Evidence: Recently Added
Boundaries have been the root of many a war throughout the history of civilization. This convention and the acceptance that it has secured throughout the world, largely as the result of U.S. leadership, is truly remarkable. Through 10 years of tenacious negotiations, such understandings and commitments were obtained with over 160 governments. To bring international stability to claims of national jurisdiction in the oceans is the convention's greatest accomplishment.
Vital U.S. security interests are protected by the treaty. Spokesmen from the Defense Department are here to address these issues, so let me note only that in the post-Cold War era the United States must ensure that the lines of communication over and under the sea and through the air are freely available in order to project power to distant regions. Constant vigilance and a willingness to assert our rights is always required. But the job is easier if there is fundamental international agreement on a comprehensive, widely accepted convention. We had better think long and hard before we discard the sea treaty on ocean law--an agreement that contains a consensus on these basic fundamental issues, not only among our long-time NATO allies and the OECD countries, but among the countries of the former Soviet Union, the former Eastern bloc nations, the Middle East countries, and China, among others.
This treaty champions the rights of the American people in the environmental arena. How does it do this? It is the strongest and most comprehensive environmental treaty in existence or likely to emerge for quite some time. The convention establishes, for the first time, a comprehensive legal framework for the protection and preservation of the marine environment. By addressing all sources of marine pollution, such as pollution from vessels, seabed activities, ocean dumping, and land-based sources, it promotes the continuing improvement in the health of the world's oceans. This treaty effectively and expressly finds the right balance between economic and environmental interests. Of particular note, it finds the right balance between America's interests as a coastal state in protecting its environment and natural resources with the American armed forces' rights and freedoms of navigation around the world.
The treaty champions the rights of the American people in the conservation of their offshore living marine resources, particularly fish. Ninety percent of the living marine resources are harvested within 200 miles of the coast. The convention confirms the validity of the United States Exclusive Economic Zone, proclaimed by President Reagan in 1983. The treaty's provisions relating to the conservation and management of living marine resources are consistent with U.S. law, policy, and practice. Its provisions on the conservation of high seas fishery resources are more critical today than they were a few years ago because of the dramatic overfishing that has occurred worldwide just in the past decade. The dispute settlement provisions of the convention as they relate to high seas fisheries will help us ensure that overfishing does not occur on the high seas adjacent to our 200-mile zone in a manner detrimental to the interests of our fishing industry.
The convention champions the rights of the American people to protect the marine mammals that inhabit the vast ocean space. Americans care about whales and giant sea turtles and other important sea creatures. Poll after poll confirms this interest, and the treaty sets up the mechanisms whereby the United States can work to respond to these uniquely international issues.
Having elaborated the basic elements of the Convention and Agreement and the advantages of U.S. accession, allow me to raise two final serious issues.
Because the global context for the Convention is rapidly and continually changing, a way needs to be found to ensure that the Convention continues to serve U.S. interests over time. We must ensure that, in obtaining the stability that comes with joining the Convention, we nonetheless retain sufficient flexibility to protect U.S. interests. After U.S. accession, the Executive Branch will conduct biennial reviews of how the Convention is being implemented and will seek to identify any changes in U.S. and/or international implementation that may be required to improve implementation and to better adapt the Convention to changes in the global environment. After ten years, the Executive Branch will conduct a more comprehensive evaluation to determine whether the Convention continues to serve U.S. interests. The results of these reviews will be shared with the Senate. (Another option that we considered is that of a sunset provision, i.e., limiting the length of time that the United States is a party to the Convention, which has disadvantages as well as advantages.) Needless to say, the United States could, of course, withdraw from the Convention if U.S. interests were seriously threatened.
In addition, I would like to note that the Convention includes simplified procedures for the adoption and entry into force of certain Convention amendments and implementation and enforcement measures that raise potential constitutional issues. We intend to sort these and other legal and policy issues out with the Senate, confident that they can be satisfactorily resolved.
Third, it might be argued that the United States should not join the Convention because we would have to pay a contribution based on a percentage of oil/gas production beyond 200 miles from shore. However, the revenue-sharing provisions of the Convention are reasonable. The United States has one of the broadest shelves in the world. Roughly 14% of our shelf is beyond 200 miles, and off Alaska it extends north to 600 miles. The revenue-sharing provision was instrumental in achieving guaranteed U.S. rights to these large areas. It is important to note that this revenue-sharing obligation does not apply to areas within 200 nautical miles and thus does not affect current revenues produced from the U.S. Outer Continental Shelf. Most important, this provision was developed by the United States in close cooperation with representatives of the U.S. oil and gas industry. The industry supports this provision. Finally, with a guaranteed seat on the Finance Committee of the International Seabed Authority, we would have an absolute veto over the distribution of all revenues generated from this revenue-sharing provision.
The essential role of marine scientific research in understanding and managing the oceans is also secured. The Convention affirms the right of all States to conduct marine scientific research and sets forth obligations to promote and cooperate in such research. It confirms the right of coastal States to require consent for such research undertaken in marine areas under their jurisdiction. These rights are balanced by specific criteria to ensure that coastal States exercise the consent authority in a predictable and reasonable fashion to promote maximum access for research activities. More U.S. scientists conduct marine scientific research in foreign waters than scientists from almost all other countries combined.
In recognizing the sovereign rights and management authority of coastal States over living resources within their EEZs, the Convention brings most fisheries under the jurisdiction of coastal States. (Some 90 percent of living marine resources are harvested within 200 nautical miles of the coast.) The Convention imposes on coastal States a duty to conserve these resources and also imposes obligations upon all States to cooperate in the conservation of fisheries populations on the high seas and of populations that are found both on the high seas and within the EEZ (highly migratory stocks, such as tuna, as well as "straddling stocks"). In addition, it contains specific measures for the conservation of anadromous species, such as salmon, and for marine mammals, such as whales. These provisions of the Convention give the United States the right to regulate fisheries in the largest EEZ in the world, an area significantly greater than U.S. land territory, which contains some of the most resource-rich waters on the planet.
Although the first several years of the Convention’s life were fairly quiet, its provisions are now being actively applied, interpreted, and developed. The Convention’s institutions are up and running, and we -- the country with the most to gain and lose on law of the sea issues -- are sitting on the sidelines. For example, the Commission on the Limits of the Continental Shelf (which is the technical body charged with addressing the continental shelf beyond 200 nautical miles) has received nine submissions and has made recommendations on two of them, without the participation of a U.S. commissioner. Recommendations made in that body could well create precedents, positive and negative, on the future outer limit of the U.S. shelf. We need to be on the inside to protect our interests. Moreover, in fora outside the Convention, the provisions of the Convention are also being actively applied. Our position as a non-Party puts us in a far weaker position to advance U.S. interests than should be the case for our country.
We also need to join now to lock in, as a matter of treaty law, the very favorable provisions we achieved in negotiating the Convention. It would be risky to assume that we can preserve ad infinitum the situation upon which the United States currently relies. As noted, there is increasing pressure from coastal States to augment their authority in a manner that would alter the balance of interests struck in the Convention. We should secure these favorable treaty rights while we have the chance.
Myth: The Convention would permit an international tribunal to second-guess the U.S. Navy.
Reality: No international tribunal would have jurisdiction over the U.S. Navy. U.S. military activities, including those of the U.S. Navy, would not be subject to any form of dispute resolution. The Convention expressly permits a party to exclude from dispute settlement those disputes that concern “military activities.” The United States will have the exclusive right to determine what constitutes a military activity.
Myth: The International Tribunal for the Law of the Sea could order the release of a vessel apprehended by the U.S. military.
Reality: The Tribunal has no jurisdiction to order release in such a case. Its authority to address the prompt release of vessels applies only to two types of cases: fishing and17 protection of the marine environment. Further, even if its mandate did extend further – which it does not – the United States will be taking advantage of the optional exclusion of military activities from dispute settlement. As such, in no event would the Tribunal have any authority to direct the release of a vessel apprehended by the U.S. military.