SPEAKERS CONTENTS INSERTS
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2004
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
HEARING
BEFORE THE
COMMITTEE ON
INTERNATIONAL RELATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
MAY 12, 2004
Serial No. 108–136
Printed for the use of the Committee on International Relations
Available via the World Wide Web: http://www.house.gov/international—relations
COMMITTEE ON INTERNATIONAL RELATIONS
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HENRY J. HYDE, Illinois, Chairman
JAMES A. LEACH, Iowa
DOUG BEREUTER, Nebraska
CHRISTOPHER H. SMITH, New Jersey,
Vice Chairman
DAN BURTON, Indiana
ELTON GALLEGLY, California
ILEANA ROS-LEHTINEN, Florida
CASS BALLENGER, North Carolina
DANA ROHRABACHER, California
EDWARD R. ROYCE, California
PETER T. KING, New York
STEVE CHABOT, Ohio
AMO HOUGHTON, New York
JOHN M. McHUGH, New York
ROY BLUNT, Missouri
THOMAS G. TANCREDO, Colorado
RON PAUL, Texas
NICK SMITH, Michigan
JOSEPH R. PITTS, Pennsylvania
JEFF FLAKE, Arizona
JO ANN DAVIS, Virginia
MARK GREEN, Wisconsin
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JERRY WELLER, Illinois
MIKE PENCE, Indiana
THADDEUS G. McCOTTER, Michigan
KATHERINE HARRIS, Florida
TOM LANTOS, California
HOWARD L. BERMAN, California
GARY L. ACKERMAN, New York
ENI F.H. FALEOMAVAEGA, American Samoa
DONALD M. PAYNE, New Jersey
ROBERT MENENDEZ, New Jersey
SHERROD BROWN, Ohio
BRAD SHERMAN, California
ROBERT WEXLER, Florida
ELIOT L. ENGEL, New York
WILLIAM D. DELAHUNT, Massachusetts
GREGORY W. MEEKS, New York
BARBARA LEE, California
JOSEPH CROWLEY, New York
JOSEPH M. HOEFFEL, Pennsylvania
EARL BLUMENAUER, Oregon
SHELLEY BERKLEY, Nevada
GRACE F. NAPOLITANO, California
ADAM B. SCHIFF, California
DIANE E. WATSON, California
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ADAM SMITH, Washington
BETTY McCOLLUM, Minnesota
BEN CHANDLER, Kentucky
THOMAS E. MOONEY, SR., Staff Director/General Counsel
ROBERT R. KING, Democratic Staff Director
JONATHAN R. SCHARFEN, Chief Counsel
MARILYN C. OWEN, Senior Staff Associate
C O N T E N T S
WITNESSES
The Honorable William H. Taft IV, Legal Adviser, U.S. Department of State
Admiral Michael G. Mullen, Vice Chief of Naval Operations, U.S. Department of the Navy
Frank J. Gaffney, Jr., President, The Center for Security Policy
Baker Spring, F.M. Kirby Research Fellow in National Security Policy, The Heritage Foundation
Peter M. Leitner, Ph.D., Author, Reforming the Law of the Sea Treaty: Opportunities Missed, Precedents Set, and U.S. Sovereignty Threatened
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Kathy J. Metcalf, Director, Maritime Affairs, Chamber of Shipping of America
John Norton Moore, Walter L. Brown Professor of Law, and Director, Center for Oceans Law and Policy, University of Virginia School of Law
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The Honorable Henry J. Hyde, a Representative in Congress from the State of Illinois, and Chairman, Committee on International Relations, U.S. House of Representatives: Prepared statement
The Honorable Richard G. Lugar, a U.S. Senator from the State of Indiana, and Chairman, Committee on Foreign Relations, U.S. Senate: Prepared statement
Rear Admiral William L. Schachte, U.S. Navy, Retired: Prepared statement
The Honorable Tom Lantos, a Representative in Congress from the State of California: Reprint of an advertisement from Citizens for Global Solutions
The Honorable William H. Taft IV: Prepared statement
Admiral Michael G. Mullen: Prepared statement
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Frank J. Gaffney, Jr.: Prepared statement
Baker Spring: Prepared statement
Peter M. Leitner, Ph.D.: Prepared statement
Kathy J. Metcalf: Prepared statement
John Norton Moore: Prepared statement and addendum
APPENDIX
The Honorable Roy Blunt, a Representative in Congress from the State of Missouri: Prepared statement
Letter addressed to Senate Majority Leader Bill Frist from a number of organizations concerning the Law of the Sea Treaty, submitted for the record by Frank J. Gaffney, Jr.
Letters from Admiral James D. Watkins, U.S. Navy, Retired, Chairman, U.S. Commission on Ocean Policy, addressed to:
The Honorable Henry J. Hyde (including enclosure)
The President of the United States (including enclosure)
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The Honorable Joseph Biden, Jr., a U.S. Senator from the State of Delaware
The Honorable Jesse Helms, a U.S. Senator from the State of North Carolina
Letters addressed to Admiral James D. Watkins from:
Secretary of State Colin L. Powell
Admiral Vern Clark, Chief of Naval Operations, U.S. Navy
Paul L. Kelly, Senior Vice President, Rowan Companies, Inc., and Member, U.S. Commission on Ocean Policy: Statement given before the U.S. Senate, March 23, 2004
Additional material submitted for the record by Peter M. Leitner, Ph.D.
THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
WEDNESDAY, MAY 12, 2004
House of Representatives,
Committee on International Relations,
Washington, DC.
The Committee met, pursuant to call, at 10:38 a.m. in Room 2172, Rayburn House Office Building, Hon. Henry J. Hyde presiding.
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Chairman HYDE. The Committee will come to order. Brigadier J.D. Hittle, of the U.S. Marine Corps, delivered a speech in Philadelphia on October 28th, 1961, in which he said that the pathway of man's journey through the ages is littered with the wreckage of nations, which in their hour of glory forgot their dependence on the sea.
Clearly, the United States is in no danger of forgetting our dependence on the sea. To the contrary, for years the United States has made great diplomatic investments in the law of the sea, in general, and in the Law of the Sea Convention, in particular.
Recently, the Senate Committee on Foreign Relations held hearings and unanimously reported favorably the United Nations Convention on the Law of the Sea and the 1994 Agreement Relating to the Implementation of Part XI on the U.N. Convention on the Law of the Sea. Subsequently, the Senate Armed Services and the Environment and Public Works Committees held hearings on the subject, and at all three hearings, Administration officials, including leaders from the uniformed services, testified in support of accession to the Convention and ratification of the agreement.
The Law of the Sea Convention established a sweeping legal regime that, in the words of one author, governs activities on, over, and under the world's oceans. As the greatest maritime nation in the world, the significance of such a treaty to our national interests, whether military, diplomatic, or economic, can't be overstated.
These issues demand our serious attention, and today we will hear testimony from proponents and opponents of the treaty. National security interests are central to the proponents' arguments in favor of accession.
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Proponents of the treaty have testified that since September 11th our mobility requirements as a naval power have never been greater. They argue that it is in our national interests to accede to the Convention because it supports vital transit rights necessary for our strategic mobility.
These rights are essential for projecting military power, or ensuring freedom of navigation for commercial interests. The Convention codifies these essentials. Proponents also argue that the United States can better protect its national interests from within the Convention's institutions than from without.
As a party to the Convention, the United States could nominate members for the International Tribunal for Law of the Sea as advocates for legal interpretations favorable to the United States' interests.
I anticipate Administration witnesses will testify on these key national security issues, among others. Today's witness from the commercial sector will undoubtedly testify to the economic interests that will be advanced through accession. She will champion the opportunity to challenge claims of excessive sovereignty within the Law of the Sea Tribunal.
Today, we will also hear from opponents of the treaty, and they have raised a number of fundamental questions as to the wisdom of accession. Among these is whether accession is necessary. If the Convention codifies existing customary international law with regard to navigational rights, the argument runs that the United States benefits from it, whether the U.S. is a party to the treaty or not.
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Opponents have also questioned whether the 1994 agreement fixes the deep seabed mining provisions that led President Reagan to oppose Part XI of the Convention in the first instance. The agreement, for example, leaves in place an international bureaucracy that includes an International Seabed Authority to administer mineral resources in the seabed located in areas beyond national jurisdiction. It also provides for administrative fees for deep seabed mining operations and establishment of an economic assistance fund for those developing countries that incur economic losses to their land-based mining operations caused by seabed mining.
Opponents have also expressed both practical and sovereignty concerns over the Convention's mandatory dispute resolution provisions. We look forward to hearing our two panels of distinguished witnesses discuss these and other issues.
And I would ask them if any implementing legislation would be necessary should the United States accede to the treaty. With the help of our witnesses, my hope is that we Members of the Committee will become better informed today on the complex Law of the Sea Treaty, and its impact on the economic, diplomatic, and national security interests of the United States.
I now turn to my friend and colleague, Tom Lantos, the Ranking Democratic Member, for his opening remarks.
[The prepared statement of Chairman Hyde follows:]
PREPARED STATEMENT OF THE HONORABLE HENRY J. HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS, AND CHAIRMAN, COMMITTEE ON INTERNATIONAL RELATIONS
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The pathway of man's journey through the ages is littered with the wreckage of nations, which, in their hour of glory, forgot their dependence on the sea.
BGen J.D. Hittle, USMC speech in Philadelphia, 28 Oct 61
Clearly, the United States is in no danger of forgetting our dependence on the sea. To the contrary, for years, the United States has made great diplomatic investments in the Law of the Sea in general and in the Law of the Sea Convention in particular.
Recently, the Senate Committee on Foreign Relations held hearings and unanimously reported favorably the United Nations Convention on the Law of the Sea and the 1994 Agreement Relating to the Implementation of Part XI on the UN Convention on the Law of the Sea. Subsequently, the Senate Armed Services and the Environment & Public Works Committees held hearings on the subject. At all three hearings, Administration officials, including leaders from the uniformed services, testified in support of accession to the Convention and ratification of the Agreement.
The Law of the Sea Convention established a sweeping legal regime that, in the words of one author, governs activities on, over, and under the world's oceans. As the greatest maritime nation in the world, the significance of such a treaty to our national interests, whether military, diplomatic, or economic, can not be overstated. These issues demand our serious attention.
Today we will hear testimony from both proponents and opponents of the treaty.
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National security interests are central to the proponents' arguments in favor of accession. Proponents of the treaty have testified that since September 11 our mobility requirements as a naval power have never been greater. They argue that it is in our national interests to accede to the Convention because it supports vital transit rights necessary for our strategic mobility. These rights are essential for projecting military power or ensuring freedom of navigation for commercial interests. The convention codifies these essentials.
Proponents also argue that the United States can better protect its national interests from within the Convention's institutions than without. As a party to the Convention, the United States could nominate members for the International Tribunal for the Law of the Sea as advocates for legal interpretations favorable to U.S. interests.
I anticipate that Administration witnesses will testify on these key national security issues, among others.
Today's witness from the commercial sector will undoubtedly testify to the economic interests that will be advanced through accession. She will champion the opportunity to challenge claims of excessive sovereignty within the Law of the Sea Tribunal.
Today, we will also hear from opponents of the Treaty. These opponents have raised a number of fundamental questions as to the wisdom of accession. Among these, is whether accession is necessary. If the Convention codifies existing customary international law with regards to navigational rights, the argument runs, the United States benefits from it, whether the United States is a party to the treaty or not.
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Opponents have also questioned whether the 1994 Agreement fixes the deep seabed mining provisions that led President Reagan to oppose Part XI of the Convention in the first instance. The Agreement, for example, leaves in place an international bureaucracy that includes an International Seabed Authority to administer mineral resources in the seabed located in areas beyond national jurisdiction. It also provides for administrative fees for deep seabed mining operations and establishment of an economic assistance fund for those developing countries that incur economic loses to their land-based mining operations caused by seabed mining.
Opponents have also expressed both practical and sovereignty concerns over the Convention's mandatory dispute resolution provisions.
I look forward to hearing our two panels of distinguished witnesses discuss these and other issues. I would ask them if any implementing legislation would be necessary should the United States accede to the treaty. With the help of our witnesses, my hope is that Members of the Committee will become better informed today on the complex Law of the Sea Treaty and its impact on the economic, diplomatic, and national security interests of the United States.
I now turn to my friend and colleague, Tom Lantos, the Ranking Democratic Member, for his opening remarks.
Mr. LANTOS. Thank you very much, Mr. Chairman, for holding this important hearing on the Convention on the Law of the Sea, and its impact on America's national interests. This is yet another milestone along your statesmanlike leadership of this Committee.
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Mr. Chairman, the global war on terrorism will be a generations-long struggle to dismantle the global terrorist network, and as we have discovered, there is no silver bullet. We must use every diplomatic, economic, and military tool at our disposal in concert with our allies to prevail over the cowardly terrorists who wish to destroy us.
Mr. Chairman, the Law of the Sea Treaty is precisely such a tool. This important treaty will increase the strategic mobility of our military, and it will ensure that the United States and its allies can respond quickly in times of crisis.
By guaranteeing the rights of our naval and air forces to transit through the seas of other countries and key straits, the treaty makes a critical contribution to U.S. security. It is therefore no surprise, Mr. Chairman, that a broad bipartisan consensus exists for immediate ratification of the Law of the Sea. Both President Bush and Senator Kerry strongly support ratification, along with the Chairman of the Joint Chief of Staffs, and the Chief of Naval Operations.
I am therefore perplexed as to why the Senate Republican leadership has yet to schedule a vote on a treaty directly related to our national security. I can only come to the conclusion, Mr. Chairman, that some in the Senate who fundamentally distrust multilateralism in all its manifestations, and who have fought against almost every international treaty, simply cannot bear the fact that their own Administration, together with our Nation's most senior military officials, believe that the Law of the Sea advances America's national security interests.
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I would urge all Members of the other body to listen to the words of General Richard Myers, the Chairman of the Joint Chiefs of Staff, who wrote that this treaty remains, and I quote: ''A top national priority,'' and: ''It supports efforts on the war on terrorism by providing much-needed stability and operational maneuver space, codifying essential navigational and over-flight freedoms.''
Mr. Chairman, our men and women in uniform, who are on the front lines on the war on terrorism, deserve farsighted legislators who can put aside past prejudices to do what is essential on the war on terrorism.
Representing San Francisco and the peninsula south of San Francisco, areas on the West Coast for which this treaty is particularly significant, I want to emphasize the critically important environmental effects of the Law of the Sea Treaty. In short, this treaty represents a landmark development in our efforts to end marine pollution and conserve the fragile ecosystems in our seas. Recently, the President's National Commission on the Oceans issued its preliminary report.
The conclusions are startling. Simply put, our oceans are dying. Unless we take steps immediately, whole species may vanish and fishing industries in the United States and around the world are going to face collapse at terrible human costs.
The Law of the Sea Treaty establishes basic obligations for all nations to protect and to preserve the marine environment, and to conserve marine species. The treaty requires enforcement of international rules designed to limit pollution from ships and seabed development, and it mandates coastal countries to conserve the living resources up to 200 miles offshore, to ensure that they are not endangered by over-exploitation.
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And as we will hear in this hearing, U.S. economic interests are protected by this treaty. But these sound national security, economic, and environmental benefits apparently do not convince the sharpest opponents of Senate ratification of this treaty.
They suggest that the treaty will restrict our intelligence gathering and block the Administration's proliferation security initiative. They argue that the treaty remains unchanged from 1982, when President Reagan refused to let the United States become a party to it.
These charges, Mr. Chairman, are utter nonsense. In 1983, President Reagan issued a proclamation providing that the United States would accept and act in accordance with all provisions of the Convention, except for those relating to deep seabed mining. As a result, the United States has been fully implementing every one of the provisions of the Law of the Sea Treaty that the critics are now condemning without any loss to our national security interests.
Indeed, under a previous treaty from the 1950s, we are under these very same legal obligations today. The provisions on deep seabed mining, the only provisions that President Reagan objected to, were comprehensively revised to remove all of our objections in 1994.
If the Senate gives its advice and consent to the treaty, the United States will have achieved, at the table, future changes to its provisions, and we will obtain a veto on critical matters that come before the governing council established by the Convention.
Mr. Chairman, the Law of the Sea Treaty fundamentally promotes America's national security interests, as well as the global environment, and it accomplishes these important tasks without infringing on our sovereignty, or costing the taxpayers billions of dollars.
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By ratifying the treaty the United States will obtain a key role in its implementation, and other countries will be required to respect and ultimately to protect key U.S. national security, economic and environmental interests.
U.S. ratification will undoubtedly further expand the number of countries who will join the treaty, thereby increasing its value to our Nation. Mr. Chairman, later today you and Senators Lugar and Biden, and I, will be visiting with the President, and it is my hope that we will have an opportunity to discuss with him the importance of his weighing in with the Senate Republican leadership on behalf of this treaty. Thank you, Mr. Chairman.
Chairman HYDE. Thank you, Mr. Lantos. Without objection, the prepared statements of our colleagues, Senator Lugar, and Admiral Schachte, will be inserted at this point in the record.
[The statements of Senator Lugar and Admiral Schachte follow:]
PREPARED STATEMENT OF THE HONORABLE RICHARD G. LUGAR, A U.S. SENATOR FROM THE STATE OF INDIANA, AND CHAIRMAN, COMMITTEE ON FOREIGN RELATIONS, U.S. SENATE
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PREPARED STATEMENT OF REAR ADMIRAL WILLIAM L. SCHACHTE, U.S. NAVY, RETIRED
Mr. Chairman and members of the Committee, it is an honor for me to discuss the Law of the Sea (LOS) Convention and the need for the United States, as the Convention's primary author and proponent, to take a leadership position in joining 145 other parties in a stable legal framework for the oceans.
The Convention and the fundamental changes from the 1994 Agreement constitute a huge success for the U.S. Today's military operations—from Operation Enduring Freedom to Operation Iraqi Freedom to the Global War on Terrorism—place a premium on the Navy's strategic mobility and operational maneuverability. The Convention enhances access and transit rights for our ships, aircraft, and submarines, and reinforces the nation's ability to conduct these operations. The critics of the Convention fail to understand, or even acknowledge, that since President Reagan's 1983 ocean policy statement, we have conducted and continue to conduct all of our operations in accordance with the LOS Convention. From the navigation standpoint we got everything we needed. We will never get as favorable of an international agreement on navigational rights again. We cannot avoid a multilateral approach when it comes to determining rules for the high seas where no one nation has sole jurisdiction. The issue is not whether the LOS Convention provisions are adequate, but whether we can keep them in place in the face of increasing coastal state pressure. The best of all options would be to freeze them in their current form. We cannot continue to rely on customary international law for our navigation rights and freedoms indefinitely. In November, the Convention will be open to amendment and possible change. The United States should accede to the Convention immediately as a means to assure access to the oceans and take a leading role in the future developments in the law to ensure they continue to further our national security interests.
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The United States' interests as a global maritime nation was a prime impetus for the negotiations of the Convention from 1973 to 1982, as well as later to obtain changes to the deep seabed mining provisions to which President Reagan correctly objected. President Reagan did not reject to the Convention in its entirety as has been misstated by the naysayers. In fact his Oceans Policy Statement of 1983 required that the U.S. operate consistent with the Convention's provisions except for deep seabed mining. Experienced, career Naval officers were integral members of the U.S. delegations during the negotiations, which were hugely successful in securing and protecting all navigational rights necessary for our Navy. Then, due to the hard work of successive administrations, the U.S. was also able to obtain necessary changes to the deep seabed mining provisions to address all of the concerns raised by President Reagan.
Let me put this in proper perspective to better understand what is really at stake by quoting from President Reagan's Deputy Secretary of State, Mr. 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 international 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.' ''
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Mr. Whitehead concluded: ''Immediately after the U.N. General Assembly promulgates the new agreement this week, all the major industrialized countries will sign the convention. It is vital for America's interests that we are among them. We have no need to fear prudent use and protection of the world's oceans and seas under rule of law.''
We continue to hear that the Part XI seabed mining provisions were not fixed because the 1994 Agreement is not an amendment to the LOS Convention. But, just read the text of the 1994 Agreement. It says, and I quote, ''The provisions of this Agreement and Part XI shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part XI, the provisions of this Agreement shall prevail.'' It is clear that the fundamental fixes made by the 1994 Agreement absolutely prevail. A specific issue in this area that continues to be wrongly stated is that the U.S. will be subject to mandatory requirements for transfer of technology. In regard to the LOS Convention's technology transfer provisions found in Annex III, article 5, the 1994 Convention provides, and again, I quote, ''The provisions of Annex III, article 5, of the Convention shall not apply.'' Even such plain language is not good enough for some critics, who even though they begrudgingly acknowledge what the words say, have in the next breadth complained that you cannot believe the words. I cannot conceive any treaty that could satisfy such criticism.
Despite its benefits, the Convention continues to be criticized because of the erroneous belief that the Convention will adversely affect U.S. sovereignty, inhibit our military operations including submarine and intelligence gathering activities, and hamper the President's Proliferation Security Initiative. These criticisms could not be further from the truth. Although the Convention recognizes the right of innocent passage and what activities constitute innocent passage in the territorial sea, the Convention imposes no obligation on parties to refrain from activities, such as intelligence gathering, that do not qualify for the right of innocent passage. Thus, Article 20 of the Convention merely states what a submarine must do to qualify for innocent passage in the territorial sea. This article merely repeats the rule concerning submerged transits from the 1958 Convention on the Territorial Sea, a convention to which the U.S. is a party. This rule 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 for purposes other than innocent passage. In short, if or when the need arises to collect intelligence in a foreign territorial sea, it will be business as usual for the Navy and nothing in the LOS Convention will prohibit that activity.
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In fact, from a navigational rights standpoint, the LOS Convention is more helpful than the 1958 Conventions to which the United States is currently a party. Submarines gain the right of submerged passage through international straits overlapped by territorial seas. More than 135 straits are affected, including strategically critical straits like Gibraltar, Hormuz and Malacca. The LOS Convention guarantees our armed forces a non-suspendable right of transit passage in, over and under these straits in the ''normal mode'' of operation. The same guaranteed, non-suspendable rights apply to warships, military aircraft and submarines transiting through archipelagoes, such as Indonesia and the Philippines. That means that our submarines 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. Without question, accession to the LOS Convention will enhance U.S. national security and economic interests. Military planners have long sought international respect for the freedoms of navigation and over-flight that are set forth in the LOS Convention.
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 exclusive economic zones (EEZ) of other nations. This includes the right to engage in military activities, such as:
launching and recovery of aircraft, water-borne craft and other military devices;
operating military devices;
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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 the LOS Convention will guarantee the legal basis for the global mobility needed by our armed forces. And I might add that the navigational provisions of the Convention must continue to be exercised by our operational forces, particularly in the maritime environment of the global commons, an environment that has traditionally been one of claim and counterclaim.
The U.S. has conducted maritime intercept operations (MIO) and MIO-type operations since we first declared our independence and the LOS Convention will not have any adverse impact to continuing those activities. The U.S. has conducted these operations under a variety of legal bases that are consistent with customary international law and our treaty obligations as a party to the 1958 Geneva Conventions. The provisions of the 1958 Geneva Conventions are mirrored in the LOS Convention.
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The LOS Convention also will not prohibit or impede the President's Proliferation Security Initiative (PSI). The Statement of Interdiction Principles for PSI explicitly states that interdiction activities under PSI will be taken ''consistent with national legal authorities and relevant international law and frameworks.'' This includes the LOS Convention. Further, all of the U.S. partners to PSI are parties to the LOS Convention. The bottom line is that the Convention provides a solid legal basis for taking enforcement action against vessels and aircraft suspected of engaging in proliferation of WMD, including: exclusive port and coastal state jurisdiction in internal waters, territorial seas and national airspace; coastal state jurisdiction in the 24 nm contiguous zone; flag state jurisdiction over its vessels on the high seas; and universal jurisdiction over stateless vessels. Ultimately, the U.S. always has the right to exercise self-defense, unaffected by the LOS Convention. The Convention's preamble is quite clear in this regard—that is, ''matters not regulated by the Convention continue to be governed by the rules and principles of general international law.'' Thus, matters such as self defense under the UN Charter and belligerent rights under the law of armed conflict are unaffected by the Convention.
Despite claims of critics, the Treaty does not give the United Nations authority to levy taxes. The LOS Convention does not authorize taxation of individuals or corporations. There are revenue provisions for deep seabed mining operations and for oil and gas activities on the continental shelf beyond 200 miles. Under the terms of the LOS Convention none of the revenues go to the United Nations or are subject to its control. Another shibboleth being spread about the LOS Convention is that it will subject our military activities to some sort of world court to settle disputes. Again, this is absolutely wrong and misleading. With respect to the dispute settlement provisions of the LOS Convention, the Convention does establish the International Tribunal for the Law of the Sea (ITLOS). However, the Convention also permits parties to choose other methods of dispute settlement. The U.S. has indicated it will elect two forms of arbitration rather than the Tribunal. Further, the Convention permits parties to exclude from dispute settlement certain types of actions such as military activities. Thus, the U.S. declaration opting out of dispute settlement for military activities is consistent with the Convention and disputes concerning military activities would not be subject to dispute settlement under the Convention. What constitutes a U.S. military activity is a matter solely for the U.S. to determine. Some have also accused ITLOS of over-reaching, citing the UK-Ireland MOX case as an example. The fact is that the UK did not avail itself of available opportunities to avoid jurisdiction of ITLOS and that the ITLOS provisional measure only directed that the two countries consult with each other.
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The LOS Convention protects our sovereignty by recognizing our 12 nautical mile (nm) territorial sea and a 200 nm exclusive economic zone. The Convention provides for widely accepted navigational and overflight freedoms that allow our Armed Forces to get to the fight rapidly and with maximum maneuverability. The Convention also provides for warship sovereign immunity. Although the LOS Convention was drafted over twenty years ago, it supports U.S. efforts in the war on terrorism. The Department of Defense, Joint Chiefs of Staff, and the Navy have consistently supported the navigation provisions of the Convention. The combined weight of the knowledge and experience of the Chiefs of Naval Operations (CNOs) consistently supporting the navigation provisions of the LOS Convention ought not be dismissed derisively as some so-called defense experts have done. Those esteemed naval officers have been on the front lines and understand how vital are the navigational provisions of the Convention now and in the future. Following the fixes in 1994 for the Reagan Administration objections to the deep seabed mining provisions, there has been no good reason to not move forward on U.S. accession. In fact, in 1998 all living CNOs endorsed the LOS Convention and urged Senate leadership to take positive action on U.S. accession. Future threats are likely to emerge in places and in ways that are not known. In order to be prepared to handle these challenges, the U.S. must be able to take maximum advantage of the navigational freedoms that the Convention codifies in order to get the armed forces to the fight rapidly. As the current Chief of Naval Operations has said, when sailors are sent out on dangerous missions around the world, they want assurance that not only are they supported by military force, but that they have the full backing of the law. We owe that to them.
Some have argued that joining the Convention is not necessary because the navigational rights and freedoms codified in the Convention already exist as customary international law and are therefore binding on all nations. That premise is flawed for a number of reasons.
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While it is true that many of the Convention's provisions are reflective of customary international law, others, such as the rights of transit passage and archipelagic sea lanes passage that I previously discussed, are creations of the Convention. 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 1950's 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 jurisdiction and preserved traditional navigational rights and freedoms.
It is also important to note 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 decisions were being made on how to interpret and apply the provisions of the Convention. 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 control 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 and Armed Services Committees, Malaysia has closed the strategic Strait of Malacca, an international strait, to ships carrying nuclear cargo. Chile and Argentina have similarly ordered ships carrying nuclear cargo to stay clear of their EEZs. These actions are inconsistent with the Convention and customary law, but will other nations attempt to follow suit and establish a new customary norm that prohibits the transport of nuclear cargo? Will attempts be made to expand such a norm to include nuclear-powered ships?
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China, India, North Korea, Iran, Pakistan, Brazil, Malaysia and others, have directly challenged US military operations in their EEZ as being inconsistent with the Law of the Sea Convention and customary international law. Again, the actions by those countries are inconsistent with the Convention and customary law, but will other nations follow suit and attempt to establish a new customary norm that prohibits military activities in the EEZ without coastal State consent?
It is extremely shortsighted to argue that, if the customary 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 too 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.
If we are going to successfully curtail this disturbing trend of creeping jurisdiction, 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.
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Few treaties in U.S. history have undergone the level of scrutiny that the LOS Convention has undergone. Every aspect of the Convention was painstakingly reviewed and analyzed during its 9-year negotiation. Since 1982, it has been exhaustively considered, analyzed and interpreted by every relevant agency in the U.S. government. As you know, the Reagan administration gave it a long, careful review and decided not to sign it solely 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 Administration. 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 9/11, and again this year. Initial hearings on the Convention were held by the Senate Foreign Relations Committee in 1994, and again in 2003. Additionally, there have been hearings this year before the Senate Committee on Environment and Public Works and Committee on Armed Services. Finally, the Convention has been the topic of debate and discussion at countless academic conferences hosted by numerous prestigious institutions such as Brookings as well as: Georgetown University, University of Virginia, Duke University, Center for Ocean Law and Policy, Law of the Sea Institute, and National Academy of Sciences.
Just as important as those examples of extensive scrutiny, the Convention is put to the test numerous times each day around the world by the U.S. Navy. I ask you to give more credence to our men and women who go in harm's way on Navy vessels far from home than to the theories of so-called defense experts. Every time a U.S. submarine makes a submerged transit of the Strait of Gibraltar and every time a U.S. aircraft carrier transits the Strait of Hormuz with its planes and helicopters flying, the Convention is used and validated.
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There is now almost universal adherence to the LOS Convention, with 145 parties, including all of our major allies and important non-aligned nations. The 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 successors have agreed with President Reagan that the Convention sets forth the appropriate balance between the rights of coastal nations and the rights of maritime nations. 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 position as the pre-eminent maritime nation of the world and take our rightful place as a party to the Convention.
Chairman HYDE. And if there are any further opening statements, they will also be without objection inserted in the record.
Mr. LANTOS. Mr. Chairman.
Chairman HYDE. Yes, sir.
Mr. LANTOS. May I ask that an ad from today's Roll Call, entitled, ''The Law of the Sea,'' in support of ratification, be included in the record?
Chairman HYDE. Without objection, so ordered.
Mr. LANTOS. Thank you, Mr. Chairman.
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[The information referred to follows:]
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Chairman HYDE. We open our testimony today with two witnesses from the Administration. It gives me great pleasure to welcome William H. Taft IV, who has served as Legal Adviser to the Secretary of State since April 2001. He is the principal advisor on all documents of international legal matters to the Department of State, the Foreign Service, and diplomatic and consular posts abroad, as well as the principal advisor on legal matters relating to the conduct of foreign relations to other agencies, and through the Secretary of State, to the President and National Security Council.
In the remarkable legal career prior to joining the State Department, Mr. Taft has been a litigation partner in Fried Frank's Washington, DC office, concentrating on government contracts and counseling on international trade. And spanning the years from 1981 to 1989, he served as U.S. Permanent Representative to NATO, as Deputy Secretary of Defense, as Acting Secretary of Defense, and as General Counsel for the Department of Defense.
Mr. Taft entered private law practice in 1977 after serving in various positions at the Federal Trade Commission and other Federal Government agencies. He received his JD from Harvard, and his BA from Yale. We are truly pleased to have you appearing before us today, Mr. Taft. We look forward to hearing your statement.
As our second witness, we welcome the Vice Chief of Naval Operations, Admiral Michael Mullen. A 1968 graduate of the United States Naval Academy, Admiral Mullen has wide-ranging experience as a commander in both the Atlantic and Pacific fleets, and as a flag officer, he has held many shore assignments, including the U.S. Naval Academy, the Surface Warfare Officer School Command, the Bureau of Naval Personnel, and at the Pentagon on the staffs of the Secretary of Defense and Chief of Naval Operations.
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Prior to his current assignment, he served as Deputy Chief of Naval Operations for Resources, Requirements, and Assessments. A graduate of the Naval Post-Graduate School, with a Master of Science degree in Operations Research, Admiral Mullen also attended the Harvard Business School's Advanced Management Program.
He assumed his current duty as Vice Chief of Naval Operations in August 2003. We welcome you today, Admiral Mullen, and certainly look forward to hearing your statement. We will ask you to begin, Mr. Taft, with a summary of your statement. Your written statement, as well as that of all of our witnesses, will be made a part of the record. Mr. Taft.
Mr. TAFT. Thank you, Mr. Chairman. Until today, my life has not included the privilege of appearing before this Committee, and so I am delighted to add that.
Chairman HYDE. We are sort of rounding out your resume.
Mr. TAFT. Thank you.
Mr. LANTOS. We all reach a highlight at a certain point in our life.
STATEMENT OF THE HONORABLE WILLIAM H. TAFT IV, LEGAL ADVISER, U.S. DEPARTMENT OF STATE
Mr. TAFT. Thank you, Mr. Chairman. The Administration strongly supports the Convention, and I have testified in favor of it before two Senate Committees. Today, I want to focus on the benefits of U.S. accession and respond to various arguments being made against accession.
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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. The Convention before you does that, and is strongly in our national interests.
Turning specifically to the Convention's navigational benefits, joining the Convention will advance the interests of the United States. It preserves and elaborates the rights of our military to use the world's oceans to meet national security requirements; for example, by stabilizing the territorial sea at 12 nautical miles, by enshrining the right of innocent passage in the territorial sea and the right of transit passage through straits; and by reaffirming the freedom of navigation 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 rights daily and their protection is of paramount importance for our security. This can be done by becoming a party to the Convention. As the country with the longest coastline and the largest exclusive economic zone, the United States will gain economic and resource benefits from the Convention.
It accords the coastal State sovereign rights over living marine resources, including fisheries, out to 200 miles, and it accords that same State sovereign rights over non-living resources, including oil and gas, found in the seabed and subsoil of the continental shelf, and it does so in a manner that improves on the 1958 treaty. It also establishes a legal framework for the protection and preservation of the marine environment from pollution from vessels, from activities in the seabed, from ocean dumping and other sources.
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Concerning mineral resources beyond national jurisdiction, that is, those that are not subject to the sovereignty of the United States or any other country, the 1994 agreement meets our goals regarding access by U.S. industry, free market principles, and decision-making.
Now, let me turn to dispute settlement, Mr. Chairman. As sought by the United States, 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 forum for resolving disputes, and as to the subject matter. Parties are expressly permitted to exclude matters of vital national concern from dispute settlement, including disputes concerning military activities, and we will do that.
Disputes concerning military activities, including intelligence activities, will not be subject to dispute settlement under the Convention as a matter of law, or U.S. policy.
Regarding disputes that are subject to resolution by arbitration under the Convention, it is very much in our national interests that this is provided for. Some disputes simply can't be resolved by negotiation, but they do need to be settled. I would like to address some of the criticisms of the Convention that have been made, and I would say that they leave me puzzled, particularly those relating to national security.
I have been familiar with the Convention for more than 20 years, including during my tenure as General Counsel of DoD in 1982, when we rejected Part XI of the treaty, but accepted the rest, and later for 5 years, as Deputy Secretary of Defense. In all that time I have never heard a Chief of Naval Operations (CNO) or a Chairman of the Joint Chiefs suggest that the United States would be better off from a national security point of view as a non-party to the Convention.
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The criticisms of the Convention fall into roughly five sorts. One criticism is based on a misreading of the Convention. For example, the assertion that the International Seabed Authority has jurisdiction over the oceans generally is manifestly incorrect. The Authority deals only with the sea floor beyond national jurisdiction, and there only with mineral activities.
The second criticism would have been correct in 1982, but ignores the fundamental overhaul effectuated by the 1994 agreement. For example, the assertion that joining the Convention would result in mandatory technology transfer.
A third criticism creates the impression that joining the Convention would be a radical departure from the status quo. It isn't. We have been operating consistent with the Convention for many years. Another kind of criticism seems to be based on mischaracterizations of our situations as a non-party, suggesting that we would be able to enjoy the benefits that we have today, even if we stay as a non-party.
The alternative to the Convention is not that we can engage in deep seabed mining without going through the Convention's institutions. We need them in order to go ahead with that.
The alternative is not full exploitation of the outer reaches of our continental shelf without fees. Rather, the inability to get legal certainty in this area will stymie those activities. The U.S. oil and gas industry participated in negotiating the relevant provisions and has testified in support of the Convention.
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And the fifth criticism concerns multilateral institutions. Here, however, the commission created by the Convention to recommend outer limits of the continental shelf beyond 200 miles is a necessary institution for us to get legal certainty in oil and gas exploitation off-shore.
Let me try and conclude, Mr. Chairman, simply by saying that it is strongly in our interests to join the Convention because of national security, economic, environmental, and foreign policy benefits.
Among other things, U.S. adherence would promote the stability of the legal regime of the oceans, which is vital to our U.S. global mobility and national security; and we recommend and have recommended to the Senate that it give its advice and consent to accession to the treaty on the basis of the resolution of advice and consent which was supported unanimously by the Senate Foreign Relations Committee this year.
Thank you, Mr. Chairman, and thank you for including my prepared written statement, which I have tried to summarize here for the record.
Chairman HYDE. Thank you, Mr. Taft. Admiral Mullen.
[The prepared statement of Mr. Taft follows:]
PREPARED STATEMENT OF THE HONORABLE WILLIAM H. TAFT IV, LEGAL ADVISER, U.S. DEPARTMENT OF STATE
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ACCESSION TO THE 1982 LAW OF THE SEA CONVENTION AND RATIFICATION OF THE 1994 AGREEMENT AMENDING PART XI OF THE LAW OF THE SEA CONVENTION
[SENATE TREATY DOCUMENT 103–39; SENATE EXECUTIVE REPORT 108–10]
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to testify on the 1982 United Nations Convention on the Law of the Sea (''the Convention''), which, with the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (''the 1994 Agreement''), was reported favorably by the Senate Foreign Relations Committee on March 11, 2004. The Administration strongly supports the Convention. I have testified in support of it before the Senate Foreign Relations Committee on October 21, 2003, as well as before the Senate Armed Services Committee on April 8, 2004. This testimony will focus on the benefits of U.S. accession to the Convention and respond to various arguments being made against accession.
BACKGROUND:
The achievement of a widely accepted and comprehensive law of the sea convention—to which the United States can become a party—has been a consistent objective of successive U.S. administrations for the last thirty years. The United States is already a party to a series of conventions from 1958 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. interest.
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When the text of the Convention was concluded in 1982, the United States recognized that its provisions supported U.S. interests, except for Part XI on deep seabed mining. In 1983, President Reagan announced in his Ocean Policy Statement that the United States accepted, and would act in accordance with, the Convention's balance of interests relating to traditional uses of the oceans. He instructed the Government to abide by, or, as the case may be, enjoy the rights accorded by, the provisions 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 and successive Administrations. We also worked closely with the Senate to ensure that the proposed Resolution of Advice and Consent satisfies the concerns and issues identified by the Administration, including those relating to U.S. military interests. We have urged the Senate to give its advice and consent to this Convention, to allow us to take full 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 nation from the navigational provisions of the Convention. Those provisions, which establish international consensus on the extent of jurisdiction that States may exercise 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 territorial 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 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. national security.
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ECONOMIC/RESOURCE ASPECTS:
The United States, as the country with the longest coastline and the largest exclusive economic zone, will gain economic and resource benefits from the Convention:
It accords the coastal State sovereign rights over living marine resources, including fisheries, in its exclusive economic zone, i.e., out to 200 nautical miles from shore.
The Convention also accords the coastal State sovereign rights over non-living resources, including oil and gas, found in the seabed and subsoil of its continental shelf. The Convention improves on the 1958 Continental Shelf Convention, to which the United States is a party, in several ways: by replacing the ''exploitability'' standard with an automatic continental shelf out to 200 nautical miles, regardless of geology; by allowing for extension of the shelf beyond 200 miles if it meets certain geological criteria; and by establishing an institution that can promote the legal certainty sought by U.S. companies concerning the outer limits of the continental shelf.
The Convention also establishes a legal framework for the protection and preservation of the marine environment from a variety of sources, including pollution from vessels, seabed activities, and ocean dumping. The provisions effectively balance the interests of States in protecting the environment and natural resources with their interests in freedom of navigation and communication. With the majority of Americans living in coastal areas, and U.S. coastal areas and EEZ generating vital economic activities, the United States has a strong interest in these aspects of the Convention.
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Concerning mineral resources beyond national jurisdiction, i.e, not subject to the sovereignty of the United States or any other country, the 1994 Agreement meets our goal of guaranteed access by U.S. industry on the basis of reasonable terms and conditions. The Agreement restructures the deep seabed mining regime along free-market principles. It also overhauls the decision-making procedures to accord decisive influence to the United States and others with major economic interests at stake. The United States is guaranteed a seat on the critical decision-making body, and no substantive obligation can be imposed on the United States, and no amendment can be adopted, without its consent. Joining the Convention would facilitate deep seabed mining activities of U.S. companies, which require legal certainty to carry out such activities in areas beyond U.S. jurisdiction.
As to actual costs of being a party, our annual contributions to the Convention's institutions would be about three million dollars, paid to the International Tribunal for the Law of the Sea and the International Seabed Authority from the State Department's Contributions to International Organizations. These costs are not included in the Administration's budget request for FY 2005. If we accede to the Convention, the State Department will assess options for addressing these requirements in FY 2005 or future budgets.
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 disputes and as to subject matter. In terms of forum, a State is able to choose, by written declaration, one or more means for the settlement of disputes concerning the interpretation or application of the Convention. The Administration is pleased that its recommendation that the United States elect arbitration under Annex VII and special arbitration under Annex VIII is included in the proposed Resolution of Advice and Consent.
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In terms of subject matter, the system provides Parties with means of excluding matters of vital national concern from the dispute settlement mechanisms. Specifically, the Convention permits a State, through a declaration, to opt out of dispute settlement procedures with respect to one or more enumerated categories of disputes, 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 exclude all optional categories of disputes from dispute settlement mechanisms.
A concern raised by Administration witnesses last fall regarding resolution of disputes concerning 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 of importance to the United States. The U.S. negotiators of the Convention sought and achieved language that creates a very broad exception, successfully defeating attempts by certain other countries to narrow its scope. The United States has consistently viewed this exception as a key element of the dispute settlement package, which carefully balances comprehensiveness with protection of vital national interests.
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 recommended, and the proposed Resolution includes, a statement that our consent to accession to the Convention is conditioned on the understanding that each State Party has the exclusive right to determine whether its activities are or were ''military activities'' and that such determinations are not subject to review. Disputes concerning military activities, including intelligence activities, would not be subject to dispute settlement under the Convention as a matter of law and U.S. policy.
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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 Territorial 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-innocent activities is exhaustive and because it generally uses objective, rather than subjective, 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 Proliferation Security Initiative, an activity involving the United States and more than sixty other countries. The Convention will not affect our policies and practices in carrying out maritime-related PSI activities to interdict vessels suspected of engaging in the proliferation of weapons of mass destruction, their means of delivery and related materials. The PSI requires participating countries to act consistent with national legal authorities and ''relevant international law and frameworks,'' which includes the law reflected in the 1982 Law of the Sea Convention. The Convention's navigation provisions derive from the 1958 law of the sea conventions, 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 regarding interdiction of weapons of mass destruction, their means of delivery and related materials. 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 destruction, for example, exclusive port and coastal State jurisdiction in internal waters and national airspace; coastal State jurisdiction in the territorial sea and contiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which the flag State may, 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 Resolution of Advice and Consent).
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REASONS TO JOIN:
As a non-Party to the Convention, the United States has actively sought to achieve global acceptance of, and adherence to, the Convention's provisions, particularly in relation to freedom of navigation. As noted, President Reagan's 1983 Oceans Policy Statement directed the United States to abide by, and enjoy the rights accorded 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 approach, formal U.S. adherence to the Convention would have further national security advantages:
The United States would be in a stronger position invoking a treaty's provisions to which it is party, for instance in a bilateral disagreement where the other country does not understand or accept 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 established 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.
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Becoming a party to the Convention would permit the United States to nominate members for both the Law of the Sea Tribunal and the Continental Shelf Commission. Having U.S. members on those bodies would help ensure that the Convention is being interpreted and applied in a manner consistent with U.S. national security interests.
Becoming a party to the Convention would strengthen our ability to deflect potential proposals that would be inconsistent with U.S. national security 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 preserved and enjoyed over the past twenty years largely due to the Convention's stable, widely accepted legal framework. It would be risky to assume that it is possible to preserve indefinitely the stable situation that the United States currently enjoys. Customary international law may be changed by the practice of States over time and therefore does not offer the future stability that comes with being a party to the Convention.
RESPONSES TO ARGUMENTS AGAINST U.S. ACCESSION:
I would now like to respond to arguments that are being made against U.S. accession to the Convention. I will address them in turn:
President Reagan thought the treaty was irremediably defective.
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President Reagan expressed concerns only about Part XI's deep seabed mining regime.
In fact, he believed that Part XI could be fixed and specifically identified the elements in need of revision.
The regime has been fixed in a legally binding manner that addresses each of the U.S. objections to the earlier regime.
The rest of the treaty was considered so favorable to U.S. interests that, in his 1983 Ocean Policy Statement, President Reagan ordered the Government to abide by 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 one hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms.
The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But these operations entail a certain amount of risk—e.g., the Black Sea bumping incident with the former Soviet Union 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.
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The Convention was drafted before—and without regard to—the war on terror and what the United States must do to wage it successfully.
It is true that the Convention was drafted before the war on terror. However, the Convention enhances, rather than undermines, our ability to successfully wage the war on terror.
Maximum maritime naval and air mobility that is assured by the Convention is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for our forces, weapons, and materiel to get to the fight without hindrance—and ensures that our forces will not be hindered in the future.
Thus, the Convention supports our war on terrorism by providing important stability for navigational freedoms and overflight. It preserves the right of the U.S. military to use the world's oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and not be contingent upon approval from nations along the routes. A stable legal regime for the world's oceans will support global mobility for our Armed Forces.
Obligatory technology transfers will equip actual or potential adversaries with sensitive and militarily useful equipment and know-how (such as anti-submarine warfare technology).
No technology transfers are required by the Convention. Mandatory technology transfers were eliminated by Section 5 of the Annex to the Agreement amending Part XI of the Convention.
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Article 302 of the Convention explicitly provides that nothing in the Convention requires a party to disclose information the disclosure of which is contrary to the essential interests of its security.
As a nonparty, the U.S. is allowed to search any ship that enters our 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 approves the right to search the ship.
Under the Convention, the UN 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 arbitrarily 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 provisions 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 reservation.
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The 1994 Agreement doesn't even pretend to amend the Convention; it merely establishes controlling interpretive provisions.
The Convention could only have been formally ''amended'' if it had already 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 entered 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 decision-making 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 supermajorities that will enable us to protect our interests by putting together small blocking minorities;
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— 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 UN 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 activities on the continental shelf beyond 200 miles and administrative fees for deep seabed mining operations. The amounts involved are modest in relation to the total economic benefits, and none of the revenues would go to the United Nations or be subject to its control. (U.S. companies applying for deep seabed mining licenses would pay the application fee directly to the Seabed Authority; no implementing legislation would be necessary.) U.S. consent would be required 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 revenue opportunities for them when deep seabed mining becomes economically 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 settlement. The United States would choose two forms of arbitration rather than the Tribunal.
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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 established by implementing legislation and that such procedures shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United States.'' The Chamber's authority extends only to disputes involving the mining of minerals from the deep seabed; no other activities, including operations on the surface of the oceans, are subject to it.
U.S. adherence will entail history's biggest voluntary transfer of wealth and surrender of sovereignty.
Under the Convention as amended by the 1994 Agreement, there is no transfer of wealth and no surrender of sovereignty.
In fact, the Convention supports the sovereignty and sovereign rights of the United States over extensive maritime territory and natural resources off its coast, including a broad continental shelf that in many areas extends well beyond the 200-nautical mile limit, and would give us additional capacity 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.
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The Convention addresses seven-tenths of the earth's surface. However, the International Seabed Authority (ISA) does not.
The authority of the ISA is limited to administering mining of minerals in areas of the deep seabed beyond national jurisdiction, generally more than 200 miles from the shore of any country. At present, and in the foreseeable future, such deep seabed mining is economically unfeasible. The ISA has no other role and has no general regulatory authority over the uses of the oceans, including freedom of navigation and overflight.
The ISA has no authority or ability to levy taxes.
The United States might end up without a vote in the ISA.
The Council is the main decision-making 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 influential role on the Council, the body that matters most.
The PRC asserts that the Convention entitles it to exclusive economic control of the waters within a 200 nautical-mile radius of its artificial islands—including waters transited by the vast majority of Japanese and American oil tankers en route to and from the Persian Gulf.
We are not aware of any claims by China to a 200-mile economic zone around its artificial islands.
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Any claim that artificial islands generate a territorial sea or EEZ has no basis in the Convention.
The Convention specifically provides that artificial islands do not have the status of islands and have no territorial sea or EEZ of their own. Sovereignty over certain Spratly Islands (which do legitimately generate a territorial sea and EEZ) is disputed among Brunei, China, Malaysia, the Philippines, and Vietnam. China has consistently maintained that it respects the high seas freedoms of navigation through the waters of the South China Sea.
CONCLUSION:
Mr. Chairman, it is in the U.S. interest to join the Convention because of the national security, economic, environmental, and foreign policy benefits to the United States. 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 Senate give its advice and consent to accession to the Convention and ratification of the Agreement, on the basis of the proposed Resolution of Advice and Consent. Thank you.
STATEMENT OF ADMIRAL MICHAEL G. MULLEN, VICE CHIEF OF NAVAL OPERATIONS, U.S. DEPARTMENT OF THE NAVY
Admiral MULLEN. Good morning, Mr. Chairman, and other Members of the Committee. Thank you for the opportunity to testify today on the Law of the Sea Convention. I am here today as this is an important matter for all military departments.
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Mr. Chairman, your Navy's and your military's ability to operate freely across the vast domain of the world's oceans, in peacetime and in war, makes possible the projection of American influence and power, and do that without a permission slip.
The ability of the U.S. military forces to operate freely on, over, and above the vast military maneuver space of the oceans is critical to our national security interests, the military in general, and the Navy in particular.
Today, I want to reemphasize to you that I, as well as the Chief of Naval Operations, the Chairman of the Joint Chiefs of Staff, the combatant commanders, and the military departments all support accession to the Law of the Sea Convention by the United States. This is a considerable body of war-fighting experience and knowledge.
The military basis for support of the Law of the Sea Convention is broad because it codifies fundamental benefits important to our operating forces as they train and as they fight. It codifies essential navigational freedoms through key international straits and archipelagos in the exclusive economic zone and on the high seas. It supports the operational maneuver space for combat and other operations of our warships and aircraft.
It enhances our own maritime interests in our territorial sea, contiguous zone, and exclusive economic zone, and so that our people know when they are operating in defense of this nation far from our shores as we are today, they have the backing and the authority of widely recognized and accepted law to look to, rather than depending only on the threat of the use of force.
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You see, this is for me not just an operational issue, but it is also a people issue. As Navy leaders, we are entrusted to lead America's sons and daughters who are serving our country at the tip of the spear 24 hours a day, 7 days a week, 365 days a year.
And they are willingly conducting our Nation's business, sometimes in harm's way. For the many years that we have remained outside the Convention, we have asked our young men and women to conduct freedom of navigation and other operations, sometimes at great risk, to challenge the excessive maritime claims of other States to prevent those claims from becoming customary international law.
We don't need to do that. The CNO and I are looking for every possible guarantee to ensure our sailors' safety, and to keep them from needlessly going into harm's way. That is why we need to join the Law of the Sea Convention.
Finally, accession to the Law of the Sea Convention is consistent with our indispensable leadership role in maritime matters in the future. Admiral Clark has testified in both open and closed sessions for Congress about this issue. These provisions and others are important, and it is preferable for the United States to be a party to the Convention that codifies the freedom of navigation and overflight needed to support U.S. military operations.
Likewise, it is beneficial to have a seat at the table to shape future developments of the Law of the Sea Convention, which is open for amendment, as I understand it, this November.
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Becoming a party, on the other hand, gives us an important seat at the table to ensure the Law of the Sea continues to protect our people and maritime interests, both economic and military, prevent excessive claims that attempt to restrict access, preserve the critical navigation freedoms and freedom of the seas essential to our national security.
It is beneficial for the United States to be in a position of leadership on these issues, continuing to work to preserve the key navigation provisions in the Convention, and shape its future.
In closing, let me just add that the Navy has been reviewing the Law of the Sea Convention for 25 years. Indeed, we currently operate—willingly because it is in our national security interests—within the provisions of the Law of the Sea Convention in every area related to navigation.
We would not recommend an international commitment that would require us to get a permission slip from anyone to conduct our operations, or restrict our intelligence activities.
Simply, the Convention does not require a permission slip or prohibit these activities. We would continue operating our military forces as we do today. Mr. Chairman, and Members of the Committee, thank you for your time today on this important issue, and I look forward to your questions.
[The prepared statement of Admiral Mullen follows:]
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PREPARED STATEMENT OF ADMIRAL MICHAEL G. MULLEN, VICE CHIEF OF NAVAL OPERATIONS, U.S. DEPARTMENT OF THE NAVY
Chairman Hyde, Representative Lantos, Members of the Committee on International Relations, good morning. Thank you for the opportunity to testify today in support of the Law of the Sea Convention. I am Admiral Mike Mullen, U.S. Navy, the Vice Chief of Naval Operations for the Department of the Navy.
Although I am presently the Vice Chief of Naval Operations, I previously commanded the Navy's Second Fleet and NATO's Striking Force Atlantic, was privileged to command the George Washington Carrier Battle Group, and was commanding officer on and served aboard a number of cruisers, destroyers and other ships in our Fleet. The Administration, including the Military Departments, the Joints Chiefs of Staff, and the Combatant Commanders, all strongly support U.S. accession to the Convention. The Department of Defense, Joint Chiefs of Staff, and the Navy have consistently supported the navigation provisions of the Convention over the years. Following the 1994 deep seabed mining fixes, all former living Chiefs of Naval Operations endorsed the Convention in a 1998 letter urging Senate leadership to take positive action on U.S. accession.
General Richard Myers, Chairman of the Joint Chiefs of Staff, recently stated, ''The Convention remains a top national security priority . . . It supports efforts in the War on Terrorism by providing much-needed stability and operational maneuver space, codifying essential navigational and overflight freedoms.'' Admiral Vern Clark, the Chief of Naval Operations, has testified that the Convention supports U.S. efforts in the War on Terrorism and will not negatively affect or impair our ability to collect intelligence, interdict suspect vessels, or in other ways prosecute the war. I, too, believe that to be true.
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The collective knowledge and experience of our nation's military leaders supporting U.S. accession to the Convention is a considered body of warfighting experience and knowledge.
Entry into force for the United States will enhance the worldwide mobility our forces require and our traditional leadership role in maritime matters, as well as better position us to initiate and influence future developments in the Law of the Sea.
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As the Chief of Naval Operations has testified on numerous occasions, your Navy is built to take persistent, credible combat power to the far corners of the earth, extending the influence 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 and makes it a force in peace and war.
In my view, the Law of the Sea Convention supports our ability to operate in this manner under the authority of widely recognized and accepted law. For that reason, I, and the Chairman of the Joint Chiefs of Staff and the Chief of Naval Operations, strongly support the Law of the Sea Convention.
I: PROJECTING DECISIVE JOINT POWER ACROSS THE GLOBE
Today's military operations—from Operation Enduring Freedom to Operation Iraqi Freedom to the Global War on Terrorism—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 coalition or, if necessary, acting independently.
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In addition to Operations Enduring Freedom and Iraqi Freedom, 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 Proliferation Security Initiative (PSI). The Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, and I are convinced that our work with our international partners in PSI is critical in helping to disrupt the flow of weapons of mass destruction, their delivery systems, and related materials throughout the world.
Some critics have argued that U.S. accession to the Convention will somehow prohibit or impede the PSI. It will not. It should be noted that the international partners assembled as part of the PSI are all parties to the Law of the Sea Convention and, to my knowledge, have not expressed concerns that the Convention and the PSI are incompatible. Furthermore, the Statement of Interdiction Principles for the PSI published by the White House explicitly states that interdiction activities will be taken ''consistent with international law and frameworks.'' This includes relevant provisions of the Law of the Sea Convention as reflected in customary international law.
As we look to the future, Sea Power 21 will provide sea basing from which to project joint forces and joint firepower. It will provide joint logistics and project defensive power in an environment where access to land bases is increasingly denied by foreign governments or put increasingly at risk by asymmetric threats. These capabilities are important 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.
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II: PRESERVING OUR FREEDOMS
The basic tenets of the Law of the Sea Convention 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 framework to counter excessive claims of states that seek illegally to expand their maritime jurisdiction and restrict the movement of vessels of other States in international and other waters. And it preserves our right to conduct military activities and operations in exclusive economic zones without the need for permission or prior notice.
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Most importantly, the entry into force of the Law of the Sea Convention 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 Law of the Sea Convention itself. Our participation in the Convention will better position us to initiate and influence future developments in the Law of the Sea.
I know there are some who have expressed concern about whether the Law of the Sea Convention prohibits our naval operations, including the boarding and search of ships and our maritime intelligence 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. There simply is no such requirement anywhere in the Convention. Likewise, the Convention does not prohibit our intelligence collection activities.
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Last year, before the Senate Foreign Relations Committee, Administration officials expressed a concern 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 activities 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. understanding that each Party has the exclusive right to determine which of its activities 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 Convention's provisions on navigational freedoms. If the U.S. becomes a party to the Law of the Sea Convention, we would continue to operate as we have since 1983, and would gain support for our leadership role in Law of the Sea matters. I am convinced that joining the Law of the Sea Convention 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 Global War on Terrorism.
III: 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 Law of the Sea Convention codifies to get us to the fight rapidly.
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Strategic mobility is more important than ever. The oceans are fundamental to that maneuverability; as the CNO and I have both previously testified in our support of the Convention, joining the Convention supports the freedom to get to the fight, twenty-four hours a day and seven 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 compatible with our vision.
Again, I wish to thank the Committee for offering me the opportunity to appear before you here today. I support the Law of the Sea Convention. I am happy to answer any questions that you may have.
Chairman HYDE. Thank you, Admiral. As you know, we invite questions from Members in the order in which they arrive for the hearing. So if it appears that we jump around, that is the rules, or that is the rule. So, first, Mr. Blumenauer.
Mr. BLUMENAUER. Thank you. Thank you, Mr. Chairman. I appreciate the opportunity for this hearing, and hearing from our witnesses. I appreciated, Admiral, in particular your focus on the impact on the people under your command, particularly when we have this cloud that I think affects us all: Questions about what is going on in Iraq right now, questions about the transparency of our activities, chains of command, whether or not we are adhering to international conventions dealing with prisoners.
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I wonder if you could elaborate for a moment on what impact the approval of this Convention would have on the men and women who are currently operating under difficult situations at sea.
Admiral MULLEN. In my statement, I spoke to the compliance that we have exhibited since the 1983 time frame, and part of that deals with something that, when we go to sea, we call freedom of navigation.
We have operated in areas of the world, in the Mediterranean, for example, off the coast of Libya, for many years, and where there were claims which were excessive from an international standpoint.
I have personally done this also in the economic zone off of North Korea, and in those situations, because there is no codified set of rules, if you will, to which those that sign up to this treaty would conform, we are in a position to ask our sailors—and what we try to do in those circumstances in what we call freedom of navigation operations—is assert what we understand to be the well-understood international law at the time, customary law.
And in doing that, we have on more than one occasion put our ships, and the sailors, the men and women who man them, in a more dangerous position because of where that maneuver space is, well outside our country's territorial seas, and well inside the exclusive economic zone, for instance, of a country that might claim a wider area, for whatever reason.
We have routinely asserted that over the years to make sure that the Law of the Sea Convention and that which is understood internationally around the world, that freedom of navigation, and freedom of the seas, the rights of passage, those things are in fact asserted.
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There would not be a guarantee that, if this passed, that that same country wouldn't act belligerently, but it clearly brings in my view a body of significant beliefs, and certainly the international views and the pressures associated with that, to hopefully put them in a position where they would be a little more reticent in terms of what they might do.
Mr. BLUMENAUER. Thank you. Mr. Chairman, I just would like to put on the record, and I will submit a formal opening statement at your invitation, but there are two points I guess I would just put in closing here. I think this would be an important action by this Congress at this time when we are committed to international cooperation.
I think it would have salutary effects that go far beyond what we are talking about in terms of the Law of the Sea. Second, we have actually a greater threat to the future of humankind than this struggle against terrorism that we are involved with now, and that is what we can do to the environment.
Global climate change, warming, pollution, the two national reports—one private, and one federal—that have been released about the health of the oceans, that paint a picture of putting at risk this center of the food chain and protection of the environment.
And so this would also I think be a powerful signal and a mechanism for us to be able to work cooperatively to protect the environmental health of the oceans, and just as importantly, for our international security.
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Chairman HYDE. The gentleman's time has expired. I thank the gentleman for his sound thinking. Mr. Tancredo of Colorado.
Mr. TANCREDO. Thank you, Mr. Chairman, but I believe my colleague preceded me here.
Mr. PAUL. That is okay.
Mr. TANCREDO. I believe that my colleague, Mr. Paul, preceded me here.
Chairman HYDE. You can't believe it is your turn?
Mr. TANCREDO. Right, it is amazing.
Chairman HYDE. Are you willing to yield your turn?
Mr. TANCREDO. I am willing to yield to Mr. Paul if he requires it or requests it.
Mr. PAUL. I am patient.
Mr. TANCREDO. Thank you, Mr. Chairman.
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Chairman HYDE. All right. Mr. Paul has adopted a new mantle of patience.
Mr. TANCREDO. Well, thank you, Mr. Chairman. There are a couple of questions that come to mind as a result of your testimony, and especially that of Admiral Mullen. My questions are with respect specifically to the fact that we are operating apparently, the Navy is apparently operating under the provisions of the treaty, because, as you say, it is in our interest to do so.
You are operating in a way that would fulfill the requirements of this treaty. I understand that you are saying that this is acceptable to the Navy.
But there are, of course, a lot of other provisions of this treaty that don't deal specifically with military issues, but that are disconcerting to several of us. I am just wondering why I should feel better about the treaty when you say that you are doing it and it doesn't matter?
I mean, there are other things that I don't like, and if you can continue to do it, and if the military, if the Navy says that the provisions don't stop them from doing what they need to do, and in fact you even can make use of them, that is fine. Go ahead. Why do we need a treaty beyond that. You just continue doing what you are doing.
Admiral MULLEN. As this treaty has evolved over the years, in terms of the debate and discussion, I have been focusing on it, or have focused on it certainly very much this last year. I spend a lot of my time, as I think we all are doing, worrying about the future, and how you predict that, project it. The thing that this treaty brings me from the military standpoint, and from the Navy standpoint in particular, is the ability to better leverage the maneuver space in the oceans that are out there.
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And that mobility I believe also is going to—if you accept that it will allow me to do that—it is my belief and the belief of many, many senior military officers, that acceding to this will give me that leverage. And that mobility, and that maneuver space is more important than it has ever been and will continue to be, particularly as we struggle with rights in certain parts of the world to create a footprint.
To make sure that we have the access that we need under accepted law, and the codification of that obviously, it also would allow us—again from the military standpoint—to take a considerable leadership role. This is the seat at the table discussion, which gets back to really two principal pieces for me.
One is my ability to do this from a war fighting standpoint, and the current regime which routinely puts my people in a position that doesn't—if they do not have to be there, from the standpoint of exerting, asserting the freedoms that are currently there. There are those that argue that you can do this from outside. Really, it is the opinion of a considerable number of senior military officers, that it is better to do that from inside.
In looking at the future, and this goes to the comment that was made earlier in testimony, this is a generational war. This is a long war. We are uncertain as to obviously when it is going to end, this global war on terrorism. We believe this treaty will better support our ability to fight that war because of the ability to maneuver in that operational space than we are able to do now. And I don't reject that there is clearly—you know, we have conformed to it—there is an operational aspect which we conform to right now.
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Mr. TANCREDO. Well, Mr. Taft, why should I feel any better about this, I suppose, considering the fact that we will still be subject to this compulsory dispute resolution process, which we have learned by now seldom results in anything that accrues to our benefit in this country, just because of the nature of the world that we live in and the resentment that many people have for the United States and what we represent.
I certainly do not feel comfortable at all putting this country into that kind of a situation, compulsory dispute resolutions, giving a certain degree of our sovereignty over to another entity.
Mr. TAFT. Well, Congressman, I would just say that I think we need to focus on exactly what the subjects would be that would be affected by this compulsory dispute mechanism. First of all, we are excluding from the dispute mechanism any military activities, and matters that affect our vital interests as we are permitted to do under the Convention.
And that is in the resolution of advice and consent proposed by the Senate Foreign Relations Committee—the things that are left that are subject to dispute resolution. I think it is important to wonder what would happen in the absence of a dispute resolution mechanism.
These concern things such as a claim where we have perhaps a pipeline or a cable that is interfered with by another State or we have a ship which is perhaps taken into a port and arrested improperly, and we want compensation for that.
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We have a number of areas where it will be very much to our advantage if we are unable to negotiate with the other State a resolution, that we are able to get a settlement of those through these processes.
There really isn't anything that is subject to the dispute resolution that affects our vital national interests. Most of these things will be economic, seeking compensation for damages that the other States have done, and that has been the record of the very small number of cases that have been brought by the existing parties to the treaty under the dispute resolution thing.
There was one, or the most prominent case, was a case where the State of Guinea arrested a ship belonging to St. Vincent and the Grenadines, or registered there, and it was improper that they did that. They were unable to resolve it amongst themselves, although they tried, I guess, but not hard enough. They went to dispute resolution, compensation was paid, and the ship had already previously been ordered released, and that was right, too. This is a good thing to have available where your ability to negotiate a solution fails.
Chairman HYDE. The gentleman's time has expired. Mr. Delahunt.
Mr. DELAHUNT. Thank you, Mr. Chairman. I have one question about the treaty itself. Recently, Admiral and Mr. Taft, there was a report put out by the Oceans Commission, and I don't know if either one of you are necessarily familiar with all of its recommendations.
Would there at some point in time be a divergence, or is there any impact whatsoever, or what would be the context of those recommendations in terms of the Convention? Is there a certain synergy if those recommendations were adopted in toto, or is there a potential conflict? That is the only question I have. Thank you. If you could answer.
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Mr. TAFT. I guess I would only say that I am not familiar with all of the details of that report. It is quite an extensive report, but I do know that one of the recommendations in the report was that we should accede to the Law of the Sea Treaty.
So in that sense at least the people who are writing it thought that it was consistent, and indeed that their recommendations, other recommendations, would be benefited by joining.
Admiral MULLEN. And, John, I have not gone through the report in detail either, but to specifically answer your question, I see it as a convergent path, as opposed to a divergent path, for the same reasons that Mr. Taft talked about.
Chairman HYDE. The gentleman from Texas, Mr. Paul.
Mr. PAUL. Thank you, Mr. Chairman. My first question is for Mr. Taft. Is it not true that a treaty is the supreme law of the land; that if we pass a treaty, it becomes the supreme law of the land?
Mr. TAFT. That is what the Constitution says, Congressman, yes, sir.
Mr. PAUL. Do you believe there are any limitations on what can be done with a treaty? Anything that happens in a treaty, does it become the supreme law of the land, or is it unlimited?
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Mr. TAFT. No, there are treaties, or there are limitations on the kinds of treaties that the country can enter into. They must be——
Mr. PAUL. No, I am saying what if we get into them, what happens? Are there any limits to what we can do? What I am referring to is can a treaty amend the Constitution?
Mr. TAFT. No, sir.
Mr. PAUL. It could not. But in many ways I think this is what we do too often, and this is what we are attempting to do now, because we give up our sovereignty. You know, we have done it numerous times already.
We have a WTO that dictates trade policy, and tax policies. We have the IMF that dictates monetary policy to us, and here we have a Law of the Sea Treaty that will be dictating policies to us, and actually introduces the notion of a tax.
So I see this as a contradiction, and something that is out in limbo. We have been too careless about it over the last several decades by passing these treaties that literally change our Constitution. And it seems like we should not enter into any treaty that could possibly undermine our constitutional rights.
Mr. TAFT. Well, Congressman, I would agree with you that we should not enter into any such treaty. This treaty does not have that effect. We have looked very carefully at that in crafting the resolution with the Senate Foreign Relations Committee, and we have included in there a number of provisions which address precisely that concern, sir.
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