he arrived in the White House and was in-
augurated with some real questions about a number of activities in
which the U.S. was engaged with the U.N. and in the U.N., includ-
ing the LOST.

Let me just say that we were all in the Reagan administration,
I think we were all aware of the fact that the U.S. Navy and the
military and other branches of our government considered that
there were real benefits to be derived from U.S. participation in the
LOST and that there were undoubted benefits. But the President
also thought that we were enjoying most of those benefits through
bilateral and regional agreements on a regular basis.

President Reagan stopped the process, which was already very
advanced in fact, of U.S. preparations for accession to the treaty,
and he did so because he wanted an investigation. He ordered an
investigation and he ordered it to begin promptly, and he set some
terms which he insisted be met if the United States was going to
participate.

These included that the treaty should not deter the development
of seabed mining. That was a very major issue at that time, with
very good reason, I might say. But that wasn't the only concern.
Someone said that the Reagan administration's only concern was
the seabed mining. That is not true. The Reagan administration
had other concerns. The President himself had other concerns.

I realize that Davis Robinson, who was the State Department's
Legal Advisor during the Reagan years, has provided what looks
like a very interesting statement, which I intend to read with care
and profit I am sure after this hearing, which was distributed this
morning, suggesting that all of the legal experts of the State De-
partment, all of the State Department legal advisors have sup-
ported some aspects of the treaty. It is not as sweeping as it first
implies. But in any case, I do not doubt that.

But there were already many commitments the United States
had made concerning — not commitments; verbal commitments,
more or less, arguments maybe more than commitments, that the
U.S. had made concerning participation in the LOST before Ronald
Reagan was inaugurated.

When he was inaugurated, he immediately called a kind of halt
to progress on the treaty until there was an investigation. His con-
cerns were not just for seabed mining, although those were impor-
tant, but they were also with the decision structure. I might say
that my principal concerns on this treaty are with the decision
structure which is proposed in the treaty.

The President, President Reagan, insisted that the decision-
making structure if we were to join it should reflect and protect the
economic interests and other interests of contributing and partici-
pating states, it should reflect the interests of the participating
states, all of the interests of all of the states, and not simply the
least developed states, which the treaty and the decisionmaking
structure had been, like most U.N. bodies in fact, heavily stacked
in favor of, biased in favor of, the least developed, less developed
countries.

He also was concerned that it should be, and Judge Clark was
concerned too, that it should be susceptible to ratification by the
U.S. Senate. They felt that there were constitutional issues of some
importance.

The President was concerned about whether the U.S. accession
to the treaty would encourage the proliferation of Organization of
the Petroleum Exporting Countries (OPEC). OPEC was very impor-
tant during this period, you may recall. It was exercising a lot of
power and seeking to extend its power. He was afraid that the
LOST would become an instrument for encouraging and assisting
in the development of just such cartels to ensure high prices by
controlling interests.

Now, as I understand it the revisions, the 1994 revisions, have
affected a number of the critical provisions of the LOST involving
the LOST mining, the seabed mining, and to just that extent they
may have eliminated the concerns with seabed mining, although as
I understand it also the status of those 1994 amendments is legally
uncertain. I do not know whether Will Taft or John Norton Moore
can tell us what the legal status is precisely of those amendments.

I have heard that the revisions actually have an uncertain legal
status, a different legal status than the treaty itself. They are not
fully incorporated into the treaty, as I understand it. But that is
for the lawyers to decide.

What is clearly the case is that the decisionmaking issues in the
treaty are still with us, not in quite as extreme a form as they were
in 1981. In 1981 it was the heyday of the Cold War. We were either
at the apex or the bottom of the Cold War, depending on how you
describe it. It was grim, and the power of the Soviet Union in the
United Nations was really incredible. That was because they were
so much more skillful than we were in organizing supporters. So
they had many aspects of U.N. activity sort of wired and they could
get decisions as they chose them.

We have never been able to do that, I might say, in the U.N.,
even when it was just founded. The United States — I will return
to that, but I mention now that the United States is not very skill-
ful at U.N. politics. It is all very well for people who — that is why
I would like all of you to go spend a session at the U.N. and be
given a responsibility to get a resolution passed. The President of
the United States and the Secretary of State tried that about a
year ago in the Security Council, where they felt and I felt as I lis-
tened to them that they had a very strong case on that second reso-
lution for the Iraqi violations of the ceasefire.

But we also heard France threatening its veto. That is part of
the politics of the U.N., too. We know what happened. We know
that we did not introduce, quite wisely, did not introduce, did not
propose, a second resolution.

The first resolution you will recall, which declared Iraq to be in
breach of the ceasefire, was unanimously passed. If procedures had
been developed reasonably, a second amendment or resolution
might have been reasonably, would have been expected to be
passed. But it was so clear, since France announced that they
would veto if it included a reference to provision for the use of
force, that we did not introduce the second resolution.

The Clinton administration, I might say, which was often
thought to be more skillful in the U.N. than the Reagan adminis-
tration or the Bush administration, did not seek a resolution au-
thorizing the use of force in Kosovo. Why? Because it was under-
stood by the critical people who had the powers of decision that
such a resolution would almost certainly be vetoed. It would not be
passed. It would be vetoed. So we simply turned in Kosovo to the
use of force without seeking acquiescence of the Security Council,
the resolution of the Security Council.

That simply is an example of not only the fact that the United
States is not often as powerful as we wish we were or as influential
and effective as we wish we were in the U.N., but that that is a
condition that afflicts both parties and affects very important deci-
sions, like whether we are going to use force in Kosovo, go to war
in Kosovo.

I thought the Clinton administration was right, by the way, in
both the decision on Kosovo and the decision not to take the resolu-
tion to the United Nations Security Council, because it would have
been vetoed there.

But I want to emphasize that this poHtical body that the United
Nations is is not one in which we necessarily get our way. More
often than not, we do not get our way in the U.N., and more often
than not we do not get our way because there simply are not
enough countries that feel that it is to their advantage to vote with
the United States in the United Nations.

That was most dramatically clear in the Cold War, of course.
There was a vote on the LOST and the Preparatory Committee
(PrepCom) issue, whether or not countries who participated in the
Law of the Sea PrepCom should be required to pay the expenses
for the PrepCom or the assessed expenses. There was a resolution
proposing that the expenses for the PrepCom be incorporated in
the United Nations' regular budget, which is assessed to members
and which it is generally agreed there is a legal obligation to pay
on the part of members. The United States State Department has
argued strongly through the years that we have a legal obligation
to pay assessed expenses.

That resolution, which was proposed at a time during the Reagan
administration, at a time that we were still considering the LOST
and accession to the LOST passed against us 132 to 4. Now,
think — the United States is not only not politically influential in
the U.N., we not only do not have power in the U.N.; we do not
have power in a big way. I do not think we are getting many votes
like 132 to 4. We got a lot of them during the Cold War.

But today most of the countries are not as tightly committed to
bloc voting as they had been. But now bloc voting is just like what
happens again in Congress. It is voting by party, and voting by
party produces in the U.N. often very lopsided kinds of outcomes.

President Reagan simply asserted that we should not accede to
the LOST until the decision structure reflected and protected the
interests of the participating states and until we were satisfied
that it was subject to ratification by the Senate.

The concern about the constitutional issue, the ratification by the
Senate, of course dealt with the amendment provisions of the
LOST, which I understand are still yet to be tested, have never ac-
tually been invoked, but may be soon. Those provide that any
amendment passes, automatically passes, with a two-thirds major-
ity. Now, that may sound like a whopping majority, but the fact is
the G-77, that is the organization of the less developed states,
itself constitutes a two-thirds majority of the total membership of
the Assembly.

So you do not need to be concerned about these issues until you
come face to face with them. We have not come face to face with
them because — not only because we have not been a member of the
LOST organization, but because they have not really been function-
ing long enough or broadly enough for us to get a very clear idea
about how they would work.

The automatic two-thirds majority in an organization in which
St. Christopher's and Nevis, I usually say, has one vote and the
United States has one vote — you understand that all of the votes
in the authority are on the basis of one country, one vote, and all
of the votes in the LOST, relevant to it, will be on the basis of one
country, one vote.

My own position is that we should never join an organization
whose governing decisions will be operating on the basis of one
country one vote, because we are hopelessly, overwhelmingly over-
come even before there is the possibility of a vote even. There is
no possibility of our carrying in such a context.

I think it is important that Congress and that this committee in-
vestigate carefully what the current status of the amendments pro-
cedure is, whether it is still the case that — it may be that John
Norton Moore knows the answer to this — a two-thirds majority is
adequate to pass any amendment to the LOST, because that would
make pretty shallow any kind of Senate ratification. You can ratify
one treaty and if it can be revised and amended by a two-thirds
majority, a U.N. majority — General Assembly majority is what it
comes down to — you will have to start over again any number of
times. What you ratify may bear less and less resemblance to what
exists.

Actually, President Reagan and Judge Clark had some concerns
about this. President Reagan simply announced that in the Reagan
administration he would not move on the treaty. He was quite
ready to commit the United States to continuing to fulfill all those
provisions of the treaty which we were already fulfilling, such as,
with respect to the free passage in straits, international straits,
and respect for maritime animals and general respect for the law
of the sea as it has been traditionally understood and observed.

The President also felt that we should carefully establish our
legal obligations and rights before we acceded to the treaty. He was
concerned about buying a pig in a poke, if you will, to use the lan-
guage of my grandmother.

The end of the Cold War has helped, there is no doubt about
that. It has helped the U.N. The U.N. is not stacked in quite the
way that it was stacked during the Cold War, against the democ-
racies for example. But it is still a very highly political body in
which democratic states constitute a minority and are likely to con-
tinue to constitute a minority. I served last year as the head of the
U.S. delegation to the Human Rights Commission and that was a
commission, you may recall, to which the United States was — from
which we were barred, we were not elected, 2 years ago. We ran
for election and were not elected.

I may say that, of course, I did not mention but everyone under-
stands that the Seabed Authority will elect a council which will
function as a sort of executive of the Seabed Authority, elect a 36-
member sort of executive council. That will be elected by that same
body that voted against us 132 to 4 a few years back, but it will
be elected by them.

As originally foreseen, the U.S. did not have a permanent seat
on that executive council, and many of the policymaking functions
are vested in the executive council, as I understand it, effectively.
We now are guaranteed a seat, but that will be one of 36 seats as
I understand it.

This has not been — since it has never been implemented, we do
not really know how it will work out, but that is the way it is
planned now to work out. It would be a lot better to be guaranteed
a seat on that 36-person body than not to be guaranteed a seat, be-

cause otherwise we might lose our seat every few years, as we lost
our seat on the Human Rights Commission.

By the way, at the same time that the United States was losing
its seat on the Human Rights Commission, Cuba, Burma,
Zimbabwe, and most of the world's worst human rights abusers
were winning seats on the Human Rights Commission. That is an-
other problem for another day, which is worth the consideration of
some serious committee of the Congress, let me say, that the
Human Rights Commission is today almost half made up of the
world's worst human rights abusers. There are members of the
Congress who are concerned about this and who have been think-
ing hard about it. But we have not solved that problem any more
than we have solved the problem of how we can assure that we will
get elected to it and, let us say, Zimbabwe will not.

We only get elected if our politics are smarter and more energetic
than theirs are. But our politics are usually neither smarter nor
more energetic than, say, Cuba's. Cuba is always elected to the
Human Rights Commission and it is always treated in a most re-
spectful fashion. It can guarantee that it will be treated respect-
fully much better than any democracy on the commission.

Anyway, my point I think is rather clear, discouragingly clear.
My point is that as far as I understand it many of the serious flaws
in the LOST which were considered definitive for President Reagan
and a majority of his foreign policy team in fact — not the whole ad-
ministration, but the majority of the foreign policy team — have
been improved by the end of the Cold War actually, but they have
not been solved; and even those that have been improved have not
been improved definitively. They commit us to positions and situa-
tions in which we are likely to find ourselves outvoted, if not 132
to 4, then 36 to 7, as we were a couple of times in the Human
Rights Commission last year.

They do not — no one should make a decision concerning the U.S.
vesting of additional powers in a U.N. body without very carefully
studying the composition, the voting history, of that body, and the
plan for dealing with the politics of that body, because that is what
we will be doing. Whatever the law says, if the law is the U.N.
Charter, it will be susceptible to interpretation and reinterpreta-
tion on the basis of the political balance of the governing body.
That would be the Seabed Authority.

Now, you can say, well — somebody, I think the CNO said, I think
it is important for the United States to be present because if we
were not present in some important body then we could not lead.
The fact is the United States usually cannot lead in U.N. bodies
when we are present. From time to time we get a good hearing.
That is what the President and the Secretary of State were trying
to do when they took the Iraq issue to the Security Council. Some-
times we do not get a good hearing. Those decisions too are made
on political grounds, and our values are not necessarily important
to most of the political leaders making those decisions.

[The prepared statement of Ambassador Kirkpatrick follows:]

Prepared Statement by Hon. Jeane J. Kirkpatrick

Mr. Chairman, thank you for inviting me to testify today on this important issue
which I beheve has broad and important imphcations. Some of these imphcations —
especially those concerning deep seabed mining and technology transfer — have been

the most widely discussed. But I believe the Treaty also raises some constitutional
and political issues with broad ramifications and implications, and I continue to
think it raises security issues as well.

I hold no position in the United States government today and have no responsibil-
ities in relation to the Treaty. However, I had prolonged and serious dealings with
the LOST during my years as Ronald Reagan's Permanent Representative to the
United Nations and a member of his Cabinet and National Security Council. I might
add that I was also a member of his Commission on Space.

I have been a professor of Government at Georgetown University for most of my
professional life. I am now a Senior Fellow at the American Enterprise Institute.
I have sought to remain abreast of developments concerning the United Nations.
Last year I served as head of the U.S. delegation to the United Nations Human
Rights Commission.

Those of us concerned with foreign affairs in the Reagan administration became
deeply involved in the LOST which had been under discussion since 1958 and had
nearly been completed by the time Ronald Reagan was inaugurated in January
1981. It is accurate to say that the Reagan administration believed that the issues
raised by the Treaty were basic and important and that both the political and eco-
nomic stakes were high. I will share some of our experiences and perspectives be-
cause I believe they are also relevant today.

The Treaty begins from the assumption that the seabed and its wealth are part
of the "common heritage of mankind" and its benefits should be shared by all, pro-
tected against exploitation by any country or group, and administered by the United
Nations. In 1968, Resolution 2467 was passed and vested jurisdiction over the Trea-
ty in the "Standing Committee on the Peaceful Uses of the Seabed and the Ocean
floor Beyond the Limits of National Jurisdiction." In 1970, the General Assembly
voted by an overwhelming majority to convene a conference on the LOST. Negotia-
tions took shape when all parties agreed to the notion of a "common heritage," al-
though disagreements soon emerged between developed and developing countries on
technology, sovereignty, and the extent and kind of regulation that should and could
be imposed on seabed mining.

Negotiations continued for more than a decade — during which the Treaty came to
be viewed as the cornerstone of the New International Economic Order (NIEO) and
of the associated efforts to use U.N. regulatory power as an instrument for restruc-
turing international economic relations and redistributing wealth and power. The
General Assembly is the institution through which the NIEO operates. It operates
on the principle of one country, one vote.

During the decade that the LOST took shape, the basic assumptions of the NIEO
concerning the obligations of the "north" to the "south" gained wider acceptance and
expanded their influence and scope. The regulatory functions of the U.N. grew and
the resistance of the industrialized countries was eroded. Then Secretary of State
Henry Kissinger had laid out conditions for U.S. participation in the proposed tech-
nology transfer — guaranteeing U.S. representation on its governing body and limit-
ing production controls — but these conditions were ignored and eventually dropped
by the American government itself.

By the time Ronald Reagan took office, the LOST was very nearly completed and
a final session was scheduled to begin on March 9, 1981, to be completed by the
end of the summer. These plans were interrupted when the Reagan administration
announced before the session opened that it intended to conduct a full-fledged re-
view of U.S. policy with regard to the LOST and would not be ready to reach its
final conclusions by the scheduled time.

The announcement produced both relief and consternation. It should have come
as no surprise. The LOST was, and I believe, is disadvantageous to American indus-
try— especially in their participation in seabed mining — and to American interests
generally. It should have been no surprise that a pro-business government inter-
ested in restoring American power would oppose the Treaty.

Viewed from the perspective of U.S. interests and Reagan administration prin-
ciples, it was a bad bargain. However, the LOST promised some things that Ameri-
cans wanted very much: a commitment to freedom of navigation, territorial limits
set at 12 miles, establishment of economic zones of 200 miles, and protection of
navigation rights of all through international straits. The U.S. also regarded as posi-
tive the certain international agreements protecting marine mammals and migra-
tory species. These protections were especially welcome at a time when a good many
countries were arbitrarily extending their territorial claims over straits and vital
sea lanes. But the Reagan administration believed that the cost was too high, espe-
cially since most of these benefits had been or could be achieved through bilateral
agreements or through existing organizations such as the Intergovernmental Marine
Consultative Organization of the U.N. Environment Program (UNEP).

The LOST establishes a sweeping claim of jurisdiction over the seabed and all its
mineral wealth. It creates an ISA in which it vests control of two thirds of the
Earth's surface. Under the LOST the power of the Seabed Authority would be vested
in an Assembly made up of all participating states and an Executive Council of 36
members elected by the Assembly to represent investors, consumers, exporters of af-
fected minerals, developing states, and all the geographical areas of the world. The
formula for representation guaranteed that the industrialized "producer" countries
would be a permanent minority. They would have a majority of obligations. Most
importantly, votes of the Assembly would be on the basis of one vote/one country,
with a two-thirds majority binding on all parties.

A company desiring to get a contract for seabed exploration would be required to
identify two promising sites, one of which would be claimed by the Authority to
mine itself or to otherwise dispose of, the other of which may be given to the com-
pany. The company would be required to provide its technology to the Authority,
which would also be provided to members with the capital necessary for mining.
Special taxes would be imposed and special care would be taken to protect existing
producers of minerals against competition from minerals available in sea. Worst of
all, there was no guarantee that qualified applicants ready to meet these require-
ments would be granted permission for mining.

Certain consequences of the LOST seemed wholly predictable:

• It vested control over seabed mining in countries that do not possess the
necessary technology.

• Its governing structure guaranteed a permanent majority to the less de-
veloped countries of the G-77.

• It burdened companies who would be interested in mining with unusual
costs and obligations and provided various permanent advantages to their
competition. Private companies would bear the expense of developing tech-
nology, of prospecting, of paying taxes. The authority would bear none of
these. Moreover, the private company would be required to sell its tech-
nology to buyers and at prices determined by the authority. The duration
and extent of the mining rights would be determined by the authority.

• These regulatory powers would protect markets and prices from the com-
petition of seabed mining.

From the Reagan administration's point of view, the most disturbing aspect of the
LOST was the structure of decision making. We felt the U.S. role in decisions should
reflect our political and economic interests in the Treaty and our contributions to
U.N. operations. The G-77 was determined to treat all nations alike, and the U.S.
as one nation among 180. We were not guaranteed a seat on the 36 member execu-
tive council. All questions could be decided by a two-thirds majority vote in the As-
sembly. Any aspect of the Treaty adopted by consensus could be amended by a sim-
ple two-thirds vote. Thus, the G-77 which constitutes two-thirds of the members
could change any aspect of a meticulously negotiated convention.

President Reagan outlined six concerns which needed to be addressed to make the
Treaty acceptable to the U.S.: the most important of these were that the Treaty
should not deter development of seabed mining; that its decision making structure
should reflect and protect economic interests and contributions of participating
states; and that it should be susceptible to ratification by the U.S. Senate.

OPEC had stimulated a broad desire for cartelizing other needed mineral prod-
ucts. The LOS Treaty would become an instrument for assisting in the development
of such cartels to insure high prices by controlling supplies.

The G-77 was unwilling to accommodate basic American concerns. Bangladesh's
representative Imam UL-Hak spoke for the Group of 77 of which he was chairman.
He reproached the Reagan administration for delaying proceedings asserting that
"the U.S. is overly preoccupied with the extension of the Assembly's power." The G-
77, he underscored, "has consistently rejected the concept of veto, weighted voting,
or voting by chambers." He chided the U.S. for seeking unequal power. He utterly
ignored the unequal contribution the U.S. would make because of its advanced tech-
nology. In short, Ul-Hak explicitly rejected each of the Reagan administration's con-
cerns. No concessions would be made. Basically, the G-77's position was that the
U.S. could take it or leave it. There were a good many influential Americans who
thought we should take it.

But not at top levels of the Reagan administration. An Interagency Senior Advi-
sory Group on the LOST was convened in which most departments were rep-
resented, including State, Defense, Commerce, Transportation, Central Intelligence
Agency (CIA), National Security Council (NSC), Treasury, Energy, Office of Manage-
ment and Budget (0MB), Interior, and White House staff. Their conclusions were
reported in a memorandum of March 4, 1981:

1. The LOST was unacceptable;

2. Both the Treaty and the U.S. delegation must be closely examined;

3. An immediate review must be undertaken;

4. The existing delegation must not preempt the administration's options.

To this end the decision was made to issue written instructions to the delegation,
other nations were to be informed of the review, a new Ambassador to LOST should
be appointed, and to insure fidelity to the administration's orientations, it was rec-
ommended that consideration be given to replacing several high ranking members
of the U.S. delegation.

The administration did not really want to "dash the hopes of mankind," which
they were often accused of. But on the other hand, it did not want to make it impos-
sible for humans to utilize the minerals of the ocean floor. It didn't want to discour-
age the development of technology for seabed mining. It didn't want to encourage
the development of new cartels. It didn't want to agree to revolutionary doctrines
of property. The notion that the oceans or space are the "common heritage of man-
kind" was — and is — a dramatic departure from traditional Western conceptions of
private property. Most members at upper levels of the Reagan administration were
reluctant to put our foot on that slippery slope. But there were a good many Repub-
licans as well as Democrats who thought it important for the U.S. to continue to
participate in negotiations.

An influential bipartisan group urged full support and constructive participation
in the LOST Conference. They argued that the Treaty would serve U.S. foreign pol-
icy interests, promote the rule of law, friendly relations among states, and the
peaceful settlement of disputes. Today, their heirs still believe the treaty will guar-
antee these benefits.

No American commentator denied that the provisions concerning seabed mining
were prejudicial to industrial nations, but they believed we should go along anyway.
Many of the strongest proponents of the LOST believed that new global institutions
were needed to deal with the global interdependence which they thought character-
ized the contemporary world. They would have preferred guaranteed U.S. represen-
tation on LOST governing bodies and some sort of veto, such as that possessed by
the five permanent members of the Security Council or a rule of consensus which
gave all an effective veto power. But they thought we should settle for the treaty
as it was.

The Reagan administration also saw serious constitutional questions. How could
the constitutional requirement that treaties be ratified by the Senate be met if the
contents of the agreement could be altered by a two-thirds vote of the members?
This provision for easy amendment by an Assembly majority made the Treaty an
open ended commitment. Henceforth, the United States would be bound by what
two-thirds of the Assembly said we should be bound by. That is, we would be bound
by decisions of the G-ll, a prospect that could not but appall anyone who had taken
a good look at decisions and policies endorsed by the G— 77 in those years.

Decisions were made by consensus inside the G-77, but the G-77 rejected applica-
tion of the same principle for decision making in the LOS Assembly. The operation
of the rule of consensus inside the G-ll guaranteed that the interests and needs
of individual G-77 members would be taken into account, but there would be no
parallel institutional arrangement to take account of the interests of developed na-
tions.

In the view of the Reagan administration, U.S. concerns rested on experience and
taxable interests. The Treaty proponents' case rested on hopes — that the LOST
would enhance international peace by advancing international cooperation and a
sense of obligation that we should do what a majority of nations asked of us. Among
Democrats, liberal Republicans, and within the Department of State, these feelings
were strong enough to delay a U.S. decision on the LOST for nearly 2 years. Then
the U.S. decided not to participate in the PrepCom conference. That decision not to
participate in the PrepCom conference confronted us with another decision of impor-
tance for U.S. policy vis-a-vis the U.N. system. The General Assembly voted 132 to
4 on a resolution that judged the costs of the LOST PrepCom as falling under the
general U.N. budget.

This confronted the U.S. with another, immediate decision.

To pay or not to pay the assessed share of the expenses of the PrepCom con-
ference in which the U.S. would not be participating? As usual, the issue was more
complex than it seemed. At the heart was the question of U.S. financial obligations
under the U.N. Charter and international law. Is the U.S. required to pay all
charges assessed by the U.N.? Is failure to do so a violation of international law?

Some opinions outside and inside the State Department held that failure to pay
the assessed portion of the budget constituted a violation of our obligations under
the U.N. charter and therefore would be illegal. A bipartisan majority of Congress,

however, had passed a law which the President had signed on authorizing withhold-
ing a U.S. contribution to any expenditure whose principle purpose was to aid and
abet the Palestine Liberation Organization (PLO) and Southwest Africa People's Or-
ganization (SWAPO), which regularly claimed the right to pursue their political
goals by force. Some believed we were legally bound to do whatever a U.N. body
decided. However that interpretation was not the only one.

The International Court of Justice in the Certain Expenses Case, however, had
held that an assessed expense was not automatically valid. To create collective obli-
gation to pay, the expense must be legitimate. Legitimate expenses were those nec-
essary to the implementation of the fundamental principles of the U.N. Charter.
Only essential activities tied to the U.N. Charter's fundamental purposes created an
obligation. The grounds cited by the State Department's legal advisor in 1982 for
withholding U.S. contributions to the PrepCom was the relation of the LOST
PrepCom to the U.N. Charter. The PrepCom was not created by the General Assem-
bly or the Security Council and was not answerable to the U.N. It was "established
by a treaty regime separate from the U.N. Charter." Therefore, he concluded, "a
good case can be made that the LOST PrepCom expenses are expenses of a different
entity, not lawful expenses of the U.N. within the meaning of the Charter and thus
not properly assessable against non-consenting members. That was a relief

The fact that the expenses of the LOST PrepCom were so readily increased under
the U.N. program budget — and by that vote of 132 to 4 — illustrated the realism of
the U.S. concern about our relative isolation in the U.N., and also about a new trend
in the U.N. policy toward defining extraordinary expenses into the U.N.'s core budg-
et. This redefinition is an easy solution to the problem of financing activities for
which it is difficult to secure voluntary contributions, and as usually, entails little
or no cost to the majority voting to add on expenses.

The decision of the U.S. not to participate in the LOST seems to me even better
today than when it was made. There has been time to observe the decline of OPEC
and the benefits of that decline, time to experience the cavalier fashion in which
the G-77 is ready to impose obligatory burdens on developed countries, and there
has been an opportunity to see that when the U.S. declines to go along with a
scheme that is incompatible with American interests but beloved by the global es-
tablishment, the sky does not fall.

The LOST was the first of a number of issues in which the Reagan administra-
tion's convictions and electoral commitments contradicted the orientations of the lib-
eral establishment that is dominant in much of our society. It has proved more dif-
ficult to affect the objectives of American policy than reported in standard descrip-
tions of policy making in a democracy.

Of course, important events affecting the Treaty have occurred in the years follow-
ing the Reagan administration and modifications of the Treaty have taken place.
But the modifications have not been major. The Treaty is fundamentally the same.
On October 7, 1999, President Clinton transmitted to the U.S. Senate the 1982
UNCLOS and the 1994 Agreement relating implementation of Part XI of the Con-
vention. On November 16, 1994, the treaty entered into force but without accession
by the United States.

The most important modifications of the Treaty dealt with seabed mining. They
specifically assert that the provisions dealing with mandatory technology transfer
"shall not apply." These mandatory provisions are replaced by a set of general prin-
ciples on technology transfer. Modifications also eliminate some of the competitive
advantages of the Enterprise, and the terms on which it becomes operative. These
amendments are obviously desirable, but they do not address the basic structure or
consequences of the Treaty.

I have read much of the discussion of the Treaty and I regret to say that I remain
concerned that its ratification will diminish our capacity for self government, includ-
ing, ultimately, our capacity for self defense.

Chairman WARNER. I think that point is very clear.

Ambassador KiRKPATRlCK. I hope so.

Chairman Warner. Would you have the opportunity to take a
few questions?

Ambassador KiRKPATRlCK. I would be happy to.

Chairman Warner. Fine.

Would you like to lead off, Senator?

Senator INHOFE. First of all, Madam Ambassador, thank you so
much. You have been a hero of mine for a long, long time and I
appreciate it so much.

I think you have really come through loud and clear. I took the
opportunity to read your statement before you came in and you
have really covered a lot of things that I was not sure you would
be able to cover. I think the main thing is that the U.N. is a politi-
cal body and that is so important for people here to understand.
The interests that they have in the membership of any of these
sub-groups do not always coincide with our interests.

Ambassador KiRKPATRlCK. To put it mildly.

Senator INHOFE. Let me just mention, it is my understanding
under the LOST the International Seabed Authority will require
high-resolution sonar images and graphics in order to stake a claim
on part of the continental shelf beyond the 200 nautical miles.
Now, we are talking about the oil industry is now behind this be-
cause they feel they are going to be able to do something they can-
not do today, and you heard me say the concern that I would have
for them if they made this investment and all of a sudden there
is an opt-out.

Ambassador KiRKPATRlCK. Right.

Senator Inhofe. But these images that they take, in order to
stake a claim they have to do these things. This is not optional.
This is required. They contain critical information about the coast-
line of the United States, such as potential submarine routine
schemes, and assist in locating potential locations for underwater
sensors used for the monitoring of the movements of our commer-
cial and military ships.

Any country that is a party to this has total access to all that
information. Does that concern you, that we would be exposed to
countries who would use that for their purposes and yet we wauld
be required to share that information with them? I might add, it
is not something government could stop because this is the private
sector doing it.

Ambassador KiRKPATRlCK. Right. Senator Inhofe, that concerns
me very much. It really concerns me very much, just like there are
aspects of proposals concerning space that concern me a lot, too.

Senator Inhofe. Then that is the other thing I was going to men-
tion. You heard me ask the previous panel the question, and I can
read it right here: Ships and aircraft while exercising the right of
transit, and so forth. Yet no one is talking about that. I think the
response I had — and I do not say this critically — by Mr. Taft was:
It is an opportunity, it is something that we can use. But to me
it goes beyond just the Law of the Sea. It is the law of space, it
is the law of the air.

Does that concern you, the ambiguity of this?

Ambassador KiRKPATRlCK. Absolutely, and it concerns me, I was
really quite surprised when I looked in more detail than I had at
the amendments and revisions that have been made to the treaty.
I was surprised that they were as few, as limited as they are. I
thought that the treaty had been more significantly altered from its
1982 status.

Senator Inhofe. In the 1994 round?

Ambassador KiRKPATRlCK. Right, right, right. Before I looked at
the 1994 revisions. I realize that, while those revisions I think are
welcome and desirable, they are — most of the treaty is just as it
was. I can assure you that the treaty may not be getting much at-

tention as it passes, makes its way through the Senate today. This
committee and one other as I understand it have held serious hear-
ings on it. But the treaty got a great deal of attention in the first
Reagan administration and the President and Caspar Weinberger,
whom you should perhaps try to call here in the committee, had
deep reservations about it. We all did, as a matter of fact, and
Judge Clark did, and we felt that there were commitments involved
in the treaty, in accession to the treaty, which would be profoundly
adverse to the United States's interests in fact, profoundly so, be-
cause of our perpetually weak political position in the U.N.

Senator INHOFE. Mr. Chairman, I really believe that Ambassador
Kirkpatrick has just been an excellent witness, and I have no fur-
ther questions.

Chairman Warner. I share those views. I would like to ask one
question. I think you made a point very strongly, and I go back to
the letter signed by all of the legal advisors of the Department of
State. You made reference to the Honorable Davis R. Robinson.

Ambassador Kirkpatrick. I just barely scanned it. I just got it
while I was sitting here.

Chairman Warner. Well, that is all right. Then you note that
Abraham Sofaer — you remember him

Ambassador Kirkpatrick. Right.

Chairman Warner. I was here all during that period and dealt
extensively with those two distinguished gentlemen. But I think
your point comes to the following sentence in this letter: "In addi-
tion, the United States will have a permanent seat on the govern-
ing council of the ISA, where consensus is required for the approval
of all regulations, including those dealing with financial matters."

Now, that is one of the areas in which you feel that we just will
not have sufficient votes, I suppose?

Ambassador Kirkpatrick. That is probably the biggest single re-
vision, reform if you will, of the seabed mining provisions as I un-
derstand it from the 1982 treaty. It is so sweeping that I find it
hard to believe that they mean it, frankly. But maybe they do.

That is another aspect of U.N. operations. They use language in
a much more sweeping way. I testified against several U.N. trea-
ties before Senator Biden's committee and he said to me one day
on one occasion that he thought I really just opposed U.N. treaties.
The fact is I do tend to oppose U.N. treaties, for very good reasons,
one reason being that the United States when we sign a treaty we
take it seriously and we seriously try to implement all the commit-
ments that we make in signing the treaty, but a very, very, very
large portion of countries signing U.N. treaties just do not view
treaties that way.

I always think of Iraq sitting on the governing body of the Inter-
national Atomic Energy Agency (IAEA) during the first Gulf War
as an example of the seriousness of U.N. treaties. That is what I
have to say.

Chairman Warner. I thank you. Madam Ambassador. I join my
distinguished colleague in expressing profound respect for your
many, many accomplishments and your contribution today on this
important issue. So we will proceed to our third panel at this time,
and I thank you very much.

Ambassador Kirkpatrick. Thank you.

Chairman Warner. We will have the Honorable J. William
Middendorf II, former Secretary of the United States Navy; Profes-
sor John Norton Moore, University of Virginia Law School; and
Rear Admiral William J. Schachte, former Judge Advocate Corps,
United States Navy. [Pause.]

Secretary Middendorf, I have waited 26 years for this moment.
We were in the Navy secretariat together. We worked together.
You stepped up to become the Under Secretary and then when I
moved on to run for the Senate you stepped into the Secretary's of-
fice, and you handled yourself with great distinction, and I just
cherish the long memories that we had together in those tumul-
tuous and difficult days of the closing years of the war in Vietnam.

I thank you for your long and public distinguished career, distin-
guished career in public office, and for your willingness to appear
here today.

I think I could say the same of you, John Norton Moore. We have
known each other about the same period of time. How many years
have you devoted yourself to the law regarding the oceans?

Mr. Moore. About 3 decades. Senator.

Chairman Warner. About 3 decades.

Admiral, I expect we crossed paths somewhere, although you
were

Admiral SCHACHTE. Yes, sir, we have.

Chairman WARNER. — wise to stay out of my path in those days.
[Laughter.]

Admiral ScHACHTE. It was difficult, sir, yes. I have spent about
20 years in international legal and LOST matters, sir.

Chairman Warner. Gentlemen, thank you for coming today and
thank you for exercising your patience while we have gone through
these two panels, important testimony from both panels. Now we
will open up, Mr. Secretary, with your views.

STATEMENT OF HON. WILLIAM J. MIDDENDORF H, FORMER
SECRETARY OF THE NAVY

Ambassador Middendorf. Thank you so much. Secretary — I call
you "Secretary" because I look back 30 years ago and you were our
most distinguished Secretary

Chairman Warner. Oh, no, no, no.

Ambassador Middendorf. — and did a fantastic job. I think you
have been a little understated today because, as I recall, you trav-
eled to Moscow and negotiated with the Soviet Union at a critical
moment in the Cold War

Chairman WARNER. That is true.

Ambassador MIDDENDORF. — the LOST.

Chairman WARNER. The Incidents at Sea Agreement.

Ambassador Middendorf. You were one of our great secretaries.

Chairman Warner. Thank you.

Ambassador Middendorf. It is a pleasure to be here.

Chairman Warner. You likewise, my good friend. We will put all
of your statements into the record.

Ambassador Middendorf. Put that one in, an3rway.

Chairman Warner. In the hope you can summarize and leave
some time for some questions.

Ambassador MiDDENDORF. Okay. I did submit a lengthy report
for the record. I am going to talk a little more about process. Jeane
was so great in talking about the political ramifications of joining
up with a political body like the United Nations, where they have
certain authority over us with teeth in it.

Mr. Chairman, it is an honor to have the opportunity to testify
before this distinguished committee on the matter of Senate advice
and consent. I emphasize the word "advice" because too often the
Senate sometimes approves, consents to a treaty, but I think that
if there ever was a time when advice was needed from the Senate
this is it. It is an extremely important power that the Senate has
on the question of advice and consent.

I look back for a moment that this treaty — Jeane Kirkpatrick
and I both 21 years ago, I think, both testified against this treaty.
So I just dusted off my 21-year-old paper, changed the date, in a
sense. No, that is not quite true. The ISA rules have been changed
and there have been some strengthening advantages here, and the
Cold War is over. The U.N. actually is less socialistic, you might
say almost semi-communistic, than it was 21 years ago. But it still
is full of faults, as Jeane pointed out, and I have a lot of reserva-
tions about grade creep and our opportunity from a military point
of view to opt out of some of these provisions, and I will cover some
of those.

At the moment we operate freely in the customary international
mechanisms of this treaty. It has been discussed that there are cer-
tain trends among states to restrict our maneuvering space and we
should be inside the tent. That is true. It is always an advantage
to be inside the tent, I guess, most of the time, but when you are
inside the tent as one of 36 and we saw that even having veto
power, as we had in the Security Council, it did not necessarily
mean that we could have our way with the recent vote in the
United Nations. We did not win that. Our veto was not — when
France decided to threaten a veto against us on Iraq.

I have four problems with the convention. State sovereignty is
number one. The convention establishes open-ended procedures for
administering its m3n:-iad provisions that could lead to negative out-
comes for the U.S. and that are all but impossible for us to predict
by simply reading its text. It cedes power to international authori-
ties that are unaccountable and whose behavior individual states
cannot control or predict. If the U.S. became a participant in the
treaty, it may regret it in the years to come.

Proponents of the treaty acknowledge the far-reaching political
and legal ramifications of adherence to the treaty. One of the great-
est juridical minds in America, John Norton Moore who sits here
with us today — I must say, I go back too so many years in the
State of Virginia with this great man. It is just overwhelming what
he has done for our country.

But he testified last October before the Senate Foreign Relations
Committee that — and this gives me pause and it might give some
of us pause. He said: "This is one of the most important law-defin-
ing international conventions of the 20th century." Good God. That
is quite an assertion.

While wrapped in language promoting the rule of law and inter-
national relations, in reality it represents the establishment of the

rule of law over sovereign states more than establishing a rule of
law made by them.

There are tremendous advantages that have been given to the
Navy, the right of passage and what have you, in this program, but
there are also issues of sovereignty that we have to look at.

The second issue concerns the convention's bias in favor of redis-
tributing global economic resources. Now, those terms were written
back in the 1970s when socialism was the thing, and let us transfer
all of our wealth to everybody else because we are the guilty ones
because we have cash money. I recognize that things have changed
substantially in the U.N. and in the body politic. We have seen pri-
vatization and free enterprise developing throughout Latin Amer-
ica. Sixty percent of all the industrial production of the states down
there back in the time when I was Ambassador to the Organization
of American States (OAS) were owned by the government, re-
sources owned by the government. Now most of them have
privatized and free market principles, Hernando de Soto ideas,
have spread throughout Latin America.

We have seen that all over Europe too, although I still feel labor
rigidities and there are a whole lot of socialistic programs there
that are encumbering them. Africa — I just came back from Kenya.
They are making efforts, although small, to privatize and have
more freedom. It is a pretty sad situation still. We have seen Asia
expand and have free enterprise and a lot more democracy and
what have you, in even Vietnam.

So I have to admit that the changes are much more beneficial to
our concepts than they were. But specifically, article 140 of the
treaty, which I would ask this committee to consider amending,
states that "All activities outside the jurisdictional waters of indi-
vidual states be carried out for the benefit of mankind." That is
still in there. That is a horror story. I remember talking to Presi-
dent Reagan about that. Just none of us could take that concept.

"Taking into particular consideration the interests and needs of
developing states." That is pure socialism.

It is unclear why the United States should accept a treaty that
is so explicitly biased against its interests when it comes to access
to resources.

Third, the third point I make, is the convention contains an ill-
advised revenue-sharing provision that is applied to income derived
from oil and gas outside the EEZ. The U.S. will be forced to pay
a contribution to the International Seabed Authority (ISA) created
by the treaty based on production, a percent of production. By any
reasonable definition, this provision would allow a U.N.-affiliated
international authority to impose a tax directly on U.S. economic
activity. To my mind there is no other precedent in any treaty we
have signed in the world until now.

Proponents of the convention argue that this revenue-sharing is
well below royalties they pay elsewhere. I know some of the mining
companies say that. But I recall the debate in 1913 that, reading
about the debate in 1913, that the income tax — it was represented
to the United States Senate, this body, that the income tax would
never exceed 1 percent.

Finally, the convention poses a significant risk to national secu-
rity, and I would like to get into the core of this. Will Taft and

Mark Esper both testified on behalf of the administration before
the Senate Foreign Relations Committee last October that the
mandatory dispute resolution mechanism could be used by states
unsympathetic to the United States to interrupt its military oper-
ations, even though such operations are supposed to be exempt
from the mechanism.

They pointed this out as a flaw in the treaty. This is because it
is unclear by the terms of the treaty what activities would be de-
fined as "military," as we heard today. While the administration
believes it would be up to each state party to determine for itself
what activities are military, it is uncertain enough about the issue
that it is recommending that the United States submit a declara-
tion reserving its right to determine which activities are military —
the whole question as to the opt-out provision.

Unfortunately, it is not at all certain that a declaration will suf-
fice to protect vital U.S. national security interests. The whole opt-
out question is open to dispute. Other states may choose to accept
or ignore the declaration and take action to interdict our ships or
planes in the EEZ. We saw this from China a couple years back.

In this context — and we heard Senator Sessions today ask a
question — a future administration may accept the jurisdiction of a
tribunal and be surprised if precedent-setting decisions go against
U.S. interests or, for example as in the Irish dispute, England
could accept jurisdiction of a tribunal assuming its cause is very
just, and of course it is just, and then suddenly find out, as Jeane
Kirkpatrick pointed out, that the United Nations is a political body
and they decide to do a number on Britain, and there is a prece-
dent-setting decision made which could, like all court decisions, like
the court decision in Massachusetts recently banning — creating the
opportunity for civil marriages, I believe it was, or what have you,
becomes the law of the land or it becomes a precedent for others.

John Norton Moore could explain better than I can or perhaps
rebut this. But it becomes a precedent under which we might be
bound in the future, even though we are not members — even
though as members of this body.

Furthermore, in the future — and this is another question on the
opting out business. In the future the Navy may recommend that
the U.S. reject a claim of jurisdiction for a tribunal, but future ci-
vilian authorities trying to make a point on nuclear power or what
have you, as was pointed out, may recommend that the U.S. reject
a claim of jurisdiction for a tribunal — but future authorities both
inside and outside the DOD may overrule the Navy.

In other words, it may be that someone may say, well, sure, we
have been arrested for, we have been caught for, stopped for drunk
driving, but we are not going to take a breathalyzer test. Then
someone might say, well, let us take a breathalyzer test, our cause
is so just, and they might be surprised if the results go against
them, for example, in the future.

It may be that if we think our cause is so just we will take it
to court, and we may be surprised at the results in the court. If
the court goes against us, and we know that they are political bod-
ies that are not amicable to our cause, in the future it may well
be that we will have a precedent there that will bind us forever
more.

The rules of the Senate codify the power to advise, not just con-
sent. So I have three recommendations: One, strike article 140,
which establishes the philosophical principle in the convention in
favor of redistributing resources from developed countries to devel-
oping ones;

Two, strike article 82, which establishes the revenue-sharing
mechanism for the exploitation of resources in the outer continen-
tal shelf;

Three, amend the provisions of part 15 to codify within the trea-
ty what the U.S. hopes to achieve regarding exclusions from dis-
pute settlement procedures through the adoption of a declaration.
That is that whole opt-out question that I had.

With revenue capabilities and mandatory dispute settlement
mechanisms, all bureaucracies and courts are subject to grade
creep. There has never been a case when they did not. The LOST,
like the seemingly innocent European Coal and Iron Community in
the 1950s, is a modest step towards the creation of an international
sovereign authority unchecked by the governed, but it is a signifi-
cant one. Given that modern states, including the one envisaged as
a united Europe under the European Union, are a product of a
combination of small steps, the UNCLOS poses a similar danger to
U.S. sovereignty.

I remember first of all the Iron and Steel Community started as
a small step, a few members of the staff, and they said it would
never grow. It was passed. Then Mansoldt, a friend of mine, set up
the Common Agricultural Policy, a Dutchman, and the Common
Agriculture Policy had teeth in it and it meant a big subsidy for
the French and it also had huge subsidy powers, the carrot and the
stick approach, and the whole European Economic Union came out
of that.

Then step by step — I remember Lord Cofield, sitting down with
Lord Cofield when he came down from — Margaret Thatcher threw
him out, more or less threw him out of the cabinet up in Britain,
and it was supposed to be an afterthought to give him a job down
at the European Union, European Economic Community it was
called in those days. I was his colleague. I was an Ambassador
there at the time, and I sat down with him and we went over those
100 points that he was going to draw up, that would have to be
ratified by the various countries unanimously and then that would
lead one to the European Union. It gave teeth to the European
Union.

Jacques Delors and Lord Cofield pushed it through and made it
succeed, and the European Union emerged as an organization with
great teeth. France and Germany have become provinces of that
union. Now we see today a bureaucracy unparalleled on the world
scene.

If you go to the Berlemont today, you will find bureaucrats com-
ing out of your ears, making new regulations on whether you can
shoot blackbirds or shoot crows on your English property or the
color of labels on cans and what have you. The bureaucracy works
night and day.

The people of the United States are depending on the Senate to
protect the sovereignty of this state. I think the treaty should be
amended. We dodged the bullet on the International Chamber of

Commerce (ICC) recently. I do not see a whole lot of difference
here. That was a body that could have given us a great deal of
trouble — it had teeth in it. The Kyoto treaties, which Admiral Lohr
and Jane Dalton of the Navy were heroes really in blocking and
helping do the legal work on the ICC, blocking that.

I think the treaty should be amended or rejected, and this is I
think a very significant thing that we should be doing. Thank you.
Senator.

[The prepared statement of Ambassador Middendorf follows:!

Prepared Statement by Hon. William J. Middendorf II

Mr. Chairman, it is an honor to have the opportunity to testify before this distin-
guished committee on the matter of Senate advice and consent to the ratification
of the UNCLOS.

Those who founded our Nation recognized the power to make treaties is an ex-
tremely important power. In their wisdom, they sought to ensure that treaties
would serve the national interest by dividing that power between the executive
branch and the Senate. Article II, Section 2, of the Constitution states that the
president "shall have Power, by and with the Advice and Consent of the Senate, to
make Treaties." Further, Article II establishes a two-thirds voting requirement for
the approval of treaties by the Senate. Clearly, they intended to place the burden
on the proponents of a treaty to demonstrate its value to the United States. The
far-reaching provisions of the treaty that is the subject of this hearing amply dem-
onstrate why the Nation's founders divided the treaty-making power. There are
compelling reasons why the Senate should take the time and care necessary to re-
view this treaty and understand all its implications.

In March 23 testimony before the Senate Environment and Public Works Commit-
tee, Assistant Secretary of State for Oceans, International Environment, and Sci-
entific Affairs John F. Turner confirmed that the administration supports Senate
approval for the ratification of the 1982 UNCLOS (hereinafter referred to as the
Convention). The administration's position is puzzling to me because the United
States had considered and rejected the Convention during the Reagan administra-
tion. I do not see a compelling reason to revisit the issue today.

While proponents of the Convention argue that the Clinton administration re-
solved the problems with the treaty that led to its rejection in the 1980s, through
renegotiation in 1994, the fact remains that it represents a potential turning point
for the U.S. in the histoiy of international relations. The Convention presents the
U.S. with a stark choice. On the one hand, the U.S. may enter into this treaty and
proceed on a path that cedes U.S. sovereignty to executive and quasi-judicial inter-
national authority with compulsory powers or reject the treaty and stick to the tried
and true international system where relations are established between and among
sovereign states.

While the Convention contains a wide variety of questionable provisions, its real
danger stems from the fact that the treaty represents more than the sum of its
questionable provisions. It establishes open-ended procedures for administering
these provisions that could lead to negative outcomes for the U.S. that are all but
impossible to predict by simply reading its text. If the U.S. becomes a participant
in this treaty, following a move by the Senate to approve ratification, it may regret
it in the years ahead.

MYRIAD PROBLEMS

The Convention has a variety of problems. This is not surprising given that the
treaty takes up more than 150 pages. What is surprising is that even the pro-
ponents of the treaty both inside the administration and outside it have publicly ac-
knowledged a number of the dangers associated with several specific provisions.
Prior to any vote by the Senate to consent to the ratification of the Convention, all
senators should fully understand the dangers posed by these provisions. They
should not, however, stop there. Senators need to take the additional step of under-
standing each of these provisions in the context of open-ended and in some instances
compulsory dispute settlement and other procedures, over which the U.S. will only
have limited control and that could produce adverse outcomes that are all but im-
possible to predict. The following represents four general shortcomings of the Con-
vention:

Problem #7; Loss of Sovereignty

Traditionally, treaties, with only narrow exceptions, have been defined as formal
agreements between and among sovereign states that help define their relations to
each other as sovereign states. They are inherently political agreements. The option
to change such relations and the concomitant power to discontinue adhering to the
terms of a treaty is solely the prerogative of the sovereign.

First and foremost, the Convention represents a departure fi'om that tradition. It
establishes institutions with executive and judicial powers that in some instances
are compulsory. For example. Section 4 of the Treaty establishes the ISA. The au-
thority basically is given the power to administer to the "area" under the jurisdic-
tion of the treaty, which includes all the world's oceans and seabed outside national
jurisdiction. This is a granting of executive powers to the authority that supersedes
the sovereign power of the participating states. Of even greater concern. Part XV
of the Convention establishes dispute settlement procedures that are quasi-judicial
and mandatory. Once drawn into this dispute settlement process, it will be very dif-
ficult for the U.S. to extricate itself from it.

Proponents of the Convention acknowledge the far-reaching political and legal
ramifications of U.S. adherence to the treaty. University of Virginia School of Law
Professor John Norton Moore, a supporter of the Convention who testified before the
Senate Foreign Relations Committee on October 14, 2003, stated that he sees it as
a means for fostering the rule of law in international affairs. In fact, he states that
adherence to the Convention is "one of the most important law-defining inter-
national conventions of the 20th century."

This is quite an assertion. In fact, it is the most troubling aspect of the Conven-
tion because the conduct of international relations for centuries has been a more a
political than a legal process. Unacknowledged in the language about fostering the
rule of law in international relations is the reality that in this particular case it en-
tails subordinating the powers of the participating states to the dictates of an inter-
national authority. When it comes to the essential powers for the conduct of inter-
national relations, the use of force, and the exercise of diplomacy, they are not read-
ily divisible but they are readily transferable. The Convention is a vehicle for trans-
ferring these essential powers from the participating states to the international au-
thority established by the treaty itself It represents the establishment of the rule
of law over sovereign states more than it is establishing a rule of law made by them.
Former Secretary of State George Shultz provides a succinct rejoinder to those
who envision the rise of the "rule of law" in international relations in the way it
is devised in this Convention. Speaking at the Library of Congress on February 11,
2004, Secretary Shultz stated:

First and foremost, we must shore up the state system. The world has
worked for three centuries with the sovereign state as the basic operating
entity, presumably accountable to its citizens and responsible for their well-
being. In this system, states also interact with each other to accomplish
ends that transcend their borders. They create international organizations
to serve their ends, not govern them.

Problem #2: Unnecessary limitations on the exploitation of resources.

The Convention was drafted at time when the failed policies of state control over
resources to meet demands for the redistribution of those resources were in vogue.
Specifically, Article 140 of the Convention states that all activities outside the juris-
dictional waters of individual states "be carried out for the benefit of mankind"
while "taking into particular consideration the interests and needs of developing
States." These international waters and the accompanying seabed are defined as
those outside the 200-nautical-mile EEZ the treaty leaves within the jurisdictional
control of participating states.

It is unclear why the U.S. should accept a treaty that is so explicitly biased
against its interests when it comes to the access to resources. This is particularly
so when this bias reflects a policy preference for the redistribution of resources that
the world abandoned over a decade ago. The world economy is now organized
around the requirements of the market. As elsewhere, the application of market
principles regarding the exploitation of sea-based resources will ensure the effective
and efficient use of those resources. U.S. adherence to the Convention, therefore,
would represent a step backward.

Problem #3: A step in the direction of international taxing authority.

The Convention contains an ill-advised revenue-sharing provision that is applied
to income derived from oil and gas production outside the EEZ. The general bias
in the Convention, as I indicated earlier, is in favor of the redistribution of seabed
resources. This bias is codified in the area of oil and gas revenues. The U.S. will

be forced to pay a contribution to the ISA created by the treaty based on a percent-
age of its production in the appUcable area beyond the 200-mile hmit.

While he asserted the argument against this revenue-sharing provision was un-
convincing, State Department Legal Advisor William H. Taft IV acknowledged it
was an argument that could be made in the course of October 21, 2003 testimony
before the Senate Foreign Relations Committee. Mr. Taft understates the problem.
By any reasonable definition, this provision would for the first time allow a U.N.-
affiliated international authority to impose a tax directly on the U.S. for economic
activity. At least, I am unaware of any precedent for this kind of international tax-
ing authority.

Shoring up the state system, as recommended by former Secretary of State
Shultz, means that international institutions should be funded by the voluntary con-
tributions of their member states. The extent to which these international institu-
tions are allowed access to independent streams of revenue is the extent to which
they will seek to obtain governing authority at the expense of the state system.
While the revenue-sharing provision related to oil and gas production in the Con-
vention is a relatively modest step in this direction, it is still a step in the wrong
direction.

Problem M: Unnecessary Risks to National Security.

Proponents of the Convention argue that it promotes U.S. security by codifying
a variety of rights to navigate the world's oceans that are valued by the Navy. While
the Navy, quite appropriately, seeks the codification of these rights, it should be
pointed out that a significant portion of these rights are already established by a
series of four 1958 "Geneva Conventions on the Law of the Sea" and customary
international practice.

On the other hand, the risks to national security posed by the Convention are
often understated. For example. Deputy Assistant Secretary of Defense for Negotia-
tions Policy Mark T. Esper, who testified in favor of the Convention, told the Senate
Foreign Relations Committee in an October 21, 2003, hearing that the mandatory
dispute resolution mechanism could be used by states unsympathetic to the U.S. to
curtail its military operations even though such operations are supposed to be ex-
empt from the mechanism. This is because it is unclear by the terms of the treaty
what activities will be defined as military. While the Bush administration believes
that it will be up to each State party to determine for itself what activities are mili-
tary, it is uncertain enough about the issue that it is recommending the U.S. submit
a declaration reserving its right to determine which activities are military. Unfortu-
nately, it is not at all certain that a declaration will suffice to protect vital U.S. na-
tional security interests. Other states may choose to accept or ignore the declara-
tion, or a future administration may accept the jurisdiction of a tribunal and be sur-
prised if precedent-setting decisions go against U.S. interests. While in the future
the Navy may recommend that the U.S. reject a claim of jurisdiction for a tribunal,
civilian authorities both inside and outside the DOD may overrule the Navy.
Amending the text of the treaty may be the only certain way to protect U.S. inter-
ests against overreaching by other states regarding the mandatory dispute resolu-
tion mechanism. This is my view, in part, because I am not aware of a precedent
for such a mandatory dispute settlement mechanism that could extend to such sen-
sitive areas.

The Senate has the power to advise as well as consent. The four general short-
comings with the Convention that I have described are derived from a longer list
of specific shortcomings in a variety of the specific provisions it contains. There are
more concerns that I have not detailed here, not the least of which is a simplified
treaty amendment process that raises constitutional questions.

In recent years, the Senate has paid more attention to its role in consenting to
the ratification of treaties and less to its power to advise the executive on their con-
tent. The rules of the Senate codify this power, in part, by allowing Senators to offer
substantive amendments to the text of a treaty. If ever there were a case for the
Senate to reclaim the full measure of its power to advise, this is it. I believe that
senators who conclude there are shortcomings in the substance of this treaty should
not hesitate to propose amendments to the text of the Convention if it comes before
the full Senate. Clearly, it is preferable to resolve these shortcomings now over let-
ting the Convention come into force for the U.S. and hope they do not prove injuri-
ous to U.S. interests.

CONCLUSION

The UNCLOS is a modest step toward the creation of an international sovereign
authority unchecked by the governed. Nevertheless, it is a significant one. Given
that modem states, including the one envisioned for a united Europe, are the prod-

uct of a combination of just such steps, it is one the United States should not be
taking. Further, the treaty contains a number of specific provisions in such areas
as regulation, energy, the environment, national security, and constitutional law
that are deeply troubling.

National leaders in Europe seem to aspire to relegating their nations to the status
of provinces inside a supranational European authority. In this context, it is not
surprising that some outside the United State see this move in the direction of
broader authority for international entities, which Secretary Shultz has warned
against, as desirable.

As for America's leaders, they should firmly reject such aspirations for their na-
tion now. Insofar as the UNCLOS seeks to move the United States in this direction
and serves as an indicator of steps yet to come, it poses a danger to the vision Amer-
ica's fathers had for the Nation they founded in 1776.

Chairman Warner. Thank you very much, Mr. Secretary.
Professor Moore.

STATEMENT OF PROFESSOR JOHN NORTON MOORE,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW

Mr. Moore. Chairman Warner, my congratulations to you on
holding these important hearings. Like Ambassador Middendorf, I
go back long enough that I remember some of the wonderful leader-
ship you have provided for U.S. oceans interests. You were head of
the delegation that negotiated the Incidents at Sea Agreement that
was really a path-breaking one for many countries, done in 1972;
and your work as the special representative of the SECDEF in the
early negotiations on this treaty that you now have before your
committee.

I have felt that throughout your career you have understood and
fought for a preeminent United States Navy and American leader-
ship in the world's oceans second to none. So it is a very special
pleasure to be here today.

Chairman Warner. Thank you, Professor. It is very thoughtful
of you.

Mr. Moore. Since you have kindly put my prepared statement
in the record, if you do not mind, Mr. Chairman, I think it might
be more useful if I rather extemporaneously respond to a number
of the concerns that have been raised, things that I regard as mis-
understandings about the treaty. But first, before I mention what
those might be, let me just say very briefly that I beheve the core
issue here is just how strongly important this treaty is in the secu-
rity interest of the United States.

It is particularly fitting to have this hearing before this commit-
tee because that is really the fundamental issue of concern in the
overall treaty. It is of great importance and enduring importance.
I had the great privilege of chairing the 18 member interagency
and cabinet group that prepared United States negotiating instruc-
tions under Presidents Nixon and Ford. At that time, and it has
come down all the way to today, what is really at stake in the
LOST is our naval mobility, and this treaty is an extraordinary win
for the United States in protecting that naval mobility.

So I thought that the statement of Admiral Clark and the state-
ment of Will Taft were right on point and just superbly done. But
I will not go through those points again, Mr. Chairman. I think you
have heard that.

Instead, I would like to talk briefly about four misperceptions.
The first is the relationship between the 1982 Convention and the

1958 Geneva Conventions that we are already bound by today, that
were approved by the United States Senate back in 1958 and are
binding on us.

The second is a httle about the ISA, which has been raised on
a number of occasions. The third is a httle bit about dispute settle-
ment, which has come up. The fourth is a little bit about the infor-
mation-sharing issue that Senator Inhofe has raised.

Let me, however, begin by saying that I have enormous respect
for many of those that have a different view. Ambassador Kirk-
patrick and Ambassador Middendorf are people that I count among
my personal friends and they are among my heroes. They have
made an enormous contribution. Jeane has written the best piece
on totalitarianism ever done by anyone. Bill's work in relation to
the European Community was of enormous importance to the
United States and the whole world.

So it is with sadness that I find myself in a very different posi-
tion and I think, unfortunately, it is because we really are kind of
stuck in much of this debate some 10 or 15 years ago in the
Reagan administration, where we did have a problem. I was one
of those at that time, Mr. Chairman, who wrote a letter to the
President of the United States and testified before the Republican
National Committee platform hearings that we must have a re-
negotiation of part 11 of the Treaty.

Reagan courageously accepted that and he indicated a series of
things that had to be changed. It took us 12 years to get those
changed, but I am delighted to say that we have. Indeed, I think
this is perhaps one of the most important points I would make, Mr.
Chairman. For precisely the reasons that Bill Middendorf and
Jeane Kirkpatrick and indeed the very distinguished members of
this committee have raised: is concern for good international agree-
ments and institutions; it is precisely for those reasons that all of
us should be strongly in support of this treaty.

Now, let me shift and go to the first of these, which is simply
I think something generally left out, and that is many of those
dealing with this treaty do not realize that the United States is al-
ready bound by a series of four now outdated 1958 Geneva Conven-
tions. Those Conventions are binding on the United States today.
The only way you do an assessment of the 1982 Convention is to
assess it against those 1958 Conventions, and there are a couple
of very important points I think that ought to be understood here.

One is that overwhelmingly we won in the security updates and
protecting the security interests, again as you heard from the CNO
today. The 1982 Convention is infinitely better in serious security
issues, protecting United States naval interests and others in
many, many different ways. So to keep in force those that are old
and are not very effective for our security interests as opposed to
the one that is strikes me as not really in our interest.

Related to that, Mr. Chairman, the 1958 Conventions have no
provisions for the United States to be able to denounce the conven-
tions and leave at any point. We cannot do that under the current
1958 Conventions that are outdated, with bad law applying to the
United States.

At one fell swoop, by accepting the 1982 Convention we deal with
both of those problems. Article 311 of the convention makes it very

clear that the 1982 Convention and all of the security advantages
will prevail immediately and set aside all of the 1958 Conventions;
and in article 317 we get the ability to give a 1-year simple with-
drawal clause. So we are far better off in relation — even for those,
unlike me, who are skeptical, we are far better off in relation to
the 1982 Convention than we would be under the 1958 Conven-
tions.

Now, Mr. Chairman, to turn to the ISA, I would like to make a
number of points, but let me just suggest that in one area that I
disagree with my good friend Ambassador Kirkpatrick, and that is
in her prepared testimony when she says basically the changes in
part 11 are not very great. President Reagan set those changes.
The Congress of the United States passed legislation setting those
changes. They were great indeed, and I am happy to say we
achieved every single one of those in the ultimate renegotiation
plus a number of others.

Now let us just go through a few points in relation to that. Num-
ber one, there is nothing in the ISA or any other element created
by the LOST that is United Nations. There is no unit of the United
Nations created. The ISA has no employee of the United Nations.
It is not United Nations. It is an independent agency like approxi-
mately a hundred that the United States is already a member of.

Second, it has extremely narrow scope. It does not relate to some
kind of global mechanism for the control of 70 percent of Planet
Earth. It instead deals solely with the issue of the minerals of the
deep ocean floor. It does not deal with the question of fisheries in
any way. It does not deal with water column issues. It does not
deal with navigation. It does not deal with global security. It is a
very narrowly limited functional authority.

Third, there is absolutely zero loss of United States sovereignty.
In fact, Mr. Chairman, the real risk to United States sovereignty
is our sovereign rights in navigational freedom that are being erod-
ed through time. This treaty is a fundamental tool to fight that ero-
sion of our sovereign rights in navigational security around the
world.

But the issue of mineral resources of the deep ocean floor has ab-
solutely nothing to do with United States sovereign rights. That is
never an area that we have claimed. It is never an area that any
nation in the world has suggested that anyone is entitled to claim,
and we have opposed any kind of sovereign claims in relation to
that area.

The fourth point here is the authority is not a great bureaucracy,
and I might add it has been in existence for 10 years and it has
not grown in that period of time. We are talking about 37 employ-
ees with a total budget of $5 million, considerably less than the
Great Lakes Fishery Commission that we happily adhere to with
Canada.

In addition to that, this is not the original status kind of solution
that, Jeane is absolutely right, was initially negotiated prior to
1982 and appeared at that time before the renegotiation. Rather,
not only did it meet all the conditions of Ronald Reagan, rather a
free market President who I served and am delighted to say that
was his predilection, but it went out of its way to adopt a variety
of free market principles: cost effectiveness, commercial terms and

conditions, ending notions of production limitations, et cetera. So
what we have really is a fundamental shift toward free market
kinds of principles.

In addition to that, if we look to decisionmaking, which I think
Jeane had rightly focused on as a very important set of issues in
any negotiation, I am delighted to say we won in an extraordinary
way that sets precedents for the United States in international or-
ganizations that should be powerfully endorsed.

What are those? The United States is the only nation in the
world given a permanent guaranteed seat on the council. We can-
not be voted on by the assembly as to whether we are going to be
there or not. It is a permanent guaranteed seat on the council.
That gives us individually permanently a veto over the adoption of
all rules and regulations adopted by the authority, over all dis-
tribution of revenues going anywhere to any country in the world,
over all amendments to be made to the convention.

In addition to that, as long as we are on the finance committee,
which will be as long as there is money from any country flowing
to the authority, the United States has a complete veto over every-
thing relating to the rules and regulations concerning financial
kinds of matters as well.

Now, in addition to that, there is a procedure in the chamber in
which we have been given a chamber voting procedure that we
have begged for for years in international organizations, very much
like the way we have voting in the World Bank and the Inter-
national Monetary Fund. We have a chamber in which any three
members of that chamber can veto absolutely anything else relat-
ing to this. Who are the members of the chamber in addition to the
United States? They are the nations that we coordinated with in
this negotiation to win it, the old group of five and other developed
nations. It is the United Kingdom; it is France; it includes Russia
today, the Soviet Union then, and a number of other developed na-
tions; Germany today; Italy today.

So this is not an authority in the hands of third world countries.
This is an organization setting exactly the kind of precedent that
Bill Middendorf and others and I would hope the Senate would
strongly endorse. This is the way to go in international negotiation.

Now let us go on to a couple of other points about that. One is
in the negotiation we had a setting in which every single demand
of the United States of America to renegotiate was met. I would
suggest to you it is not useful for us in those settings to then say
we are not going to adhere to the treaty when here is what we
wanted, set by a number of presidents of both parties, and now it
is given to us. What that will do is dramatically undermine our
ability to cooperatively deal with other nations, including the great
importance of cooperation in the fight against terrorism.

Now, in addition to all that, in relation to the revenue-sharing
points, by the way, again there can be not a penny of revenue
shared with any nation in the world that does not go through the
veto of the United States under this provision. So basically it is
something that gives us the opportunity to participate in an aid
program, as we already do through the U.S. Agency for Inter-
national Development (AID), that would go through international

institutions and be useful, but it will only be made with a U.S.
veto.

If we do not join, however, Mr. Chairman, we have a very
strange setting in which, if revenues are ever generated, we will
not be able to control where they go. If they want to decide to have
them go to the PLO, for example, they will go to the PLO. So if
this Senate wants to have the ability to block funds going to terror-
ist organizations or the PLO that might be voted in the future, it
should join this treaty and exercise and use the veto that we have.

Now, finally, in relation to this second point, let me just indicate
that one of the oversight functions of this committee deals with se-
curity in relation to mineral resources. In my judgment, and I
think there is really virtually no indication of any possibility to the
contrary on this, the United States mining industry will totally,
permanently be put out of business if we do not go forward with
this treaty.

If the United States wants to have access to copper, nickel, co-
balt, and manganese from the deep seabed, we must go forward
with this treaty. We have already lost two of our mine sites. We
had five initially, the best technology in the world. We are about
ready to lose it all. Seven different countries have already been
given exploratory licenses. We are out because we are not a mem-
ber, and I regard that as a very significant issue.

[The prepared statement of Professor Moore follows:]

Prepared Statement by Prof. John Norton Moore

Chairman Warner and honorable members of the Armed Services Committee —
Mr. Chairman, you have long been a leader in protecting United States security in-
terests in the oceans. Your service as Under Secretary of the Navy, then as Sec-
retary of the Navy, and currently as chairman of this committee, sets a sterling
record of achievement for our Navy and our Nation. You led our countiy in negotiat-
ing the important Incidents at Sea Agreement ^ with the former Soviet Union,
signed with you by Admiral Sergei G. Gorshkov, the Commander in Chief of the So-
viet Navy. You were of great assistance to me, in my role as an Ambassador and
Deputy Special Representative of the President for the LOST Negotiations, in ensur-
ing that those negotiations served United States security interests. Indeed, your ear-
lier service as the Representative of the SECDEF to the LOST Negotiations in Ge-
neva established the framework for the successful convention you now have before
this committee.

Senate advice and consent to the 1982 LOST Convention is strongly in the secu-
rity interests of this great Nation. For that reason, since the treaty was submitted
to the Senate a decade ago, every Chairman of the Joint Chiefs of Staff and every
CNO since the treaty was submitted to the Senate a decade ago has actively sup-
ported United States adherence. Indeed, as the Chairman of the National Security
Council Interagency Task Force that developed United States instructions for the
negotiations of this treaty under both Presidents Nixon and Ford, I find prompt
United States adherence to this convention a compelling security interest. In fact,
Mr. Chairman, I believe I can speak for the many superb civilian and military secu-
rity experts with whom I have worked on this convention in saying that to my
knowledge each and every one I have worked with on these issues in more than a
quarter of a century believes adherence to this convention serves the security inter-
ests of the United States.

The genesis of United States interest in this convention was our powerful interest
in maintaining naval and commercial freedom of navigation throughout the world's
oceans. During the 1960s and 1970s a growing number of coastal nations were be-
ginning a race to grab ocean space. The implications of this for United States naval
and commercial mobility were grave. Every study done by our Government has con-

1 Agreement Between the Government of the United States of America and the Government
of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over the High
Seas, May 25, 1972.

eluded that protecting naval and commercial mobility is our most important oceans
security interest. Yet paradoxically, this was, and is, the national interest most
threatened by illegal claims. Accordingly, the Navy and the DOD sought to work
with our oceans allies in developing a law of the sea that would constrain these ille-
gal claims. In the negotiation that ensued for more than a decade, the United States
was the central player. The result, which you see before you, achieved every security
objective of the United States. We obtained a legal regime fully protecting naviga-
tional freedom throughout the world's oceans, including transit passage of straits
and navigational freedom in the 200 mile exclusive economic zone. Along the way
the United States also solidified the largest area of resource jurisdiction in the
world with respect to the fishery and oil and gas resources off our coasts. Following
a successful renegotiation of Part XI on Deep Seabed Mining, the United States in
1994 secured access to the mineral resources of the deep seabed for our industry,
meeting the conditions set by Ronald Reagan, the United States secured access to
the mineral resources of the deep seabed for our industry.

My testimony will explore some general reasons why adherence to this convention
serves the security interests of America. I will then look at our core security interest
in navigational freedom, provide specific examples of how adherence to this conven-
tion will serve our security objectives, and finally will respond to some
misperceptions about the convention. But first, a few observations in framing con-
sideration of the convention.

I. FRAMING CONSIDERATIONS

The United States is currently a party to the four 1958 Geneva Conventions on
the LOST. Thus, consideration of security issues, like other affected oceans issues,
should provide comparison with those existing treaties and oceans law currently
binding on the United States. The choice is not simply the convention or an absence
of any law binding on the United States. Moreover, United States adherence will
not affect whether the 1982 Convention, and its subsidiary institutions, such as the
ISA, become a reality or not. The convention entered into force approximately 10
years ago and currently has 145 state parties. Every permanent member of the Se-
curity Council but the United States is a party but the United States. Every mem-
ber of NATO but the United States and Denmark are parties. Every major maritime
and economic power is a party. This convention is today one of the most widely ad-
hered international conventions in the world, and it's annual meetings of state's
parties and other associated institutions have become the centerpiece for negotia-
tions concerning oceans issues. Most assuredly, this central legal framework is not
going away. The issue then is not simply whether one agrees or disagrees with the
establishment of any part of the convention. Those who oppose the ISA, for example,
should understand that it is a fait accompli whatever the United States' action. In-
deed, the ISA has been operating for a decade and has already issued seven licenses
and developed a mining code.

The issues before the Senate are simply whether United States adherence will
serve our national interest, including our security interests, and whether continued
abdication of the oceans leadership role of the United States, caused by our non-
adherence to this convention, is in our national interest. I believe that the answer
to the first question is a resounding yes with an equally resounding no to the sec-
ond. Remarkably, this is one of the few national security decisions that really does
not involve a trade off. All United States security, foreign policy and oceans inter-
ests are either positively affected, or not affected at all, by United States adherence.
None is harmed by adherence. The greatest beneficiary will be our security inter-
ests; particularly our crucial interest in naval and commercial mobility, our ability
to move forward with oil and gas development beyond 200 nautical miles, and a new
opportunity for a U.S. seabed mining industry to reengage American leadership in
deep ocean minerals.

Make no mistake; our prolonged failure to adhere to the LOST Convention is
harming the security interests of the United States on an ongoing basis. For exam-
ple, the United States, without a seat on the Commission on the Continental Shelf,
is excluded from participating in the important Russian submission concerning the
limits of their continental shelf claim in the Arctic Ocean, an issue of direct interest
to the United States, and especially the State of Alaska. Uncle Sam has one arm
tied behind his back in the continuing struggle to ensure adherence to the naviga-
tional freedoms embodied in the convention. Scoffiaws simply argue, when we com-
plain of their transgressions, that as a non-party to the convention we have no
rights under it and no standing to raise the illegality of their actions in violation
of the convention. The world moved ahead without us with exploration licenses for
deep seabed mining being issued to companies from China, France, India, Japan,

Poland, South Korea, and Russia while the United States industry, which once led
in technology development, is moribund from our non-adherence.- Advice and con-
sent to the convention is not an issue for the next Senate; it is an issue for this
Senate.

Mr. Chairman, perhaps it is just personal, but I am also troubled by the voices
of some "instant" experts on the convention who don't just disagree, but simply ig-
nore, the considered opinion of the United States Navy and the Joint Chiefs of Staff.
Since the beginning of these negotiations the Navy and the Chiefs have clearly told
all who would listen that the security stakes are high and real for the United States
in adhering to this convention. In our democracy of course we rightly have civilian
control of the military, and we rightly cherish free speech, but it is puzzling why
some critics simply ignore the considered advice of our men and women in uniform.
Engagement on the merits of arguments: Yes. But simply to ignoring the real issues
and the deep expertise of those who work these issues on a daily basis: No. Surely,
particularly in considering security issues, we owe more to professional military
judgment than some of the critics seem willing to acknowledge.

This ought not be a partisan issue. Partisanship ought to stop at the water's edge,
and members of our political parties ought to share a commitment to both a coher-
ent foreign policy and the long-term security of this great Nation. That would be
true even if this convention were associated with only one administration. But this
convention was negotiated on a bipartisan basis under five Presidents of both par-
ties. Principal negotiations took place under the aegis of three Republican Presi-
dents:, Nixon, Ford, and Reagan, and one Democratic President: Carter. Part XI on
deep seabed mining was then renegotiated under the aegis of President Clinton, a
Democrat, who sought and achieved the conditions for renegotiation laid down by
Ronald Reagan. Now the convention has been submitted to the Senate under yet
another Republican President, George W. Bush. It should be noted that the prin-
cipal security components of this convention, including those critical provisions pro-
tecting navigational freedom, were negotiated completely under Republican Presi-
dents.

Finally, Mr. Chairman, you may be assured that I do not come before you simply
as a cheerleader for any LOST. When it became evident in 1982 that part XI of the
convention, as then internationally adopted, did not meet United States' interests
in access to seabed minerals and associated precedental issues in the institutional
nature of the new ISA, I wrote President Reagan urging that he not adhere until
these issues were renegotiated. Even earlier I had testified to that effect in the plat-
form hearings for the 1980 Republican Party Platform. President Reagan stood firm,
and while clearly supporting convention provisions other than Part XI, including the
substantial American achievements in the security area now being attacked in his
name, he set tough conditions for renegotiation of Part XI. While that took 12 years
to achieve, it was achieved. That considerable bi-partisan success in American for-
eign policy is now before you.

II. GENERAL SECURITY CONSIDERATIONS
Some general security considerations include the following:

• The greatest single threat to our oceans interests throughout the history
of the Nation has been threats to navigational freedom. But navigational
freedom is not protected solely by a strong navy. The first line of defense
is a strong legal regime. This Nation achieved that in this convention and
it will be tragic if, through continued disengagement, we permit that re-
gime so favorable to our security interests to erode. To an extent not re-
motely appreciated by those not on the oceans firing line for the United
States, this struggle for law is an ongoing process in which we are severely
handicapped by not being a party to the convention. This has meant, not
just in speculation — but in reality, that the natural role of the United
States as the leader in oceans issues has been put on hold. We cannot sim-
ply shoot our way in when we have disagreements with our NATO allies;
nor is such a response at all realistic in the real-world challenge to naviga-
tional freedom from a thousand pinpricks;

• Given the price of gasoline today, surely there is broad agreement that
the United States needs to get on with the task of developing the oil and
gas of our continental margins beyond 200 miles. Without adherence to the

2 The economics of deep seabed mining are a major factor in no company, from any nation,
having yet proceeded to mine. But U.S. competitors from nations who are parties have at least
begun to move forward with exploration licenses, while our industry has abandoned half of our
sites and is truly moribund.

convention that is unlikely to happen for years to come. The large invest-
ments that must be made to drill in deep water simply will not be made
without legal certainty and security of tenure. Further, the United States
has a crucial interest in protecting navigational freedom for the oil and gas
brought to the United States that is so crucial for our economy. About 44
percent of U.S. maritime commerce concerns petroleum and its products. To
put this in further perspective, offshore oil and gas is now the world's larg-
est marine industry, with oil production alone in the range of $300 billion
per year. For these and other reasons of relevance to our security interest
in oil and gas, and the interests of our oil and gas industry, Paul L. Kelly,
speaking on behalf of the American Petroleum Institute, the International
Association of Drilling Contractors, and the National Ocean Industries As-
sociation, testified before the Senate Foreign Relations Committee and the
Senate Environment and Public Works Committee that (the U.S. oil and
natural gas industry supports Senate ratification of the convention at the
earliest date possible;" ^

• The opportunity to attach important United States understandings, as
have been formulated for the Senate Resolution of Advice and Consent, is
a crucial opportunity for the United States finally to get have its official in-
terpretations of the convention on the record. Many countries intent on un-
dermining the security interests of the United States have already provided
erroneous statements with no response ft-om the United States. Such a re-
sponse, from the Nation with the largest oceans interests in the world, is
of great importance and it is overdue;

• The United States needs to reengage in deep seabed mining. U.S. firms
spent more than $200 million in leading the world in the technology of deep
seabed mining and in obtaining four first-generation deep ocean mine sites.
Continued United States non-adherence to the convention has not served
our industry — rather it has effectively killed our industry. Only one com-
pany now retains mine sites, the other companies are now out of the busi-
ness, and two of the U.S. mine sites simply lie abandoned. This while seven
licenses have been issued to competitors from countries that are parties to
the treaty. As soon as the United States adheres to the convention, I would
urge the Secretary of Commerce to put together an industry working group
to see what might be done to remove any domestic legal obstacles prevent-
ing our industry from resuming its previous leadership in deep seabed min-
ing. The access to the copper, nickel, cobalt and manganese fi'om these sites
is of considerable economic interest to the United States. But today invest-
ment will not be made in deep seabed mining without a license from the
International Seabed Authority. Thus, it is clear that continued United
States non-adherence will be a death knell for our industry;

• For the United States to refuse to adhere to a convention even after the
rest of the world met every single one of our demands for changes to the
convention for United States adherence will severely impact the ability of
the United States to negotiate international agreements. I believe this will
have a particularly serious effect on our security interests, many of which
depend on mobilizing our allies. Certainly, as a sovereign nation, we have
every right to negotiate a treaty and then decide not to ratify, but in this
instance, where we specified the changes necessary for United States sup-
port that were then agreed to by the rest of the world, even some of our
closest friends have difficulty understanding our behavior in not moving
forward to date. A failure to ratify at this point will have adverse effects
for our foreign relations with even some of our closest allies. We are the
world's most powerful military power, but we still need the understanding
and support of our friends — and we need to act with consistency and reli-
ability in our foreign policy;

• The United States has an important national interest in a stable and effi-
cient rule of law in the world's oceans. We have achieved that in this con-
vention and only risk losing it by continued non-adherence. Power alone
cannot replace law in providing stable expectations and a check on irre-
sponsible unilateral actions; and

3 See 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. Testimony cited was given, before the United States Sen-
ate Committee on Foreign Relations for a hearing on the UNCLOS in, Washington, DC, October
21, 2003, at 7.

• Isolationism is not a strategy for victoi-y against terrorism. The threat is
global and our engagement must be global. That inevitably means that we
must enhance our ability to influence other nations and to multiply United
States actions through cooperative actions worldwide. If our country is
viewed as simply turning inward and being unwilling to participate inter-
nationally even through despite agreements in which we have clearly
served our interests, we will not facilitate such needed assistance from oth-
ers. United States adherence to the UNCLOS will be carefully monitored
by our allies, all of whom have been urging us to move forward, and it will
have an impact on the climate in the war on terrorism, as well as other
security and foreign policy objectives of the United States. The view that
such "soft" considerations are unimportant is profoundly unrealistic. The
UNCLOS is low hanging fruit that lets us send a clear message: America
will support good international agreements, but it will stand firm against
the bad ones. This differentiated message is crucial. If we are viewed as
simply opposing all international agreements, no matter how favorable to
the United States (as this one truly is), we will have far less ability to mul-
tiply our national interests through cooperative actions with others!

III. THE CORE SECURITY THREAT

The core oceans security threat to the United States is the continuing challenge
to navigational freedom. That has been true throughout American history, from Jef-
ferson's time until today. The United States fought three wars, the War of 1812,
World War I, and World War II, in part because of the challenge to our freedom
of the seas. Today, that challenge continues— though the form of the principal threat
is that of serious and continuing claims by nations around the world not to recog-
nize our oceans freedoms. These include challenges from NATO allies, and nuclear
powers, in settings where we are not about to simply "shoot our way in." They in-
clude efforts to subject our Navy to permission or advance notice for transit through
the territorial seas. They include efforts to prevent submerged transit of our sub-
marines and overflight of our aircraft through straits. They include efforts to pre-
vent transit of straits used for navigation without the permission of the coastal
state. They include efforts to dictate how American ships will be constructed and
operated. They include efforts to turn the seas into internal waters with no transit
rights whatever. They include a range of incremental and subtle challenges which
will frequently fall under the radar screen of our political leaders, or may even
cause them to believe that the political trade-off in good relations at that moment
with the challenging nation is worth more than the incremental loss in navigational
freedom.

Examples of serious security incidents resulting from illegal oceans claims in-
clude: the new law of the People's Republic of China (PRC) providing that Chinese
civil and military authorities must approve all survey activities within the 200 mile
economic zone; the PRC harassment of the Navy's ocean survey ship the USNS
Bowditch by Chinese military patrol aircraft and ships when the Bowditch was 60
miles off the coast; the earlier EP-3 surveillance aircraft harassment; Peruvian
challenges to U.S. transport aircraft in the exclusive economic zone, including U.S.
crew casualties and a second incident in which two U.S. C-130s had to alter their
flight plan around a claimed 650 mile Peruvian "flight information area;" the North
Korean 50 mile "security zone" claim; the Iranian excessive base line claims in the
Persian/ Arabian Gulf; the Libyan "line of death;" and the Brazilian claim to control
warship navigation in the economic zone. Through time the effect of this "creeping
coastal state jurisdiction" is a devastating reduction in naval mobility. As this com-
mittee knows so well, that should be thought of in relation to the rollback of United
States land bases around the world. This challenge is all too real — even if appre-
ciated largely by our navy and our oil industry. Examples of current illegal oceans
claims include:'*

• Historic Bay (15) and Baselines (27+)

• Territorial Sea Breadth— 13

• Contiguous Zones — 19

• Exclusive Economic Zones — 32

• Innocent Passage in Territorial Sea — 41

• International Straits — 16

• Overflight Restrictions — 5

• Archipelagic Sea Lanes Passage — 4

Data is approximate as of June 22, 2001.

The UNCLOS is a key weapon in this struggle for our oceans' freedom. The
United States won through the negotiations the core elements of that freedom. To
abandon that win is the legal equivalent of unilateral disarmament for the United
States in the struggle for freedom of the seas. The price we will pay through time
for any such error in judgment will be high. In essence the critics who would have
us abandon a rule of law in the world's oceans may effectively be asking American
service men and women someday to pay with their lives for the absence of such a
rule of law. This is not mere hyperbole; already disputes about the oceans regime
have cost American lives. Thus, an American aircraft in lawful overflight of the high
seas was forced down by Peru in asserting an illegal claim over an extended area
of the seas. More recently, harassment by Chinese fighters brought down a United
States aircraft engaged in lawful activities under the 1982 Convention. At mini-
mum, the economic cost of new naval configurations designed to get around a creep-
ing loss of freedom — possibly with required pay-offs to coastal states — could be con-
siderable.

rV. A FEW SPECIFIC EXAMPLES OF SECURITY ISSUES SUPPORTING UNITED STATES
ADHERENCE

A few specific examples, among many, of provisions of the UNCLOS serving
United States security interests and supporting accession are:

• For the first time in the history of oceans law, and quite in contrast to
the 1958 Conventions to which we are now a party, the 1982 Convention
provides full protection for navigation and overflight through international
straits. This means that United States submarines can go through straits
submerged and without having to reveal their location, that our aircraft can
overfly, and that military and commercial vessels can go through without
fearing harassment from coastal states. Maintaining the secrecy of our nu-
clear-powered ballistic missile submarines, as this committee knows so well,
is an essential element in the effectiveness of our strategic deterrent;

• The maximum breadth of the territorial sea is restricted to 12 nautical
miles, thus blocking the more expansive claims of nations which would
interfere with our military and commercial mobility by promulgating terri-
torial seas out to 200 miles;

• The convention provides for full high seas navigational freedom beyond
the territorial sea. This includes the EEZ of up to 200 nautical miles, areas
of the continental shelf under coastal state control beyond that, and all
areas seaward of national jurisdiction. The core trade-off in the convention
was a good one for us on both sides of the trade; that is, an extension of
coastal state jurisdiction over the fish stocks and oil and gas resources off
our coasts in return for full navigational freedom in the areas of extended
coastal state resource and economic jurisdiction around the world;

• There is a much improved regime of "innocent passage" in the territorial
sea even outside of international straits. Among other important changes
the vague regulatory competence of the coastal state, reflected in article 17
of the relevant 1958 Geneva Convention, has been clarified in article 21 of
the convention in a balanced fashion accommodating both coastal state con-
cerns and navigational rights. There are now new obligations not to
"[i Impose requirements on foreign ships which have the practical effect of
denying or impairing the right of innocent passage" and not to
"[djiscriminate in form or in fact against the ships of any State or against
ships carrying cargoes to, from or on behalf of any State." As this commit-
tee knows, in the past allies of the United States, including Israel, have in
the past found their shipping a victim of discrimination, in turn triggering
international tensions and conflict;

• The convention contains a new provision mandating cooperation "in the
suppression of illicit traffic in narcotic drugs. . .";

• The convention contains new provisions, significant in reducing potential
conflicts with other nations and in protecting our citizens, that prohibit
other nations from inflicting corporal punishment on American fishermen
and merchant seamen, and prohibit or severely limit their imprisonment;

• Article 76 of the convention massively extends the continental shelf re-
source jurisdiction of the United States to include the oil and gas deposits
of the continental margin and provides a workable standard for delimiting
United States national jurisdiction, in contrast with the relevant 1958 Con-
vention which does neither. This clear legal regime permitting the United
States to get on with development of its oil and gas resources is a substan-
tial security interest of the United States;

• Whenever deep seabed mining does occur, United States adherence and
taking its seat on the Council of the ISA will give us the ability to exercise
an effective veto over critical issues. This would include the ability to veto
the adoption of inappropriate rules and regulations or revenue sharing with
the PLO, or similar organizations. Until we accede, the United States will
not have this effective veto power; and

• When the United States accedes to the convention we will be eligible to
elect a member of the Commission on the Limits of the Continental Shelf
which is serving as a check on expansive national continental shelf claims
over the oceans in violation of the convention. Already, Russia, taking ad-
vantage of the continued absence of the United States in this Commission,
has made the first submission to the Commission, a massive claim in the
Arctic Ocean of direct interest to the United States.

V. MISPERCEPTIONS
Misperceptions about the convention include the following:

• Myth: The United States is giving up sovereignty to a new international
authority that will control the oceans. Nothing could be further from the
truth. The United States does not give up an ounce of sovereignty in this
convention. Rather, the convention solidifies a truly massive increase in re-
source and economic jurisdiction of the United States, not only to 200 nau-
tical miles off our coasts, but to a broad continental margin in many areas
even beyond that. The new ISA created by this convention, which, as noted,
has existed for a decade and will continue to exist regardless of United
States actions, deals solely with the mineral resources of the deep seabed
beyond national jurisdiction. That is an area in which we not only have no
sovereignty but also in which we and the entire world have opposed exten-
sion of national sovereignty claims. Moreover, to mine the deep seabed min-
erals requires security of tenure for the billion dollar plus costs of such an
operation. Our industry has emphatically told us that they can not mine
under a "fishing approach" in which everyone simply goes out to seize the
minerals. The ISA was a necessary specialized agency, of strictly limited ju-
risdiction, to deal with this need for security of tenure. Quite contrary to
the recent testimony of one witness before the Senate Committee on Envi-
ronment and Public Works, the ISA would not have "the exclusive right to
regulate what is done, by whom, when and under what circumstances in
subsurface international waters and on the sea-floor.'"^ Rather, the ISA is

^See "The LOST: Bad for U.S. Sovereignty, the Environment and Other Living Things," the
testimony of Frank J. Gaffney, Jr., President, the Center for Security Policy, before the U.S.
Senate Committee on Environment and Pubhc Works, 23 March 2004, at 2. Indeed, Mr.
Gaffney, who I have known as a friend and colleague in many struggles to protect this country's
national security, can be assured that no LOS Representative of the Department of Defense or
Joint Chiefs who actively participated in the formulation of U.S. instructions and the negotiation
of the convention would have in the remotest accepted such an absurdity — and, if they had, I
would have resigned as the Chairman of the NSC Interagency Task Force that developed the
instructions.

The testimony of Mr. Gaffney was further misleading in its heading to this section which
was titled; "Unwisely Empowering the U.N.", id. at 2; and in its reference to "a new U.N. bu-
reaucracy," id. at 3. While the LOST was negotiated under U.N. auspices, it is not the U.N.,
nor are any institutions created by it either agencies or instrumentalities of the United Nations.
Nor does a functional agency which after 10 years of operation has only 37 employees (none
of whom work for the United Nations) qualify as much of a bureaucracy.

It is further noteworthy that Mr. Gaffney, in his reference to "what could be billions of dol-
lars worth of ocean-related commerce," id. at 3, is, at least by implication from his overall testi-
mony, not remotely placing seabed mining in relation to the economic and security interests of
the United States. Every careful review by the United States government has placed our secu-
rity interest in navigation as the most important oceans interest of the United States. A close
second is the United States interest in oil and gas development, where, again contrary to the
implications of Mr. Gaffney's testimony, the oil and gas sediments off the United States coast,
within and beyond 200 miles, are placed under exclusive United States resource jurisdiction.
The abundant fish stocks of the United States are a third critical interest. Deep Seabed Mining
with its access to copper, nickel, cobalt and manganese, is important, or I would not have urged
President Reagan to require a renegotiation on this issue. But it is far down the list of overall
United States oceans interests. No such mining has yet taken place and it is not known at what
time any such mining may take place in the future. Another critic, Mr. Doug Bandow, places
seabed mining better in context by noting in an article in The Weekly Standard of March 15,
2004, that; "There is no guarantee that seabed mining will ever be commercially viable." Id. at
16. Most importantly, were Mr. Gaffney's advice to be accepted it would mean the permanent
death of any United States deep seabed mining industiy, whatever its ultimate value.

Continued

a small, narrowly mandated specialized international agency that, emphati-
cally, has no ability to control the water column and only has functional
authority over the mining of the minerals of the deep seabed beyond na-
tional jurisdiction. Again, this is a necessary requirement for seabed min-
ing, in an area beyond where any nation has sovereignty, to provide secu-
rity of tenure to mine sites, without which mining will not occur; ^

• Mjrth: President Reagan would oppose moving forward with this conven-
tion. Again, the actions of the Reagan administration show this to be false.
At my urging as a former United States Ambassador to the negotiations,
and that of others, President Reagan wisely refused to accept the provisions
on deep seabed mining set out in Part XI of the convention and he approved
instructions for the United States delegation to reengage in the negotiations
to achieve a series of critical access and institutional changes in Part XI.
After a full and careful interagency review of the then draft convention
President Reagan had no changes to suggest to the remainder of the con-
vention, including the most important security provisions that had been
sought by the United States. The reason for this is simple; the United
States had superbly achieved its security objectives in the negotiations
under Presidents Nixon and Ford. Further, in 1983 President Reagan
issued instructions to the Executive Branch to act in accordance with the
substantive provisions of the convention, other than Part XI, as though the
United States were a party to the convention. While the Reagan conditions
for changes in Part XI were not achieved in the negotiations under his ten-
ure, when subsequently negotiations were resumed in the Clinton adminis-
tration, President Clinton accepted the Reagan conditions as the basis for
United States adherence. The Clinton administration negotiators were suc-
cessful by 1994 in achieving all of the Reagan conditions and then some.
They also achieved all of the conditions that had been earlier set out by
Congress as requirements for a deep seabed mining regime. Only then did
the United States indicate acceptance, and submit the convention to the
Senate for advice and consent;

• M5^h: The convention is harmful to the PSI. Again, this is false. The PSI
has already been negotiated explicitly in conformance with the convention;

I am especially surprised by the charge leveled by Mr. Gaffney that adhering to this conven-
tion would (likely have a corrupting effect on one of our most cherished principles: the rule of
law," id, at 3; and "could effectively supplant the constitutional arrangements that govern this
Nation," id. at 3. It is hornbook constitutional law that international agreements cannot alter
the Constitution of the United States. That any such provisions in this convention would have
escaped the careful review of the 18 agencies and departments on the National Security Council
Task Force I chaired on the convention seems unlikely, but were there any such, the Constitu-
tion would prevail. Thus, in the classic 1957 case of Reid v. Covert, 354 U.S. 1, 16-17 (1957),
the Court laid this issue to rest when it said: ". . . no agreement with a foreign nation can
confer power on Congress, or on any other branch of Government, which is free from the re-
straints of the Constitution." Id.

Perhaps, as Churchill said, we should "not resent criticism, even when, for the sake of em-
phasis, it parts for the time with reality." Certainly, in other settings, particularly certain arms
control issues, I have found Mr. Gaffney to be an informed and able spokesman for United
States national interests, and I am pleased to have been on the same side of a number of issues
with him. In this connection, I am particularly pleased to be in the same camp with Mr. Gaffney
in urging a vigorous, early, and effective Ballistic Missile Defense for the United States. Mr.
Gaffney is not, however, remotely an expert on the Law of the Sea and I am saddened that
on this issue he has misperceived the national security interests of the Nation.

^The United States does not own the mineral resources of the deep seabed any more than
it owns the mineral resources of Indonesia. Part XI of the convention provides for a joint venture
such as might be the case in American production of minerals abroad — but it does so providing
assured access going beyond any right we would have in producing the minerals of another na-
tion.

No one accepts a loss of United States sovereignty. At the same time, one of our most impor-
tant sovereign rights is our legal ability to enter into agreements — ^just as individual citizens
in our own country have a right to agree to contract with one another. In fact, it is only children
and the mentally incompetent who have no right to contract — thus truly losing some of their
"sovereignty." Moreover, I do not disagree with critics who observe that in recent years we have
sometimes signed treaties that were not in our interest. I attribute that to a poor job of negotiat-
ing or bad judgment by our leaders. The solution is to elect better leaders and demand that
our negotiators do a better job of looking out for our interests. It is not to give up our sovereign
right to make agreements and to distinguish good deals from bad ones.

It should also be understood that under the foreign relations law of the United States na-
tional sovereignty, meaning our national freedom of action, can never be lost through an inter-
national agreement It is well accepted law of the United States that a subsequent act of Con-
gress can override a prior international agreement for purposes of national law. See, e.g., Whit-
ney V. Robertson, 124 U.S. 190 (1888); Chae Chan Ping v. United States, 130 U.S. 581 (1889).

and not surprisingly so, since the Nations with which we are coordinating
in that initiative are parties to the convention. This charge apparently rests
on the false belief that if the United States does not adhere to the conven-
tion it will be free from any constraints in relation to oceans law. Again,
a false assumption; we are today a party to the 1958 Geneva Conventions
that are, if anything on this issue, more restrictive than the 1982 Conven-
tion now before the Senate. This charge is also misguided in failing to un-
derstand the critically important interest we have in protecting naviga-
tional freedom on the world's oceans. The convention allows our vessels to
get on station which is essential before any issue even arises about board-
ing. Moreover, we emphatically do not want a legal regime that would per-
mit any nation in the world to seize United States commercial vessels any-
where in the world's oceans. The Proliferation Security Initiative was care-
fully constructed with parties to the 1982 Convention, using the flag state,
port state and other jurisdictional provisions of the 1982 Convention pre-
cisely to avoid this problem. Nor is this charge at all realistic in failing to
note that nothing in the UNCLOS trumps our legal rights to individual and
collective defense;

• Myth: The convention would interfere with the operations of our intel-
ligence community. Having chaired the 18 agency National Security Council
Interagency process that drafted the United States negotiating instructions
for the convention, I found this charge so bizarre that I recently checked
with the Intelligence Community to see if I had missed something. The an-
swer that came back was that they, too, were puzzled by this charge, and
there was no truth to it. I am confident that there is no provision in the
UNCLOS which will, or has, added constraints on the operations of our In-
telligence Community. Indeed, remember in this connection that the United
States is already bound by the 1958 Conventions and that since 1983, pur-
suant to President Reagan's order, we have been operating under the provi-
sions of the 1982 Convention, other than for deep seabed mining in part
XI. Since 1994 we have accepted the revised Part XI;

• Myth: Freedom of navigation is only challenged from "[t]he Russian navy
[that] is rusting in port [and] China has yet to develop a blue water capabil-
ity . . ."" The implication here is that the principal challenge to naviga-
tional freedom comes from major power war or conflict and we do not really
have any national concerns at this time about preserving freedom of navi-
gation. But the 1982 Convention deals with the law of peace, not war. Thus
this argument misses altogether the serious and insidious challenge, which,
again, is what the LOST is designed to deal with; that is, repeated efforts
by coastal states to control navigation, many from allies and trading part-
ners of the United States, which through time add up to death from a thou-
sand pin-pricks. That is the so-called problem of "creeping jurisdiction" that
remains the central struggle in preserving navigational freedom for a global
maritime power. After years of effort we have won the legal regime to con-
trol this "creeping jurisdiction" in the UNCLOS. To unilaterally disarm the
United States from asserting what we won in the convention against illegal
claimants is folly;

• Myth: The convention would mandate technology transfer and contains
other fundamentally non-free market provisions with respect to deep seabed
mining in Part XI. This charge seems to stem from a failure to understand
that a series of flawed provisions in Part XI of the 1982 Convention, includ-
ing mandatory transfer of technology, were renegotiated at the courageous
insistence of President Reagan. Today, the convention, as so modified, pro-
vides for first come rights to mine the deep seabed under a joint venture
arrangement providing guaranteed access rights to deep seabed minerals.
The renegotiated Part XI even goes beyond the Reagan conditions in adopt-
ing the important pro-free-market GATT principle against subsidization of
seabed miners. The mining regime adopted by the ISA may well be even
more flexible than what we have here at home. But whatever imperfections
there may be in the deep seabed regime, it is a certainty that United States
non-adherence has to date, and will permanently, kill all hope of a United
States seabed mining industry. Bankers simply will not loan the billion dol-
lars plus required for a deep sea mining operation without an unchallenge-
able legal title to the resource;

''See Doug Bandow, "Sink the LOST," The Weekly Standard (March 15, 2004), at 17.

• Mj^h: We do not need to adhere to the convention because it already rep-
resents customary international law binding on the United States.^ This ar-
gument is that our navigational interests are already protected. Curiously,
those who advance this argument fail to note that if the United States is
already bound to the convention as customary international law it is also
bound by provisions they may object to in the convention. The critics cannot
have it both ways. More importantly, the argument misses the reality that
the United States is legally disenfranchised as a non-adherent and will not
fully receive the benefits of the convention without acceding to it;

• Myth; "[TJhe Law of the Sea Convention was a grand scheme to create
'an oceanic Great Society'. . . ." ^ It is true that one motivation of develop-
ing countries in the UNCLOS negotiations more than three decades ago,
played out in the negotiation for Part XI, was an exaggerated hope of riches
from deep seabed mining. It is also true that the "new international eco-
nomic order" played a harmful role in the negotiation of Part XI on deep
seabed mining. The motivation of the United States and other major pow-
ers, however, was to protect navigational freedom, end the out-of-control
coastal state grab for the oceans, extend our jurisdiction fully to the fish
stocks and oil and gas off our coasts and achieve international agreement
on a mechanism providing security of tenure for deep seabed mining in
areas beyond national jurisdiction. It was these other non-Part XI issues
that were the real core of the UNCLOS negotiations, as attested by the fact
that heads of delegation largely ignored Committee I, where Part XI was
being negotiated, and spent their efforts in committees II and III, where
more critical national security issues were at stake. The United States and
other major developed nations coordinated closely together on these crucial
navigational and resource issues in the "Group of Five." Moreover, the in-
terest of certain land-based producers of nickel and copper, including devel-
oped nations, in preventing competition from deep seabed minerals, was
probably a more important factor in the negotiating difficulties in Part XI
than the "new international economic order." The renegotiation of Part XI
pursuant to the Reagan conditions solved this latter problem by abolishing
the "production limitations" that the land-based producers had written into
the original agreement;

• Myth: The convention "is designed to place fishing rights, deep-sea min-
ing, global pollution and more under the control of a new global bureauc-
racy. . . ." This is so in error as to be humorous if it were not seriously
advanced in a respected national newspaper. 1° The executive branch that
led U.S. negotiations on the convention and that is supporting Senate Ad-
vice and Consent would have supported a Nobel Peace prize for Osama bin
Laden before agreeing to any such nonsense. The ISA deals with mineral
resources beyond national jurisdiction, not with fishing, not with global pol-
lution and not with navigation — or even activities in the water column. It
is necessary in order to create stable rights to mine sites not owned by any
nation as required if United States mining firms are ever to mine the deep
seabed. The United States is already party to hundreds of specialized inter-
national organizations. The ISA would add an unremarkable one more. In-
deed, one more that even after 10 years of operation today still has a staff
of only 37 dealing with deep seabed exploration in 70 percent of the Earth's
surface.

• Myth: United States military activities will be subject to a world court.
There was strong feeling in the UNCLOS negotiations that military activi-
ties should be exempted from dispute settlement. Accordingly, Article 298
of the convention permits nations to opt out of the dispute settlement provi-
sions for military activities, and under the President's submission, as em-
bodied in the Senate draft resolution of advice and consent, this option is
unmistakably exercised for the United States. Further, the scope of dispute
settlement is severely cabined in general. For example, none of the deci-
sions of the United States in relation to access by foreign fishermen to our
fish stocks are subject to dispute settlement. In addition, under the Presi-
dent's submission, as embodied in the Senate draft resolution, the United
States will be accepting "special arbitration" as our preferred modality of
dispute settlement rather than the International Court of Justice (the

«See, e.g., "Bottom-of-the-Sea Treaty," The Wall Street Journal, March 29, 2004.
9 See "Bottom-of-the-Sea Treaty," The Wall Street Journal, March 29, 2004.
if'See "Bottom-of-the-Sea Treaty," The Wall Street Journal, March 29. 2004.

World Court). The United States is already a party to literally hundreds ^^
of international agreements, including more than 85 submitting disputes to
the International Court of Justice, that provide for compulsory dispute reso-
lution. As a result of these agreements, remedies are often available when
the rights of the United States or its citizens are violated by other coun-
tries. In this connection, compulsory dispute settlement is particularly use-
ful in controlling illegal interference with navigation. Indeed, because of its
importance in constraining these illegal claims, even the former Soviet
Union was persuaded of the importance of compulsory dispute settlement
in the UNCLOS, despite its longstanding general opposition to compulsory
dispute settlement. The severely cabined dispute settlement procedures in
the UNCLOS are far more restrictive than in most of the other dispute res-
olution provisions already binding on the United States. Moreover, as noted
above, in the UNCLOS we have chosen special arbitration rather than the
International Court of Justice;

• Myth: Adhering to the convention will come with substantial financial ob-
ligations. U.S. financial obligations under the convention will be modest.
Had we been a full party throughout 2001, our contribution to the ISA
would have been approximately $1.3 million computed at the 25 percent
rate, and this reduced to a 22 percent rate in 2002. Our contribution to the
International Tribunal is estimated to be approximately $2 million per
year. This total level of contribution is less than the United States pays
each year for membership in the Great Lakes Fish Commission.

• Myth: There has been inadequate consideration of the LOST and we need
more time to study it. Nonsense! Those who espouse this view fail to note
that this is the second round of Senate hearings on the convention. The
first round was held in 1994 when the convention was initially submitted
to the Senate. The Senate, and the country, has had a decade to study the
convention, and for several decades, since 1983, we have lived under the
legal regime of everything but Part XI. I have an especially hard time in
finding any sympathy for this position urging delay when it comes from
spokesmen who were not heard calling for more consideration of the con-
vention for the full decade while the treaty languished before the Senate
Foreign Relations Committee. Rarely has any convention come before the
Senate that is more fully understood in its impact and stakes for our Na-
tion, and that has been more fully studied and debated — and, in real effect,
Hved under; and

• Myth: President Bush is urging Senate advice and consent to the conven-
tion for little better than "go-along, get-along multilateralism." Give me a
break! Among Presidents prepared to take the heat internationally for ac-
tions they believe in, as Afghanistan and Iraq surely demonstrate, this
President is near the top. Is it too much to understand that after lengthy
and careful review this President has urged Senate advice and consent be-
cause it is in the National interest of the United States? Further, does any-
one really believe Ronald Reagan was a "go-along, get-along" President?

CONCLUSION

Mr. Chairman, and honorable members of the Armed Services Committee as

the beginning quotation from President GeQrge Washington attests, a strong Navy,
indeed today a preeminent Navy, is an essential national security interest of the
United States. We must not do in that Navy by failing to appreciate our critical na-
tional security interests in a legal regime for the oceans which protects the freedom
of the seas and ensures global access.

Rarely has the Senate faced such an easy choice in consideration of a major con-
vention. No United States oceans, security, or foreign policy interest is served by
continued non-adherence, and our security interests are powerfully served by adher-
ence. Not only Senator Lugar, as Chairman of the Senate Foreign Relations Com-
mittee, but also Senator Stevens, as the senior Senator from the most affected state
in the United States, Alaska, have recently sent a letter to their Senate colleagues
urging prompt advice and consent to the convention. Every industry and oceans in-

^^ According to the Department of State, the United States is a party to more than 85 agree-
ments (most of them multilateral in nature) that provide for the resolution of disputes by the
International Court of Justice. More than 200 treaties — including civil air transport agreements
and vaiious types of investment treaties — provide for mandatorj- arbitration at the request of
a party. In addition, there are a number of international organizations that include dispute reso-
lution mechanisms, including the U.S. -Iran Claims Tribunal, and the International Civil Avia-
tion Organization.

terest group that has addressed the issue has supported prompt advice and consent,
including the one most affected economically, the United States oil and gas industry.
Who do the critics speak for? The United States Navy and the Joint Chiefs have
never wavered in their support. Our allies have supported United States adherence.
Both Republican and Democratic Presidents have recommended Senate advice and
consent. Most recently, the congressionally established United States Commission
on Ocean Policy, broadly representative of United States oceans interests and
chaired by Admiral Watkins, has unanimously recommended accession. I concur
wholeheartedly in the statement of the commission that:

The National Commission on Ocean Policy unanimously recommends that
the United States of America immediately accede to the UNCLOS. 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 activi-
ties if the country proceeds with accession expeditiously. [Unanimous Reso-
lution of the Commission, November 14, 2001J.

Chairman WARNER. The oil and gas industry has taken a similar
position?

Mr. MoORE. They have indeed, Mr. Chairman. Every single ele-
ment that I am aware of in the oil and gas industry — the associa-
tions, the individual companies — have powerfully supported this
treaty. They know they have an interest in it both in relation to
the oil and gas from our continental margin when we are able to
go forward with it, but also bringing it in through our tankers and
navigational freedom.

Chairman Warner. The record of their contributions is before
the Foreign Relations Committee, am I not correct?

Mr. MoORE. That is correct, and I believe Paul Kelly has been
very, very clear on that.

Chairman Warner. That is correct.

They were before your committee?

Senator Inhofe. Paul Kelly testified before the Committee on
Environment and Public Works.

[The information referred to follows:]

International Association of Drilling Contractors

Chairman
Mirion M Wooir
ClabalSltnULFe

Vice Chairman
Edward D. Kauu

PO Box 4287 • Houston. Texas 77210-4287 USA
10370 Richmond Avenue Suite 760 • Houston. Tex
Phone: 1/713 292-1945 • Fax: 1/713 292-1946
w^vw.iadc.o^g

The Hon. Richard G. Lugar
I Chainnan

I Senate Foreign Relations Conimittee

SD 450

Washington, DC 20510

Dear Mr. Chainnan,

7 April 2004

Washington
Senior Vice EVesideni
Government Affairs
Brian T. Peuy

1901 LSI . NW

:: 1/202 203^)670

I/202 872-0047

: brian. petty Aladc.t

The International Association of Drilling CotittBctors, representing US
companies engaged in the exploration for new sources of oil and natural gas,
strongly endorses ratification of the UN Convention on the Law of the Sea, and asks
that the Senate see this vital treaty through to completion in the current session of
Congress.

If ratified, the Convention codifies the right of the United States to explore and
develop potentially large new reserves of oil and natural gas and, more importantly,
offers a non-adversarial process for resolving disputes and confbcts over the precise
limits of the continental shelf where its margin extends beyond 200 miles The
Convention's rules by which coastal nations may assert jurisdiction over the
development of natural resources beyond 200 miles are particularly important to the
United States, which has broad continental shelf margins. The legal certainty
provided by the Convention is a critical component of industry's willingness to
make the investment needed to develop these important energy resources beyond
the US OCS.

Netherlands:

6301 BC Nt)me»en

Ruillip. H/\4TWZ
Phone/Fax: 44-1893.621889

By remaining outside the treaty, the United States forfeits its membership in
institutions that will make decisions about the future of the oceans and increases the
risk that such decisions could be adverse to U.S. interests. Later this year the treaty
will be open for amendment, creating the possibility that other nations may seek
advantage against US into-ests in the deep ocean.

For these reasons, the US offehore drilling industry has long stood in support of
ratifying the UN Convention on the Law of the Sea, and is grateful for your
steadfast pursuit of that objective.

Yours sincerely.

Brian T. Petty

Senior Vice President - Goveniment Affairs

April 6, 2004

Senator John Warner Senator Carl Levin

U.S. Senate U.S. Senate

Washington, D.C. Washington, D.C.

Dear Senators Warner and Levin;

The American Petroleum Institute (API), the International Association of Drilling
Contractors (lADC) and the National Ocean Industries Association (NOIA). are pleased
to provide for the Senate Armed Services 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. Additionally, on March 23, 2004, we submitted this joint
statement of support for the treaty ratification to the Senate Environment and Public
Works Committee. We ask that our statement be made part of your committee's record
for the April 8, 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

Majority Leader Bill Frist
Minority Leader Tom Daschle
Senator Richard Lugar
Senator Joe Biden

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

UNITED STATES SENATE

COMMITTEE ON FOREIGN RELATIONS

HEARING ON THE UNITED NATIONS CONVENTION

ON THE

LAW OF THE SEA

WASHINGTON, D.C.
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 (L\DC)
and the National Ocean Industries Association (NOIA), represent the fiill spectrum of
American companies involved in all phases of oil and natural gas exploration and
production in the oceans of the world, as well as the marine transportation of petroleum
and petroleum products.

The offshore oil and natural gas industry is a multibillion-dollar industry. A recent
economic survey of global ocean markets done in the United Kingdom^ 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 tlie 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
fi-eedom 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:

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

♦ 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 Conmiission 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 hitemational Maritime Organization in
setting international safety and select enviroimiental 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 hitemational 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, lADC and NOIA, support
ratification of the Convention by the United States Senate. Also, the Outer Continental
Shelf Policy Committee, an advisory body to the United States Secretary of the Interior
on matters relating to our offshore oil and natural gas leasing program, in 2001 adopted
resolutions supporting the United States acceding to the Convention.

Offshore Oil and Natural Gas Resources

The Convention is important to our efforts to develop domestic offshore oil and
namral 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 miUion square miles of ocean
under U.S. jurisdiction. This is an area larger than the U.S. land area. The Convention
also broadens the definition of the continental shelf in a way that favors the U.S. as one
of the few nations with broad continental margins, particularly in the North Atlantic, Gulf
of Mexico, the Bering Sea and the Arctic Ocean.

Considering the remarkable advances in offshore exploration technology that
have taken us farther and farther offshore into deeper and deeper water, the assessment of
the National Petroleum Council in 1973 seems remarkably prescient in retrospect; and
that assessment rings more true today than ever.

With what may be the largest and most productive continental shelf in the world,
the U.S. obtains about 28 percent of its natural gas and almost as much of its oil
production from the outer continental shelf (OCS); this share of U.S. production is
increasing thanks to new world class oil discoveries in the deep waters of the Gulf of
Mexico.

Exploration Moving Farther from Shore into Deeper Waters

Offshore petroleum production is a major technological triumph. We now have
world record complex development projects located in 5,000-6,000 feet of water in the
Gulf of Mexico which were thought tmimaginable a generation ago. Even more eye-
opening, a number of exploration wells have been drilled in the past three years in over
8,000 feet of water and a world record well has been drilled in over 9,000 feet of water.
New technologies are taking oil explorers out more than 200 miles offshore for the first
time, tlius creating a more pressing need for certainty and stability in delineation of the
outer shelf boundary. Before the LOS Convention there were no clear, objective means of
determining the outer limit of the shelf, leaving a good deal of uncertainty and creating
significant potential for conflict. Under the Convention, the continental shelf extends
seaward to the outer edge of the continental margin or to the 200-mile limit of the EEZ,
whichever is greater, to a maximum of 350 miles. The U.S. understands that such features
as the Chukchi Plateau and its component elevations, situated to the north of Alaska, are
not subject to the 350-mile limitation. U.S. companies are interested in setting
international precedents by being the first to operate in areas beyond 200 miles and to
continue demonstrating environmentally sound drilling development and production
technologies.

Revenue Sharing

The Convention provides a reasonable compromise between the vast majority of
nations whose continental margins are less than 200 miles and those few, including the
U.S., whose continental shelf extends beyond 200 miles, with a modest obligation to
share revenues from successful minerals development seaward of 200 miles. Payment
begins in year six of production at the rate of one percent and is structured to increase at
the rate of one percent per year to a maximum of seven percent. Our understanding is that
this royalty should not result in any additional cost to industry. Considering the
significant resource potential of the broad U.S. continental shelf, as well as U.S.
companies' participation in exploration on the continental shelves of otlier countries, on
balance the package contained in the Convention, including the modest revenue shanng
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 urdemarcated
claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The
end of the Cold War and global expansion of free market economies have created new
incentives to resolve these disputes, particularly with regard to offshore oil and natural
gas exploration. During the last few years hundreds of licenses, leases or other contracts
for exploration rights have been granted in a variety of nations outside the U.S. These
countries are eager to determine whether or not hydrocarbons are present in their
continental shelves, and disputes over maritime boundaries are obstacles to states and
business organizations which prefer certainty in such matters. We have had two such
cases here in North America where bilateral efforts have been made to resolve the
maritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between
tlie 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.

100

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 Coimcil to undertake a review of the Methane Hydrate
Research and Development Program at the Department of Energy to provide advice to
ensure that significant contributions are made towards understanding methane hydrates as
a source of energy and as a potential contributor to chraate 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 Petreteum

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 II, 2001. About 44 percent of U.S.
maritime commerce consists of petroleum and petroleum products. Trading routes are
secured by provisions in the Convention combining customary rules of international law,
such as the right of innocent passage through territorial seas, with new rights of passage
through straits and archipelagoes. U.S. accession to the Convention would put us in a
much better position to invoke such rules and rights.

101

U.S. Oil Imports at Ail-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 fiiel and jet fiiel, 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 fi-om 55 percent in 2001. Looking at the October
numbers fi-om API makes one wonder whether 2025 is fast approaching.

Growing Natural Gas Imports

EIA's 2003 Outlook also states that, despite the projected increase in domestic
natural gas production, over the next twenty years an increasing share of U.S. gas
demand will also be met by imports. A substantial portion of these imports will come in
the form of hquefied natural gas (LNG). All four existing LNG import facilities in the
U.S. are now open, and three of the four have armounced 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 firom the Middle East, West Afiica, Latin America,
Indonesia, Australia, and possibly Russia, to name the prominent regions seeking to
participate in the U.S. natiu-al 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 fi-om 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.^

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

^ See "Persian Gulf Ehsputes," comments prepared by Jonathan L. Chamey, 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.

102

territorial sea the right of high seas navigation appHes 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

Worid 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 worid demand is expected to reach
neariy 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 tanlcers will be transporting larger volumes of
oil and natural gas.

Need for U.S. Involvement in LOS Governance

In conclusion, from an energy pjerspective 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 opportimity 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.

Mr. Moore. Mr. Chairman, I do think that is also a terribly im-
portant point, because again we see the price of gas at the pumps
today. All of us are in favor of moving forward on the continental
shelf with oil and gas development, and not to go forward with this

1@S

treaty will in fact significantly inhibit our ability to go forward in
the areas beyond 200 nautical miles.

To give you a sense of what that is, it is about the size of the
State of California in relation to potential oil and gas and going out
there and looking at it.

Okay. Just very briefly in relation to dispute settlement, again
my point here is this is not like many of the others that we have
entered into. This is the way to do it right. We are party already
to about 200 treaties that have third party dispute settlement. We
are parties to 85 of those today that have dispute settlement
through the International Court of Justice.

What have we done here that is a little different? One, it has an
extraordinarily clear provision exempting all military activities be-
cause we insisted on it from the very beginning. Second, we are not
choosing the World Court and it did not require you to choose the
World Court. Instead, it let us go for arbitration, which we have
chosen. The third is even in those terms it is severely cabined in
relation to United States interests. For example, the questions of
our management of fish stocks off our coast cannot go to the dis-
pute settlement provision in relation to that.

Finally, let me just also say, because I think sometimes there is
a misunderstanding on this, the determinations of international
courts are not stare decisis, as they are under U.S. law. They are
res judicata only. That is, they are binding between the parties, but
they are not stare decisis in relation to binding other parties that
were not before the court at that point.

Finally, just to turn very briefly to this last point in relation to
information and data sharing, because I take very seriously any
question asked by the distinguished members of this committee.
The first thing I would be delighted to say again. Senator Inhofe,
since I think you were interested in this: This is one in which we
have done it right. It is not like the other problems. We put a spe-
cific article in the treaty, article 302, that says no data sharing will
be required if it requires you to share data that is inconsistent with
the national security interests of the United States. So that issue
is absolutely nailed in relation to the treaty.

But there are even a variety of other points I think that you
might find of interest on this. One is that any nation in the world
right now under the 1958 Conventions is free to go do this research
and to do the bottom topography with modern multi-beam sonars
and to get all the exact kind of information that anyone might be
worried about.

A third point is that we ourselves in the United States inten-
tionally decided in the 1980s not to classify any of that material,
so it is already completely out in the public domain. They do not
have to get it from the international authority in any way, shape
or form. It is all out there in the public domain and has been for
many years.

I would also add to that as well that the authority is under an
injunction of secrecy for everything that goes to the Continental
Shelf Commission. Finally, the real difference is when we join this
treaty and are on the commission we get that data submitted by
every other nation in the world. So in reality we are not — by stay-
ing out we are not preventing any of the data related to national

104

security from not going in, but if we go in we ourselves begin to
get very important data, such as what the Soviets, the Russians
today, have submitted to the Continental Shelf Commission in rela-
tion to a huge claim in the Arctic Ocean today, and we do not have
access to that data because we are not a member of the commission
and it affects us very significantly.

Let me just end, Mr. Chairman, again by thanking you and to
naturally go back to a statement from another wonderful Virginian,
Thomas Jefferson, and to remind us that Thomas Jefferson once
wrote: "The day is within my time as well as yours when we may
say by what laws other nations shall treat us on the sea."

Well, you and I know that Jefferson did not realize that dream
in his day, Mr. Chairman. But by giving advice and consent to this
treaty, this Senate can realize that dream.

Thank you.

Chairman WARNER. A very interesting way in which to conclude
your testimony and touch the heart of the University of Virginia
graduate, this humble Senator.

Admiral, I looked over your distinguished biography here. You
have spent your life at sea. You served with distinction in Vietnam.
What were your assignments in that period?

STATEMENT OF REAR ADM. WILLIAM L. SCHACHTE, JR., USN
(RET.), JUDGE ADVOCATE GENERAL CORPS

Admiral SCHACHTE. I was the officer in charge of a Navy Swift
boat.

Chairman WARNER. Oh, down in the delta?

Admiral ScHACHTE. No, sir, but some of the boats in our division
were sent there. I arrived in Vietnam in 1968, before Tet.

Chairman WARNER. Before Tet. Is that not interesting.

Admiral SCHACHTE. I actually served on a mission with Senator
Kerry.

Chairman WARNER. With the Senator?

Admiral ScHACHTE. Yes, sir. Then I was the executive officer and
operations officer of Coastal Division 14 Cam Ranh Bay. Like the
rest of us in that line of work, I was a volunteer.

Chairman WARNER. I had the privilege as Secretary, Under Sec-
retary, to visit down with the delta forces and I came back with
a lifetime respect for the courageous missions which you carried
out on behalf of the cause of freedom. So I thank you.

Then you went on and you have spent much of your career in the
DOD and Judge Advocate General's office on international law and
particularly the oceans law.

Admiral SCHACHTE. Yes, sir.

Chairman Warner. So you are eminently qualified to share with
us your views today, and I thank you for finding the time to join
us.

Admiral SCHACHTE. Thank you very much, Mr. Chairman. It is
a real honor to be here and to be on such a distinguished panel.
Mr. Chairman, I know the hour is late and I am the last speaker.
I will truncate my remarks.

Chairman Warner. You take such time as you feel it merits
here.

Admiral ScHACHTE. Thank you very much, sir.

105

I would like to echo what Professor Moore just indicated, and
that is it really is inaccurate to state that the convention subjects
United States military or economic activities to the control of a
United Nations bureaucracy. This is not true with respect to either
military or economic or other activities. Under the convention all
activities with the exception of deep seabed mining are controlled
by either the flag state, i.e. the sponsoring nation, or the coastal
nation.

If I could take a moment, I would like to quote from President
Reagan's Deputy Secretary of State, John Whitehead, and this is
from an op-ed piece that appeared in the Washington Times in
1994. It may address some things that Ambassador Kirkpatrick al-
luded to, and I quote:

"One cannot dispute the reminiscence that some of us in the
Reagan administration thought we had slain it for good, the
UNCLOS. But that was personal, not administration policy. The
fact is that the Reagan White House and State Department never
questioned the need for international law to codify a 12-mile limit
to coastal sovereignty, naval rights of passage, prohibitions on mar-
itime pollution, and protection of fisheries. All of these advance in-
terests important to Americans. The administration objected very
specifically and strenuously to the section of the treaty establishing
an International Seabed Authority that would have subjected
American mining companies to onerous controls dictated by a third
world majority. It singled out those provisions as 'not acceptable,'
but insisted that if they were satisfactorily resolved," and here I
quote, "the administration will support ratification."

Mr. Whitehead concluded, and this is again in 1994 after the
amendments were taken place, effected: "Immediately after the
U.N. General Assembly promulgates the new agreement this week,
all major industrialized countries will sign the convention. It is
vital for America's interests that we be among them. We have no
need to fear prudent use and protection of the world's oceans and
seas under the rule of law."

Mr. Chairman, my statement then goes into some national secu-
rity concerns that we have heard testimony on. I would like to
focus, however, on some inaccuracies about the convention, some of
which were mentioned by Dr. Moore. I will address four areas: the
impact of accession on ongoing intelligence and submarine oper-
ations; the impact of U.S. accession to ongoing maritime intercept
operations and the PSI; reliance on customary international law to
exercise our navigational freedoms; and, fourth, the impact of man-
datory dispute resolution on U.S. sovereignty, in particular U.S.
military activities at sea.

Concerning intelligence and submarine navigation, you have had
testimony in closed session this morning and also the CNO elo-
quently spoke to these matters today. I would simply reemphasize
the fact that, concerning submarine navigation and intelligence ac-
tivities, there will be absolutely no change required by our acces-
sion to the convention. There will be no change in the way we con-
duct any of these activities under the convention, and I elaborate
on that, the legal bases and rationale for that in my paper.

Now I would like to talk about the impact of the convention on
Maritime Intercept Operations (MIO) and PSIs.

106

Chairman WARNER. Could I interrupt that?

Admiral SCHACHTE. Yes, sir.

Chairman WARNER. Before you went to the retired status you ac-
tually worked on previous drafts of this treaty?

Admiral SCHACHTE. Oh, yes, sir. I was a member of the U.S. del-
egation.

Chairman WARNER. It clearly reflects it in your biography.

Admiral SCHACHTE. Yes, sir.

Chairman WARNER. Is it currently as it is before the Senate pret-
ty much in the shape that it was when you and others worked on
it?

Admiral SCHACHTE. Absolutely, with the grand exception, as Pro-
fessor Moore mentioned, of the seabed mining amendments, yes,
sir, it really is.

When we started out in this evolution in the late 1950s, early
1960s, the Soviets actually came to us out of concern for the expan-
sion of territorial seas. We were going to have a three-article treaty
to try to get the world to buy into it so it would be greatly acknowl-
edged. That fell flat. We wanted transit rights through straits, and
the result was the formulation of the ground work for the conven-
tion. But our negotiators delivered on archipelagic sea lanes pas-
sage, transit passage, and other rights that were not existing, in
existence, prior to the convention.

Yes, sir, it is exactly as we negotiated it back then at that time.

Mr. Chairman, as a former naval officer you are aware of the fact
that the Navy has been conducting MIO-type operations since we
first declared our independence.

Chairman WARNER. I would have to — for the record, I was a
petty officer, not a commissioned officer.

Admiral SCHACHTE. At the time of our independence — no, okay.

Chairman WARNER. I later became a commissioned officer in the
Marine Corps, but my military career is very modest. I am always
grateful for what was done for me.

Admiral SCHACHTE. But these operations have been conducted
using a variety of legal bases, and I lay those out, but I will sum
up here. Some of these bases are codified in the UNCLOS. Others,
like the right of self-defense and belligerent rights, exist outside
and are unaffected by the convention.

In fact, the convention's preamble is quite clear in this regard,
and I will quote: "Matters not regulated by the convention continue
to be governed by the rules and principles of general international
law." In other words, self-defense and these other legal bases are
outside the ambit of the convention.

In short, nothing in the UNCLOS hampers, impedes, trumps, or
otherwise interferes with anything we have done in the past, in the
present, or will do in the future regarding military intercept oper-
ations. I next lay out some examples of those operations that we
have conducted since President Reagan announced that we would
in essence be bound by the navigational provisions.

I would now like to briefly address the PSI, as mentioned by Sen-
ator Levin, and addressed by Mr. Taft and others. PSI is a rel-
atively new concept which was announced by President Bush on
the 31st of May 2003 in Krakow, Poland. This initiative was devel-
oped in conjunction with ten countries — ^Australia, Japan, France,

Germany, Italy, The Netherlands, Poland, Portugal, Spain, and the
United Kingdom. Since then, three more countries — Canada, Nor-
way, and Singapore — have been added to the partnership. As has
been mentioned earlier, all of these parties except us happen to be
parties to UNCLOS.

The PSI is a global initiative designed to create a more robust
approach to preventing weapons of mass destruction, their delivery
systems and related materials flowing to and from the states and
non-state actors of proliferation concern. In furtherance of this ini-
tiative, the PSI partners agreed to a statement of interdiction prin-
ciples in September 2003.

Some of the opponents to the convention have argxied that be-
coming a party to the convention will hinder our ability to effec-
tively interdict weapons of mass destruction at sea. This argument,
however, fails to recognize that one of the basic tenets in the state-
ment of principles is that PSI activities will be undertaken consist-
ent with national legal authorities and relevant international law
and frameworks, including the navigational provisions of UNCLOS.
Thus, the UNCLOS absolutely does not provide for any role for the
United Nations, much less a role in deciding when and where ships
at sea may be boarded.

Now, concerning the legal bases, and I lay them out extensively
in my prepared remarks, Mr. Chairman. But as in the case of
MIOs, PSI interdictions can also be justified as a self-defense meas-
ure. Clearly, international law, including UNCLOS, does not and
would not prohibit the United States or any nation from boarding
a vessel carrying weapons of mass destruction that posed an immi-
nent threat to our national security just because we did not have
flag state or master control or consent. If one thing is clear in
international law, it is that a nation is authorized to use armed
force in self-defense to protect its national interests against an im-
minent threat of attack.

In my prepared statement, I next talk about customary inter-
national law, Mr. Chairman, and because of the hour the only
thing I would mention in that is that reliance on that is ill-con-
ceived. We have seen in the 20th century that customary inter-
national law, its evolution has resulted in erosion, not preservation,
of any rights, and I have some discussion on that and my concerns
that we would experience if we were not a party.

The issue of loss of United States sovereignty. Senator Inhofe has
spoken eloquently on this. Senator Levin has also mentioned this
today. All I would like to say in that from my own experience and
what I elaborate more fully on in my paper is one simple fact: No
country, no country would subordinate its national security activi-
ties to an international tribunal. No country would subordinate its
national security activities to an international tribunal.

This was a point that everyone understood during the negotia-
tion of the convention and, as Professor Moore mentioned, this was
very much at the heart of a lot of our activities in the convention.
I would stress that this exemption also encompasses military ac-
tivities, such as MIOs or PSIs or other types of activities that may
be undertaken.

I would like, Mr. Chairman, if I could to conclude by respectfully
urging that we become a party to this convention. Let me state this

108

as best I can. This convention has nothing to do with the U.N. and
everything to do with the preservation of our sovereignty, national
security, and navigational rights.

If we choose to walk now, we will be leaving the fate of our criti-
cal navigational freedoms in the hands of others, and here I would
submit probably the European Union would be at the forefront of
that, probably China leading the third world. It would be a horrible
fate, and I feel that it is time for the United States to reassume
our prominent and appropriate place of leadership in these matters
dealing with the global commons.

It has been an honor to be here today, sir, and I thank you very
much.

[The prepared statement of Admiral Schachte follows:]

Prepared Statement by Rear Adm. William L. Schachte, USN (Ret.)

Mr. Chairman and members of the committee, it is an honor for me to be here
today with you, and to present this testimony in support of U.S. accession to the
1982 UNCLOS. Before I begin my testimony, however, I would Uke to take a
minute, Mr. Chairman, to recall your extensive public service to this Nation and
your significant contributions to efforts to help ensure that U.S. military forces can
operate freely on the world's oceans. In addition to your insightful leadership as
chairman of this committee, your active-duty naval service and your appointments
as Under Secretary and later Secretary of the Navy give you an invaluable perspec-
tive to assess the importance of UNCLOS to our maritime and national security in-
terests. I especially recall and commend your work as the chief negotiator and U.S.
signatory of the Incidents at Sea Executive Agreement (INCSEA), between our Na-
tion and the former Soviet Union. As I am sure everyone here knows, INCSEA re-
mains in effect today, and has even been used by other nations, including the
United Kingdom, Germany, Canada, and France, as their model for similar agree-
ments regarding the operation of military ships and aircraft at sea around the
world.

Mr. Chairman, I have worked extensively with UNCLOS throughout most of my
military career as a Navy JAG, serving as a member of the U.S. delegation to the
negotiations during President Reagan's administration and as the DOD Representa-
tive for Ocean Policy Affairs during the late 1980s and early 1990s. I also testified
as a private citizen before the Senate Foreign Relations Committee last October.
That testimony is a matter of public record, so I won't repeat myself here, Mr.
Chairman. What I would like to do today is concentrate my remarks primarily on
the national security benefits of the convention by responding to some of the mis-
leading and inaccurate statements being made by some of the opponents to the con-
vention. Of course, I am also prepared to address other issues of concern that any
of the members of this committee may have regarding the national security benefits
of the convention.

It is very important to carefully and comprehensively study UNCLOS together
with President Reagan's 1983 Ocean Policy Statement and the 1994 Agreement
whose provisions prevail on Seabed Mining, ISA. I would submit that the specific
reasons put forth by those opposing the convention have been corrected by the 1994
Agreement. For example, it is totally inaccurate to state that the convention sub-
jects U.S. military or economic activities to the control of a U.N. bureaucracy. That
is not true with respect to either military or economic or any other activities. Under
the convention all activities at sea, with the exception of deep seabed mining, are
controlled by either the flag state (or sponsoring nation) or the coastal nation. The
most important living and nonliving resources, including oil and gas, are under ex-
clusive coastal nation control. The ISA's role is very carefully circumscribed and lim-
ited to coordinating the exploration and exploitation of nonliving mineral resources
of the seabed that are not under exclusive coastal nation control. More importantly,
by becoming a party, the United States will acquire a seat on the governing council
in perpetuity. This seat gives us the power to veto important substantive decisions
of the Council such as those concerning revenue sharing from deep seabed mining
and decisions on amendments to the deep seabed mining regime. Additionally, by
becoming a party, the United States will acquire a seat on the Finance Committee.
Our seat on the Finance Committee gives the United States a veto over all decisions
of the council and the assembly having financial or budgetary implications.

1P19

To quote from President Reagan's Deputy Secretary of State, John Whitehead,
from his op/ed piece in the Washington Times of July 28, 1994: "One cannot dispute
the reminiscence that 'some of us in the Reagan administration thought we had
slain it for good.' But that was personal, not administration policy. The fact is that
the Reagan White House and State Department never questioned the need for inter-
national law to codify a 12-mile limit to coastal sovereignty, naval rights of passage,
prohibitions on maritime pollution and protections of fisheries. All of these advance
interests important to Americans."

"The administration objected, very specifically and strenuously, to the section of
the treaty establishing an international seabed mining authority that would have
subjected American mining companies to onerous controls dictated by a Third World
majority. It singled out these provisions as 'not acceptable,' but insisted that if they
were satisfactorily revised, 'The administration will support ratification.'"

Mr. Whitehead concluded: "Immediately after the U.N. General Assembly promul-
gates the new agreement this week, all the major industrialized countries will sign
the convention. It is vital for America's interests that we be among them. We have
no need to fear prudent use and protection of the world's oceans and seas under
rule of law."

NATIONAL SECURITY BENEFITS OF THE CONVENTION

Mr. Chairman, without question, accession to UNCLOS will enhance U.S. na-
tional security and economic interests. Military planners have long sought inter-
national respect for the freedoms of navigation and over-flight that are set forth in
UNCLOS. The convention guarantees our ships the right of innocent passage
through foreign territorial seas.

It guarantees our warships, military aircraft, and submarines the right of transit
passage through straits used for international navigation, such as Gibraltar, Bab el
Mandeb, Hormuz and Malacca. This right of transit passage is critical to maintain
the mobility and flexibility of our armed forces. With the extension of the territorial
sea from 3 to 12 nautical miles, more than 100 international straits, which pre-
viously had high seas corridors, became overlapped by territorial seas. UNCLOS
guarantees our Armed Forces a nonsuspendable right of transit passage in, over and
under these straits in the "normal mode" of operation. That means that our sub-
marines can transit submerged, military aircraft can overfly in combat formation
with normal equipment operation, and warships can transit in a manner necessary
for their security, including launching and recovering aircraft, formation steaming
and other force protection measures.

The same guaranteed, nonsuspendable rights apply to warships, military aircraft
and submarines transiting through archipelagoes, such as Indonesia and the Phil-
ippines. UNCLOS recognizes the right of some island nations to claim archipelagic
status if they meet the requirements of the convention. But it also guarantees our
armed forces the right of archipelagic sea lanes passage in the "normal mode"
through all routes normally used for international navigation and overflight, regard-
less of whether sea lanes have been designated by the archipelagic nation.

The convention guarantees our right to exercise high seas freedoms of navigation
and overflight and all other internationally lawful uses of the seas related to those
freedoms within the EEZ of other nations. This includes the right to engage in mili-
tary activities, such as:

• launching and recovery of aircraft, water-borne craft and other military
devices;

• operating military devices;

• intelligence collection;

• surveillance and reconnaissance activities;

• military exercises and operations;

• conducting hydrographic surveys; and

• conducting military surveys (military marine data collection).

By codifying these important navigational rights and freedoms, the convention
provides international recognition of essential maritime mobility rights used by our
forces on a daily basis around the globe. It establishes a legal framework for the
behavior of its 145 parties and provides the legal predicate that enables our Armed
Forces to respond to crises expeditiously and at minimal diplomatic and political
costs. Today, more than ever, it is essential that key sea and air lanes remain open
as an international legal right, and not be contingent upon approval by nations
along the route. Anything that might inhibit these inherent freedoms is something
we must avoid. The stable legal regime for the world's oceans codified in UNCLOS
will guarantee the legal basis for the global mobility needed by our Armed Forces.
I might add that the navigational provisions of the convention must continue to be

110

exercised by our operational forces, particularly in the maritime environment of the
global commons, an environment that has traditionally been one of claim and coun-
terclaim.

I'm not here to discuss the economic benefits of the convention, but I would like
to mention that the U.S. EEZ is by far the largest and richest of any in the world.
We have some of the richest and most abundant fisheries in the world — all of which
are under our exclusive control. Moreover, the pot of gold in the seabed is the oil
and gas, and that was also placed under coastal nation control. With all due respect,
the focus on deep seabed mining concerns an activity that has no market and is eco-
nomically not feasible at this time because many of the same minerals are found
on land or within the EEZ. In short, our national security and economic interests
will be advanced if we join the convention.

INACCURACIES ABOUT THE CONVENTION

If I may, Mr. Chairman, I will now briefly address four areas where inaccurate
statements have been made regarding the convention: (1) the impact of U.S. acces-
sion to ongoing intelligence gathering activities, including submerged transits by
submarines; (2) the impact of U.S. accession to ongoing MIO and the PSI; (3) reli-
ance on customary international law to exercise our navigational fi^eedoms; and (4)
the impact of mandatory dispute resolution on U.S. sovereignty, in particular, U.S.
military activities at sea.

IMPACT ON INTELLIGENCE GATHERING.

Nothing in the convention will affect the way we currently conduct surveillance
and intelligence activities at sea. Opponents to the convention argue that the con-
vention's provisions on innocent passage — Articles 19 and 20 — will prohibit or other-
wise adversely affect U.S. intelligence activities in foreign territorial seas at a time
when such activity is vital to our national security. I can say without hesitation that
nothing could be further from the truth.

While it is true that article 19 provides that intelligence collection within the ter-
ritorial sea is inconsistent with the innocent passage regime and that article 20 pro-
vides that submarines must navigate on the surface when engaged in innocent pas-
sage, it's a far stretch to thus conclude that the convention prohibits intelligence col-
lection and requires submarines to navigate on the surface when transiting the ter-
ritorial sea. Nothing in article 19 prohibits a U.S. vessel fi-om engaging in intel-
ligence activities in a foreign territorial sea. If a vessel does engage in such activi-
ties, it simply cannot claim that it is engaged in innocent passage. The same rule
has applied for the past seven decades. Similarly, Article 20 does not prohibit sub-
merged transits through the territorial sea, per se. Article 20 merely repeats the
rule from the 1958 Convention on the Territorial Sea, a convention to which the
United States is a party. The rule concerning submerged transits from the 1958
Convention has been the consistent position of nations, including the United States,
for more than 70 years and it has never been interpreted as prohibiting or otherwise
restricting intelligence collection activities or submerged transits in the territorial
sea. In short, if or when the need arises to collect intelligence in a foreign territorial
sea, nothing in UNCLOS will prohibit that activity.

IMPACT ON MIO/PSI

As a former naval officer, Mr. Chairman, you know that the U.S. Navy has been
conducting MIOs or MIO-type operations since we first declared our independence.
These operations have been conducted using a variety of legal bases, including: flag
State or master's consent, bilateral boarding agreements, conditions of port entry,
customs enforcement in waters contiguous to the territorial sea, universal jurisdic-
tion over stateless vessels and vessels engaged in piracy and slave trade, belligerent
right of visit and search under the law of armed conflict, and the inherent right of
self-defense, most recently reflected in Article 51 of the U.N. Charter. Any of these
bases can be used individually or in combination to interdict suspect vessels on the
high seas as we continue to fight the GWOT. Some of these bases are codified in
the UNCLOS. Others, like the right of self-defense and belligerent rights, exist out-
side and are unaffected by the Convention. The Convention's preamble is quite clear
in this regard — that is, "matters not regulated by the Convention continue to be gov-
erned by the rules and principles of general international law." Thus, matters such
as self-defense and belligerent rights are unaffected by the Convention. In short,
nothing in UNCLOS hampers, impedes, trumps, or otherwise interferes with any-
thing we have done in the past, present or future regarding MIO. Where the provi-
sions of the Convention like Articles 92 and 110 apply, we will use them to our ad-
vantage. In situations where other aspects of international law apply, such as our

Ill

right of self-defense, the Convention simply is not controlling. To illustrate, since
President Reagan's 1983 direction that the United States would conform to the non-
seabed mining provisions of the Convention, the United States has relied on its in-
herent right of self-defense to conduct MIO on the high seas on two occasions. On
16 August 1990, the United States, joined by Australia and the UK, announced that,
in the exercise of the inherent right of individual and collective self-defense and at
the request of Kuwait, it was commencing a MIO to enforce U.N. Security Council
Resolution (UNSCR) 661, which imposed an embargo on goods entering Iraq and
Kuwait. Nine days later, on 25 August, the Security Council adopted UNSCR 665,
which endorsed the Arabian Gulf MIO. The right of self-defense has also been used
as one of the legal justifications for the current MIO in support of OEF and OIF.
I would note parenthetically that self-defense was also one of the legal bases used
to justify the interdiction of offensive weapons and associated materials to Cuba
during the 1962 Cuban Missile Crisis.

Mr. Chairman, if I can now briefly address the PSI. As you all know, the PSI is
a relatively new concept, which was announced by President Bush on 31 May 2003
in Krakow, Poland. I'm certain that members of the administration can better ad-
dress the intricacies of the PSI than I can, since I have not been directly involved
in its development. But, as I understand it, this initiative was developed in conjunc-
tion with 10 other countries — Australia, Japan, France, Germany, Italy, The Neth-
erlands, Poland, Portugal, Spain, and the U.K. Since then, 3 more countries — Can-
ada, Norway, and Singapore — have been added to the partnership. All of these coun-
tries are parties to UNCLOS.

PSI is a global initiative designed to create a more robust approach to preventing
weapons of mass destruction (WMD), their delivery systems and related materials
flowing to and from States and non-state actors of proliferation concern. In further-
ance of this initiative, the PSI partners agreed to a SOP in September 2003. Some
of the opponents to the Convention have argued that becoming a party to the Con-
vention will hinder our ability to effectively interdict WMD at sea. This argument,
however, fails to recognize that one of the basic tenets of the SOP is that PSI activi-
ties will be undertaken consistent with national legal authorities and relevant inter-
national law and frameworks, including the navigation-related provisions of the
UNCLOS. The UNCLOS absolutely does not provide any role for the U.N. relating
to PSI activities, much less a role in deciding when and where ships at sea may
be boarded. There already exists a large body of authority under international law
for PSI interdictions at sea, including:

• Enforcement actions by coastal nations in their internal waters, terri-
torial sea and national airspace, consistent with UNCLOS Articles 2 and
21. Coastal nation sovereignty extends beyond its land territory and inter-
nal waters to the adjacent territorial sea and the air space over the terri-
torial sea. Within the territorial sea, coastal nations may adopt laws and
regulations to prevent the infringement of its customs, fiscal, immigration,
or sanitary laws. The coastal nation may also exercise the control necessary
within its 24 nautical mile contiguous zone to prevent infringement of these
laws and regulations.

• Enforcement actions by a flag State over vessels flying its flag, consistent
with UTSICLOS Articles 92 and 110. As a general rule, the flag State has
exclusive jurisdiction over vessels flying its flag on the high seas, but there
are exceptions.

• Boarding of foreign flag vessels on the high seas based on the consent of
the flag State or the master, consistent with UNCLOS Article 92. Although
the flag State has exclusive jurisdiction over its vessels on the high seas,
the jurisdiction can be waived by the flag State or by the ship's master, the
flag State's representative on the vessel.

• Boarding of a foreign flag vessel pursuant to a bilateral or multilateral
boarding agreement with the flag State, as evidenced by the recently con-
cluded U.S. -Liberia PSI Boarding Agreement (11 February 2004). This
agreement is modeled after the counternarcotics cooperation agreements we
currently have with 24 nations.

• Enforcement actions against stateless vessels and vessels that have been
assimilated to a ship without nationality, consistent with UNCLOS Articles
92 and 110. Mr. Chairman, all nations have jurisdiction over stateless ves-
sels, as well as vessels engaged in piracy and slave trade.

Last, but not least Mr. Chairman, as in the case of MIOs, PSI interdictions can
also be justified as a self-defense measure. Clearly, international law, including
UNCLOS, would not prohibit the United States or any other nation from boarding
a vessel carrying a WMD that posed an imminent threat to our national security

112

just because we didn't have flag State or master consent. If one thing is clear in
international law, a nation is authorized to use armed force in self-defense to protect
its national interests against an imminent threat of attack.

RELIANCE ON CUSTOMARY INTERNATIONAL LAW

Mr. Chairman, some have argued that joining the Convention is not necessary be-
cause the navigational rights and freedoms codified in the Convention already exist
as customary international law and are therefore binding on all nations. I believe
that premise is flawed for a number of reasons.

While it is true that many of the convention's provisions are reflective of cus-
tomary international law, others, such as the rights of transit passage and
archipelagic sea lanes passage that I previously discussed, are creations of the con-
vention. Additionally, if you examine the evolution of customary international law
in the 20th century, you'll find that it evolved the erosion, not the preservation, of
navigational rights and freedoms. In the mid-1950s — it was concluded by the major
maritime powers that the best way to stop that erosion was through the adoption
of a universally recognized treaty that established limits on coastal nation jurisdic-
tion and preserved traditional navigational rights and fi-eedoms.

I think it is also important to note, Mr. Chairman, that not everyone agreed with
our "customary international law" interpretation announced by President Reagan in
his 1983 Ocean Policy Statement. However, our ability to influence the development
of customary law changed dramatically in 1994 when the convention entered into
force. As a non-Party, we no longer had a voice at the table when important deci-
sions were being made on how to interpret and apply the provisions of the conven-
tion. As a result, over the past 10 years, we have witnessed a resurgence of creeping
jurisdiction around the world. Coastal States are increasingly exerting greater con-
trol over waters off their coasts and a growing number of States have started to
challenge US military activities at sea, particularly in their 200 nautical mile (nm)
EEZ.

For example, as I testified before the Senate Foreign Relations Committee, Malay-
sia has closed the strategic Strait of Malacca, an international strait, to ships carry-
ing nuclear cargo. Chile and Argentina have similarly ordered ships carrying nu-
clear cargo to stay clear of their EEZs. These actions are inconsistent with the Con-
vention and customary law, but will other nations attempt to follow suit and estab-
lish a new customary norm that prohibits the transport of nuclear cargo? Will at-
tempts be made to expand such a norm to include nuclear-powered ships?

China, India, North Korea, Iran, Pakistan, Brazil, Malaysia, and others, have di-
rectly challenged U.S. military operations in their EEZ as being inconsistent with
UNCLOS and customary international law. Again, the actions by those countries
are inconsistent with the convention and customary law, but will other nations fol-
low suit and attempt to establish a new customary norm that prohibits military ac-
tivities in the EEZ without coastal State consent?

If we are going to successfully curtail this disturbing trend of creeping jurisdic-
tion, we must reassert our leadership role in the development of maritime law and
join the convention now. The urgency of this issue is highlighted by the fact that
under its terms, the convention can be amended after this November. As a party,
the US could prevent any attempt to erode our crucial and hard won navigational
freedoms that are codified in the convention.

I also believe, Mr. Chairman, that it is short-sighted to argue that, if the cus-
tomary law system somehow breaks down, the United States, as the world's pre-
eminent naval power, wouldn't have any trouble enforcing it. Clearly, our Navy
could engage in such an effort. However, enforcing our navigational rights against
every coastal nation in the event the convention and customary law systems collapse
would be very costly, both politically and economically. Moreover, it would divert our
forces from their primary missions, including the long-term global war on terrorism.
Excessive coastal nation claims are the primary threat to our navigational freedoms.
Those claims can spread like a contagious virus, as they did in the 20th century.
The added legal security we get from a binding treaty permits us to use our military
forces and diminishing resources more efficiently and effectively by concentrating on
their primary missions.

LOSS OF U.S. SOVEREIGNTY

Concerns have been raised that it is not in the best interests of the United States
to have its maritime activities subject to the control of an international tribunal,
like the International Tribunal for the Law of the Sea or the International Court
of Justice (ICJ). That concern is clearly misplaced. While the convention does estab-
lish a Tribunal, parties are free to choose other methods of dispute resolution. The

113

United States has already indicated that if it becomes a party it will elect two forms
of arbitration rather than the Tribunal or the ICJ.

More importantly, this concern fails to recognize that no country would subordi-
nate its national security activities to an international tribunal. This is a point that
everyone understood during the negotiations of the convention, and that is why arti-
cle 286 of the convention makes clear that the application of the compulsory dispute
resolution procedures of section 2 of Part XV are subject to the provisions of section
3 of Part XV, which includes a provision that allows for military exemptions, which
would encompass military activities conducted pursuant to PSI.

Some may try to argue that Article 288 allows a court or tribunal to make the
final determination as to whether or not it has jurisdiction over a matter where
there is a dispute between the parties as to the court's jurisdiction. They argue that
Article 288 could be read to authorize a court or tribunal to make a threshold juris-
dictional determination of whether an activity is a military activity or not and,
therefore, subject to the jurisdiction of the court or tribunal. However, Article 288
is also found in section 2 of Part XV and therefore does not apply to disputes involv-
ing what the U.S. Government has declared to be a military activity under section
3 of Part XV. I submit this interpretation is supported by the negotiating history
of the convention, which reflects that certain disputes, including military activities,
are considered to be so sensitive that they are best resolved diplomatically, rather
than judicially. This interpretation is also supported by a plain reading of the con-
vention.

It is very important, as recommended by the Senate Foreign Relations Commit-
tee's report, that while depositing an instrument of accession, the United States
should reemphasize this point by making a declaration or an understanding that
clearly states that military activities are exempt from the compulsory dispute reso-
lution provisions of the convention and that the decision regarding whether an ac-
tivity is military in nature is not subject to review by any court or tribunal.

One final point on dispute settlement, Mr. Chairman. The convention itself tends
to take disputes out of a bilateral context, with both parties directing their attention
to the convention and not necessarily at each other. As you will recall, that's how
we resolved the 1988 Black Sea Bumping incident with the fonner Soviet Union,
which resulted in the 1989 Joint Statement by the U.S.S.R. and the United States
concerning a Uniform Interpretation of the Rules of Innocent Passage. The conven-
tion's provisions on innocent passage provided the legal basis for the uniform inter-
pretation. We also successfully utilized the convention in resolving many other dif-
ficult issues, such as the Northwest Passage dispute with Canada.

RUSH JOB

Finally, Mr. Chairman, although I didn't mention this issue at the beginning of
my statement, I'd like to respond to the allegation that the ratification process with
regard to UNCLOS is moving too fast.

Few treaties in U.S. history have undergone the level of scrutiny that UNCLOS
has undergone. Every aspect of the convention was painstakingly reviewed and ana-
lyzed during its 9-year negotiation. Since 1982, it has been exhaustively considered,
analyzed and interpreted by every relevant agency in the U.S. Government. The
Reagan administration gave it a long, careful review and decided not to sign it sole-
ly because of the flaws in Part XI concerning deep seabed mining. The Convention
was again closely scrutinized from 1990 to 1994 as Part XI was being renegotiated
to fix the problems identified by the Reagan administration. I would note, in this
regard, that the efforts to renegotiate Part XI commenced under the first Bush ad-
ministration. After the Part XI Agreement was successfully negotiated in 1994 to
fix the problems identified by President Reagan, the Convention was again reviewed
and analyzed when the Clinton administration sent the Convention and the Part
XI Implementing Agreement to the Senate for advice and consent. The Convention
was again extensively reviewed and analyzed in 2001 after September 11, and again
this year. Initial hearings on the convention were held by the Senate Foreign Rela-
tions Committee in 1994 and again in 2003, as well as these hearings and the hear-
ings before the Committee on Environment and Public Works. Finally, Mr. Chair-
man, the Convention has been the topic of debate and discussion at countless aca-
demic conferences hosted by numerous prestigious institutions, including but not
limited to: Georgetown University, University of Virginia, Duke University, Center
for Ocean Law and Policy, Law of the Sea Institute, and National Academy of
Sciences. In short, Mr. Chairman, to conclude this has been a "rush job" would in-
sufficiently credit all of those thoughtful reviews.

Mr. Chairman, there is now almost universal adherence to UNCLOS, with 145
parties, including all of our major allies and important non-aligned nations. The

114

convention establishes a stable and predictable legal framework for uses of the
oceans that will benefit our armed forces. As a matter of substance, all of his succes-
sors have agreed with President Reagan that the convention sets forth the appro-
priate balance between the rights of coastal nations and the rights of maritime na-
tions. The United States is both and will benefit two-fold by becoming a party. The
convention is good for America — good for our economy, good for our well-being and,
most importantly, good for our national security. It is time that we reassert our po-
sition as the pre-eminent maritime nation of the world and take our rightful place
as a party to the convention.

That concludes my testimony, Mr. Chairman. It has been an honor for me to be
with you here today. Thank you.

Chairman Warner. We thank you. You draw on a vast experi-
ence on this subject and your testimony reflects that experience.

I wonder if the panel could indulge just quick questions as we
go around. I have questioned you on other aspects, so I will just
direct it first to my good fi'iend the Secretary of the Navy, Mr.
Middendorf. There is one thing I know you love and love dearly is
the United States Navy. Am I not correct, the tie you are wearing
today is the same one you wore 30 years ago when I was in there,
am I not correct?

Ambassador MiDDENDORF. That is the one you gave me, John.

Chairman Warner. Is it not an old destroyer tie?

Ambassador Middendorf. Destroyer cruiser, World War II.

Chairman Warner. That is what you served on in World War II,
is my recollection.

Ambassador Middendorf. Like yourself, you have promoted me.
I was commanding officer of a Landing Craft Support in the Pa-
cific.

Chairman WARNER. You are modest as always.

I ask this because I know as you sat there and listened to the
CNO your reverence for all those who have served in that position
and the Navy, and indeed the submitted testimony by the Chair-
man of the Joint Staff. You have worked with many through the
years. Do you have anj^hing that you could say as to how you came
to such strong views in opposition to your beloved chiefs?

Ambassador Middendorf. It broke my heart. Yesterday I had
the privilege of sitting down with, for several hours, the Judge Ad-
vocate General Corps at the Navy Department and going over
these issues. They know where I am coming from. I said: Look, my
problem is not — the Navy benefits mightily for the most part from
this program. It is this question of sovereignty that I worry about,
and also I have some problems with the opt-out provisions in this
treaty.

I proposed today that we make an amendment to the treaty, if
possible, and the Senate so advise that we clarify that whole ques-
tion of a declaration and opt-out provisions. That is my main prob-
lem, plus the sovereignty issue. Philosophically, I desperately hope
we will take out article 140, which talks about redistributing the
world's resources from the successful countries to the poorer coun-
tries.

Chairman Warner. Thank you.

Professor Moore, you mentioned and I wrote down the erosion of
sovereign rights of this country as you have seen it through the
years. I think you were speaking in terms of navigation and so
forth. I was waiting to hear you use the words "and this treaty

115

would restore some of those areas where there has been erosion."
I do not want to lead a witness, but can you say that?

Mr. Moore. Mr. Chairman, yes, I can say certainly that in rela-
tion to the overall negotiations, of our struggle over a 25-year pe-
riod to get this, Mr. Chairman. We were facing 200-mile economic
territorial sea claims that would have cost the sovereign rights of
the United States on the high seas, a fundamental principle of
international law that every nation's warships and their ships are
not subject to the control of other countries on the high seas.

We were facing a series of what were called creeping jurisdiction
claims of individual coastal states to make these claims. So this ne-
gotiating process I have no doubt, Mr. Chairman, was extraor-
dinarily important in rolling those back and protecting the sov-
ereign rights of the United States of America, and I have no doubt
but that that is really the thing at stake as we go forward: Are we
going to continue to protect the sovereign rights of the United
States in naval mobility and commercial mobility?

So I think that is the real sovereignty issue. I must say, Mr.
Chairman, for the life of me I cannot see or understand any other
sovereignty issue here. The deep seabed mining area has no area
relating to sovereignty and there is simply nothing under U.S. na-
tional jurisdiction that is being placed under the international au-
thority, period.

Let me also just make a point on this article 140 to my good
friend Bill Middendorf, because that is a little deceptive. You look
at that article 140 and it looks like this thing is still part of the
new international economic order. But then you look more closely
at actually what was negotiated and what the real functional au-
thority is. It appears in article 1, which is in definitions, and it ap-
pears in article 134, which is the actual functional authority to deal
with mineral resources, and activities in the area are defined basi-
cally dealing with mineral resources.

So the article 140, Bill, has really been well-controlled. We have
gotten over that. We won that renegotiation, and every single
penny that would go anywhere around the world under this notion
of a new international economic order is subject to a United States
veto.

Chairman WARNER. Professor, I want to allow my distinguished
colleague his opportunity.

I would simply say. Admiral, if I could draw your attention, if
you know of someone in the building in the DOD or in the retired
community that has views at variance with yours and has the
depth of experience that you have had, I would appreciate if you
would refer that individual to me and I will avail them of an oppor-
tunity to provide something for the record, because I value greatly
the cadre of individuals in the DOD who have worked on this for
so many years dating back to 1969 when I was first exposed.

So I thank you very much, and this record will remain open
throughout the next week so that we can compile the record.

I thank you for your indulgence. Senator.

Senator INHOFE. I thank you. I have to say, Mr. Chairman, I do
not think I have ever had an experience of seeing so many bril-
liant, articulate people with such diverse views. But I have only
been here 18 years. [Laughter.]

116

Chairman Warner. That is a slight dig at the old chairman.

Senator Inhofe. I appreciate it very much and I think you have
made good points. I think we can go back as we are making notes
on different things that have been said that perhaps we could take
some issue with. I think you are right when you say this is not
United Nations, but they are essentially the same countries. It is
still a type of a treaty where I believe, and I have heard some bril-
liant people agree, that there are things that we would have to do
that might not be in our best interests.

But that is for us to evaluate, and that is why this is very, very
significant that we are having this. It is my understanding that
there may now be a hearing before the Intelligence Committee be-
cause I heard the chairman express that desire.

So I think you all three were very articulate and very thorough,
and I cannot think of one thing that they did not cover that I would
have to ask a question on.

So, Mr. Chairman, I appreciate very much your holding this
hearing.

Chairman WARNER. Thank you very much. I appreciate the work
that you have done and we will continue to work on it.

The hearing is adjourned and I thank all our participants.

[Questions for the record with answers supplied follow:]

Questions Submitted by Senator Pat Roberts

UNITED states' VETO POWER

1. Senator ROBERTS. Mr. Taft, you and Admiral Clark have represented to Sen-
ators and staff that the convention ensures the U.S. a permanent seat on the ISA
Council, and that the U.S. has "veto" power in that organization. The "Gold Stand-
ard" for a permanent U.S. seat and an effective U.S. veto is the United Nations
Charter. In Article 25 of the Charter, the United States of America is explicitly
named in the text as a permanent member of the Security Council. In Article 27
the Charter explicitly provides in the text that U.N. Security Council decisions must
have the concurring votes of all permanent members. Where is the United States
of America mentioned explicitly by name in the text of the convention, its annexes,
in the Clinton Agreement, or in its annex?

Mr. Taft. The United States is denoted in Section 3, article 15(a), of the 1994
Agreement as having a permanent seat on the Council. That article provides, in per-
tinent part, that the Council is to include "the state, on the date of entry into force
of the convention, having the largest economy in terms of gross domestic prod-
uct. . . ." On the date of the entry into force of the convention, November 16, 1994,
the United States had the largest economy in terms of gross domestic product.

2. Senator ROBERTS. Mr. Taft, even assuming that the U.S. could exercise some
kind of veto power over ISA Council decisions based upon the Clinton agreement,
is the Clinton agreement amendable?

Mr. Taft. Amendments could be proposed to the deep seabed mining provisions.
Such an amendment could not be adopted over the objection of the United States.

3. Senator Roberts. Mr. Taft, will economic conditions perpetually "guarantee"
the U.S. a seat?

Mr. Taft. The U.S. guaranteed seat does not depend upon future economic condi-
tions. The seat depended upon economic conditions at a particular point in time,
which has now passed. The seat is now fixed.

4. Senator Roberts. Mr. Taft, assuming that the U.S. really will exercise some
kind of "veto" power in the ISA Council, will that power also extend to decisions
of the UNCLOS Tribunal?

Mr. Taft. The proposed resolution of advice and consent would have the United
States select arbitration under article 287(1) of the convention rather than the ICJ
or the International Tribimal for UNCLOS. Nevertheless, the United States would

117

be able to nominate up to two persons for election to the Tribunal. Decisions of the
Tribunal are taken by majority vote of its 21 members.

5. Senator Roberts. Mr. Taft, would that power extend to decisions of the World
Court that rely on or interpret the convention?

Mr. Taft. Where two parties to the convention have elected to have disputes con-
cerning the convention addressed by the ICJ, the Court's normal procedures would
apply. The court, pursuant to its statute, makes decisions by majority.

tribunal's fidelity

6. Senator Roberts. Mr. Taft, the Department of State appears to have full con-
fidence in the Tribunal's enduring fidelity to rational behavior. Does the Depart-
ment of State or the DOD have written analyses of Tribunal jurisprudence that
might explain that confidence? If so, may we have copies?

Mr. Taft. I would refer you to www.itlos.org for the dispute settlement cases
under the convention that have been brought to the Tribunal. These cases relate
primarily to the prompt release of vessels (in most cases, related to fisheries). The
other cases have been either requests for provisional measures pending the estab-
lishment of an arbitral tribunal under the convention or cases brought to the Tribu-
nal by mutual agreement of the parties to the dispute. Deep seabed mining disputes
are also subject to the jurisdiction of the Tribunal (the Sea-bed Disputes Chamber
in particular); however, there have not been any such cases to date.

The specific cases that have been brought before the Tribunal to date are:

Prompt Release:

• the MTV "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea);

• the "Camouco" Case (Panama v. France);

• the "Monte Confurco" Case (Seychelles v. France);

• the "Grand Prince" Case (Belize v. France);

• the "Chaisiri Reefer 2" Case (Panama v. Yemen); and

• the "Volga" Case (Russian Federation v. Australia).
Other:

• the MA'^ "SAIGA" Case (No. 2) (Saint Vincent and the Grenadines v.
Guinea);

• the Southern Bluefin Tuna Cases (New Zealand/Australia v. Japan);

• the case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European
Community);

• the MOX Plant Case (Ireland v. United Kingdom); and

• the case concerning Land Reclamation by Singapore in and around the
Straits of Johor (Malaysia v. Singapore).

In terms of the prompt release cases, the Tribunal has declined jurisdiction in ap-
propriate cases, for example, in the Grand Prince case where it was not clear that
the vessel was in fact a Belize flag vessel. As a substantive matter, the decisions
have efficiently implemented the convention's objective of providing for the prompt
release of vessels/crew upon the posting of a reasonable bond.

Concerning other cases, their procedural and factual circumstances vary consider-
ably. Some cases, such as the "SAIGA" No. 2 case and the Swordfish case, were sub-
mitted to the Tribunal by agreement of the parties to the dispute. On the merits,
the Tribunal decided in "SAIGA" No, 2 that the arrest by Guinea of the vessel of
Saint Vincent and the Grenadines was contrary to the convention's hot pursuit pro-
visions, and compensation was awarded for the unlawful arrest and detention. The
parties to the Swordfish dispute agreed to suspend the proceedings and work in-
stead to negotiate a conservation agreement, thereby obviating the need for any de-
cision on the merits by the Tribunal.

Jurisdictional issues were raised in both the Southern Bluefin Tuna Case and the
MOX case. Both cases involved a request for provisional measures, and both cases
involved the existence of another agi-eement between the parties to the dispute on
the same subject matter that raised a jurisdictional issue under article 282 of the
convention. In Southern Bluefin Tuna, the Tribunal found jurisdiction and ordered
certain provisional measures, essentially those sought by Australia and New Zea-
land; in MOX, the Tribunal also found jurisdiction but did not order any of the pro-
visional measures requested by Ireland. (It should be noted that the U.K. did not
raise certain jurisdictional defenses that it could have raised.) The latter case also
involved the special situation that both the U.K. and Ireland are members of the

118

European Union; as such, the case is currently suspended pending further action
on the issue within the European Court of Justice.

In the Straits of Johor Case, another provisional measures case, Singapore raised
jurisdictional arguments concerning, inter alia, the need to exhaust recourse to
other means to settle the dispute before proceeding to dispute settlement under the
convention. Finding that it had jurisdiction, the Tribunal did not award the provi-
sional measures sought by Malaysia but decided upon other measures of an interim
nature.

7. Senator Roberts. Mr. Taft, has any party to the convention ever challenged
the Tribunal's jurisdiction in a case filed with the Tribunal? If so, please discuss
the arguments and outcome when you supply your written analysis of jurisprudence.

Mr. Taft. Yes. Jurisdictional/admissibility issues have been raised in two prompt
release cases, and jurisdictional issues have been raised in several provisional meas-
ures cases.

In one prompt release case (the Grand Prince case), contradictory and confusing
evidence was presented about the registration status of the vessel in question, creat-
ing doubt as to whether it was registered as a Belize flag vessel at the time the
application for prompt release was made. The Tribunal found that it did not have
jurisdiction, given that article 292(2) requires that applications for release of vessels
may be made only by or on behalf of the flag state.

In another prompt release case (the M/V "SAIGA" case), Guinea unsuccessfully ar-
gued: that there was no genuine link between Saint Vincent and the Grenadines
and the vessel in question; and that local remedies had not been exhausted under
article 295. The Tribunal found that there was sufficient evidence that the SAIGA
was the flag vessel of Saint Vincent and the Grenadines for purposes of article 292
and that the exhaustion of local remedies was not required by article 295 (which
requires exhaustion of local remedies only where that is required by international
law).

In the Southern Bluefin Tuna provisional measures case, Japan sought to invoke
article 282 to defeat jurisdiction in light of the 1993 Convention for the Conserva-
tion of Southern Bluefin Tuna. Article 282 of the LOS Convention provides:

"If the States Parties which are parties to a dispute concerning the inter-
pretation or application of this convention have agreed, through a general,
regional, or bilateral agreement or otherwise, that such dispute shall, at the
request of any party to the dispute, be submitted to a procedure that entails
a binding decision, that procedure shall apply in lieu of the procedures pro-
vided for in this part, unless the parties to the dispute otherwise agree"
(emphases added).

The Tribunal did not find article 282 to be applicable in that case. It concluded
that the agreement cited by Japan did not provide for disputes concerning the
UNCLOS to be submitted to a dispute settlement procedure; further, it noted that
the agreement cited did not provide in any event for dispute settlement procedures
entailing a binding decision.

In the MOX provisional measures cases, the U.K. sought to invoke article 282 to
defeat jurisdiction, citing the OSPAR Convention (a regional marine pollution trea-
ty) to which both Ireland and the U.K. are parties. The Tribunal found article 282
not applicable because the cited regional treaty did not provide for disputes concern-
ing the UNCLOS to be submitted to a dispute settlement procedure under that trea-
ty. (It should be noted that the U.K. did not raise article 297 as a defense to juris-
diction, which it could have.) The Tribunal thus found jurisdiction. It did not, how-
ever, award the measures sought by Ireland.

In the Straits of Johor provisional measures case, Singapore raised jurisdictional
arguments under articles 281 and 283 concerning, inter alia, the need to have ex-
hausted recourse to other means to settle the dispute before proceeding to dispute
settlement under the convention. The Tribunal concluded that it had jurisdiction,
finding that the requirement for prior consultations had been satisfied through ex-
changes of views and meetings between the parties and that it was explicitly stated
at the time that the consultations were without prejudice to Malaysia's right to pur-
sue dispute settlement under the convention.

tribunal's jurisdiction

8. Senator Roberts. Mr. Taft, with regard to the jurisdiction of the Tribunal, how
far beyond the immediate shoreline can the Tribunal reach to address activity af-
fecting the sea?

119

Mr. Taft. The convention addresses land-based sources of marine pollution, one
of the major causes of marine pollution. However, alleged marine pollution by coast-
al states from land-based sources are not subject to dispute settlement jurisdiction
under the convention, whether by the Tribunal, arbitration, or otherwise.

Because of the sensitivities of coastal states concerning their land-based (and cer-
tain other) activities, the convention sets forth limitations on the obligations related
to marine pollution that are to be subject to dispute settlement jurisdiction. These
limitations on jurisdiction apply to all parties, unlike the optional exceptions to dis-
pute settlement, such as disputes concerning military activities, which must be af-
firmatively declared by a party in advance.

Specifically, article 297(1 )(c) provides that only certain coastal state obligations re-
lated to marine pollution are subject to dispute settlement. Among other things,
there needs to be a "specified" international rule or standard "applicable" to the
coastal state. The convention does not obligate the coastal state to follow an inter-
national rule or standard with respect to land-based sources, much less a specified
one. On the contrary, recognizing the sensitivity surrounding land-based activities,
coastal states are merely to "take into account" internationally agreed rules, stand-
ards, etc.

Thus, alleged marine pollution from U.S. land-based activities would not be sub-
ject to dispute settlement under the convention.

9. Senator Roberts. Mr. Taft, can the Tribunal reach activity along any navigable
waterway in our country?

Mr. Taft. See answer to Q. 8.

10. Senator Roberts. Mr. Taft, does the convention set out territorial jurisdic-
tional limits of any kind for the Tribunal?

Mr. Taft. See answer to Q. 8.

11. Senator ROBERTS. Mr. Taft, who decides where the borderline will be under
the convention between the jurisdiction of our Federal courts and the jurisdiction
of the Tribunal? Is there a borderline?

Mr. Taft. Dispute settlement panels under the convention would be addressing
interpretation and application of the convention. In general, U.S. Federal courts
would not be addressing the convention; it should be noted in this regard that one
of the declarations in the proposed resolution of advice and consent makes clear that
the convention would not be judicially enforceable in U.S. courts (with the exception
of certain provisions related to privileges and immunities). One area of overlap
would be U.S. enforcement of decisions of the Sea-bed Disputes Chamber pursuant
to article 39 of Annex VI. In this regard, another proposed declaration makes clear
that such decisions are to be enforceable in the United States not directly through
invocation of the convention but only in accordance with procedures established by
implementing legislation.

12. Senator Roberts. Mr. Taft, who will resolve conflicts in views between the
U.S. Congress and the Tribunal or other Convention parties?

Mr. Taft. As I have noted in testimony and a letter to the Senate, the United
States would be able to implement the convention under existing laws and regula-
tions (including enforcement practices), which are consistent with the convention
and which would not need to be changed in order for the United States to meet its
convention obligations. Were Congress in the future to enact legislation in some way
at odds with U.S. obligations under the convention, such legislation would prevail
in the United States as a matter of U.S. law, notwithstanding the contrary view of
any other state or dispute settlement body under the convention.

ADMINISTRATION OBJECTIONS

13. Senator Roberts. Mr. Taft, if the Senate decides to take up this treaty, would
the administration object in principle if the Senate decided to improve the draft res-
olution of ratification first?

Mr. Taft. The administration would have no objection in principle to improve-
ments to the draft resolution of advice and consent. The administration has, how-
ever, worked closely with the Foreign Relations Committee in drafting the resolu-
tion of advice and consent that has been reported to the Senate and believes that
this resolution is satisfactory in its present form. The administration's position on
particular proposals would, of course, depend upon the proposal in question.

120

PROLIFERATION SECURITY INITIATIVE

14. Senator Roberts. Mr. Taft, please explain why submitting our Nation's naval
activity to the convention regime does not sap vital operational flexibility needed for
the Proliferation Security Initiative (PSI) and other operations to confront 21st cen-
tury threats.

Mr. Taft. As stated in my testimony, the convention's navigation provisions de-
rive from the 1958 UNCLOS, to which the United States is a party, and also reflect
customary international law accepted by the United States. As such, U.S. accession
to the convention will not affect applicable maritime law, policy, or practice regard-
ing maritime interdiction of weapons of mass destruction or other maritime oper-
ations. If anything, as Admiral Clark testified, joining the convention will support
both the worldwide mobility of our forces and our traditional leadership role in mar-
itime matters; it supports the freedom to get to the fight, 24 hours a day and 7 days
a week, without a permission slip.

15. Senator Roberts. Mr. Taft, since the PSI was conceived and is executed by
a group of like-minded and willing allies outside of the United Nations ambit, please
explain how the State Department's efforts to directly Hnk it to the United Nations
through this Convention will enhance it.

Mr. Taft. The PSI Statement of Interdiction Principles states clearly that all PSI
activities will be undertaken consistent with national legal authorities and inter-
national law. The convention reflects customary international law accepted by the
United States and therefore ratification of the convention will not impact our PSI
maritime-related activities. Adherence to the convention does not link PSI to the
United Nations, just as adherence to the U.N. Charter does not link PSI to the
United Nations.

16. Senator Roberts. Mr. Taft, which is the more important criterion for foreign
state participation in PSI? The foreign state's political will to help the United States
counter illicit proliferation or the fact that the foreign state is (or is not) a party
to the convention?

Mr. Taft. Any state participating in PSI must have the political will to counter
illicit proliferation. That is the purpose of PSI. A PSI partner does not need to be
a party to the convention.

17. Senator Roberts. Mr. Taft, China opposes interdiction of ships to stop pro-
liferation. This became very clear recently in the U.N. Security Council, when the
U.S. attempted to obtain a strong resolution on arms trafficking. Could China, as
a party to the convention, use the convention to challenge U.S. PSI operations in
the Pacific?

Mr. Taft. The purpose of UNSCR 1540, as called for by the President, was to re-
quire states to criminalize proliferation, put in place strong export controls, and se-
cure sensitive materials. As part of that resolution, we also obtained a strong state-
ment of political support for cooperative action to stop proliferation, consistent with
international and national legal authorities. We are pleased with the strong en-
dorsement by the Security Council, including China, for activities like the PSI,
which involve cooperative action to stop proliferation. Even so, were China or any
other Party to the convention to challenge PSI operations, such operations would
not be subject to dispute settlement because of the exception for disputes concerning
military activities.

protecting U.S. maritime interests

18. Senator Roberts. Mr. Taft, why do you feel that the U.N. Security Council
(where the U.S. actually does have a permanent seat and veto) is a forum inferior
to convention bodies for protecting U.S. maritime interests?

Mr. Taft. It is not a matter of the Security Council's being an "inferior" forum.
The fact is that various convention bodies, not the Security Council, are charged
with implementing and applying convention provisions of great interest to the
United States. The Continental Shelf Commission, for example, has begun its work
examining the proposed outer limits of various states' continental shelves in accord-
ance with the criteria in article 76 of the convention. Its conclusions have implica-
tions not only for the claims of other states, which we will want to ensure do not
exceed allowable limits, but also for the future claim of the United States that the
United States is currently in the early stages of developing. As another example,
the deep seabed mining institutions are engaged in work of interest to potential ex-
ploration and exploitation of the deep seabed by U.S. entities.

121

19. Senator Roberts. Mr. Taft, why did Spanish commandos, instead of U.S.
troops, board and stop the SO-SAN off the Horn of Africa in December 2002, as
it carried a cargo of SCUD missiles from North Korea?

Mr. Taft. Spanish commandos boarded and stopped the SO-SAN because those
forces were the best available at the time and location of the boarding. Although
the PSI did not exist at the time, this is exactly the kind of cooperative action envi-
sioned by the PSI.

20. Senator Roberts. Mr. Taft, in preparing the "execute order" for this mission,
did the State Department or the Department of Defense take notice of the conven-
tion in any way? If so, how?

Mr. Taft. As directed by President Reagan in 1983 and subsequently, the United
States, including the U.S. Navy, has been acting consistently with the non-seabed
provisions of the convention. The convention provided a number of possible bases
to board the vessel, which were considered as the situation on the scene developed.

21. Senator Roberts. Mr. Taft, did the convention present any obstacles to the
boarding?

Mr. Taft. No.

22. Senator Roberts. Mr. Taft, if the convention did pose an obstacle to boarding
the SO-SAN, why should the United States become a party to a convention that
prevents unconventional actions that may be vital to fighting terrorism and pro-
liferation?

Mr. T.AFT. Joining the convention would not change the law currently applicable
to the United States in conducting such actions, either by virtue of the 1958 Con-
ventions or by virtue of customary international law accepted by the United States.

ARTICLE 110

23. Senator ROBERTS. Mr. Taft, Article 110 of the convention on the "Right to
Visit" is very explicit. In summary, it permits a warship on the high seas to board
a foreign ship where there is a reasonable ground for suspecting that the ship is:

1. engaged in piracy;

2. engaged in the slave trade;

3. engaged in unauthorized broadcasting;

4. without nationality; or

5. the same nationality as the warship though flying a foreign flag or no
flag.

Article 110 does not, however, state that boarding is permitted where there is a
reasonable ground for suspecting that the ship is engaged in terrorism or prolifera-
tion. China demonstrated in the Security Council recently that it adamantly opposes
interdiction of ships to prevent WMD proliferation. Is it safe to assume that China's
unhelpful attitude is also supported by convention context?

Mr. Taft. No. First of all, China did not oppose interdictions and, in the course
of negotiations, that a range of actions, including interdictions, could be used to stop
proliferation. The specification of certain grounds permitting the boarding of foreign
ships in article 110 does not limit the numerous other legal bases under the conven-
tion for taking enforcement action against vessels and aircraft suspected of engaging
in proliferation of weapons of mass destruction, for example, exclusive port and
coastal state jurisdiction in internal waters and national airspace; coastal state ju-
risdiction in the territorial sea and contiguous zone; exclusive flag state jurisdiction
over vessels on the high seas (which the flag state may, either by general agreement
in advance or approval in response to a specific request, waive in favor of other
states); and universal jurisdiction over stateless vessels. Further, nothing in the con-
vention impairs the inherent right of individual or collective self-defense. Nothing
in the convention would support any country's statements of opposition to the PSI.

24. Senator Roberts. Mr. Taft, why is it in our counterproliferation and
counterterrorism interests to lock ourselves into this restrictive article?

Mr. Taft. This article reflects existing international law accepted by the United
States. We are not changing any policy or practice of the United States relating to
activities on the high seas.

122

25. Senator Roberts. Mr. Taft, isn't it true that Article 110 of the convention
would require the U.S. to pay damages for "unjustified" boardings?

Mr. Taft. The United States does not make "unjustified" boardings. It should also
be noted that a requirement to pay damages for "unjustified" boardings is contained
in the 1958 Geneva Convention on the High Seas, to which the United States is al-
ready a party.

26. Senator Roberts. Mr. Taft, if the U.S. is required to pay damages, would such
damages be payable to convention parties only or to non-parties like North Korea
as well?

Mr. Taft. Inasmuch as all U.S. boardings are justified in advance, the U.S. will
not be liable for damages.

27. Senator Roberts. Mr. Taft, who decides whether a boarding is unjustified?
Mr. Taft. The United States will determine whether a boarding is justified before

undertaking it.

28. Senator Roberts. Mr. Taft, would the SO-SAN have been an "unjustified"
boarding?

Mr. Taft. No. It was originally suspected of being a vessel without nationality.
When its nationality was confirmed, the ship was searched with the permission of
the flag state. (The ship was found, among other things, to have a false manifest
of the goods on board.)

29. Senator Roberts. Mr. Taft, if the SO-SAN were to have been an "unjustified"
boarding, and assuming that the U.S. had been a convention party at the time of
the SO-SAN boarding, to whom covdd the U.S. have owed damages?

Mr. Taft. As noted above, the SO-SAN boarding (conducted by Spain) was not
an unjustified boarding. The SO-SAN's flag state was Cambodia.

"no reservations" clause

30. Senator Roberts. Admiral Clark, this convention's "no reservations" clause
interferes with the Senate's treaty power. The executive branch, by making it dif-
ficult for the Senate to attach reasonable conditions to complex treaties, leaves the
Senate no choice but to reject them. Such clauses might have made sense during
the U.S. -Soviet arms race, but no longer. Would the Navy object to a Senate effort
to remove the no reservations clause?

Admiral Clark. My understanding is that the only way to remove the "no res-
ervations" clause from the treaty would be for the parties to the convention to
amend it. Moreover, the "no reservations" clause serves the valuable function of pre-
venting other states parties from picking and choosing among the various provisions
of the treaty. For example, if the "no reservations" clause were removed, parties
could potentially "opt out" of freedom of navigation articles to which the United
States attaches great importance. In that case, the Navy would object to such a re-
sult because it would undermine the stable and predictable navigation regime cur-
rently embodied in the convention.

31. Senator Roberts. Admiral Clark, would the Navy object if the Senate makes
other changes to the treaty, or to the resolution of ratification approved by the For-
eign Relations Committee to address its concerns?

Admiral Clark. My understanding is that the Senate cannot unilaterally make
changes to the treaty. Except for renegotiating the treaty, the only way to change
it is for the United States to become a party and propose amendments. With respect
to the resolution of advice and consent, while the Navy staff participated in the
drafting of the proposed resolution and believes the resolution is satisfactory in its
present form, there is no objection in principle to changes to it. Navy's position on
any change would, of course, depend upon the nature of the proposal.

[Whereupon, at 2:16 p.m., the committee adjourned.]

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Full text of "Military implications of the United Nations Convention on the Law of the Sea : hearing before the Committee on Armed Services, United States Senate, One Hundred Eighth Congress, second session, April 8, 2004"

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