law of the · pdf filelaw of the sea briefing book was compiled by a diverse collection of...

Law of the Sea

Briefing Book

Law of the Sea Briefing Book was compiled by a diverse collection of trade associations, citizens’ groups, and ocean policy scholars. For more information, please contact: Caitlyn L. Antrim, Rule of Law Committee for the Oceans(703) [email protected] Laura S. Cantral, Meridian Institute, Joint Ocean Commission Initiative(202) [email protected] Peter Hill, Consortium for Oceanographic Research and Education; Joint Ocean Commission Initiative(202) [email protected] Michael Kearns, National Ocean Industries Association(202) [email protected] Don Kraus, Citizens for Global Solutions(202) [email protected]

Brian Petty, International Association of Drilling Contractors(202) [email protected] Scott T. Paul, Citizens for Global Solutions(202) [email protected] Randy Snodgrass, World Wildlife Fund of the United States(202) [email protected]

L aw o f t h e S e a B r i e f i n g B o o k : t a B L e o f C o n t e n t S

I. IntroductIon.......................................................................................................................4

II. talkIngPoIntsandBackgroundInfo..............................................................................6 a. LoS faCt Sheet and taLking PointS......................................................................7 B. LiSt of Current LoS State PartieS...........................................................................9 C. ratifiCation MaP....................................................................................................13 d. LoS MythS and reaLitieS froM the State dePartMent........................................14

III. Whatu.s.offIcIalsaresayIng.......................................................................................18 a. PreSident BuSh’S PreSS reLeaSe..............................................................................19 B. Letter to Senator Biden froM the ChairMan of the Joint ChiefS of Staff.........20 C. adMiraL thad aLLen, CoMMandant of u.S. CoaSt guard’S PreSS reLeaSe.........22 d. Letter to Senator Biden froM StePhen J. hadLey, aSSiStant to the PreSident for nationaL SeCurity affairS..............................................................................24 e. Joint oCean CoMMiSSion initiative Letter to PreSident BuSh.............................26 f. Senator Lugar’S SPeeCh, “an overdue SteP for greater SeCurity”...................28 g. SeCreatry of State CondoLeezza riCe noMination hearing foLLow-uP reSPonSeS to unCLoS-reLated QueStionS for the reCord.................................................30 h. weStern governor’S aSSoCiation StateMent........................................................36 i. governor SChwarzenegger’S Letter to Senator Biden.......................................40 J. Letter to Senator Lugar froM forMer SeCretary of State george P. ShuLtz..42

IV. organIzatIonalandBusInesssuPPort............................................................................44 a. Letter to SenatorS reid and MCConneLL froM over 100 ProMinent aMeriCan LeaderS..................................................................................................................46 B. Letter to SenatorS Biden and Lugar froM the naturaL reSourCeS defenSe CounCiL, the worLd wiLdLife fund, the nature ConServanCy, and other environMentaL grouPS............................................................................................54 C. Letter to Senator Biden froM the Pew CharitaBLe truSt..................................56 d. ChaMBer of ShiPPing of aMeriCa teStiMony to the Senate foreign reLationS CoMMittee..............................................................................................................58 e. weStern PaCifiC fiSherieS ManageMent CounCiL endorSeMent of uS aCCeSSion to unCLoS...........................................................................................................60 f. League of ConServation voterS, PhySiCianS for SoCiaL reSPonSiBiLity and other environMentaL grouPS Letter to Senate environMent and PuBLiC workS CoMMittee.......................................................................................................62 g. aMeriCan PetroLeuM induStrieS, internationaL aSSn of driLLing ContraCtorS, and nationaL oCean induStrieS aSSoCiation teStiMony to the Senate foreign reLationS CoMMittee.............................................................................................64

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h. the oCean ConServanCy teStiMony to the Senate foreign reLationS CoMMittee..72 i. Letter to Senator heLMS froM at&t..................................................................82 J. Letter to SenatorS Biden and Lugar froM the garden CLuB of aMeriCa..........84 k. Letter to Senator Biden froM the MaritiMe Law aSSoCiation of the united StateS.....................................................................................................................86

V. laWoftheseaIntheMedIa............................................................................................94 a. “reaP the Bounty,” The WashingTon Times, June 13, 2007 By John d. negroPonte and gordon engLand........................................................................95 B. “Law of the Sea guaranteeS u.S. rightS,” The Wall sTreeT Journal Letter to the editor, June 16, 2007 By horaCe roBertSon..................................................97 C. “tiMe to ratify the Law of the Sea,” Foreign Policy in Focus CoMMentary, June 6, 2007 By don krauS...................................................................................98 d. “StateS’ MaP for Saving the oCeanS,” The WashingTon PosT CoMMentary, feB. 3, 2007 By Leon e. Panetta and JaMeS d. watkinS.......................................102 e. “SCuttLe diPLoMaCy,” The Wall sTreeT Journal CoMMentary, June 2, 2007 By ken adeLMan........................................................................................................104 f. aMeriCan SoCiety of internationaL Law Briefing artiCLe..................................107 g. “Law of the Sea, the ContinentaL SheLf, and Marine reSearCh,” By d.r. hutChinSon and r.w. rowLand in eoS, tranSaCtionS aMeriCan geoPhySiCaL union....................................................................................................................111

h. “ruSSian SCientiStS Say the arCtiC iS theirS” The neW york Times, June 28, 2007 By Mike nizza................................................................................114

i. “Strife on the Seven SeaS” naTure, auguSt 9, 2007..........................................116

J. “the great artiC CirCLe oiL ruSh” ForTune, auguSt 8, 2007 By teLiS deMoS....117

k. “our view on Law of the Sea treaty: who ownS artiC’S weaLth?” usa Today,

auguSt 14, 2007.......................................................................................................119

L. “u.S. reSiStanCe to Sea treaty thawS” The Wall sTreeT Journal,

auguSt 22, 2007.......................................................................................................120

VI. lInkstoMoreInforMatIon(treatytext,etc.)..............................................................124

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I.IntroductIon

During the Nixon administration, negotiations began to create a common, international set of rules for the oceans. Now, almost 40 years later, the United States is on the verge of joining the 155 nations that have ratified the United Nations Convention on the Law of the Sea (LOS). The treaty defines maritime zones, protects the environment, preserves freedom of navigation, and establishes clear guidelines for businesses that depend on the sea for resources. Until the United States ratifies the treaty, its rights at sea will lack international recognition.

Negotiations to create the Law of the Sea began during the Nixon administration but did not conclude until the Reagan administration. President Reagan issued an executive order commanding all U.S. agencies to act in accordance with the treaty’s balance of interests. However, due to concerns with the Convention’s treatment of deep seabed mining, the United States became one of four nations that voted against adoption of the treaty.

During the George H.W. Bush administration, the United States negotiated an annex to the treaty that addressed all of President Reagan’s concerns. The United States finalized and signed the treaty during the Clinton administration.

In 2004, with the support of the current Bush administration, the Senate Foreign Relations Committee unanimously approved the Law of the Sea Convention. However, the treaty did not come to the floor for a full vote.

On May 15, 2007, President Bush publicly urged the Senate to “to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress.” He said that joining “will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.”

Currently, hearings are being planned by the Senate Foreign Relations Committee and it is hopeful that the Convention will be brought to the Senate floor for advice and consent during this session. This briefing book for policy makers discusses core issues surrounding the treaty and identifies the individuals and institutions that support U.S. ratification of the convention.

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II.talkIngPoIntsandBackgroundInfo

A. LOS Fact Sheet and Talking Points

B. List of Current LOS State Parties

C. Ratification Map

D. LOS Myths and Realities from the State Department

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The United States and the Law of the Sea:Time to Join

What Is Law of the Sea?

The Convention on the Law of the Sea (LOS) addresses the various areas and uses of the world’s oceans, which cover 70 percent of the Earth’s surface. The Convention was concluded in 1982 to replace a group of 1958 treaties that were out of date and less favorable to America’s economy and security. LOS came into force in 1994, and to date, 155 countries and the European Commission have joined the treaty. The United States has not.

LOS Functions

Its primary functions are to define maritime zones, protect the marine environment, preserve freedom of navigation, allocate rights to resources, and establish certainty necessary guidelines for businesses that depend on the sea for various purposes.

Necessary Changes to U.S. Law or Policy

In 1983, Ronald Reagan directed U.S. agencies to comply with all of the provisions in LOS except for Part XI, which concerns deep-sea mining. With U.S. leadership, Part XI was reworked and the Conven-tion was officially modified in 1994, addressing all U.S. concerns. Since 1983, the U.S. has been in voluntary compliance with the Convention and thus accession would not result in any changes to current U.S. domestic or foreign policy.

LOS and the U.S. Senate

In 2004 all 19 members of the Senate Foreign Relations Committee voted unanimously in favor of LOS. Although not a single Senator abstained or voted against the treaty, it was never brought to the Senate floor for a vote.

Why Join? It Helps Our Military

The U.S. military, which relies heavily on its ability to navigate on and fly freely over the sea, has been a strong advocate of LOS. In the absence of treaty rights, U.S. tools for protecting its navigational rights have been reliance on customary law and operational challenges. Customary law is an inadequate basis on which to support some of our most vital national security interests – it is not universally accepted and, in any event, changes over time. Operational challenges, while remaining a useful tool, are in-herently risky and resource-intensive – and they don’t address the fact that a huge amount of cargo in support of DOD missions moves on commercial vessels. The rights we would enjoy as a State Party to LOS will help us protect our military’s ability to freely navigate the oceans.

Fact Sheet

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LOS Helps Us Protect the Environment

Oceans cover over 70 percent of the Earth. In the U.S., we have a history of strong laws to protect the marine environment. The Convention promotes the U.S. interest in the health of the world’s oceans by addressing marine pollution from a variety of sources, including vessels, seabed activities, and ocean dumping. Joining LOS would send a message to the world that we care about the global environment.

LOS Benefits American Business

The United States benefits greatly from the resource provisions of the Convention. In addition to a 12-mile territorial sea, the Convention provides for a 200 mile Exclusive Economic Zone (EEZ), over which each country has exclusive resource management rights. The U.S. zone would be 3.36 million square miles, an area bigger than the lower 48 states combined and the biggest such EEZ in the world. Also, under LOS, coastal states can exercise sovereign rights over natural resources within the extended continental shelf area beyond 200 nautical miles if certain geological criteria are met. The U.S. would have one of the largest extended continental shelves in the world, extending up to 600 miles off the Alas-kan coast.

Finally, joining LOS would give U.S. companies an opportunity to obtain clear legal title to engage in mining activities in the deep seabed, the area beyond the shelf over which no country has sovereign rights. Without this legal certainty, U.S. firms are unlikely to engage in deep seabed mining.

We Can Do More as a Member than as an Outsider

As a major maritime power and a major coastal State, the United States has more to gain and more to lose than any other country by the interpretation and application of the Convention. There is no other similarly situated country that represents our balance of ocean interests.

Joining LOS would increase our voice and influence in several ways. It would put us in a position to nominate experts to participate in the Convention’s technical bodies responsible for applying the Con-vention’s terms. At the annual meeting of States Parties, we would have a voice commensurate with our status as a country with major ocean interests. We would be in a position to lead from within to defend against any potential hostile amendments to the Convention proposed in the future, or to advance friend-ly amendments as they arise. Our guaranteed seat on the Council of the International Seabed Authority would give us maximum influence over decisions related to deep seabed mining. And in institutions outside the Convention, such as the International Maritime Organization, joining LOS would increase our credibility and authority to cite and interpret Convention provisions in advancement of our interests.

Joining LOS Sends a Positive Message about American Principles

The U.S. is a nation that values responsibility and cooperation. Joining LOS tells the 155 countries that have already joined LOS, including our allies, that we are committed partners in managing the world’s oceans and resources therein.

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List of Countries that have Signed and/or Ratified the U.N. Convention on the Law of the Sea

Afghanistan 18 Mar 1983 Albania 23 Jun 2003 a Algeria 10 Dec 1982 11 Jun 1996 Angola 10 Dec 1982 5 Dec 1990 Antigua and Barbuda 7 Feb 1983 2 Feb 1989 Argentina 5 Oct 1984 1 Dec 1995 Armenia 9 Dec 2002 a Australia 10 Dec 1982 5 Oct 1994 Austria 10 Dec 1982 14 Jul 1995 Bahamas 10 Dec 1982 29 Jul 1983 Bahrain 10 Dec 1982 30 May 1985 Bangladesh 10 Dec 1982 27 Jul 2001 Barbados 10 Dec 1982 12 Oct 1993 Belarus 10 Dec 1982 30 Aug 2006 Belgium 5 Dec 1984 13 Nov 1998 Belize 10 Dec 1982 13 Aug 1983 Benin 30 Aug 1983 16 Oct 1997 Bhutan 10 Dec 1982 Bolivia 27 Nov 1984 28 Apr 1995 Bosnia and Herzegovina 12 Jan 1994 d Botswana 5 Dec 1984 2 May 1990 Brazil 10 Dec 1982 22 Dec 1988 Brunei Darussalam 5 Dec 1984 5 Nov 1996 Bulgaria 10 Dec 1982 15 May 1996 Burkina Faso 10 Dec 1982 25 Jan 2005 Burundi 10 Dec 1982 Cambodia 1 Jul 1983 Cameroon 10 Dec 1982 19 Nov 1985 Canada 10 Dec 1982 7 Nov 2003 Cape Verde 10 Dec 1982 10 Aug 1987 Central African Republic 4 Dec 1984 Chad 10 Dec 1982 Chile 10 Dec 1982 25 Aug 1997 China 10 Dec 1982 7 Jun 1996 Colombia 10 Dec 1982 Comoros 6 Dec 1984 21 Jun 1994 Congo 10 Dec 1982 Cook Islands 10 Dec 1982 15 Feb 1995 Costa Rica 10 Dec 1982 21 Sep 1992 Côte d’Ivoire 10 Dec 1982 26 Mar 1984 Croatia 5 Apr 1995 d Cuba 10 Dec 1982 15 Aug 1984 Cyprus 10 Dec 1982 12 Dec 1988 Czech Republic 22 Feb 1993 d 21 Jun 1996 Democratic People’s Republic of Korea 10 Dec 1982 Democratic Republic of the Congo 22 Aug 1983 17 Feb 1989 Denmark 10 Dec 1982 16 Nov 2004

Participant Signature, Succession to signature (d) Ratification, Formal confirmation (c), Accession (a), Succession (d)

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Djibouti 10 Dec 1982 8 Oct 1991 Dominica 28 Mar 1983 24 Oct 1991 Dominican Republic 10 Dec 1982 Egypt 10 Dec 1982 26 Aug 1983 El Salvador 5 Dec 1984 Equatorial Guinea 30 Jan 1984 21 Jul 1997 Estonia 26 Aug 2005 a Ethiopia 10 Dec 1982 European Community 7 Dec 1984 1 Apr 1998 c Fiji 10 Dec 1982 10 Dec 1982 Finland 10 Dec 1982 21 Jun 1996 France 10 Dec 1982 11 Apr 1996 Gabon 10 Dec 1982 11 Mar 1998 Gambia 10 Dec 1982 22 May 1984 Georgia 21 Mar 1996 a Germany 14 Oct 1994 a Ghana 10 Dec 1982 7 Jun 1983 Greece 10 Dec 1982 21 Jul 1995 Grenada 10 Dec 1982 25 Apr 1991 Guatemala 8 Jul 1983 11 Feb 1997 Guinea 4 Oct 1984 6 Sep 1985 Guinea-Bissau 10 Dec 1982 25 Aug 1986 Guyana 10 Dec 1982 16 Nov 1993 Haiti 10 Dec 1982 31 Jul 1996 Honduras 10 Dec 1982 5 Oct 1993 Hungary 10 Dec 1982 5 Feb 2002 Iceland 10 Dec 1982 21 Jun 1985 India 10 Dec 1982 29 Jun 1995 Indonesia 10 Dec 1982 3 Feb 1986 Iran (Islamic Republic of) 10 Dec 1982 Iraq 10 Dec 1982 30 Jul 1985 Ireland 10 Dec 1982 21 Jun 1996 Italy 7 Dec 1984 13 Jan 1995 Jamaica 10 Dec 1982 21 Mar 1983 Japan 7 Feb 1983 20 Jun 1996 Jordan 27 Nov 1995 a Kenya 10 Dec 1982 2 Mar 1989 Kiribati 24 Feb 2003 a Kuwait 10 Dec 1982 2 May 1986 Lao People’s Democratic Republic 10 Dec 1982 5 Jun 1998 Latvia 23 Dec 2004 a Lebanon 7 Dec 1984 5 Jan 1995 Lesotho 10 Dec 1982 31 May 2007 Liberia 10 Dec 1982 Libyan Arab Jamahiriya 3 Dec 1984 Liechtenstein 30 Nov 1984 Lithuania 12 Nov 2003 a Luxembourg 5 Dec 1984 5 Oct 2000 Madagascar 25 Feb 1983 22 Aug 2001 Malawi 7 Dec 1984 Malaysia 10 Dec 1982 14 Oct 1996


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Maldives 10 Dec 1982 7 Sep 2000 Mali 19 Oct 1983 16 Jul 1985 Malta 10 Dec 1982 20 May 1993 Marshall Islands 9 Aug 1991 a Mauritania 10 Dec 1982 17 Jul 1996 Mauritius 10 Dec 1982 4 Nov 1994 Mexico 10 Dec 1982 18 Mar 1983 Micronesia (Federated States of) 29 Apr 1991 a Moldova 6 Feb 2007 a Monaco 10 Dec 1982 20 Mar 1996 Mongolia 10 Dec 1982 13 Aug 1996 Montenegro 23 Oct 2006 d Morocco 10 Dec 1982 31 May 2007 Mozambique 10 Dec 1982 13 Mar 1997 Myanmar 10 Dec 1982 21 May 1996 Namibia 10 Dec 1982 18 Apr 1983 Nauru 10 Dec 1982 23 Jan 1996 Nepal 10 Dec 1982 2 Nov 1998 Netherlands 10 Dec 1982 28 Jun 1996 New Zealand 10 Dec 1982 19 Jul 1996 Nicaragua 9 Dec 1984 3 May 2000 Niger 10 Dec 1982 Nigeria 10 Dec 1982 14 Aug 1986 Niue 5 Dec 1984 11 Oct 2006 Norway 10 Dec 1982 24 Jun 1996 Oman 1 Jul 1983 17 Aug 1989 Pakistan 10 Dec 1982 26 Feb 1997 Palau 30 Sep 1996 a Panama 10 Dec 1982 1 Jul 1996 Papua New Guinea 10 Dec 1982 14 Jan 1997 Paraguay 10 Dec 1982 26 Sep 1986 Philippines 10 Dec 1982 8 May 1984 Poland 10 Dec 1982 13 Nov 1998 Portugal 10 Dec 1982 3 Nov 1997 Qatar 27 Nov 1984 9 Dec 2002 Republic of Korea 14 Mar 1983 29 Jan 1996 Romania 10 Dec 1982 17 Dec 1996 Russian Federation 10 Dec 1982 12 Mar 1997 Rwanda 10 Dec 1982 Saint Kitts and Nevis 7 Dec 1984 7 Jan 1993 Saint Lucia 10 Dec 1982 27 Mar 1985 Saint Vincent and the Grenadines 10 Dec 1982 1 Oct 1993 Samoa 28 Sep 1984 14 Aug 1995 Sao Tome and Principe 13 Jul 1983 3 Nov 1987 Saudi Arabia 7 Dec 1984 24 Apr 1996 Senegal 10 Dec 1982 25 Oct 1984 Serbia 12 Mar 2001 d Seychelles 10 Dec 1982 16 Sep 1991 Sierra Leone 10 Dec 1982 12 Dec 1994 Singapore 10 Dec 1982 17 Nov 1994 Slovakia 28 May 1993 d 8 May 1996


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Slovenia 16 Jun 1995 d Solomon Islands 10 Dec 1982 23 Jun 1997 Somalia 10 Dec 1982 24 Jul 1989 South Africa 5 Dec 1984 23 Dec 1997 Spain 4 Dec 1984 15 Jan 1997 Sri Lanka 10 Dec 1982 19 Jul 1994 Sudan 10 Dec 1982 23 Jan 1985 Suriname 10 Dec 1982 9 Jul 1998 Swaziland 18 Jan 1984 Sweden 10 Dec 1982 25 Jun 1996 Switzerland 17 Oct 1984 Thailand 10 Dec 1982 The Former Yugoslav Republic of Macedonia 19 Aug 1994 d Togo 10 Dec 1982 16 Apr 1985 Tonga 2 Aug 1995 a Trinidad and Tobago 10 Dec 1982 25 Apr 1986 Tunisia 10 Dec 1982 24 Apr 1985 Tuvalu 10 Dec 1982 9 Dec 2002 Uganda 10 Dec 1982 9 Nov 1990 Ukraine 10 Dec 1982 26 Jul 1999 United Arab Emirates 10 Dec 1982 United Kingdom of Great Britain and Northern Ireland 25 Jul 1997 a United Republic of Tanzania 10 Dec 1982 30 Sep 1985 Uruguay 10 Dec 1982 10 Dec 1992 Vanuatu 10 Dec 1982 10 Aug 1999 Viet Nam 10 Dec 1982 25 Jul 1994 Yemen 10 Dec 1982 21 Jul 1987 Zambia 10 Dec 1982 7 Mar 1983 Zimbabwe 10 Dec 1982 24 Feb 1993


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What does the United States have in common with Libya, Iran, Syria and North Korea?

All five countries have signed but failed to ratify the Convention on the Law of the Sea.

*The dark-colored countries have ratified, the grey countries have signed but not ratified, and the light-colored countries have not signed or ratified.

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Myths about the Law of the Sea Convention

Myth: Joining the Convention would surrender U.S. sovereignty.

Reality: On the contrary, some have called the Convention a “U.S. land grab.” It expands U.S.sovereignty and sovereign rights over extensive maritime territory and natural resources off its coast. Itprovides a 12 mile territorial sea subject to U.S. sovereignty, U.S. sovereign rights over resources within a 200-mile exclusive economic zone, and U.S. sovereign rights over offshore resources (including min-erals) to the outer edge of the continental margin, which extends well beyond 200 miles in several areas,including up to 600 miles off Alaska. It’s rare that a treaty actually increases the sovereignty of a coun-try, but this treaty does. The Convention does not harm U.S. sovereignty in other respects either. The dispute resolution mechanism provides appropriate flexibility in terms of both the forum and the exclu-sion of sensitive subject matter. The deep seabed mining provisions do not apply to any areas in which the U.S. has sovereignty or sovereign rights. Further, these rules will facilitate mining activities by U.S. companies. And the navigational provisions ensure that U.S. military and commercial vessels have worldwide maritime mobility – without a permission slip.

Myth: The Convention is a “U.N.” treaty and therefore doesn’t serve our interests.

Reality: The Convention is not the U.N. – it was just negotiated there, as are many agreements. Justbecause a treaty was drawn up at the U.N. does not mean that it doesn’t serve our interests. For example, the U.S. benefits from U.N. treaties such as the U.N. Anti-Corruption Convention and the U.N. Conven-tion for the Suppression of Terrorist Bombings. The Law of the Sea Convention is another such treaty that serves our interests.

Myth: The Convention would permit an international tribunal to second-guess the U.S. Navy.

Reality: No international tribunal would have jurisdiction over the U.S. Navy. U.S. military activities,including those of the U.S. Navy, would not be subject to any form of dispute resolution. Disputesconcerning military activities are completely excluded from dispute resolution, and the U.S. has theexclusive right to determine what constitutes a military activity.

Myth: The Convention is being pushed by “one-worlders” whose goal is to undermine U.S.sovereignty and subject the United States to “supranational”institutions.

Reality: The Convention enjoys very broad support, from the U.S. military to affected industries,including oil/gas, fisheries, communications, maritime transportation, ocean manufacturing, etc. In anyevent, it enhances U.S. sovereignty and sovereign rights, not undermines it.

Myth: The International Seabed Authority has the power to regulate seven-tenths of the Earth’ssurface.

Reality: The Convention addresses seven-tenths of the earth’s surface. But the International SeabedAuthority (ISA) does not. First, the ISA does not address activities in the water. Second, the ISA hasnothing to do with the ocean floor that is subject to the sovereignty or sovereign rights of countries. Third, the ISA only addresses mining. So its role is limited to mining activities in areas of the ocean floor beyond national jurisdiction. It has no other role and no general authority over the uses of the oceans, including freedom of navigation and overflight.

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Myth: The Convention gives the U.N. its first opportunity to levy taxes.

Reality: This is not the U.N. -- and there are no taxes on individuals or corporations. Concerning oil/gasproduction within 200 miles offshore, the U.S. gets exclusive sovereign rights to seabed resourceswithin the largest such area in the world. There are no finance-related requirements in the treaty.Concerning oil/gas production beyond 200 miles of shore, the U.S. is one of a group of countries that ispotentially entitled to extensive continental shelf beyond its 200 mile zone. Countries that benefit fromextra continental shelf have no requirements for the first 5 years of production at a site; in the 6th year ofproduction, they are to pay 1% of production, capped at 7% in the 12th year of production. If the U.S. were to pay royalties, it would be because U.S. oil and gas companies are engaged in successful produc-tion beyond 200 miles. But if the treaty is not passed, U.S. companies will likely not be willing or able to engage in oil/gas activities in such areas, i.e., in the absence of clear legal means to secure tenure.Concerning mineral activities in the deep seabed, which is beyond U.S. jurisdiction, an interested com-pany would pay an application fee for the administrative expenses of processing the application. Any amount that did not get used for processing the application would be returned to the applicant. The Convention does not set forth any royalty requirements for production; the U.S. would need to agree to establish any. In no event would any royalties go to the U.N., but rather would be distributed to countries in accordance with a formula that the U.S. would have to agree to.

Myth: The Convention was drafted before – and without regard to – the war on terror and what the U.S. must do to wage it successfully.

Reality: The Convention enhances, rather than undermines, our ability to wage the war on terror.Maximum maritime naval and air mobility that is assured by the Convention is essential for our militaryforces to operate effectively. The Convention provides the necessary stability and framework for ourforces, weapons, and materiel to get to the fight without hindrance. It is essential that key sea and air lanes remain open as a matter of international legal right and not be contingent upon approval from na-tions along the routes.

Myth: The Convention would prohibit or impair U.S. intelligence and submarine activities.

Reality: The Convention does not prohibit or impair intelligence or submarine activities. Joining theConvention would not affect the conduct of intelligence activities in any way. This issue was the sub-ject of extensive hearings in 2004 before the Senate Select Committee on Intelligence. Witnesses from Defense, CIA, and State all confirmed that U.S. intelligence and submarine activities are not adversely affected by the Convention (which we already follow) and would not be adversely affected if we joined.

Myth: The U.S. can rely on customary international law and doesn’t need the Convention.

Reality: The Convention provides clear legal rules in a written treaty, as opposed to reliance on custom-ary international law, which is too easily challenged by unilateral claims of other countries and changed by the practice of countries over time. Customary law is an inadequate basis upon which to protect navi-gational rights vital to our national security. The U.S. needs additional tools in its arsenal, including the firm legal footing that joining the Convention would provide.

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Myth: The U.S. can rely on the use, or threat, of force to fully protect its navigational interests instead of the Law of the Sea Convention.

Reality: The United States has utilized diplomatic and operational challenges to resist the excessivemaritime claims of other countries that interfere with U.S. navigational rights. But these operations entail a certain degree of risk, as well as resources. Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the U.S. in a strong position to assert our rights.

Myth: Joining the Convention would hurt U.S. maritime interdiction efforts under the Prolifera-tion Security Initiative (PSI).

Reality: Joining the Convention would not affect applicable maritime law or policy regarding theinterdiction of weapons of mass destruction. PSI specifically requires participating countries to actconsistent with international law, which includes the law reflected in the Convention. Almost all PSIpartners are parties to the Convention. Further, joining the Convention is likely to strengthen PSI byattracting new cooperative partners.

Myth: President Reagan thought the treaty was irredemiably defective.

Reality: President Reagan pointed solely to certain deep seabed mining provisions of the Convention asflawed. He considered that those provisions could be fixed and specifically identified the elements in need of revision. In a 1983 Ocean Policy Statement, President Reagan directed the U.S. government to abide by the non-deep-seabed provisions of the Convention and encourage other countries to do like-wise. The 1994 Agreement fixed the flawed deep seabed mining provisions in ways that meet each one of President Reagan’s objections.

Myth: The Convention provides for mandatory technology transfer.

Reality: No technology transfers are required by the Convention. Mandatory technology transfer waseliminated by the 1994 Agreement that fixed the original Convention.

This paper was drafted with information provided by the U.S. State Department.

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III.Whatu.s.offIcIalsaresayIng

A. President Bush’s press release

B. Letter to Senator Biden from the Chairman of the Joint Chiefs of Staff

C. Admiral Thad Allen, Commandant of U.S. Coast Guard’s press release

D. Letter to Senator Biden From Stephen J. Hadley, Assistant to the President for National Security Affairs

E. Joint Ocean Commission Initiative Letter to President Bush

F. Senator Lugar’s speech, “An Overdue Step for Greater Security”

G. Secreatry of State Condoleezza Rice nomination hearing follow-up responses to UNCLOS-related Questions For the Record

H. Western Governor’s Association Statement

I. Governor Schwarzenegger’s Letter to Senator Biden

J. Letter to Senator Lugar From Former Secretary of State George P. Shultz

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For Immediate ReleaseOffice of the Press Secretary

May 15, 2007

President’s Statement on Advancing U.S. Interests in the World’s Oceans

I am acting to advance U.S. interests in the world’s oceans in two important ways.

First, I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.

Second, I have instructed the U.S. delegation to the International Maritime Organization (IMO) to submit a proposal for international measures that would enhance protection of the Papahanaumokuakea Marine National Monument, the area including the Northwestern Hawaiian Islands.

Last June, I issued a proclamation establishing the Monument, a 1,200-mile stretch of coral islands, seamounts, banks, and shoals that are home to some 7,000 marine species. The United States will propose that the IMO designate the entire area as a Particularly Sensitive Sea Area (PSSA) –- similar to areas such as the Florida Keys, the Great Barrier Reef, and the Galapagos Archipelago –- which will alert mariners to exercise caution in the ecologically important, sensitive, and hazardous area they are entering. This proposal, like the Convention on the Law of the Sea, will help protect the maritime environment while preserving the navigational freedoms essential to the security and economy of every nation.

# # #

http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html

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FOR IMMEDIATE RELEASE Office of Public Affairs

U.S. Coast Guard

STATEMENT BY ADM. THAD ALLEN, COMMANDANT OF THE COAST GUARD, ON THE CONVENTION ON THE LAW OF THE SEA

WASHINGTON – Adm. Thad Allen, commandant of the U.S. Coast Guard, issued the following statement today reiterating long-standing Coast Guard support for joining the Convention on the Law of the Sea.

“Becoming a party to the 1982 United Nations Convention on the Law of the Sea would greatly enhance our global position in maritime affairs. Because of our maritime security and law enforcement missions, the Coast Guard has long been a proponent of achieving a comprehensive and stable regime with respect to traditional uses of the oceans. The convention greatly enhances our ability to protect the American public as well as our efforts to protect and manage fishery resources and to protect the marine environment. From the Coast Guard’s perspective, we can best maintain a public order of the oceans through a universally accepted law of the sea treaty that preserves and promotes critical U.S. national interests.

“The convention strikes the appropriate balance between the interests of countries in controlling activities off their coasts with the interests of all countries in protecting freedom of navigation. The convention provides the framework under which the Coast Guard is able to interdict illicit drug traffickers and illegal immigrants far beyond our own waters. The convention also gives the coastal state the right to protect its marine environment, manage its fisheries and off-shore oil and gas resources within the 200-nautical mile exclusive economic zone, and secure sovereign rights over resources of the continental shelf beyond 200 nautical miles.

“U.S. military forces, including Coast Guard units, already rely heavily on the freedom of navigation principles codified in the convention. These principles allow the use of the world’s oceans to meet changing national security requirements, including those necessary to fight the global war on terrorism. Becoming a party to the convention will enhance our ability to carry out the many maritime missions of the Coast Guard, refute excessive maritime claims, and participate in interpreting and applying the convention to day-to-day realities.”

###

The U.S. Coast Guard is a military, maritime, multi-mission service within the Department of Homeland Security dedicated to protecting the safety and security of America.

(https://www.piersystem.com/go/doc/786/156912/)

DATE: May 17, 2007 16:54:26 EST

Date: May 17, 2007

Contact: Cmdr. Jeff Carter(202) 372-4635

Press Release

May 17, 2007

President George W. BushThe White House1600 Pennsylvania Avenue, NWWashington, DC 20500

Dear Mr. President:

We commend you for your strong statement of support for United States accession to theUnited Nations Convention on the Law of the Sea and your continuing commitment to thenation’s leadership in international ocean governance. Accession to the Convention will protectU.S. security and sovereignty, promote international commerce, and further the conservation ofocean resources, while also enhancing progress toward a coordinated and comprehensivenational ocean policy.

As co-chairs of the Joint Ocean Commission Initiative, a collaborative and bipartisan effort toadvance the pace of meaningful ocean policy reform, we are deeply gratified by your robustreaffirmation of the Convention as being vital to our national interests. As you will recall, boththe U.S. Commission on Ocean Policy, to which you appointed all 16 members, and theprivately funded Pew Oceans Commission, unanimously recommended accession to theConvention. In fact, the U.S. Commission’s first official act was the adoption of a policyresolution urging accession after its initial organizational meeting in the fall of 2001.

Accession to the Convention will advance U.S. interests by preserving the right to use the seasto meet national security requirements and protect navigational freedom for commercial vesselsto operate around the world. It also secures our rights to natural resources through the fullextent of the continental shelf, even beyond 200 nautical miles. Additionally, the Conventionpromotes the environmental health of the oceans by supporting scientific research critical tounderstanding and managing the oceans. This is why the Convention enjoys diverse andstrong support from virtually every sector, including national defense interests, oceandependentindustries, and the environmental and scientific communities.

The time is long overdue for the U.S. to regain a leadership role in the governance of ourworld’s oceans. The Joint Initiative remains committed to working with your Administration tosecure the Senate’s advice and consent to U.S. accession before the first session of the 110th

c/o Meridian Institute / 1920 L Street NW, Suite 500 / Washington, DC / 20036-5037202-354-6444 tel / 202-354-6441 fax / www.jointoceancommission.org

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Congress adjourns. We urge your continued and vigorous personal support in this and relatedefforts to advance U.S. interests in the world’s oceans.

Sincerely,

James D. Watkins The Honorable Leon E. PanettaAdmiral, U.S. Navy (Retired) Chair, Pew Oceans CommissionChairman, U.S. Commission on Ocean Policy

cc: Secretary Michael Chertoff, Department of Homeland Security Secretary Robert M. Gates, Department of Defense Secretary Carlos M. Guiterrez, Department of Commerce Secretary Condoleeza Rice, Department of State National Security Advisor Stephen Hadley, Executive Office of the President Chairman James L. Connaughton, Council on Environmental Quality General Peter Pace, Chairman, Joint Chiefs of Staff

Senator Harry Reid, Majority Leader, United States Senate Senator Mitch McConnell, Minority Leader, United States Senate Senator Joseph R. Biden, Jr., Chairman, Senate Committee on Foreign Relations Senator Richard J. Lugar, Ranking Member, Senate Committee on Foreign Relations

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Lugar Calls for Action on the Law of the Sea Treaty

Tuesday, May 15, 2007

U.S. Sen. Dick Lugar wrote the following essay for distribution today on the importance of moving quickly on the Law of the Sea Treaty. The essay may be published in its entirety.

Last month Lugar and Senate Foreign Relations Committee Chairman Biden asked President Bush to reiterate his support for the treaty. Just today, the White House released a statement from President Bush urging the Senate to act favorably on U.S. accession to the Law of the Sea Treaty during this session of Congress. The treaty also has the strong support of the U.S. Navy.

Bush’s statement is available at: http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html.

An Overdue Step to Greater Security By Sen. Dick Lugar

The Senate this year has an opportunity to plug a large hole in our national security structure by approv-ing the Law of the Sea treaty. I have urged President Bush and my colleagues in the Senate to act soon before election year politics or a crowded Senate schedule once again scuttles the chances for this vital international agreement, which has for years been stalled in unnecessary controversy.

The treaty, formally known as the United Nations Convention on the Law of the Sea, was conceived dur-ing the Cold War as a way to protect vital U.S. national security, maritime and environmental interests from encroachment by the Soviet Union and by assertive developing countries. The lengthy and complex negotiations--involving more than 140 nations--were a triumph of American diplomacy.

Our negotiators won guarantees that U.S. warships and merchant vessels can pass freely off any coast, through all the oceans’ strategic chokepoints and even through the sea lanes of foreign archipelagos, like Indonesia and The Philippines. These guarantees, which in most cases include over-flight rights as well, are vital to our national defense. They ensure our Navy ships and submarines can navigate freely, that our cargo vessels and tankers have access to all the world’s sea lanes, and that we can control the vast riches up to 200 miles off our shores, including the huge schools of fish in the ocean and the oil and gas that lie beneath it.

We scored big wins in other areas, too: our oil and fishing industries got important rights and protections, and the treaty’s anti-pollution and natural resource provisions are so thorough that the Law of the Sea has been called “the strongest comprehensive environmental treaty now in existence.”

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As the head of the Ocean Conservancy at the time, Roger Rufe, told a 2003 Senate hearing, the treaty requires all parties “to protect and preserve the marine environment, and to conserve marine living spe-cies.”

Yet even though the United States obeys the treaty and gets many benefits from it, we’ve been so far shut out of its policy-making bodies and, in a larger sense, we’ve forfeited our unchallenged world lead-ership in oceans policy. That’s why ratification has the support of the Pentagon and the Navy, as well as President Bush. Both the energy industry and environmentalists are enthusiastic supporters.

However, ideological posturing and flat-out misrepresentations by a handful of amateur admirals have sought to cast a shadow over the treaty by suggesting that we are turning over our sovereignty to the United Nations. Their criticisms simply don’t hold water.

Ratifying the treaty will do nothing to change the status quo with respect to U.S. intelligence and sub-marine activities in the territorial seas of other countries: we’ll continue to operate under the same rules we’ve relied on for more than 40 years. Nor will we have to submit disputes over traditional uses of the sea to a United Nations tribunal. Under treaty terms we fought for, any such dispute involving the United States will be sent to arbitration before judges that we help pick.

Equally important, our negotiators made sure that under the treaty our military activities at sea have special protection and are not subject to challenge by other countries in court. To be doubly certain, the Bush administration wisely took advantage of the Treaty’s rules for making clarifying declarations and has specified explicitly that we alone define what constitute “military activities” not subject to review.

The most baffling charge is that somehow we’ll be required to give away sensitive military technology. The convention mandates no such thing. This criticism hasn’t been valid since the Reagan administra-tion, when the treaty was first completed. President Reagan refused to sign it because of technology transfer provisions and other problems in the section on deep-seabed mining. Later, a hard-fought re-negotiation led to changes that met all of President Reagan’s demands. We don’t have to give away any technology to anybody.

Failure to move now could directly hurt American interests. Russia has, under terms of the treaty, laid claim to stretches of the Arctic Ocean, hoping to lock up potential oil and gas reserves which could become more accessible as climate change shrinks the polar ice cap. Unless the United States ratifies the treaty, Moscow will be able to press its claims without an American at the table.

Moreover, the treaty, in effect since 1994, is now open for amendment. With America on the outside looking in, other countries could try to undo our hard-won gains, and we wouldn’t have a vote. We would also be left out of the decisions further developing regional and global rules on the ocean environ-ment.

But there is a larger issue as well. We’ve been a free rider on this treaty for too long. At a time when the United States is being criticized by friends and foes alike as either a Lone Ranger or worse, an arrogant bully, we can demonstrate that we believe international cooperation, done right, can serve America’s in-terests. By embracing a treaty that we championed and that improves our national security, we can help counter the prejudices that America is an unreliable partner or a threat to world order.

In 2004, the Treaty stalled on the Senate floor even after the Foreign Relations Committee voted to ap-prove it. This year, the new Senate leadership should work with President Bush to take an overdue step toward stronger national security by ratifying this treaty.

###

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RICE SAYS ADMINISTRATION SUPPORTS EARLY ACTION ON UN LAW OF SEA TREATY

January 25, 2004 -- During her nomination hearings on January 18-19, 2005, Dr. Condoleezza Rice asserted Administration support for “early Senate action” on the UN Convention on the Law of the Sea and urged the Foreign Relations Committee to report it to the floor again in the 109th Congress. Al-though the Senate Committee on Foreign Relations unanimously approved the treaty last year, the convention and implementing agreement must be re-reported for consideration in the new Congress. It is reported that the Committee may send the treaty to the floor for consideration as early as the first week of April.

In her testimony, Dr. Rice asserted that “Joining the Convention will advance the interests of the U.S. military,” and that the U.S. “will gain economic and resource benefits from the Convention.”

Full text of Dr. Rice’s responses:

Questions from Senator Richard G. LugarNomination Hearing for Dr. Condoleezza Rice

January 18 & 19, 2005

Law of the Sea: Ratification Efforts

Question #1:

The most recent Treaty Priority List submitted by the Administration to the Committee listed the Law of the Sea Convention as a treaty “for which there is an urgent need for Senate approval.” How can we work together to make certain that the treaty is ratified on an urgent basis?

Answer:

The Administration supports early Senate action on the Convention. The Administration urges the Senate Foreign Relations Committee to again favorably report out the Convention and Implementing Agreement, with the Resolution of Advice and Consent to Ratification as reported by the Committee last March.The Administration will work with the Senate leadership to bring the Convention and Implementing Agreement to a floor vote in the 109th Congress.

Law of the Sea: Benefits for National Security

Question #2:

I was pleased to see in the U.S. Ocean Action Plan that he submitted to the Congress on December 17, the President states that “as a matter of national security, economic self-interest, and international leadership, the administration is strongly committed to U.S. accession to the UN Convention on the Law of the Sea.” Can you cite specific benefits that accession will have for U.S. national security?

Answer:

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 navigation 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, through an

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exhaustive and objective list of activities that are inconsistent with innocent passage – an improvement over the subjective language in the 1958 Convention on the Territorial Sea and Contiguous Zone;

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; andby 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.

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 naviga-tion.

Law of the Sea: Economic Benefits

Question #3:

Support for U.S. accession to the Law of the Sea Convention has been expressed by U.S. companies and industry groups whose businesses depend on the oceans. These include the American Petroleum Institute, the U.S. Oil and Gas Association, the Chamber of Shipping of America, the U.S. Tuna Foun-dation, the American Chemistry Council, the National Oceans Industries Association, and the U.S. Council for International Business. Do you agree with these U.S. companies that acceding to the Law of the Sea Convention will advance U.S. economic interests and benefit American businesses?

Answer:

Yes. 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:

The Convention 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; andby establishing an institution that can promote the legal certainty sought by U.S. companies concerning the outer limits of the continental shelf.

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.

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.

The Convention also 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 protects the freedom to lay submarine cables and pipelines, whether military, commer-cial, or research.

In addition, the Convention 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

•

•

••

•

•

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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 American 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.

Law of the Sea: Military Operations

Question #4:

It is my understanding that it has been U.S. policy since President Reagan’s 1983 Statement of Ocean Policy that the United States, including the U.S. military, will act in accordance with the Law of the Sea Convention’s provisions relating to the traditional uses of the oceans. Would acceding to the Law of the Sea Convention require the United States military to make any changes in its existing policies or proce-dures with respect to the use of the oceans to conduct military operations?

Answer:

No.

As the Chief of Naval Operations, Admiral Vern Clark, testified before the Senate Armed Services Com-mittee on April 8, 2004, “I am convinced that joining the Law of the Sea Convention will have no ad-verse effect on our operations …, but rather, will support and enhance ongoing U.S. military operations, including continued prosecution of the global war on terrorism.”The Vice Chief of Naval Operations, Admiral Mike Mullen, testified before the House International Rela-tions Committee on May 12, 2004, that the Navy “currently operate[s] – willingly because it is our na-tional security interests – within the provisions of the Law of the Sea Convention in every area related to navigation. We would never recommend an international commitment that would require us to get a permission slip – from anyone – to conduct our operations.”Admiral Mullen concluded his oral statement by emphasizing, “Simply, the Convention does not require a permission slip or prohibit these activities; we would continue operating our military forces as we do today.”

Law of the Sea: Weapons Of Mass Destruction

Question #5:

Some commentators have asserted that acceding to the Law of the Sea Convention would prevent the United States from taking action necessary to stop the transportation of weapons of mass destruction across the oceans. I note, however, that State Department Legal Adviser William Taft testified before the House International Relations Committee that “the Convention will not affect applicable maritime law or policy regarding interdiction of weapons of mass destruction, their means of delivery and related materials.” Do you believe that acceding to the Law of the Sea Convention will in any way diminish the ability of the United States to take necessary action to prevent the transport of weapons of mass de-struction?

Answer:

No.

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 weap-ons of mass destruction.Like the 1958 conventions, the LOS Convention recognizes numerous legal bases for taking enforce-

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ment action against vessels and aircraft suspected of engaging in proliferation of weapons of mass destruction:

• 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.

Nothing in the Convention impairs the inherent right of individual or collective self-defense (a point which is reaffirmed in the Resolution of Advice and Consent proposed in the last Congress).

Law of the Sea: Proliferation Security Initiative

Question #6:

Some commentators have asserted that acceding to the Law of the Sea Convention would prevent or inhibit the United States from implementing the Proliferation Security Initiative. I note, however, that State Department Legal Adviser William Taft testified before our Committee that the PSI is consistent with the Law of the Sea Convention, and that the obligations under the Convention do not present any difficulties for successfully carrying out this important initiative. Chief of Naval Operations Admiral Vern Clark gave similar testimony before the Senate Armed Services Committee. I also note that all of the other countries that are partners with the United States in PSI are themselves parties to the Law of the Sea Convention. In your view, will acceding to the Convention inhibit the United States and its partners from successfully pursuing the PSI?

Answer:

No.

PSI requires participating countries to act consistent with national legal authorities and “relevant inter-national law and frameworks,” which includes the law reflected in the 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 weap-ons of mass destruction, their means of delivery, and related materials.

Like the 1958 conventions, the LOS Convention recognizes numerous legal bases for taking enforce-ment action against vessels and aircraft suspected of engaging in proliferation of weapons of mass destruction:

• 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.

Nothing in the Convention impairs the inherent right of individual or collective self-defense (a point which is reaffirmed in the Resolution of Advice and Consent proposed in the last Congress).

Law of the Sea: Role of the UN

Question #7:

Some commentators have asserted that the Law of the Sea Convention gives the United Nations the

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power to regulate the use of the oceans and that U.S. accession to the Convention would allow the United Nations to veto uses of the ocean by the United States, including by the U.S. military. It is my understanding that, under the Convention, the United Nations has no decision-making role with respect to any uses of the oceans. Please explain what role, if any, the United Nations would have in regulat-ing uses of the oceans by the United States if the United States were to accede to the Law of the Sea Convention.

Answer:

The United Nations has no decision-making role under the Convention in regulating uses of the oceans by any State Party to the Convention.Commentators who have made this assertion have argued that the International Seabed Authority (ISA) somehow has regulatory power over all activities in the oceans. The authority of the ISA is limited to administering the exploration and exploitation of minerals in areas of deep seabed beyond national jurisdiction, generally more than 200 miles from shore. The ISA has no other role and has no general regulatory authority over the uses of the oceans, including freedom of navigation and oversight.

Law of the Sea: Taxation by International Seabed Authority

Question #8:

Some commentators have asserted that acceding to the Law of the Sea Convention would involve giv-ing the International Seabed Authority the power to impose taxes on U.S. citizens. State Department Legal Adviser William Taft has testified before Congress that the International Seabed Authority has no ability or authority to levy taxes. In your view, is there any basis for concern that U.S. accession to the Law of the Sea Convention will result in U.S. citizens being subject to taxation by the International Seabed Authority?

Answer:

No. The Convention does not provide for or authorize taxation of individuals or corporations.

Law of the Sea: Technology Transfer

Question #9:

Some commentators have asserted that the United States would be required to transfer sensitive technology, including technology with military applications, to developing countries if it acceded to the Law of the Sea Convention. It is my understanding, however, that provisions of the Law of the Sea Convention containing mandatory technology transfer requirements were eliminated by the 1994 Agree-ment addressing the Convention’s deep seabed mining regime. Do you believe there is any reason for concern that acceding to the Convention would require the United States to transfer any technology to developing countries?

Answer:

No, technology transfers are not required by the Convention.

Law of the Sea: U.S. Sovereignty over Ocean Resources

Question #10:

Some commentators have asserted that acceding to the Law of the Sea Convention will involve ceding to the International Seabed Authority sovereignty currently enjoyed by the United States over ocean resources. It is my understanding, however, that the jurisdiction of the International Seabed Authority addresses only mining of minerals in areas of the deep seabed beyond the jurisdiction of any country,

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and that the United States has never asserted sovereignty over such areas. Do you believe that acced-ing to the Convention would involve any surrender of existing United States claims to sovereignty over ocean resources?

Answer:

No, the United States has never claimed sovereignty over areas or resources of the deep seabed.The Convention’s provisions on the exclusive economic zone and continental shelf preserve and expand U.S. sovereign rights over the living and non-living ocean resources located within, and with regard to the continental shelf beyond, 200 miles of our coastline.

Law of the Sea: Effect of 1994 Implementing Agreement

Question #11:

Some commentators have asserted that there is uncertainty as to the legal status of the 1994 Agree-ment Relating to the Implementation of Part XI of the Law of the Sea Convention, which addresses the Convention’s deep seabed mining regime. I have received a letter from eight former Legal Advisers to the Department of State from both Republican and Democratic Administrations stating that the 1994 Agreement “has binding legal effect in its modification of the LOS Convention.” Do you believe there is any basis for questioning the legal effect of the 1994 Agreement?

Answer:

No. My understanding is that the notion that the 1994 Agreement has no legal effect is incorrect.

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Western Governors’ AssociationPolicy Resolution 06-17

June 13, 2006Sedona, Arizona

Improved Ocean and Coastal Management and Protection

A. BACKGROUND

1. The President of the United States, the U.S. Congress, all coastal states, and twonational commissions have identified a compelling need at the international,national, state, regional, and local levels to improve the protection andmanagement of the nation’s ocean and coastal resources. Pursuant to the OceansAct of 2000, the U.S. Commission on Ocean Policy released its findings andrecommendations for a new comprehensive national ocean policy in 2004. TheU.S. Commission report followed the release in 2003 of similar findings andrecommendations by the privately funded Pew Oceans Commission. Both reportsconclude that the nation’s oceans and coasts are severely threatened. The reportsidentify a set of priorities including the need for wide incorporation of ecosystem- based management, ocean governance reforms, improved fisheries management,increased reliance on science in management decisions, and more funding forocean and coastal programs.

2. On December 17, 2004, the President announced the release of the U.S. OceanAction Plan in response to the reports of these commissions. The President alsoissued an Executive Order creating a new Cabinet-level Committee on OceanPolicy to coordinate federal ocean policy, and to address the commissions’recommendations.

3. In further response to the commissions’ reports, a number of oceans bills wereintroduced during the latter part of the 108th Congress and reintroduced in the 109thCongress to address these issues. Additionally, Congress is considering billsto reauthorize two landmark ocean policy laws: the Marine Mammal ProtectionAct and the Magnuson-Stevens Fishery Conservation and Management Act.

4. Some of the major issues that have been identified include: • International. The 1982 Convention of the Law of the Sea enabled the United States and coastal states to establish 200 nautical mile exclusive economic zones to control the use and conservation of resources. The U.S. exclusive economic zone (EEZ) was established on March 10, 1983, by U.S. Presidential Proclamation No. 5030. The U.S. territorial sea was expanded on December 27, 1988 from three to twelve nautical miles, the maximum breadth permitted under international law, by U.S. Presidential Proclamation No. 5928. The U.S. Senate has never provided its consent for the U.S. accession to the Law of the Sea Treaty despite the call from both national ocean commissions, many coastal Governors (including California, Oregon, Washington, Hawaii, and American Samoa), and other national leaders. In addition, the extension of the territorial sea was never confirmed by the U.S. Congress which created considerable ambiguity regarding the application of domestic laws in the waters between three and twelve miles offshore. This is significant because the term “territorial sea” is used in approximately 68 different federal statutes.

• National: Ocean management and protection is inextricably linked to the need for accountability and coordination between all levels of government.

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Frequently the burden of meeting federal objectives falls on coastal states, commonwealths, territories, and local governments, often with insufficient technical or financial support to carry them out. The prevalence of single-purpose federal laws and approaches to ocean resource management (and the multitude of agencies charged with their enforcement) has resulted in multi-tiered planning, regulation, and enforcement which is often highly fragmented. This fragmentation results in less efficient and effective approaches for addressing complex legal, policy, and scientific issues relating to the sea. Although the U.S. Commission on Ocean Policy provided 220 recommendations to address these national concerns, most implementation to date has occurred through regional and state actions, and not through actions led at the federal level.

• State and Regional: Coastal states are moving forward with the development of ocean action plans, new action oriented ocean councils, and new legislation aimed at moving forward with the implementation of many of the recommendations of both the U.S and Pew Ocean Commissions. In addition, new efforts by multiple states throughout the nation have resulted in new regional approaches to ocean and coastal management. The best example of island regional leadership is the Coral Reef Task Force and the All Pacific Islands summits that have been held to help coordinate inter-island initiatives.

B. GOVERNORS’ POLICY STATEMENT

1. The Western Governors assert that congressional action for greater federalinteragency coordination is needed to ensure comprehensive and coordinatedmanagement, conservation and enhancement of ocean resources for their intrinsicvalue and for the benefit of current and future generations. This action mustprovide more efficient and effective means to achieve the following goals:

a. Stewardship - To assess, conserve, restore, and sustainably manage ocean resources and the ocean ecosystem. b. Economic Sustainability - To encourage environmentally sound, sustainable, and economically beneficial ocean resource development activities. c. Research, Education and Technology - To advance research, sound science, education programs, and technology developments to meet future needs and uses of the ocean. d. Jurisdiction and Ownership - To maximize interests of states, commonwealths, and territories, within State Tidelands, the territorial sea, and the exclusive economic zone. 2. The Western Governors believe that key management questions regarding oceanand coastal habitats, water quality, coastal hazards, maritime commerce, tourism,and research can be better addressed by the federal government through a morecoordinated and accountable approach with full participation and cooperationwith the coastal states.

3. In acting on future legislation regarding ocean and coastal management, Congressshould:

a. Provide consent through the U.S. Senate to the United States accession to the Law of the Sea Treaty. In addition, the Congress should clarify ownership and jurisdiction issues within the exclusive economic zone and the territorial sea addressing at a minimum: joint research initiatives, enhanced revenue sharing with states, commonwealths and territories and

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legal questions regarding the use of the term “territorial sea” in over 68 federal statutes; and b. Provide methods to reduce the current fragmented approach to ocean management at the federal level; c. Re-authorize the Coastal Zone Management Act and other key ocean and coastal management statutes and authorities; d. Provide sufficient funding and technical guidance for states, commonwealths and territories to realistically address important ocean management concerns regarding ocean habitats, water quality, maritime commerce, tourism, and research, and to support existing and new efforts to create regional approaches to ocean and coastal collaboration and coordination; and e. Acknowledge and support the emulation of environmentally sound development and sustainable resource harvest where it already exists.

4. The Western Governors also believe that the U.S. needs to recognize thatAmerican Flag Pacific Island commonwealths and territories have inherentjurisdictional rights and responsibilities pertaining to the conservation,exploration, and development of the resources in their EEZs that stem fromtraditional rights, federally approved covenants, international law, and customsand conventions.

5. The Western Governors commend the U.S. Commission on Ocean Policy for theirreport and call on Congress and the Administration to thoroughly examine andimplement those recommendations supported by states’ Governors, and therebyensuring that states’ ocean and coastal needs are met.

C. GOVERNORS’ MANAGEMENT DIRECTIVE

1. The Western Governors’ Association (WGA) shall convey this resolution to thePresident of the United States, the Secretaries of the Departments of Commerce,Interior, Justice, and State, and to relevant committees and subcommittees ofCongress.

2. This resolution shall serve as a basis for organizing the positions of Westernstates, commonwealths, and territories for any applicable legislation oradministrative action.

This policy resolution was originally adopted by the Western Governors in 1991 andreadopted in 1994 as Resolution 91-022. It was modified and readopted in 1997 asResolution 97-018, and in 2000 as 00-018.

F:\06resos\May 16 Proposed Resos\Ocean.doc

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IV.organIzatIonalandBusInesssuPPort

A. Letter to Senators Reid and McConnell from over 100 Prominent American Leaders

B. Letter to Senators Biden and Lugar from the Natural Resources Defense Council, the World Wildlife Fund, the Nature Conservancy, and other Environmental Groups

C. Letter to Senator Biden from the Pew Charitable Trust

D. Chamber of Shipping of America Testimony to the Senate Foreign Relations Committee

E. Western Pacific Fisheries Management Council endorsement of US accession to UNCLOS

F. League of Conservation Voters, Physicians for Social Responsibility and other Environmental Groups Letter to Senate Environment and Public Works Committee

G. American Petroleum Industries, International Assn of Drilling Contractors, and National Ocean Industries Association Testimony to the Senate Foreign Relations Committee

H. The Ocean Conservancy Testimony to the Senate Foreign Relations Committee

I. Letter to Senator Helms from AT&T

J. Letter to Senators Biden and Lugar from the Garden Club of America

K. Letter to Senator Biden from The Maritime Law Association of the United States

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September 24, 2007 The Honorable Harry Reid The Honorable Mitch McConnell Majority Leader Minority Leader United States Senate United States Senate Washington, DC 20510 Washington, DC 20510

THE SENATE SHOULD APPROVE U.S. ACCESSION TO THE LAW OF THE SEA CONVENTION

Dear Senator Reid and Senator McConnell: We, the undersigned, urge the Senate to expeditiously provide its advice and consent for United States accession to the United Nations Convention on the Law of the Sea. We agree with President Bush’s statement of May 15, 2007, in which he asserted that accession to the Convention is essential to protect national security interests, secure sovereign rights over extensive marine areas, and promote U.S. interests in the environmental health of the oceans. We strongly urge the Senate to approve the Convention before the adjournment of this session of Congress. The Convention has been thoroughly reviewed in numerous Senate hearings and public forums. It has overwhelming bipartisan support from a broad and diverse range of interests that have carefully considered the issues from a variety of perspectives. It is clear that accession will protect and enhance our country’s sovereign military, economic, and environmental interests. The Convention codifies and strengthens freedoms of navigation and overflight that are essential to U.S. military mobility. The Navy and Coast Guard have testified that joining the Convention will strengthen our ability to defend these and other important maritime rights and will enhance our national and homeland security efforts. Recent statements of support for accession from National Security Advisor Stephen Hadley, Deputy Secretary of State John Negroponte, and Deputy Secretary of Defense Gordon England reinforce the important national security benefits that will accompany accession. All major U.S. ocean industries, including offshore energy, maritime transportation and commerce, fishing, and shipbuilding, support U.S. accession to the Convention because its provisions help protect vital U.S. economic interests and provide the certainty and stability crucial for investment in global maritime enterprises. Environmental organizations also strongly support the Convention. As a party, the United States would be in the best position to lead future applications of this framework for regional and international cooperation in protecting and preserving the marine environment. The Congressionally-mandated and Presidentially-appointed U.S. Commission on Ocean Policy and the independent Pew Oceans Commission both unanimously recommend accession to the Convention as an important part of a comprehensive and coordinated U.S. ocean policy. Currently, 155 nations are party to the Law of the Sea Convention. Yet, despite an exceptional level of diverse bipartisan support, the United States remains the primary industrialized nation not a party to the

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September 24, 2007 – 2 of 8

Convention. U.S. accession to the Convention would send a clear message in support of our efforts to foster international approaches, while significantly furthering our own national interests. The Senate should move expeditiously to consider and approve U.S. accession to the United Nations Convention on the Law of the Sea. cc: President George W. Bush Vice President Richard B. Cheney Secretary Condoleezza Rice Secretary Robert M. Gates Senator Joseph R. Biden, Jr. Senator Richard G. Lugar

James D. Watkins

Admiral, U.S. Navy (Retired) Chairman, U.S. Commission on Ocean Policy Co-Chair, Joint Ocean Commission Initiative

The Honorable Leon E. Panetta Chair, Pew Oceans Commission

Co-Chair, Joint Ocean Commission Initiative

John Adams Co-Founder

Natural Resources Defense Council

Madeline Albright Former Secretary of State

Chairman, Board of Directors The Democratic Institute for International Affairs

David M. Abshire

President Center for the Study of the Presidency

Bruce Babbitt

Former Secretary of the Interior Chairman, Board of Directors,World Wildlife Fund

James A. Baker, III

Former Secretary of State Senior Partner, Baker Botts, LLP

Governor John Baldacci

State of Maine

Robert D. Ballard

Professor, Graduate School of Oceanography University of Rhode Island

Lillian C. Borrone

Former Assistant Executive Director Port Authority of New York and New Jersey

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Ted A. Beattie

President and CEO John G. Shedd Aquarium

Frances Beinecke

President Natural Resources Defense Council

Senator John B. Breaux

Senior Counsel Patton Boggs LLP

Charles J. Brown

President and CEO Citizens for Global Solutions

Governor Felix Camacho

Territory of Guam

Governor Donald Carcieri

State of Rhode Island

David D. Caron Co-Director, Law of the Sea Institute

University of California, Berkley

Red Cavaney

President and CEO American Petroleum Institute

Clarence P. Cazalot, Jr.

President and CEO Marathon Oil Corporation

Eileen Claussen President and Chair of the Board

Pew Center on Global Climate Change

James M. Coleman

Boyd Professor, Coastal Studies Institute Louisiana State University

John Connelly

President National Fisheries Institute

Joseph J. Cox

President and CEO Chamber of Shipping of America

Walter Cronkite

CBS

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Admiral William J. Crowe, Jr.

Fomer Chairman, Joint Chiefs of Staff U.S. Navy (Retired)

Chairman, Board of Visitors, International Programs Center and Center for Peace Studies

Ann D'Amato Commissioner

U.S. Commission on Ocean Policy

Thomas Dammrich

President National Marine Manufacturers Association

John C. Danforth Bryan Cave LLP

Lawrence R. Dickerson

President and COO Diamond Offshore Drilling, Inc.

John Englander

CEO International Seakeepers Society

Donald L. Evans

Former Secretary of Commerce

Thomas Fry

President National Ocean Industries Association

Vice Admiral Paul G. Gaffney II

U.S. Navy (Retired)

Jack N. Gerard

President and CEO American Chemistry Council

James C. Greenwood President and CEO

Biotechnology Industry Organization

Governor Christine Gregoire

State of Washington

Carlotta Leon Guerrero

Executive Director Ayuda Foundation

Alexander M. Haig, Jr.

Former Secretary of State Chairman, Worldwide Associates, Inc.

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Scott A. Hajost

Executive Director IUCN-US

Lee Hamilton

President and Director Woodrow Wilson International Center for Scholars

Mike Hayden

Secretary Kansas Department of Wildlife and Parks

Tony Haymet

Director Scripps Institution of Oceanography

Marc J. Hershman

Professor, School of Marine Affairs University of Washington

Carla A. Hills

Former U.S. Trade Representative Chairman and CEO, Hills & Company

Michael Kantor

Former Secretary of Commerce

Paul L. Kelly

Kelly Energy Consultants

Donald Kennedy

Editor in Chief, Science Magazine, American Association for the Advancement of Science

Charles Kennel Founding Director, Environment and Sustainability

Initiative, Scripps Institution of Oceanography

Tony Knowles

Former Governor of Alaska

Christopher L. Koch President and CEO

World Shipping Council

Governor Ted Kulongoski

State of Oregon

Melvin R. Laird

Former Secretary of Defense

P. Patrick Leahy

Executive Director American Geological Institute

Governor Linda Lingle

State of Hawaii

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Jane Lubchenco

Wayne and Gladys Valley Professor of Marine Biology, Department of Zoology

Oregon State University

James R. Luyten Acting President and Director

Woods Hole Oceanographic Institution

Steven J. McCormick

President and CEO The Nature Conservancy

Robert C. McFarlane

Former National Security Advisor Chairman, McFarlane Associates, Inc.

Governor Ruth Ann Minner

State of Delaware

Senator George J. Mitchell Chairman DLA Piper

John Norton Moore Director, Center for Oceans Law and Policy

University of Virginia School of Law

Frank E. Muller-Karger Dean, School for Marine Science and Technology

University of Massachusetts Dartmouth

James J. Mulva

Chairman and CEO ConocoPhillips

Mike Nussman

President and CEO American Sportfishing Association

Sean O'Keefe

Former Secretary of the Navy Chancellor, Louisiana State University

Julie Packard

Executive Director Monterey Bay Aquarium

Pietro Parravano

President Institute for Fisheries Resources

Brian T. Petty

Senior Vice President International Association of Drilling Contractors

Thomas R. Pickering

Former Under Secretary for Public Affairs U.S. Department of State

Vice Chairman, Hills & Company

Colin Powell

Former Secretary of State

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Admiral Joseph W. Prueher

U.S. Navy (Retired)

Joshua S. Reichert

Managing Director, Pew Environmental Group The Pew Charitable Trusts

William K. Reilly

Former EPA Administrator Chairman Emeritus, World Wildlife Fund

Joseph P. Riley, Jr.

Mayor of Charleston

Carter S. Roberts President and CEO

World Wildlife Fund

Peter J. Robertson

Vice Chairman of the Board Chevron Corporation

David Rockefeller, Jr.

Director and Former Chair of Board of Trustees The Rockefeller Foundation

Andrew A. Rosenberg

Professor, Department of Natural Resources and Institute for the Study of Earth, Ocean, and Space

University of New Hampshire

William D. Ruckelshaus Strategic Director

Madrona Venture Group

Vice Admiral Roger T. Rufe, Jr.

U.S. Coast Guard (Retired)

Barry Russell

President Independent Petroleum Association of America

Paul A. Sandifer

Senior Scientist, National Ocean Service National Oceanic and Atmospheric Administration

Rear Admiral William L. Schachte, Jr.

U.S. Navy (Retired)

Harry N. Scheiber

Co-Director, Law of the Sea Institute University of California, Berkley

Richard Schwartz

Chairman and Founder Boat Owners Association of the United States

Governor Arnold Schwarzenegger

State of California

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Lt. Gen. Brent Scowcroft U.S. Air Force (Retired)

Andrew Sharpless

CEO Oceana

George P. Shultz

Former Secretary of State Chairman, J.P. Morgan Chase International Council

A.F. Spilhaus, Jr.

Executive Director American Geophysical Union

Governor Eliot Spitzer

State of New York

Vikki N. Spruill

President and CEO Ocean Conservancy

Kathryn Sullivan

Director, Battelle Center for Mathmatics and Science Education Policy, Ohio State University

John Temple Swing President Emeritus

Foreign Policy Association

Strobe Talbott

President Brookings Institution

Russell E. Train

Chairman Emeritus World Wildlife Fund

Mead Treadwell

Chairman U.S. Arctic Research Commission

Richard D. West

Rear Admiral, U.S. Navy (Retired) President, Consortium for Oceanographic Research and

Education

Patten D. White Commissioner

Atlantic States Marine Fisheries Commission

Christine Todd Whitman Whitman Strategy Group

Timothy E. Wirth

President United Nations Foundation and Better World Fund

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Natural Resources Defense CouncilWorld Wildlife Fund U.S. • The Nature Conservancy • Oceana

Wildlife Conservation Society • National Environmental Trust • Defenders of WildlifeThe Ocean Conservancy • Deep Search International

Deep Ocean Exploration and Research, Inc. • IUCN-U.S.Marine Conservation Biology Institute

Honorable Joseph R. Biden, Jr., ChairmanHonorable Richard G. Lugar, Ranking MemberForeign Relations CommitteeUnited States Senate446 Dirksen Senate Office BuildingWashington, D.C. 20410

6 February 2007

Dear Senators Biden and Lugar:

On behalf of our organizations, we write to urge you to expeditiously report a Resolutionof Ratification calling upon the full Senate to give its advice and consent to U.S.accession to the United Nations Convention on the Law of the Sea (UNCLOS).

Our organizations together represent more than a million members, supporters andactivists concerned with the conservation of marine resources both here in the UnitedStates and on the high seas. We believe prompt U.S. accession to the Convention isessential to the ability of the United States to exercise leadership in key upcomingdebates and decisions on international fisheries policy, biodiversity conservation, andappropriate management of rapidly expanding human activity on the high seas.

The Convention establishes an important foundation for the further development andimplementation of effective ocean-related international law and policy at global, regional,sub-regional levels, as well as nationally, for protection, conservation, and sustainableuse of the ocean. Its basic obligations for all states to protect and preserve the marineenvironment and to conserve marine living species, its call for the further development ofglobal and regional rules on these subjects, and the principles and objectives it establishesfor that development represent significant steps forward.

All major U.S. ocean industries, including the offshore oil and gas, maritimetransportation and commerce, fishing and shipbuilding support U.S. accession to theConvention. The fact that our community and a diverse set of industry interests allsupport swift ratification is testament to the importance of moving forward quickly.

We look forward to working with you to achieve this important goal.

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Sincerely,

Frances G. Beinecke Sylvia EarlePresident President, Deep Search InternationalNatural Resources Defense Council Chairman, Deep Ocean Exploration National Geographic Explorer-in- Residence

William M. Eichbaum John F. CalvelliVice-President Senior Vice President for Public AffairsWorld Wildlife Fund, Marine Portfolio Wildlife Conservation Society

Scott Hajost Vikki SpruillExecutive Director President and CEOIUCN-U.S. The Ocean Conservancy

Jimmie Powell Elliott Norse, Ph.D.Director of Government Relations PresidentThe Nature Conservancy Marine Conservation Biology Institute

Robert Irvin Michael F. Hirshfield, Ph.D.Senior Vice President for Conservation Senior Vice President, North AmericaPrograms Chief Scientist, OceanaDefenders of Wildlife

Phil ClappPresidentNational Environmental Trust

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STATEMENT BY

PAUL L. KELLYSENIOR VICE PRESIDENTROWAN COMPANIES, INC.

ON BEHALF OFTHE AMERICAN PETROLEUM INSTITUTE

THE INTERNATIONAL ASSOCIATION OF DRILLING CONTRACTORS

AND THENATIONAL OCEAN INDUSTRIES ASSOCIATION

BEFORE THEUNITED STATES SENATE

COMMITTEE ON FOREIGN RELATIONS

HEARING ON THE UNITED NATIONS CONVENTIONON THE

LAW OF THE SEA

WASHINGTON, D.C.OCTOBER 21, 2003

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Mr. Chairman and members of the Committee:

Thank you for inviting me to testify before you today to express the U.S. oil and natural gas industry’s views on the important subject of United States accession to the United Nations Law of the Sea (LOS) Convention.

Taken together, the three associations I am representing here today, the American Petroleum Institute (API), the International Association of Drilling Contractors (IADC) and the National Ocean Industries Association (NOIA), represent the full spectrum of American companies involved in all phases of oil and natural gas exploration and production in the oceans of the world, as well as the marine transportation of petroleum and petroleum products.

The offshore oil and natural gas industry is a multibillion-dollar industry. A recent economic survey of global ocean markets done in the United Kingdom1 brings home clearly the economic significance of offshore oil and natural gas production. Offshore oil and natural gas is now the world’s biggest marine industry where oil production alone can have a value of more than $300 billion per annum. This compares to global shipping revenues of $234 billion and expenditures of all the world’s navies amounting to $225 billion. Submarine cables, which provide the “worldwide” part of the worldwide web and enable the very existence of the internet, is the next largest marine business with $86 billion in revenues; and incidentally, that important industry is on record as supporting United States accession to the LOS Convention. In addition to activities in areas under United States jurisdiction such as Alaska and the Gulf of Mexico, our nation has substantial interests in offshore oil and natural gas development activities globally, given our significant reliance upon imported oil. U.S. oil and natural gas production companies, as well as oilfield drilling, equipment and service companies, are important players in the competition to locate and develop offshore natural gas and oil resources. The pace of technological advancement, which drove the need to define the outer limits of the continental margin, has not abated. Advances in technology and increased efficiencies are taking us to greater and greater water depths and rekindling interest in areas that once were considered out of reach or uneconomic.

Recognizing the importance of the LOS Convention to the energy sector, the National Petroleum Council, an advisory body to the United States Secretary of Energy, in 1973 published an assessment of industry needs in an effort to influence the negotiations. Entitled “Law of the Sea: Particular Aspects Affecting the Petroleum Industry,” it contained conclusions and recommendations in five key areas including freedom of navigation, stable investment conditions, protection of the marine environment, accommodation of multiple uses, and dispute settlement. The views reflected in this study had a substantial impact on the negotiations, and most of its recommendations found their way into the Convention in one form or another.

Among the provisions that were influenced by the study are the following:

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

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confirmation of coastal state control of the continental shelf and its resources to a distance of 200 nautical miles and beyond to the outer edge of the continental margin, defined on the basis of geological criteria;establishment of a Continental Shelf Commission to advise states in delimiting their continental shelves in order to promote certainty and uniformity;specific provisions on the settlement of disputes related to the delimitation of continental shelves among states with opposite or adjacent coasts;revenue sharing applicable to development of resources beyond 200 nautical miles based on a modest royalty beginning in the sixth year of production;recognition of the role of the International Maritime Organization in setting international safety and select environmental standards;allocation of enforcement responsibility for safety and environmental standards among states of registry, port states, and coastal states;requirements for the prompt release of detained vessels and crews upon the posting of bond; anda comprehensive system of dispute settlement allowing a choice among the International Court of Justice, a specialized Law of the Sea Tribunal, and arbitration.

Having been satisfied with changes made to the Convention, the U.S. oil and natural gas industry’s major trade associations, including API, IADC and NOIA, support ratification of the Convention by the United States Senate. Also, the Outer Continental Shelf Policy Committee, an advisory body to the United States Secretary of the Interior on matters relating to our offshore oil and natural gas leasing program, in 2001 adopted resolutions supporting the United States acceding to the Convention.

Offshore Oil and Natural Gas Resources

The Convention is important to our efforts to develop domestic offshore oil and natural gas resources. The Convention secures each coastal nation’s exclusive rights to the living and non-living resources of the 200-mile exclusive economic zone (EEZ). In the case of the United States this brings an additional 4.1 million square miles of ocean under U.S. jurisdiction. This is an area larger than the U.S. land area. The Convention also broadens the definition of the continental shelf in a way that favors the U.S. as one of the few nations with broad continental margins, particularly in the North Atlantic, Gulf of Mexico, the Bering Sea and the Arctic Ocean.

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

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

Exploration Moving Farther from Shore into Deeper Waters

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

Revenue Sharing

The Convention provides a reasonable compromise between the vast majority of nations whose continental margins are less than 200 miles and those few, including the U.S., whose continental shelf extends beyond 200 miles, with a modest obligation to share revenues from successful minerals development seaward of 200 miles. Payment begins in year six of production at the rate of one percent and is structured to increase at the rate of one percent per year to a maximum of seven percent. Our understanding is that this royalty should not result in any additional cost to industry. Considering the significant resource potential of the broad U.S. continental shelf, as well as U.S. companies’ participation in exploration on the continental shelves of other countries, on balance the package contained in the Convention, including the modest revenue sharing provision, clearly serves U.S. interests.

Importance of Delineating the Continental Shelf

The Convention established the Continental Shelf Commission, a body of experts through which nations may establish universally binding outer limits for their continental shelves under Article 76. The objective criteria for delineating the outer limit of the continental shelf, plus the presence of the Continental Shelf Commission, should avoid

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potential conflicts and provide a means to ensure the security of tenure crucial to capital-intensive deepwater oil and natural gas development projects.

It is in the best interest of the U.S. to register its claims extending the outer limits of our continental margin beyond 200 miles where appropriate— in so doing the U.S. could expand its areas for mineral exploration and development by more than 291,383 square miles. We need to get on with the mapping work and other analyses and measurements required to substantiate our claims, however. Some of the best technology for accomplishing this resides in the United States. Establishing the continental margin beyond 200 miles is particularly important in the Arctic, where there are a number of countries vying for the same resource area. In fact, Russia has already submitted claims with respect to the outer limit of its continental shelf in the Arctic.

Resolution of Boundary Disputes

As regards maritime boundaries, there presently exist about 200 undemarcated claims in the world with 30 to 40 actively in dispute. There are 24 island disputes. The end of the Cold War and global expansion of free market economies have created new incentives to resolve these disputes, particularly with regard to offshore oil and natural gas exploration. During the last few years hundreds of licenses, leases or other contracts for exploration rights have been granted in a variety of nations outside the U.S. These countries are eager to determine whether or not hydrocarbons are present in their continental shelves, and disputes over maritime boundaries are obstacles to states and business organizations which prefer certainty in such matters. We have had two such cases here in North America where bilateral efforts have been made to resolve the maritime boundaries between the U.S. and Mexico in the Gulf of Mexico and between the U.S. and Canada in the Beaufort Sea. Both of these initiatives have been driven by promising new petroleum discoveries in the regions. The boundary line with Mexico was resolved in 2000 after a multi-year period of bilateral negotiations. Negotiations with Canada, however, seem to be languishing.

While such bilateral resolution is always an option, the Convention provides stability and recognized international authority, standards and procedures for use in areas of potential boundary dispute, as well as a forum for dealing with such disputes and other issues.

The settlement we made with Mexico now makes it possible for leases in the Gulf of Mexico issued by the Department of the Interior’s Minerals Management Service (MMS) to be subject to the Article 82 “Revenue Sharing Provision” calling for the payment of royalties on production from oil and natural gas leases beyond the EEZ. According to MMS, seven leases have been awarded to companies in the far offshore Gulf of Mexico which include stipulations that any discoveries made on those leases could be subject to the royalty provisions of Article 82 of the Convention. MMS also reports that one successful well has been drilled about 2.5 miles inside the U.S. EEZ. Details on how the revenue sharing scheme will work remain unclear, and without ratification the U.S. Government’s ability to influence decisions on implementation of this provision is limited or non-existent. This creates uncertainty for U.S. industry.

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Gas Hydrates

Ratification of the Law of the Sea Convention also has an important bearing on a longer-term potential energy source that has been the subject of much research and investigation at the U.S. Department of Energy for several years: gas hydrates.

Gas hydrates are ice-like crystalline structures of water that form “cages” that trap low molecular weight gas molecules, especially methane, and have recently attracted international attention from government and scientific communities. World hydrate deposits are estimated to total more than twice the world reserves of all oil, natural gas and coal deposits combined.

Methane hydrates have been located in vast quantities around the world in continental slope deposits and permafrost. They are believed to exist beyond the EEZ. If the hydrates could be economically recovered, they represent an enormous potential energy resource. In the U.S. offshore, hydrates have been identified in Alaska, all along the West Coast, in the Gulf of Mexico, and in some areas along the East Coast. The technology does not now exist to extract methane hydrates on a commercial scale. A joint industry group of scientists has been at work in the Gulf of Mexico since May of this year examining the hydrate potential in several deepwater canyons. This work is intended to help companies find and analyze hydrates seismically and to complete an area-wide profile of hydrate deposits.

In the Methane Hydrate Research and Development Act of 2000 Congress mandated the National Research Council to undertake a review of the Methane Hydrate Research and Development Program at the Department of Energy to provide advice to ensure that significant contributions are made towards understanding methane hydrates as a source of energy and as a potential contributor to climate change. That review is now underway. The U.S. Navy has also done work on gas hydrates, as has the U.S. scientific community, including universities such as Louisiana State University and Texas A&M. Significant research is also being conducted by scientific institutions in Japan. The United States needs to have a seat at the table of the Continental Shelf Commission in order to influence development of any international rules or guidelines that could affect gas hydrate resources beyond our EEZ.

Marine Transportation of Petroleum

Oil is traded in a global market with U.S. companies as leading participants. The LOS Convention’s protection of navigational rights and freedoms advances the interests of energy security in the U.S., particularly in view of the dangerous world conditions we have faced since the tragic events of September 11, 2001. About 44 percent of U.S. maritime commerce consists of petroleum and petroleum products. Trading routes are secured by provisions in the Convention combining customary rules of international law, such as the right of innocent passage through territorial seas, with new rights of passage through straits and archipelagoes. U.S. accession to the Convention would put us in a much better position to invoke such rules and rights.

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U.S. Oil Imports at All-Time High

The outlook for United States energy supply in the first 25 years of the new millennium truly brings home the importance of securing the sea routes through which imported oil and natural gas is transported.

According to API’s Monthly Statistical Report published on October 15, 2003, imports of crude oil reached a new, all-time high in September. At close to 10.4 million barrels per day, crude imports surpassed the previous high reached in April 2001. When combined with higher volumes for products such as gasoline, diesel fuel and jet fuel, total imports amounted to nearly two thirds of domestic deliveries for the month. This is an extraordinary volume of petroleum liquids being transported to our shores in ships every day.

The Department of Energy’s Energy Information Administration (EIA), in its 2003 Annual Energy Outlook, projects that by 2025, net petroleum imports, including both crude oil and refined products on the basis of barrels per day, are expected to account for 68 percent of demand, up from 55 percent in 2001. Looking at the October numbers from API makes one wonder whether 2025 is fast approaching.

Growing Natural Gas Imports

EIA’s 2003 Outlook also states that, despite the projected increase in domestic natural gas production, over the next twenty years an increasing share of U.S. gas demand will also be met by imports. A substantial portion of these imports will come in the form of liquefied natural gas (LNG). All four existing LNG import facilities in the U.S. are now open, and three of the four have announced capacity expansion plans. Meanwhile, several additional U.S. LNG terminals are under study by potential investors, and orders for sophisticated new LNG ships are being placed. This means even more ships following transit lanes from the Middle East, West Africa, Latin America, Indonesia, Australia, and possibly Russia, to name the prominent regions seeking to participate in the U.S. natural gas market.

Global Significance of Persian Gulf Exports

Another important factor to consider is that, according to EIA, Persian Gulf exports as a percentage of world oil imports are in the process of growing from 30 percent in 2001 to 38 percent in 2025. The Persian Gulf is a long, semi-enclosed sea. Much of it lies beyond the 12-mile limit of the territorial sea but not beyond the 200-mile limit. Within the Persian Gulf there are seven settled international maritime boundaries and as many as nine possible maritime boundaries that have not been resolved in whole or in part.2

Fortunately, from the standpoint of U.S. and world dependence on Persian Gulf oil imports, the LOS Convention provides authority that in those areas beyond the

2 See “Persian Gulf Disputes,” comments prepared by Jonathan L. Charney, Professor of Law, Vanderbilt University, for a conference on “Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation,” New York City on February 7-8, 1997.

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territorial sea the right of high seas navigation applies to all vessels. According to the Convention, within the territorial sea vessels have the right of innocent passage and, for straits used for international navigation, the right of transit passage applies. It goes without saying that the United States would be in a better position to secure these rights in this unstable area if it were a party to the Convention.

Rising World Oil Demand

World oil demand in 2001 was 76.9 million barrels per day. Up to 1985 oil demand in North America was twice as large as Asia. As developing countries improve their economic conditions and transportation infrastructure we could soon see Asian oil demand surpass North American demand. By 2025 world demand is expected to reach nearly 119 million barrels per day. Steady growth in the demand for petroleum throughout the world means increases in crude oil and product shipments in all directions throughout the globe. The Convention can provide protection of navigational rights and freedoms in all these areas through which tankers will be transporting larger volumes of oil and natural gas.

Need for U.S. Involvement in LOS Governance

In conclusion, from an energy perspective we see potential future pressures building in terms of both marine boundary and continental shelf delineations and in marine transportation. We believe the LOS Convention offers the U.S. the chance to exercise needed leadership in addressing these pressures and protecting the many vital U.S. ocean interests. Notwithstanding the United States’ view of customary international law, the U.S. petroleum industry is concerned that failure by the United States to become a party to the Convention could adversely affect U.S. companies’ operations offshore other countries. In November 1998, the U.S. lost its provisional right of participation in the International Seabed Authority by not being a party to the Convention. At present there is no U.S. participation, even as an observer, in the Continental Shelf Commission— the body that decides claims of OCS areas beyond 200 miles— during its important developmental phase. The U.S. lost an opportunity to elect a U.S. commissioner in 2002, and we will not have another opportunity to elect a Commissioner until 2007.

The United States should also be in a position to exercise leadership and influence on how the International Seabed Authority will implement its role in being the conduit for revenue sharing from broad margin States such as the U.S., yet the U.S. cannot secure membership on key subsidiary bodies of the Seabed Authority until it accedes to the Convention. Clearly United States views would undoubtedly carry much greater weight as a party to the Convention than they do as an outsider. With 143 countries and the European Union having ratified the Convention, the Convention will be implemented with or without our participation and will be sure to affect our interests.

It is for these reasons that the U.S. oil and natural gas industry supports Senate ratification of the Convention at the earliest date possible. # # #

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STATEMENT OF ROGER RUFEPRESIDENT, THE OCEAN CONSERVANCY{PRIVATE }

Before theSenate Committee on Foreign Relations

October 21, 2003

I. INTRODUCTION AND BACKGROUND

Mr. Chairman and Members of the Committee, thank you for the opportunity to present our views on the United Nations Convention on the Law of the Sea (UNCLOS or Convention). My name is Roger Rufe; I am the President of The Ocean Conservancy.

A. The Ocean Conservancy

The Ocean Conservancy (TOC) strives to be the world’s foremost advocate for the oceans. Through science-based advocacy, research, and public education, we inform, inspire, and empower people to speak and act for the oceans. TOC is the largest and oldest nonprofit conservation organization dedicated solely to protecting the marine environment. Headquartered in Washington, D.C., TOC has offices throughout the United States, including offices in Alaska, Maine, California, and the Virgin Islands.

TOC has a long history as a leading proponent of numerous international initiatives to conserve the world’s most biologically vulnerable marine animals – specifically marine mammals, sea turtles, sharks and their close rela-tives, skates and rays. TOC serves on the Species Survival Commission of the IUCN and has led efforts to extend protections for threatened marine species. We also helped secure listing of basking and whale sharks under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and passage of the International Dolphin Conservation Act and its sister treaty, The Antiqua Convention to the Inter-American Tropical Tuna Convention. To reduce litter on beaches, each year TOC sponsors an International Coastal Cleanup, as-sisted by hundreds of thousands of volunteers from over 100 participating countries.

We have also been a major proponent of marine protected areas, both in the United States and abroad. Since the 1980s, The Ocean Conservancy has been one of the few U.S. organizations to work collaboratively with Cuban universities and researchers to inventory and conserve marine biodiversity in Cuba. More recently, this work has expanded to include an exciting and promising new marine protected area project in Colombia. As all waters are connected, our work on marine pollution ranges from urging the strongest Clean Water Act protections for all waters in the United States to efforts to restore and protect sensitive coral reef habitats from marine pollution produced by ocean-going ships.

TOC collaborated closely with our colleagues at the Center for International Law and Oceana in developing this testimony, and we have prepared a joint statement in support of accession that is appended to this testimony. My testimony on behalf of TOC is organized as follows: first, I will explain why we support U.S. accession to the United Nations Convention on the Law of the Sea. Second, I will highlight several issues that require the Senate’s attention and development of interpretive language so that potentially ambiguous terms of the Convention are not misconstrued as limiting the United States’ authority to protect its marine environment. In the third part of my testimony, I will highlight a few environmental issues that warrant further attention by the United States after our accession to ensure that implementation of, and future changes to, the Convention fully advance environmental goals and protect our interests in healthy, vibrant oceans.

B. UNCLOS

In his opening statement for the October 14th hearing, Chairman Lugar appropriately recognized the Law of the Sea as the international law for the world’s oceans. The Chairman also took the opportunity to recognize the contributions of a former Chair of the Committee, Senator Pell, to this important issue. Senator Pell characterized the Law of the Sea as a “constitution” for the oceans,1 a characterization that has been widely echoed by others. As the committee has heard from many witnesses, UNCLOS is an important and progressive international agree-

1 141 Cong. Rec. S2, 266-67 (daily ed. Feb 7, 1995)(statement of Senator Pell).

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ment that largely reflects values that our nation has worked to implement over the years. The Convention imposes basic obligations for all states to protect and preserve the marine environment and to conserve marine living spe-cies. These commitments are testaments to enlightened diplomacy to manage shared resources. Perhaps even more importantly, the Convention calls for the further development of global and regional rules on these subjects, and provides a framework of principles and objectives for that development. Both Chairman Lugar and Sena-tor Pell’s descriptions are entirely right: the Convention is both international law and a constitution for the world’s oceans, to be used to guide and promote positive international and national decision-making over time.

The Third United Nations Conference on the Law of the Sea was convened in late 1973. The Conference con-tinued until its final meeting in late 1982, at which time the final act was signed and the Convention was opened for signature. As time went on, it became clear that developed states were not willing to agree to Part XI of the Convention concerning deep seabed portions and mining of potentially valuable metals. Thus, modifications to that provision were negotiated, and an amending agreement was finalized in July of 1994. The U.S. signed the Agreement in 1994 and recognizes the Convention as general international law, but has not ratified it at this time. UNCLOS entered into force in November of 1994 with the requisite sixty ratifications.

The Convention establishes law over a vast array of issues affecting the world’s oceans, ranging from maritime boundary delimitation, to fisheries management, to the rights and duties of ships with regard to navigation, to own-ership of marine resources. The United States’ interests in becoming a signatory to the Convention are similarly broad and diverse, and the Committee has heard from many witnesses representing these interests, all in support of accession. Our testimony will be limited to a brief commentary on the environmental benefits and implications of U.S. accession at this time.

II. TOC Statement in Support of U.S. Accession to UNCLOS

There is general agreement in the environmental community that the Convention serves the environmental interests of the United States in providing a stable legal framework,2 and as the foundation of public order in the oceans.3 The primary environmental reason for encouraging U.S. accession to UNCLOS at this time is to give the United States the credibility and full rights accorded to a signatory, ensuring that the United States is in the best position to negotiate and lead future applications of this constitution for the oceans.

The Committee has heard from many witnesses that our failure to ratify this global treaty has hurt us to some extent economically, diplomatically and environmentally. These witnesses have rightly noted that our failure to ratify the Convention has hurt not only our international credibility, but also our ability to effect future changes in the terms and agreements upon which international law is based. The United States is a world leader in marine conservation, and our accession to UNCLOS will greatly help us advance international standards and practices.

While the United States is a world superpower, we must fully engage our fellow nations and secure the coopera-tion of the international community if we are to be successful in protecting our oceans and their resources. For example, currently the United States adheres to the fisheries conservation measures in the Law of the Sea and subsequent Straddling Stocks Agreement, and we treat them as customary international law. However, unless we become a signatory to the treaty, we are without recourse to enforce this Agreement’s terms with regard to other states which do not. We are also unable to fully represent U.S. interests in negotiating future changes or terms to both of these agreements. Both the Pew and the Federal Oceans Commission have recently recommended accession for this purpose: to secure a positive environmental framework for U.S. ocean management. In sum, it is impossible to be a world leader relative to the health of the oceans without full participation in the international rule of law that applies to them.

Therefore, TOC urges accession at this time primarily to enable the United States to be a full participant and ne-gotiator in the future development of the terms of the Convention. However, recognizing some of the environmen-tal implications of our accession upon U.S. regulatory authority, we urge the Senate to include several interpretive

2 In 1998 Clifton Curtis prepared a statement of accession endorsed by many environmental organizations, including The Ocean Conservancy (then the Center for Marine Conservation). This testimony draws from that statement in its discussion of dispute settlement procedures, the precautionary principle and fisheries conservation measures. See also, The United Nations Convention on the Law of the Sea and the Marine Environment: A Non Governmental Perspective, Clifton E. Curtis, GEO. INT’L ENVTL. L. REV., 7: 739-743 (1995).3 See Statement by Robert Hirshon, President, the American Bar Association, to the Commission on Ocean Policy, (November 13, 2001), available at http://oceancommission.gov/meetings/nov13_14_01/hirshon_testimony.pdf.

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statements as part of the record in giving its advice and consent to the President, and to be included in our acces-sion instrument. These interpretive statements must clarify how some UNCLOS provisions will be implemented by the United States, so that our full authority to protect our marine environment and resources will be preserved and exercised effectively in the future. Part III of this testimony will address several areas requiring interpretive language to be developed by the Senate with its advice and consent.

III. Issues Requiring Interpretive Statements

UNCLOS is a self-executing treaty, meaning the United States does not need to pass additional national legisla-tion to implement its terms. By acceding to the treaty, the United States indicates its intent to be bound by the Convention. The broad scope and general nature of UNCLOS presents significant interpretational challenges that must be fully addressed by the United States in its accession. We are concerned that because of some potential ambiguities between the Convention’s terms and the United States’ own statutory framework, an argument could be made that the United States is precluded from taking unilateral action where necessary to protect its marine ecosystems through the adoption of protective national legislation.

Before I summarize those provisions, let me provide a specific example. In the Department of Justice’s 1998 pros-ecution of Royal Caribbean Cruise Lines (RCCL), the company attempted to use the Convention as a shield to prosecution. 4 The Coast Guard had observed a cruise ship dumping oil in the waters off the Bahamas on its way to Miami. RCCL claimed it was immune from criminal prosecution in the United States under UNCLOS. Although the court denied RCCL’s motion to dismiss on those grounds, this case illustrates the potential conflict with the Convention, even before ratification, and the willingness of industry to employ its terms to attempt to avoid U.S. health, safety and environmental laws. 5 The case also demonstrates the potential for further confusion absent interpretation by the United States.

Therefore, it is crucial that the United States indicate its intent to implement UNCLOS’s provisions in a man-ner that is consistent with existing U.S. statutory law and preserves our ability to act to protect and conserve the marine environment. I will now turn to the main areas of potential conflict or confusion between UNCLOS and U.S. provisions on environmental matters. In each case, we recommend that the Senate reconcile these conflicts through the inclusion of interpretive language, to be delivered with the United States’ instrument of accession. We recognize that there may be other areas of potential ambiguity that warrant Senate interpretation in its advice and consent. We would welcome the opportunity to work with the Committee to address these issues through interpre-tive language.

A. Pollution From Vessels

The Law of the Sea is particularly vague with respect to the rights of a coastal state to protect itself against pollu-tion from ships.

On one hand, the Convention grants coastal states the authority to broadly regulate for the purposes of environ-mental protection. Within the Exclusive Economic Zone (EEZ), Article 56 grants coastal states “sovereign rights” for the purpose of (among other things) “conserving and managing the natural resources,” as well as jurisdiction over “the protection and preservation of the marine environment.” On the other hand, Article 211, which gener-ally discusses the regulation of pollution from vessels, potentially limits this broad authority. Article 211 permits a coastal state to establish particular requirements for the prevention, reduction and control of pollution of the marine environment “as a condition for the entry of foreign vessels into their ports,” and where “conforming to and giving effect to generally accepted international rules and standards established through the competent interna-tional organizations…” Thus, potentially a state may not regulate pollution discharges from vessels in the EEZ unless it is doing so either as a condition of port entry or to give effect to international standards.

4 U.S. v. Royal Caribbean Cruises, LTD, 11 F. Supp.2d 1358 (S.D. Florida, 1998). 5 See William A. Goldberg, Cruise Ships, Pollution and International Law: The United States Takes on Royal Caribbean Cruise Lines, 19 WIS. INT’L L.J. 71 (2000), calling into question the continuing ability of international law to control pollution in the world’s waterways. See also Shaun Gehan, United States v. Royal Caribbean Cruises, Ltd: Use of Federal “False Statements Act” to Extend Jurisdiction over Polluting Incidents into Territorial Seas of Foreign States, 7 OCEAN & COASTAL L.J. 167 (2001), concluding that similar applications of domestic law are entirely consistent with the goals of the applicable international treaties. Id., at 168.

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Relative to the territorial sea, there is additional ambiguity between the balance of the authority vested in the coastal state, and the rights of ships passing in innocent passage. Article 21 grants coastal states the authority to adopt laws and regulations for several purposes, including the conservation of the living resources of the sea, the prevention of infringement of the fisheries laws and regulations of the coastal state, the preservation of the envi-ronment of the coastal state and the prevention, reduction and control of pollution thereof, and the prevention of infringement of the customs, fiscal immigration or sanitary laws and regulations of the coastal state. However, all of these are subject to limitations in Article 21.2, preventing a state from imposing restrictions on design, construc-tion, manning, or equipment upon a foreign ship in innocent passage unless the state is doing so to give effect to “generally accepted international rules or standards.” Unfortunately, no clear view has been articulated either at the international level or within the United States as to what does or should constitute a “generally accepted inter-national standard” under these articles.

Without clarification by the United States, these provisions could be interpreted to preclude the U.S. from adopting legislation – even in the absence of any international dialogue on a particular subject – as may be necessary to protect its marine ecosystems. It could potentially limit the U.S. from taking necessary steps to protect the territo-rial sea except to give effect to those general rules or standards.

Although generally the United States exercises jurisdiction in accordance with UNCLOS provisions, the Oil Pollu-tion Act of 1990 (OPA) is one example of the U.S. exercising extraterritorial jurisdiction and exceeding the stan-dards in UNCLOS.6 OPA requires all ships operating in U.S. waters to be constructed with a double-hulled de-sign.7 Additionally foreign vessels lightering in the U.S. EEZ, including “those not intending to enter United States waters,” must maintain certificates of financial responsibility if some of the oil is destined for the United States. OPA also imposes a series of additional requirements for vessels transferring oil or hazardous materials in the marine environment. Passed in response to the devastating Exxon Valdez oil spill off the coast of Prince William Sound in Alaska, OPA is a clear example of the need to protect the United States’ ability to act in the absence of adequately protective international standards.

The Senate must therefore ensure in its advice and consent that the provisions in UNCLOS do not overly limit the current authority of the United States to regulate pollution from vessels by clarifying the phrase “generally accept-ed international standards.” The Senate should also specify that the U.S. believes it is free to act where necessary to protect its waters where the regulated activity is not addressed by a specific international rule or standard to prevent, reduce or control its pollution.

B. Treatment of Invasive Species

The introduction of invasive species via ballast water is a continuing and growing challenge for the protection of U.S. resources, both inland and throughout the EEZ. The potential ecological damage from invasive species is enormous. According to the International Maritime Organization, invasive species are one of the four greatest threats to the health of the world’s oceans, along with other pollution, overexploitation of marine resources, and destruction of marine habitat. The discharge of ballast water from ships is the number one source of marine inva-sive species in the United States.8

UNCLOS, however, fails to clearly address the problem of invasive species. If the treaty were interpreted such that invasive species were intended to be covered by the broad definition of “pollution” as defined in Article 1.1.3, then coastal states would be potentially constrained in their ability to prevent the spread of these invasive species from ships operating outside of the territorial sea. As the IMO has failed to prescribe international standards for the treatment of ballast water, more stringent measures by the U.S. could be interpreted as being “beyond gen-erally accepted international rules or standards.”9 This would leave the United States reliant upon the remaining authority granted in 211 to require treatment and practices as a condition of entry into port.

6 See Christopher P. Mooradian, Protecting Sovereign Rights: The Case for Increased Coastal State Jurisdiction over Vessel Pollution in the Exclusive Economic Zone, 82 BOSTON U. L. REV. 767, 801, 802 (2002).7 46 U.S.C. 3703(a)(c)(3).8 See, e.g., Carlton and Geller, “Ecological Roulette: The Global Transport and Invasion of Nonindigenous Marine Organisms,” SCIENCE (1993); Marine Board of the National Research Council, Stemming the Tide, National Academy Press, Washington D.C. (1996).9 UNCLOS Art. 211.5

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We urge instead the better interpretation that alien species are not intended to be addressed by the definition of “pollution” by UNCLOS. This interpretation is supported by the fact that invasive species are addressed by Article 196, and not in Article 194, which addresses the regulation of various types of marine pollution generally. More-over Article 196 distinguishes invasive species from pollution within the provision. We recommend that the Senate include an interpretive statement on this issue as part of its advice and consent to be included with the instru-ment of accession specifying that the United States does not view invasive species as “pollution” for purposes of UNCLOS.

C. Conditions of Port State Entry

UNCLOS allows coastal states fairly wide authority to prescribe conditions of entry upon foreign vessels. This constitutes perhaps the most obvious mechanism for addressing illegal or problematic shipping discharges of pollution. Yet the U.S. should ensure its right to establish more stringent or targeted measures as necessary to protect and conserve the marine environment. For example, since 1996 the U.S. has required ships entering the Great Lakes to exchange ballast water from beyond the Exclusive Economic Zone as a condition of entering into the Great Lakes system to minimize the spread of invasive species.10

We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be included with the instrument of accession. This statement should clarify that the U.S. interprets Articles 25.2 and 211.3 to recognize longstanding rights of states to impose conditions on the entry of vessels into ports or internal waters. Conditions on port of entry include conditions on operation and design of a vessel as it proceeds to a given U.S. port of call, extending seaward as necessary.

D. Enforcement of Non-Monetary Penalties in the Territorial Sea

Article 230.2 of UNCLOS authorizes only monetary penalties for violations committed in the territorial sea, except in the case of “a wilful and serious act of pollution.” U.S. law (e.g. the Clean Water Act), currently authorizes crimi-nal penalties as well as broad civil penalties for illegal discharges in the territorial sea.

Two potential ambiguities are created by reconciling the UNCLOS provisions with U.S. law. The first is whether the monetary penalties authorized by UNCLOS are consistent with the U.S. concept of “civil penalties” so as to potentially allow for injunctive relief, administrative orders or restitution. And second, in determining where crimi-nal penalties may be available in the territorial sea, to what extent is “wilful and serious” consistent with the U.S. concept of mens rea; does it mean knowing, negligent or grossly negligent?

So that this provision is not construed in a manner inconsistent with U.S. interests, the Senate should make clear in its advice and consent that the determination of “wilful and serious” will be made by the responsible U.S. agency in accordance with U.S. law; that the “wilful” element is satisfied if the defendant was aware of the conduct leading to the “act of pollution,” regardless of whether the defendant intended the illegal discharge or the act of pollution, and that the concept of monetary penalties means the full array of civil remedies.

E. Environmental Protection in the Contiguous Zone

Article 33.1 of UNCLOS provides that in the contiguous zone, a coastal state may exercise the control necessary to “(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea…”

There is a need to clarify the term “sanitary laws” to ensure these include environmental measures to protect hu-man or ecosystem health within the territorial sea. These would include, for example, laws to prevent the contami-nation of fish or shellfish consumed by people, waters used for recreation, and the Clean Air Act standards which protect human health from the impairment of air quality from vessel emissions. International agreements negoti-ated in the time since UNCLOS have adopted a similarly broad definition of “sanitary.” 11

10 National Invasive Species Act of 1996, P.L. 105-332, 16 U.S.C. 4711 (1996). Both the Senate and the House are currently considering legislation to substantially strengthen this program to require ballast water treatment for ships coming into all U.S. ports (S. 525 and H.R. 1080).11 E.g. Article XX(b), General Agreement on Tariffs and Trade, (1994): Agreement on the Application of Sanitary and Phytos-anitary Measures, World Trade Organization.

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We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be in-cluded with the instrument of accession. The statement must clarify that “sanitary laws” under Article 33.1 include all laws and regulations that provide direct or indirect protection to human health, welfare or the marine environ-ment.

F. Regulation of Industrial and Other Polluting Operations At Sea

The U.S. currently regulates certain industrial facilities such as seafood processing vessels, aquaculture facility discharges, and offshore oil and gas operations under the permitting requirements of Sections 402 and 403 of the Clean Water Act. The U.S. also regulates certain cruise ship operations in the waters around Alaska. Additional measures will likely be necessary to address environmental issues arising from other industrial activities on ves-sels.

UNCLOS, if interpreted too narrowly, could constrain the United States’ ability to adopt and enforce these impor-tant measures. As noted earlier, Article 21.2 imposes limits on laws and regulations relating to “innocent passage.” Article 211 also raises similar issues. We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be included with the instrument of accession. The statement must clarify that these vessels are not engaging in or innocent passage as defined in Articles 18 and 19, and that the U.S. is free to regulate vessels operating in a capacity other than innocent passage as necessary to protect against polluting discharges from these vessels.

G. Defining Clear Grounds for Inspection

Article 226 of UNCLOS limits port state inspections to “required documents” except in certain cases, such as where there are “…. [c]lear grounds for believing that the condition of the vessel or its equipment does not cor-respond substantially with the particulars of those documents. This would make many enforcement cases difficult, such as those brought by the U.S. to determine whether a vessel is treated with a toxic antifouling agent such as tributyltin, or to determine whether a vessel is in compliance with a ballast water management performance standard.

We urge the Senate to include in the record an interpretive statement which establishes that “clear grounds” includes at least “probable cause” and “reasonable suspicion,” and that it is not intended to preclude the right or ability of a port state to take appropriate samples or tests.

H. Dispute Settlement Provisions as a Potential Bar to Protective National Action

UNCLOS is one of the few international environmental agreements requiring binding settlement for many environ-mental and conservation disputes. States may choose among four options for binding settlement: the International Court of Justice, the Tribunal for the Law of the Sea, an arbitral tribunal, or a special expert arbitral tribunal consti-tuted to hear a dispute over navigation, fisheries, marine environmental protection, or marine scientific research.There is some concern that the Convention’s dispute settlement provisions could be used “politically” to try to pre-vent a state from enforcing domestic laws that authorize or mandate trade measures. With regard to trade-related challenges, these kinds of laws often are placed into one of two categories, i.e. U.S. laws that apply unilateral standards to foreign actions (e.g., MMPA, Sea Turtle amendments), and U.S. laws addressed to nations that are diminishing the effectiveness of an international agreement (e.g., Pelly Amendments).

The U.S. has taken the position, and TOC agrees, that UNCLOS was not intended to cover trade measures. It imposes no obligations on states relating to such measures, and the history of its negotiation makes it clear that conservation measures were not intended to encompass trade measures. There is therefore no substantive basis in the Convention for challenges to trade measures based on national standards.

We remain concerned, however, that other nations may attempt to challenge trade measures or sanctions under the Convention’s dispute settlement provisions in order to try to discredit those standards and gain an advantage in the World Trade Organization, where trade measures based on the standards could be challenged. Where multilateral processes fail to resolve pressing environmental problems, national action remains a necessary and

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effective option. The U.S. may both serve to protect against the problem, and to encourage positive international action and raise awareness of the problem.12

Therefore, TOC urges the Senate to include interpretive language clarifying that there is no substantive basis in the Convention for those kinds of challenges, and that the Convention does not affect U.S. authority to utilize these measures.

IV. Issues Requiring Leadership from the U.S. in the Implementation and the Future of UNCLOS

The vision of UNCLOS as a constitution was introduced at the beginning of this testimony, and it must be revisited here. As a constitution, UNCLOS is not meant to be an inflexible, stagnant document. Rather, its provisions must be interpreted over time, and its processes applied to our expanding environmental awareness about our world’s oceans and the resources within them. In fact, subsequent multilateral environmental agreements have both reaf-firmed and expanded upon UNCLOS’s regime for the marine environment.13

The United States will be in a better position to address the existing deficiencies or limitations in the rule of law for the oceans if it becomes a signatory to UNCLOS. In its 1998 joint statement, which provides the basis for my next remarks, the environmental community urged the United States to embrace its leadership role in the world by en-suring that UNCLOS serves as a framework for securing more protective regimes for the conservation of marine ecosystems and wildlife. This role must continue beyond accession to participation and negotiation for improved international environmental practices over time. I would like to take this opportunity to briefly mention a few of these emerging and important issues.

A. Precautionary approach

The U.S. Commission on Ocean Policy and the Pew Oceans Commission on which I served have both confirmed that our oceans are in crisis.14 While we wait for the final recommendations of the Federal Oceans Commission, the Pew Oceans Commission recognized that to address the problems confronting our oceans, a new ethic is needed, one which, in the face of uncertainty, urges caution and protection. The precautionary approach today is endorsed internationally as a fundamental policy.

It is absolutely critical that such an approach is utilized for our world’s oceans. Relatively little is known about our oceans and the resources they contain. Yet we are already witnessing the consequences of failing to embrace the precautionary principle in our treatment of the marine environment. Throughout history the oceans have been treated as unlimited and resilient. We have generally exploited our resources, in the oceans as on land, in ab-sence of unanimous agreement that these resources are at risk. As a result, proof of our error is beginning to pour in. The draft report from the federal oceans commission concluded last year that our oceans are in trouble. Spe-

12 For example, in 1991, TOC and other groups petitioned the United States to certify the Government of Japan under the Pelly Amendments. The certification was for “undermining the effectiveness of international programs for the conservation of sea turtles” due to Japan’s annual import of 20,000 kg of hawksbill sea turtle shell, and thousands of skins of the olive ridley turtle from Mexico. Mexico shortly thereafter ended the olive ridley harvest in order to avoid trade sanctions, and Japan agreed to phase out the trade by the end of 1992. The threat of Pelly Amendment sanctions, while never imposed, in conjunction with international pressure, played a crucial role in preventing the extinction of the hawksbill sea turtles and in ending the illegal harvest of olive ridley turtles in Mexico.13 At the time of the first meeting of UNCLOS and the Stockholm Convention in 1972, there were relatively few international agreements concerning the environment. Since 1972, almost every county has adopted at least one piece of environmental legislation, and there are more than 870 legal instruments that contain at least some provisions focusing on the environment. See Edith Brown Weiss, Introductory Note to United Nations Conference on Environment and Development, 31 I.L.M.814 (1992); see also Jonathan L. Hafetz, Fostering Protection of the Marine Environment and Economic Development: Article 121(3) and the Third Law of the Sea Convention, 15 AM. UNIV. I.L.R. 583, 592 (2000).14 While the U.S. Commission on Ocean Policy’s final findings and recommendations are not yet published, draft recommenda-tions and findings are available on the Commission’s website at <http://www.pewoceans.org>.

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cifically, the trouble comes from overfishing,15 coastal development and habitat loss,16 runoff17 and point source pollution18 and climate change.19 In a larger sense, however, the trouble comes primarily from our inability to make prudent decisions for the future in the face of uncertainty today. We have treated our oceans as an infinite re-source, and now we must face the incontrovertible proof that we are devastating a finite one.

The environmental community noted in 1998 that the concept “precautionary principle” did not exist at the time UNCLOS was negotiated, and that consequently the term did not appear in the Convention. However, we urged then and TOC urges now that the United States play a leadership role in future Convention amendments to ensure the appropriate application of this principle to guide decision-making. Fortunately, the Convention, as a constitution, does establish some principles and tools that may provide a framework for future application of the precautionary approach.20 Moreover, subsequent multilateral agreements related to UNCLOS do include use of the precautionary principle, including the Straddling Stocks Agreement.21 We therefore believe this approach is compatible with UNCLOS and urge the United States to work to ensure that subsequent changes to UNCLOS ap-propriately utilize the precautionary approach.

B. Fisheries Conservation Measures

Part V of UNCLOS established the regime of the EEZ, the 200-mile area wherein coastal states have sovereign rights to explore and exploit, as well as to conserve and manage, their marine resources. The Convention recog-nizes the authority of the coastal state over the exploitation of living resources in its EEZ, yet qualifies this right by the overarching duty in the Convention to protect the marine environment.

UNCLOS adopts as a goal of management in Article 61(3) the Maximum Sustainable Yield, qualified by envi-ronmental and economic factors. There is some concern that harvest rates based on MSY do not take natural variability and scientific uncertainty sufficiently into account. At the time UNCLOS was negotiated, many fisheries were still expanding. As more and more fisheries become overexploited, it is clear that using MSY as a manage-ment target very often results in overfishing and depletion. Optimum fishing effort for sustainable exploitation must now be below or well below the level of effort corresponding to MSY, according to the U.N. Food and Agricultural Organization.

However, an even larger problem is in the failure of implementation to ensure accuracy in reporting, transparency and enforcement. TOC urges the United States to take a leadership role through UNCLOS and other treaties to ensure better implementation and enforcement of fish conservation measures.

In particular, UNCLOS did not resolve major issues regarding the management, exploitation and conservation of living marine resources, particularly the highly migratory species of fish and populations of fish that straddled the

15 In 2001, the U.S. Government could only assure that 22 percent of fish stocks under federal management (211 of 959 stocks) were being fished sustainably (NMFS, 2002). New England cod, haddock, and yellowtail flounder reached historic lows by 1989. Atlantic halibut are commercially extinct in U.S. waters, and populations of some rockfish species have dropped to less than 10 percent of their historic levels. (MacCall and He, 2002). A recent study in Science reports that highly migratory species of sharks, including blue, thresher and hammerhead sharks, have declined by as much as 60-90% in the northwestern Atlantic since 1986.16 More than one fourth of all the land converted from rural to suburban or urban uses since the time of European settlement of the United States occurred during the 15 year period between 1982 and 1997 (the last year for which figures are available) (NRI, 2000).17 More than 13,000 beaches were closed or under pollution advisories in 2001 (NRDC 2002), and a recent National Academy of Sciences study estimates that the oil runoff from land-based sources is equal to an Exxon Valdez oil spill – 10.9 million gal-lons – every eight months (NRC 2002).18 In the U.S., animal feeding operations produce about three times the amount of sewage produced by the human population. Despite this, only 15% of all animal feeding operations have Clean Water Act permits to operate (EPA 2002). In one week a typical 3,000 passenger cruise ship generates about 1 million gallons of graywater (water from shower, laundries and dish-washing), which is exempt from the Clean Water Act.19 Global air temperature is expected to warm by 2.5 to 10.4 degrees F in the 21st century, affecting sea-surface temperatures and raising the global sea level by 4 to 35 inches (Intergovernmental Panel on Climate Change, 2001).20 These principles and tools may include environmental impact assessment and monitoring requirements, caution in the intro-duction of new technologies and new or alien species, and the establishment of critical habitat for marine life. The definition of pollution, which includes harm to living resources and marine life, is also complimentary to precautionary approaches.21 The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995).

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boundaries between EEZs or between EEZs and the high seas. The Convention’s provisions related to straddling stocks and highly migratory fish stocks are extremely general.22 The failure of governments and fishing industry to deal effectively with these species has led to widespread overfishing and conflicts between nations. Today several straddling and highly migratory fish stocks are in a state of collapse.

Recognizing UNCLOS’s limitations for addressing these species, further environmental agreements have been negotiated and signed by the United States. The U.N. Fish Stocks Agreement was negotiated to address some of the deficiencies of UNCLOS by elaborating on the duties of states to manage and conserve straddling and highly migratory fish stocks and ecologically related species. The Agreement’s provisions are enforceable through the Convention’s dispute resolution system, thus reinforcing enforcement and compliance opportunities for state parties to the Convention. The U.N. Fish Stocks Agreement has provided the basis to revise existing regional management agreements in the central and western Pacific and in the eastern Pacific Ocean. These regional management agreements are key to undertaking further reforms in relation to such critical issues as over-capac-ity, overfishing and unacceptable fishing practices that have contributed so greatly to the current fish crisis.We mention them in our testimony to note that the United States has already taken leadership in the negotiation of improvements to UNCLOS and should continue to do so in the future.23 The majority of highly migratory fish stocks lack the precautionary, transparent management programs dictated by the Straddling Stocks Agreement while shark and ray populations have no international fishery management measures whatsoever. To halt the de-cline of sharks and safeguard other migratory species, the U.S. must work after accession for the further progres-sive development of international law.

IV. Conclusion

In conclusion, we strongly support U.S. accession to the Convention. We urge the Committee to develop interpre-tive language as necessary in its advice and consent to reconcile UNCLOS provisions with U.S. statutory law and to preserve the ability of the U.S. to act to protect and conserve its marine environment. We also urge the Senate to include report language encouraging the United States to fully commit to its role as a world leader in advancing environmental protections for areas where UNCLOS needs further development. It is our hope that with acces-sion, the United States will lead by example so that we may protect, maintain and restore our magnificent ocean trust for future generations.

22 They require nations only to “seek...to agree upon the measures necessary” for cooperation (straddling stocks) and to “coop-erate ... with a view to ensuring conservation” (highly migratory species).23 Other recent positive actions by the United States include efforts to promote a United Nations General Assembly Resolu-tion to stop the practice of finning, the wasteful practice of slicing a shark’s fins off while at sea while discarding the rest of the shark.

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R. Reed Harrison IIIVice President/Chief Information and Investment OfficerNetwork and Computing ServicesRoom 4C107900 Route 202/206P.O. Box 752Bedminster, NJ 07921-0752908 234-5200, FAX 908 234-8414

Dear Senator Helms:

AT&T depends upon undersea fiber optic cables to carry the bulk of our international telecommunications traffic. We enclose for your reference an information packet describing AT&T’s submarine cable network. We believe this information underscores the critical commercial significance of that network. We hope it also helps to acquaint you with AT&T’s interest in the use of the seabed for its provision of global telecommunications services over that network.

It is essential that we protect that undersea cable network from damage and disruption. The main purpose of this letter, therefore, is to urge the United States Senate to give its advice and consent to accede to the Law of the Sea Convention. and to ratify the Agreement relating to the Implementation of Part Xl of the Convention. The requested action by the Senate will enable us to better protect our cables and recover for damage to the cables. AT&T respectfully asks that this advice and consent be given at the earliest opportunity.

AT&T’s concern is straightforward. AT&T and other U. S. owners of such undersea telecommunicationsfacilities become involved in matters of international law in their efforts to recover their losses from parties whose vessels have damaged their undersea cables. AT&T’s efforts against such offending vessel owners and their underwriters have had limited success. Over the past 17 years, we have achieved some recovery in cases involving only 13 such cable failures. The scope of the problem is o evident when one considers that, since 1990, almost half of the 134 reported failures of international submarine cable were caused by third party vessels.

The recovery of damages in these cases reduces the operating expense of the cable owners and enables them, in turn, to benefit their customers in the form of lower rates for international telecommunications. services News of a significant damage recovery also provides a deterrent against careless or uncaring vessel owners. As indicated, however, AT&T and other U. S. cable owners have been frustrated in their cable protection and damage recovery efforts by serious shortcomings in existing submarine cable law. Illustrations of this problem are readily available.

In the typical case of damage by third party vessels, repairing damaged undersea cable and restoring service to telecommunications users costs in excess of $2 million. Yet our existing federal statute (47 U.S.C., Section 21) imposes a maximum criminal penalty of only $5,000 upon those who violate submarine cable laws and cause this level of damage to undersea cables.

Under these circumstances it is not surprising that, in February 1996, the U. S. Attorney in Florida declined to prosecute a vessel owner caught intentionally destroying an undersea telephone cable. And on several other occasions, the U. S. Coast Guard has declined to enforce obligations imposed on vessels and their owners under international law Despite Strong evidence against the violators in each of these cases, these agencies evidently determined that there would be insufficient return on their resource investment to support the assignment of full time legal and investigative personnel to an incident carrying such an Insignificant maximum criminal penalty.

These examples make clear that if we are to have any meaningful protection, we must have in place a level of fines that considers and reflects the level of damage inflicted by such criminal violations. In addition we need legal framework that establishes clear jurisdiction in cable damage cases, and that

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provides specific authority to award damages. When nearly half of the 134 failures in intonational submarine cable since 1990 have been externally inflicted as previously noted, the need for increased legal protection is clear.

Many of the shortcomings in existing law are addressed and corrected in the U N. Convention on the Lawof the Sea (UNCLOS,). UNCLOS expands the right to lay submarine cable in the oceans of the worldand expands international protection for those cables. Articles 79 and 112 of UNCLOS have established the rights of nations and private parties to lay cable on the continental shelf (subject to reasonablereview by the adjoining coastal state) and in the bed of the high seas. Universal codification of these rightswould inhibit any single such coastal state from attempting unilaterally and unreasonably to thwart suchrights.

Article 113 requires that all states must adopt laws that make damage to submarine cable, done willfully or through negligence - including behavior likely to result in cable damage - a punishable offense.Article 114 provides that if owners of a submarine cable, in landing or repairing their cables damage thecable of another, they must bear the cost of repairs. Article 115 provides that vessel owners who canprove they sacrificed an anchor or fishing gear to avoid damaging a cable, can recover their loss against the cable owner, provided that the vessel took reasonable precautionary measures beforehand.

To take full advantage of UNCLOS, the United States must become party and implement its provisionsthrough legislation. This requirement is readily satisfied by much needed updating of the Submarine Cable Act of 1888. This law can and should be amended to conform to UNCLOS. We would be pleased toprovide additional information and suggested amendments to your Committee.

Ratification of UNCLOS is of extreme importance to all U.S. providers of intonational telecommunications services. Beyond the obvious matters of national security associated with the protection of our undersea facilities, there are economic impact issues. The U. S. companies whose undersea facilities are at stake here are major U. S. enterprises and significant source of revenue, jobs and economic wellbeing for American citizens and businesses, at home and abroad.

Due to the rapid globalization of business, fiber optic capacity will have increased some 3000% from 1989 to the year 2000. With the explosion of data traffic on the information superhighway, fueled by greater use of the Internet, multimedia services and video conferencing, it has never been more important to our U. S. economic infrastructure to assure the protection and reliability of international submarine cables. UNCLOS will enable us to achieve that goal and maintain that protection.

We have attempted In this letter. Mr. Chairman, to outline the salient points of UNCLOS as they verypositively affect U. S. owners and operators of Intonational submarine cables. I would be more thanhappy, at your convenience, to brief you or any of your staff in person with regard to any of the mattersraised in this letter. In addition, AT&T remains ready and willing to appear and testify at any hearings that your Committee may schedule on this subject.

We remain most grateful, Mr. Chairman, for your attention to this matter.

Very truly yours,

R. Reed Harrison IIIVice PresidentChief Information and Investment OfficerNetwork & Computing Services

Copy to: Mr. James W. NanceStaff DirectorSenate Committee on Foreign Relations403 Dirksen Senate Office BuildingWashington D.C. 20510

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THE GARDEN CLUB of AMERICA14 EAST 60TH STREET, NEW YORK, NY 10022-1006212.753.8287/FAX 212.753.0134/GCAMERICA.ORGCONSERVATION/NATIONAL AFFAIRS & LEGISLATION COMMITTEES

September 10, 2007

Dear Senators Biden and Lugar

The Garden Club of America’s National Affairs and Legislation and Conser-vation Committees are writing you to strongly support the accession to the United Nations Convention on the Law of the Sea (UNCLOS). As you know, the current version of the UNCLOS is supported by numerous organizations that rarely find common ground for agreement, such as the Bush Administration, the Joint Chiefs of Staff, the Navy, the oil and gas industry, the fishing industry and numerous major environmental organizations; it would certainly be an unfortunate, missed opportunity not to support ratification of a treaty with such extensive support.

The UNCLOS provides a comprehensive framework for international coop-eration to protect the marine environment. Similarly, it provides a stable environ-ment for global commerce and benefits the United States from rules concerning offshore resources. Finally, the UNCLOS is strongly supported by numerous mili-tary personnel and military organizations. The military believes accession is essen-tial from a national security perspective, granting us unimpeded maritime mobility as we face a wider and more complex array of global and transnational security challenges.

We ask that the Senate expeditiously and, hopefully with a significant major-ity, provide its advice and consent to the U.S. accession to the UNCLOS. As John D. Negroponte noted this past June, “It is simply the right thing to do, to support America’s national interests, and to lay an effective foundation for the use and pro-tection of the world’s oceans for generations to come.”

Thank you very much for your consideration of our views on this very im-portant issue.

Sincerely,

Derry MacBride Claire CaudillGarden Club of America Garden Club of AmericaNational Affairs and Legislation Committee Conservation Committee

V.laWoftheseaIntheMedIa

A. “Reap the Bounty,” The Washington Times, June 13, 2007 by John D. Negroponte and

Gordon England

B. “Law of the Sea Guarantees U.S. Rights,” The Wall Street Journal Letter to the Editor,

June 16, 2007 by Horace Robertson

C. “Time to Ratify the Law of the Sea,” Foreign Policy in Focus Commentary,

June 6, 2007 by Don Kraus

D. “States’ Map for Saving the Oceans,” The Washington Post Commentary, Feb. 3, 2007

by Leon E. Panetta and James D. Watkins

E. “Scuttle Diplomacy,” The Wall Street Journal Commentary, June 2, 2007 by

Ken Adelman

F. American Society of International Law Briefing Article

G. “Law of the Sea, the Continental Shelf, and Marine Research,” by D.R. Hutchinson and

R.W. Rowland in Eos, Transactions American Geophysical Union

H. “Russian Scientists Say the Arctic Is Theirs” The New York Times, June 28, 2007 by Mike Nizza

I. “Strife on the Seven Seas” Nature, August 9, 2007

J. “The Great Artic Circle Oil Rush” Fortune, August 8, 2007 by Telis Demos

K. “Our View on Law of the Sea Treaty: Who Owns Artic’s Wealth?” USA Today, August 14, 2007

L. “U.S. Resistance to Sea Treaty Thaws” The Wall Street Journal, August 22, 2007

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The Washington TimesReap the bounty

TODAY’S COLUMNISTBy John D. Negroponte and Gordon EnglandJune 13, 2007From the earliest days of its history, the United States has relied on the bounty and opportunity of the seas for sustenance, for economic development, for defense and for communication and interaction with the rest of the world. Today, as the world’s strongest maritime power and a leader of global maritime commerce, the United States has a compelling national interest in a stable international legal regime for the oceans. The time has come to take action to protect and advance the nation’s national security, economic and environmental interests in the maritime domain -- through accession to the Convention on the Law of the Sea.

The convention entered into force in 1994 and now has more than 150 parties. It supports and strengthens navigational rights essential to global mobility and it clarifies and confirms important oceans freedoms. U.S. accession to the convention would put the maritime security and econom-ic rights the nation enjoys on the firmest legal footing.

Accession makes sense from a national security perspective. This is a critical time for America and our friends and allies -- faced with a wider and more complex array of global and trans-national security challenges than ever before. Effectively meeting those challenges requires unimpeded maritime mobility -- the ability of our forces to respond any time, anywhere, if so required.

The convention recognizes and supports the rights of transit and innocent passage -- it confirms that there is no need to ask each country along the way for a permission slip. That freedom is already widely accepted in practice, but the convention provides a welcome legal certainty -- a certainty and confidence that the nation owes to our brave men and women in uniform, as they deploy around the world to protect and defend freedom and liberty.

Accession also has great value from an economic perspective. In the first place, the freedom of navigation the convention helps ensure is as critical to global economic development as it is to security considerations.

The United States would also receive direct economic benefit from the rights the convention provides to coastal nations to regulate and protect their offshore marine areas. Specifically, the convention recognizes the sovereign rights of coastal nations over natural resources like oil, gas and minerals, in “exclusive economic zones” out to 200 nautical miles, and in rigorously defined continental shelf regions. The United States stands to gain considerably, since its Arctic shelf could potentially extend out to 600 nautical miles.

As a corollary, the convention recognizes coastal states’ rights to extend over their respective maritime zones specific environmental protections -- like regulating fishing stocks and ocean pol-

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lution. Assigning and supporting responsibility in this way could markedly improve prospects for the protection of the global environment.

Accession makes sense from the perspective of U.S. leadership on the world stage. Joining the convention would give the nation a seat at the table, a voice in the debates, to help shape the fu-ture development of oceans law, policy and practice. Accession would also give the United States better opportunities to keep a close watch on other nations’ efforts to exercise their rights under the law of the sea and to counter excessive claims if necessary.

Finally, accession would powerfully and publicly reiterate the nation’s commitment to the rule of law as the basis for policy and action. It would make U.S. leadership more credible and com-pelling, in important multi-national efforts like the Proliferation Security Initiative -- designed to counter proliferation of weapons of mass destruction and other dangerous materials. And it would strengthen the general argument in favor of more robust international partnership in all domains - partnerships essential to meeting today’s global and transnational security challenges.

For all of these reasons, President Bush has urged the Senate to act favorably on U.S. accession to the Law of the Sea Convention, during this session of Congress. It is simply the right thing to do, to support America’s national interests, and to lay an effective foundation for the use and protection of the world’s oceans for generations to come.

John D. Negroponte is deputy secretary of state. Gordon England is deputy secretary of defense.

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The Wall Street Journal

Law of the Sea Guarantees U.S. Rights

BY HORACE ROBERTSONLetters to the editor, June 16, 2007; Page A7

In regard to your June 2 editorial “Lost at Sea” opposing the Law of the Sea Convention: Contrary to your editorial, the convention does not hand management of two-thirds of the earth’s surface to “another unaccountable international body.” The International Seabed Authority, created by the convention, has jurisdiction of only the mineral resources of the seabed beyond national jurisdiction, which extends to 200 miles from the coast and in some cases beyond. The U.S. is guaranteed a seat on the governing council and will, in effect, exercise a veto over decisions against U.S. interests. Further, the international tribunal created by the convention is only one method of several provided for resolution of disputes. When it becomes a party, the U.S. will opt for the convention’s arbitration process in place of the tribunal as a means of resolving disputes. Should the tribunal attempt to exercise jurisdiction over the U.S., the U.S. has the right to be exempt from decisions regarding military activities.

You indicate that the U.S. Navy can rely on “customary” international law in lieu of the provisions of the convention. True, most nations recognize that the navigational terms of the convention are a codification of customary international law. There are, however, several provisions guaranteeing important navigational rights that some nations assert flow only from the convention itself. These include the right of transit passage for surface and submerged vessels as well as aircraft through narrow international straits that are otherwise within the 12-mile territorial seas of the bordering states. The same is true for passage through archipelagic waters that are claimed by such island states as Indonesia and the Philippines.

The convention does not “get in the way of” fighting the war on terror. In particular, it will have no effect on the Proliferation Security Initiative. The boarding of ships suspected of transporting weapons of mass destruction is based on the reciprocal consent of parties to agreements implementing that initiative. The convention also will have no effect on the conduct of U.S. submarine and intelligence-gathering activities.

Ken Adelman’s commentary in the same issue -- “Scuttle Diplomacy” -- accurately conveys the transformation of the LOS Convention’s seabed mining provisions into a regime that is acceptable to the U.S. That transformation should warrant a new look at the convention by its former opponents, and they should weigh its many benefits for the U.S. rather than repeating the worn-out arguments of 25 years ago. They should echo his call for the Senate to ratify the convention.

Horace B. Robertson Jr. Rear Admiral, USN (Ret.); Professor of Law (Emeritus), Duke University School of Law, Durham, N.C

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Foreign Policy In Focus (FPIF)w w w. f p i f . o r g

A Think Tank Without Walls

During the Nixon administration negotiations beganto create a common set of rules for how nations useour oceans. Now, almost 40 years later, the UnitedStates is on the verge of joining the 155 nations thathave ratified the United Nations Law of the SeaConvention (LOS). This treaty defines maritimezones, protects the environment, preserves freedom ofnavigation, and establishes clear guidelines for busi-nesses that depend on the sea for resources. Until theUnited States ratifies the treaty its rights at sea willlack international recognition.

An incredibly diverse group of organizations andtrade associations—including environmental, oilindustry, peace, and veterans groups—have cometogether to put this important piece of old businessback on the agenda. The reasons these odd bedfel-lows back the treaty are as varied as their missions.But together they elicited support from the WhiteHouse and Senate leadership and have opened asmall window of opportunity for LOS ratification.

The timing is critical. According to the bipartisanJoint Ocean Commission Initiative, oceans and coastsare severely threatened. In its 2006 report card onU.S. ocean policy, the commission gave the U.S. a D-in “International Leadership” (up from an F in2005). The commission cited accession to the LOSconvention as the key step the United States musttake to improve its score. A February letter frommajor environmental organizations to Senate leadersurged quick ratification and cited the convention’s

“basic obligation for all states to … protect and pre-serve the marine environment and conserve marineliving species” as a reason for their support.

Ratification is not a sure thing even though the Bushadministration has urged support. If the Senate does-n’t act on ratification before the summer recess, itmay miss this golden opportunity to address theincreasing fragility of the oceans.

Why We Need the Law

The Law of the Sea has been described as the mostcomprehensive and progressive protection for theoceans of any modern international accord. It essen-tially protects the economic, environmental, andnational security concerns of coastal states, as well asestablishing international cooperative mechanisms forresolving disputes on these issues. The conventionalso safeguards imperiled marine habitats by strength-ening state sovereignty over the enforcement of envi-ronmental regulations up to 200 miles offshore(called the Exclusive Economic Zone—EEZ). Theseinternationally accepted regulations empower statesto stop harmful pollution and ocean dumping causedby previously unregulated ships. The convention alsocontains special measures to save endangered whales,salmon, and other marine mammals. It helps the fish-eries of coastal states by allowing them to set limitswithin their EEZ. It also protects valuable migratoryfish stocks such as tuna and billfish on the high seas,beyond the 200-mile limit.

FPIF Commentary

Time to Ratify the Law of the SeaBy Don Kraus | June 6, 2007

From space, the Earth looks like a fragile drop of blue, green, brown, and white floating in a sea ofblack. National borders are not visible. But the vast oceans and seas are. What from space appearsto be humanity’s common heritage, however, is the subject of considerable dispute.

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In addition to protection of the marine environment,the LOS promotes the maintenance of internationalpeace and security by replacing a plethora of conflict-ing claims among coastal states with a 12-mile terri-torial limit and the aforementioned 200-mile EEZ.These regulations set a definitive limit on the oceanicarea over which a nation may claim jurisdiction.However, the convention also protects the freedom ofnavigation on the high seas as well as the right ofinnocent passage, including non-wartime activities ofmilitary ships.

Nations can even claim mineral rights to the end ofthe continental shelf up to 350 nautical miles (andfurther in some special circumstances). This favorsthe United States as one of the few nations withbroad continental margins, particularly in the NorthAtlantic, Gulf of Mexico, Bering Sea, and ArcticOcean. However, countries must ratify the treaty fortheir claims to be internationally recognized. Not sur-prisingly, then, the U.S. oil and natural gas industriesfavor ratification, as it will provide access opportuni-ties to explore vast acreage beyond 200 miles off thecoast, where evolving technologies now make oil andnatural gas recoverable. In so doing, the United States

could expand its areas for mineral exploration andproduction by more than 291,383 square miles.

Beyond this zone the LOS has established theInternational Seabed Authority, an autonomous inter-governmental body based in Kingston, Jamaica,which was created to organize and control all miner-al-related activities in the international seabed areabeyond the limits of national jurisdiction.

When nations disagree on boundaries, mineralclaims, or other aspect of the convention, the LOScontains a unique dispute resolution mechanism thatobligates nations to peacefully settle their differencethrough one of four methods: the InternationalTribunal for the Law of the Sea, adjudication by theInternational Court of Justice, binding internationalarbitration procedures, or special arbitration tribunalswith expertise in specific types of disputes. Bindingarbitration, the preferred U.S. approach, is thedefault mechanism if parties don’t agree to another.All of these procedures involve binding third-partysettlement, except for sensitive cases involving nation-al sovereignty. In such circumstances, the parties areobliged to submit their dispute to a conciliation com-mission, but they will not be bound by the commis-sion’s decision.

There is no overt role for NGO participation in thedispute resolution process, as there is in more recent-ly negotiated treaties and agreements (such asNAFTA). However, environmental organizations seethe various intergovernmental bodies established bythe convention as forums where they can focus atten-tion on the obligation of governments to “protectand preserve the marine environment” that the treatyestablishes.

Negotiations to create the Law of the Sea began dur-ing the Nixon administration but didn’t finish untilthe Reagan administration. President Reagan sup-ported the vast majority of the treaty’s stipulations

p. 2 www.fpif.orgA Think Tank Without Walls

The U.S. oil and natural gas industriesfavor ratification, as it will provide access

opportunities to explore vast acreagebeyond 200 miles off the coast, where

evolving technologies now make oil andnatural gas recoverable. In so doing, theUnited States could expand its areas formineral exploration and production by

more than 291,383 square miles.

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and even issued an executive order for the UnitedStates to abide by most of its rules. But ultimately,the United States was one of only four nations thatvoted against adoption of the treaty. The ReaganWhite House could not accept the portion of thetreaty that established the International SeabedAuthority (ISA). Reagan felt that the decision-makingprocess of the ISA Council and Assembly would notgive the United States or other western industrializedcountries influence commensurate with their inter-ests. The administration was also concerned that aprovision on a Review Conference would allow con-vention amendments to enter into force without U.S.approval and that the convention required themandatory transfer of private technology. The admin-istration also feared that some provisions would deterrather than promote future development of deepseabed mineral resources by incorporating economicprinciples inconsistent with free market philosophy,which included the possibility that the ISA wouldultimately transfer wealth to developing nations.

During the administration of George H.W. Bush, theUnited States negotiated an annex to the treaty thataddressed all of these concerns. The United Statesfinalized and signed the treaty during the Clintonadministration. However, Senator Jesse Helms (R-NC), then chair of the Senate Foreign RelationsCommittee, strongly objected to the treaty (alongwith most other multilateral efforts) and refused tohave it come before his committee. The treaty’s criticscontinue to refer to Reagan’s objections to the origi-nal and unmodified convention as reasons not to rati-fy.

An Urgent Situation

Although the current Bush administration supportsthe convention, only in 2004 under Richard Lugar’s(R-IN) chairmanship did the Senate ForeignRelations Committee unanimously approve the Lawof the Sea Convention. However, the White House

was only willing to spend minimal political capital,and Senate leadership bowed to the pressure of asmall group of far-right senators and never broughtthe treaty to the floor for a full vote.

Finally, on May 15, 2007, President Bush publiclyurged the Senate to “to act favorably on U.S. acces-sion to the United Nations Convention on the Lawof the Sea during this session of Congress.” He saidthat joining “will serve the national security interestsof the United States, including the maritime mobilityof our armed forces worldwide. It will secure U.S.sovereign rights over extensive marine areas, includ-ing the valuable natural resources they contain.Accession will promote U.S. interests in the environ-mental health of the oceans. And it will give theUnited States a seat at the table when the rights thatare vital to our interests are debated and interpreted.”His support, along with that of the Pentagon andState Department, as well as the Navy and CoastGuard, has created the political space to secure thesupport of 75 to 85 senators—far more than the 67needed for accession.

Now the ball is in Senate Foreign RelationsCommittee Chairman Joe Biden’s (D-DE) court.Biden is planning hearings this summer. However,

p. 3 www.fpif.orgA Think Tank Without Walls

At a moment when a host of key multilateral arms control,

human rights, and environmental treatiesawait Senate action, this momentum could

be crucial in regaining the respect ofnations who want the United States to positively engage in an interconnected

and interdependent world.

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some Senate staffers are concerned that if a final voteis not held on the treaty before the Senate goes intorecess at the beginning of August, the window ofopportunity will close because of the partisan pres-sures of the accelerated 2008 election cycle.

Biden and Senate Majority Leader Harry Reid shouldtake this issue very seriously. Their leadership is need-ed—and would be appreciated by diverse communi-ties and industries. More importantly, approval ofLOS would demonstrate that treaty ratification is notan impossible task in the U.S. Senate. At a moment

when a host of key multilateral arms control, humanrights, and environmental treaties await Senateaction, this momentum could be crucial in regainingthe respect of nations who want the United States topositively engage in an interconnected and interde-pendent world.

It’s time for the United States to finally join the restof the world in ratifying the Law of the Sea.

Don Kraus is the vice president for government rela-tions of Citizens for Global Solutions.

Published by Foreign Policy In Focus (FPIF), a project of the Institute for Policy Studies (IPS, online at www.ips-dc.org). Copyright © 2007.

Foreign Policy In Focus“A Think Tank Without Walls”

Established in 1996, Foreign Policy In Focus is a network of policy analysts, advocates, and activists committed to “making the United States a moreresponsible global leader and global partner.” For more information, visit www.fpif.org.

Recommended citation:Don Kraus, "Time to Ratify the Law of the Sea," (Washington, DC: Foreign Policy In Focus, June 6, 2007).

Web location:http://www.fpif.org/fpiftxt/4286

Production Information:Writer: Don KrausEditor: John FefferLayout: Chellee Chase-Saiz

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The Washington Post

States’ Map For Saving The Oceans

By Leon E. Panetta and James D. WatkinsSaturday, February 3, 2007; A15

Buried beneath the headlines about warming oceans, harmful algae blooms and dwindling sea-food stocks is the fact that it is within our power to make immediate, measurable progress toward solving the problems facing our oceans. Innovative state leaders are showing us the way, and the federal government needs to follow their example.

Over the past three years, California, acting to preserve a vital state resource, has developed an Ocean Action Plan; launched the most comprehensive approach to marine protected areas in the nation; and invested more than $30 million in projects to improve water quality, protect ocean habitats and manage sand on its beaches. In the past year, at least 18 states have taken simi-lar steps. Regional, bipartisan alliances were formed to protect the waters, shores, species and economies of the Gulf of Mexico, New York, Puget Sound and the West Coast.

In all of these instances, governors prioritized ocean management and set aside individual state concerns to develop a more effective plan to manage the region’s oceans and coasts.

The considerable strides the states and regions made last year in ocean governance earned an A-minus on the Joint Ocean Commission Initiative’s latest report card on U.S. ocean policy. That is in stark contrast to the C-minus earned by the nation as a whole. When it comes to managing our oceans, the United States is barely treading water, threatening not only the survival of ocean life but also the lives and livelihoods of those who depend on the ocean as a food source and eco-nomic engine.

Our country’s C-minus represents a modest improvement from the previous year’s grade, a D-plus. The improvement is largely attributable to state action and a few notable federal accom-plishments. For instance, passage of the Magnuson-Stevens Fisheries Conservation and Man-agement Act set a firm deadline to end overfishing and will ensure a more scientific approach to fisheries management. The administration’s designation of the Northwest Hawaiian Islands Marine National Monument provides important safeguards to 140,000 square miles of ocean and island bounty, and the release of a new national ocean research strategy provides a platform for advancing ocean sciences.

In most respects, though, the federal government and Congress lag behind states in efforts to protect our oceans. And the failure to commit funding and to reform national and international policy for the long-term preservation of our oceans will hamper additional progress in the states.

It’s impossible to effectively manage our oceans without the research necessary to fully under-stand the complex processes of an ocean ecosystem. Nowhere is this more apparent than with climate change. It’s no secret that the oceans and climate are deeply linked -- the oceans store vast amounts of energy in the form of heat and are a sink for much of the carbon dioxide emitted over the past century. Yet while sophisticated atmospheric monitoring systems have been in place

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for decades, only rudimentary systems exist for our oceans. This leaves us trying to fight climate change with one hand tied behind us. The only way to understand and respond to devastating climate change is with important tools such as an Integrated Ocean Observing System, which the administration’s new ocean research plan recommended on Jan. 26.

Unfortunately, even the best-laid plans to preserve the oceans remain empty rhetoric when Congress and the administration fail to commit the funds necessary for implementation. For the second year in a row, federal funding for oceans was stagnant. The Joint Ocean Commission Ini-tiative estimates that a $750 million investment would be a significant step forward for such re-search as the integrated observing system and management programs like the Magnuson-Stevens Act. Such an investment would protect an ecosystem that represents 95 percent of the habitable living space on the planet and supports ocean-dependent businesses that generate more than $138 billion each year.

The federal government can learn the most from the states by emulating their willingness to heed the advice of environmental and industry experts who say that collaboration is the key to preserv-ing the vital resources in our oceans. The United States is one of the few nations that have failed to accede to the U.N. Convention on the Law of the Sea, essentially a global-scale version of our various regional alliances. Joining the convention would ensure the United States a stake in deci-sions that affect the health of our oceans, economy and security.

The states have outpaced the federal government on ocean protection for years. It’s time for the administration and Congress to dive in. By committing increased science and management fund-ing and supporting the collaborative leadership described above, we can immediately begin to reverse the decline in our oceans.

The writers are co-chairmen of the Joint Ocean Commission Initiative.

http://www.washingtonpost.com/wp-dyn/content/article/2007/02/02/AR2007020201524_pf.html

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Scuttle Diplomacy

By KEN ADELMANCOMMENTARY, June 2, 2007

On May 15, President Bush announced vigorous support and urged the Senate to ratify the Law of the Sea Treaty. Mere mention of this treaty prompts a collective yawn. Yet herein lies a tale of dodgy diplo-macy finally made right.

More than 25 years ago, LOS emerged from the dark sea onto the political horizon. President Reagan refused to follow the multilateral flow, since he viewed its deep-sea mining provisions as global social-ism. Not knowing of any laws about any seas, I got involved by chance. My boss, U.S. ambassador to the U.N. Jeane Kirkpatrick, asked me to attend an early Reagan National Security Council meeting in the White House on, of all topics, this.

Secretary of State Alexander Haig opened by telling the new president that the treaty was nothing we’d want, but something we’ve got. After all, upwards of 150-odd nations crafted the accord since the LOS process began in 1966. Secretary Haig, reading rotely from his brief, droned on about modifications to sundry treaty provisions -- each with a myriad of subsections and micro-options. This, to put it mildly, was not playing to Reagan’s strong suit.

The president looked bored -- we all were -- and then puzzled. Finally, he broke in. “Uh, Al,” he asked, “isn’t this what the whole thing’s all about?”

None of us could fathom what Reagan meant. Mr. Haig asked him. Well, Mr. Reagan shrugged, wasn’t not going along with something “really stupid,” just because 150 nations had done so, what the whole thing was all about? Our running? Our winning? Our being here? Our governing? Wasn’t that what the whole thing was all about?

Stunned, Mr. Haig closed his briefing book and muttered something about how he’d be back to the presi-dent on how to get out of the treaty altogether.

After the usual government hiatus came another NSC meeting on the topic. I modestly suggested dis-patching a special LOS envoy to explain the president’s views directly to allied leaders. These “heads of government . . . do not know much about the LOS Treaty,” I understatedly wrote White House counselor Ed Meese on June 29, 1982. “The [LOS] experts are hopeless; they have been negotiating his thing for 10 years” and are stuck in that rut.

Another bout of government hibernation. Then the usual flurry.

The president suddenly asked ex-Defense Secretary Don Rumsfeld to be his LOS envoy. The next day, the new secretary of state, George Shultz, called to say that Mr. Rumsfeld asked me to accompany him. “Since you handle this issue in the U.N., Don thought you could add a lot to his meetings.”

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I had to tell the secretary that, while against this U.N. attempt at global socialism, “frankly, I don’t know a hell of a lot more about it than Don does.” The phone went dead until Mr. Shultz, known for his Bud-dha-like calm, finally said, “In that case, we’ll have to send along a third person, who knows something about the topic.”

L. Paul Bremer, then Mr. Shultz’s aide, got us briefed and bundled off -- on a 33,000-mile whirl to seven countries. My wife dubbed the Rumsfeld-Adelman mission “scuttle diplomacy.”

Prime Minister Margaret Thatcher assembled all her recondite British experts. They started to cite sec-tions of the LOS Treaty -- not playing to our strong suit, either -- when Mr. Rumsfeld stopped this lunge for the capillaries.

Madame Prime Minister, Mr. Rumsfeld burst in, do you really want to support international socialism? To let the U.N. run an international cartel? To enforce the mandatory transfer of technology? Do you -- do we -- really want a future like that?

Lifting the level of discourse with telling arguments was all the good lady needed.

German Chancellor Helmut Kohl needed only a few arguments to refute his LOS bureaucrats. Far more important, he needed to know whether Reagan really cared about this. New in office and conservative, Mr. Kohl most wanted to get close to Reagan. We gave him a way in.

French President Francois Mitterrand sat immobile, his knees touching one another, his ankles tightly together, during our entire hour meeting. Must have been more painful than our conversation.

Nearly as memorable as his knees was his attitude. Typically French. According to my draft report to the president (dated Dec. 7, 1982), Mitterrand’s top aide told us, “Once the LOS process was launched in the U.N., its poor outcome was inevitable.”

Obviously, the outcome was poor. Sure, the treaty was unworkable. So, why oppose it? The French approach, quite straightforward, was to ingratiate itself to the Third World by supporting the treaty and waiting for it to fail.

We had a hard time reaching -- and then hearing -- Dutch Prime Minister Rudolphus Lubbers. We had to walk around the red paint splattered outside his office, courtesy of Dutch artists whose subsidies were being trimmed. While we tried to converse, hundreds (maybe thousands) of teachers chanted loudly outside his office while walking backwards. They were demonstrating against his policies pushing Dutch education backwards. The prime minister’s mind could not be turned to deep-sea mining.

We made our pitch in Belgium, which seemed to work. Then, in Japan. Italian Prime Minister Giovanni Spadolini admitted he was turned around during our session. But he was turned out of office while we headed for the Rome airport. (Oddly, four of the seven countries we visited changed leaders over those two months.)

We briefed President Reagan upon returning. On Dec. 11, 1982, the New York Times featured on its front page: “Sea Law Signed by 117 Nations; U.S. Opposes It.” Nothing unexpected there. But the real

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story was in the subtitle: “46 Other Countries Also Refuse to Back Treaty.” Among the 46 were Ger-many, Britain, Japan, Belgium and Italy. Except for France, no country we visited which was able to do deep seabed mining signed on. All these allies had once joined, or even led, the U.N. wave. Then the Reagan administration devised a quiet and cooperative way to bring nearly all of them around.

Back at the U.N. another debate over American unilateralism erupted. This was echoed in the New York Times lead editorial on Dec. 17 blasting the administration for “betray[ing] the bipartisan labors of pre-vious Administrations and set[ting] back the cause of international accommodation,” and for “isolation and obstruction.” Sound familiar?

I proposed a wicked one-sentence amendment to the LOS Treaty: Anyone with any involvement in the LOS negotiations would forever be barred from a paid job in any LOS bureaucracy established. This caused a veritable tsunami in the General Assembly.

This stroll down memory lane, of a quarter-century back, has a purpose. George W. Bush, like Ronald Reagan, refused to join the wave of internationalism embodied by the Kyoto Treaty, International Crimi-nal Court, ABM Treaty and others. But Mr. Bush long lacked Reagan’s deftness in bringing allies around to his sensible views. It’s not that he failed. He just didn’t try.

Though late, he may now be adopting a better approach. The LOS is an apt “case study” as the treaty reemerges from the deep and President Bush urges Senate ratification of a far better deal. Scraped away are virtually all the barnacles we denounced during our 1982 “scuttle diplomacy.” There’s no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation. Indeed, the U.S. gets a permanent seat on the decision-making body, and thus has veto power. There’s no bar to future qualified mining firms, and no gigantic LOS institution for wannabe bureaucrats.

This seabed mining regime reflects free-market principles. It offers companies the legal certainty needed for large-scale, long-term investments; protects existing claims of U.S. firms; and reinforces internation-al law on territorial waterways. It locks in U.S. off-shore economic rights as it expands our rights over resources in a 200-mile exclusive economic zone, 200-mile continental shelf, and in a shelf beyond 200 miles off Alaska.

This LOS treaty, a product of slow-motion yet effective diplomacy, was worth the wait. I’d never thought I’d say it, but -- here goes! -- the Senate should now ratify it.

Mr. Adelman, a U.N. ambassador and arms control director under President Reagan, now directs the Arts & Ideas series for the Aspen Institute.

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06/28/2007 12:15 PMASIL Insights: The United States and the 1982 Law of the Sea Treaty

Page 1 of 4http://asil.org/insights/2007/06/insights070611.html

ASIL InsightThe United States and the 1982 Law of the Sea TreatyBy David D. Caron and Harry N. Scheiber

June 11, 2007Volume 12, Issue 04

On May 15, 2007, President George W. Bush “urge[d] the Senate to actfavorably on U.S. accession to the United Nations Convention on the Lawof the Sea during this session of Congress."[1] In doing so, the Presidentidentified four benefits to U.S. interests when the U.S. joins theConvention. First, the President noted that the Convention advances thenational security interests of the United States, “including the maritimemobility of our armed forces worldwide." Second, he indicated that theConvention would “secure U.S. sovereign rights” over extensive marine

areas and the valuable natural resources they contain. Third, he stated that accession would “promote U.S. interest in the environmental health of the oceans,” an issue of increasing concern.Finally, President Bush noted that acceding to the Convention would give the United States “aseat at the table when the rights that are vital to our interests are debated and interpreted.” Twosenior Senate Republicans – former Foreign Relations Committee Chairman Richard G. Lugar ofIndiana and former Appropriations Committee Chairman Ted Stevens of Alaska – immediatelyendorsed President Bush's declaration. Senate Foreign Relations Committee Chairman Joseph R.Biden Jr., a Democrat from Delaware, praised President Bush's "strong statement of support" andsaid he intended to consider the treaty in his committee "in the coming months."

The prospect of the U.S. acceding to the 1982 Law of the Sea Convention comes after severaldecades of consideration. While both political parties and virtually all constituencies have broadlysupported the Convention since at least 1994, the Convention did not receive the advice andconsent of the Senate in that decade, an unprecedented event in the history of U.S. treatypractice for such a widely supported agreement. This Insight reviews both the history of the treatyin the United States, and considers both why the advice and consent of the Senate has beendelayed, as well as the possible costs of that delay.

The 1982 Law of the Sea Convention, U.S. opposition to aspects of the Final Text, and theinternational accommodation of U.S. concerns in the 1994 Implementing AgreementModifying Part XI

Following a series of unsuccessful attempts to agree upon an international regime governing thelaws of the sea since the 1930s, the U.N. General Assembly in 1970 voted to convene the ThirdUnited Nations Law of the Sea Conference (UNCLOS III). The first session of that negotiatingeffort was held in Caracas in 1974 and the Final Text, the 1982 Law of the Sea Convention, wassigned in Jamaica on December 10, 1982.[2]

The U.S. welcomed this initiative and played a leading role in the negotiations under theadministrations of Presidents Nixon, Ford and Carter. Indeed, the influence of the United States’negotiating team is apparent in many aspects of the 1982 Convention. However, a few aspects ofthe negotiating text, in particular those relating to the deep seabed, were not acceptable to thethen new Reagan Administration. During the final negotiating session, the United Statesdelegation sought substantial revisions of the text, focusing particularly on those relating to thedeep seabed. The U.S. was only partially successful in this effort, and ultimately President Reagandeclined to sign the Final Text.

In the more than two decades since President Reagan chose not to sign the treaty, significantdevelops have occurred. First, and most importantly, the portion of the Convention relating to thedeep seabed that was objectionable to the U.S. and other states changed dramatically in July of1994 amidst the political climate following the breakup of the Soviet Union.[3] As William Taft,then Legal Advisor of the State Department, testified before the Senate Foreign RelationsCommittee on October 21, 2003: “As a result of the important international political and economicchanges of the late 1980s and early 1990s !! including the end of the Cold War and growingreliance on free market principles !! widespread recognition emerged, not limited to industrializednations, that the collectivist approach of the seabed mining regime of the Convention required

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basic change.” He went on to testify that the “changes set forth in the 1994 Agreement overcomeeach one of the objections of the United States to Part XI of the Convention and meet our goal ofguaranteed access by U.S. industry to deep seabed minerals on the basis of reasonable termsand conditions.” Second, the Convention entered into force on November 16, 1994, one year afterthe sixtieth nation consented to be bound by it. Today, the Convention has been subscribed to by153 states, including virtually all U.S. North Atlantic Treaty Organisation (NATO) and Organisationfor Economic Co-operation and Development (OECD) allies, as well as Russia, China and theEuropean Community.

There has been broad U.S support for accession since at least 1994, but there has alsobeen effective private ideological opposition

Since at least 1994, a strong base of support for accession to the Law of the Sea Convention inthe United States has existed in the federal government, industry and civil society. It is likely thatno other treaty has ever been so widely supported and yet failed to be put to a vote in the Senatefor such a long duration. The Defense Department, the State Department, the CommerceDepartment, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector,as well as environmental and conservation non-governmental organizations and religiousorganizations all support the treaty.[4] Additionally, both the National Commission on OceansPolicy and the Pew Oceans Commission in their recent reports strongly urged immediate actionby the Senate and accession to the Convention.

Further reflecting broad bipartisan support, in a highly unusual statement in the history of U.S.treaty ratification practice, all living former Legal Advisers of the U.S. Department of State issued ajoint letter on April l7, 2004 to Senators William H. Frist (then Majority Leader), Richard G. Lugar(then Chairman, Committee on Foreign Relations), and John W. Warner and Carl Levin(respectively, then Chairman and Ranking Member, Committee on Armed Services.[5] In thatletter, the eight former Legal Advisers wrote:

We are unanimous in our view that it is in the best interests of the United Statesthat the Senate, at its earliest opportunity, grant its advice and consent to UnitedStates accession to the 1982 United Nations Convention on the Law of the Seaand to United States ratification of the 1994 Implementing Agreement that modifiesPart XI of the LOS Convention.

Some three years after receiving this joint letter, President Bush’s recent statement is similarlyunusual in the history of U.S. treaty ratification. The joint letter of former Legal Advisers andPresident Bush’s recent statement urging timely advice and consent are unusual because treatieswith such broad support do not usually languish in the Senate.[6] It is true that a few treaties,thought important by some, have not received the advice and consent of the Senate over thehistory of the United States. But in those cases, the treaties in question, for example, the treatyestablishing the League of Nations, were hotly debated on the Senate floor.

For both domestic and foreign observers of the United States, the inability of the United States toaccede to this Convention, despite the broad, widely-held and bipartisan support, is surprising.The explanation is that a narrow private opposition to the Convention has been effective inblocking accession. Opposition has likely been effective for two reasons.

First, the opposition has focused its narrow, primarily ideological, objections to the Convention soas to take advantage of several procedural customs within the Senate that allow a very fewSenators to make more difficult, if not prevent, a vote on the Convention. Previously, in 2004, theSenate Foreign Relations Committee voted the Convention out of Committee unanimouslyrecommending that the Senate give its advice and consent to accession. The placement of theitem on the unanimous consent calendar – the most common mechanism for the Senate to voteon a treaty matter – was blocked. The procedural moves involved could be overcome, but thethen-Senate Majority Leader Frist, Tennessee Republican declined to do so.

A leading respected opponent to accession was the Reagan administration’s Ambassador to theUnited Nations, the late Jeane Kirkpatrick, who in 2004 remained of the view that the Conventionis disadvantageous to American industry and a “bad bargain.” On April 8, 2004, she testifiedbefore the Senate Armed Services Committee that the protections extended by UNCLOS tofreedom of navigation and environmental health of the seas “were especially welcome at a timewhen a good many countries were arbitrarily extending their territorial claims over straits and vitalsea lanes. But the Reagan Administration believed that the cost was too high, especially sincemost of these benefits had been or could be achieved through bilateral agreements or through

provide concise and informedbackground for developments ofinterest to the internationalcommunity. The American Societyof International Law does not takepositions on substantive issues,including the ones discussed inthis Insight. Educational and newsmedia copying is permitted withdue acknowledgement.

Page 108



existing organizations such as . . . UNEP.” Overall, however, the majority of statements made byindividuals opposing accession to the Convention involve loss of sovereignty to internationalgovernment. Following President Bush’s May 15, 2007 statement, Senator Lugar stated: “Ideological posturing and flat-out misrepresentations by a handful of amateur admirals havesought to cast a shadow over the treaty by suggesting that we are turning over our sovereignty tothe United Nations.” Surveys of likely votes by Senators, however, leave little doubt that if it is putto a vote, the Senate will overwhelmingly give its advice and consent to accession.

Second, with the determined opposition of a small group and other matters demanding theSenate’s attention, it appears that some members of the Senate believed that it was notparticularly urgent for the United States to accede to the Convention. The United States for overtwenty years has acted consistently with principles in the Convention. Due to other importantbusiness, it has been easy to put consideration of the Convention off to the future. Implicit inPresident Bush’s statement is the belief that it is incorrect and potentially costly to U.S. interest tofurther delay accession.

The possible risks posed by delay in accession

Senate delay may prove costly since treaties without leadership can decay. Shortly after World War II, a unilateral move by the U.S. in the Truman Proclamations ofSeptember 1945, declaring ownership of the continental shelf seabed resources and announcing apolicy for extended US jurisdiction of coastal fisheries far out to sea beyond the then dominantthree mile limit, diplomatically backfired for the U.S. as the Proclamations resulted in a bevy ofnational claims by other nations. These nations claimed jurisdiction or even sovereignty overwaters as much as 200 miles off their coasts – a development fraught with negative consequencesfor U.S. naval operations, shipping, and distant water fishery interests. The next three decades ofU.S. oceans diplomacy were dedicated to containing this explosion of offshore claims. Thesolution was formulated with the leadership and consistent support of the U.S. and was formalizedin the comprehensive package of new law in the 1982 Law of the Sea Convention. TheConvention’s central innovation was the creation of a third type of ocean zone from the new 12-mile outer limit of the territorial sea to 200 miles past which the traditional “freedom of the highseas” is retained. That in-between zone of ocean (the Exclusive Economic Zone) mixes coastalownership and high seas freedoms in a way that allows the U.S. to have sovereign rights in thefish for 200 miles off its coasts but still allows the U.S. Navy to operate up to 12 miles off of othercoastlines. The crucial point is that the Exclusive Economic Zone is a complex zone and is, by itsnature, unstable, easily tending to gravitate to more and more ownership claims by the nearbycoastal state.

The Law of the Sea Convention sets forth the deal, has the institutions to enforce the deal, andmay be one of the main things that prevent a collapse of zones from recurring.

About the Authors

David D. Caron, an ASIL member, is the C. William Maxeiner Distinguished Professor ofInternational Law at the University of California at Berkeley. Harry N. Scheiber is the Stefan A.Riesenfeld Professor of Law and History at the University of California at Berkeley. Together theyco direct the Law of the Sea Institute, an international consortium of scholars founded in 1970.

[1] Available at http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html.

[2] United Nations Law of the Sea Convention, signed 10 December 1982, entered in force 1994,available athttp://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm.

[3] Agreement Relating to the Implementation of Part XI of the United Nations Convention on theLaw of the Sea, with annex, adopted on July 28, 1994 (Senate Treaty Doc. 103-39), available athttp://www.un.org/Depts/los/convention_agreements/convention_overview_part_xi.htm.

[4] See, e.g., Testimony of John Norton Moore before the the Senate Foreign RelationsCommittee (Oct. 4, 2003) available athttp://www.senate.gov/~foreign/testimony/2003/MooreTestimony031014.pdf.

[5] Letter of April l7, 2004 from Herbert J. Hansell (Legal Adviser, 1977–1979), Edwin D.Williamson (Legal Adviser, 1990–1993), Roberts B. Owen (Legal Adviser, 1979–1981), Conrad K.Harper (Legal Adviser, 1993–1996), Davis R. Robinson (Legal Adviser, 1981–1985), David R.Andrews (Legal Adviser, 1997–2000), Abraham D. Sofaer (Legal Adviser, 1985–1990) and

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Michael J. Matheson (Acting Legal Adviser on various occasions) to Senators William H. Frist,Richard G. Lugar, John W. Warner and Carl Levin, reprinted at 98 Am J. Int’l L. 307 (2004).

[6] The White House had attempted earlier in 2007 to urge the Senate to action in a letter datedFebruary 8, 2007 from the National Security Council Advisor, Stephen J. Hadley, to SenatorBiden, the Chair of the Senate Foreign Relations Committee where he wrote in part: “Recognizingthe historic bipartisan support for the Law of the Sea Convention, I anticipate our shared interestin moving it forward.” Despite this letter, it is reported that those favoring accession to theConvention felt the President himself needed to write to the Senate.

© 107 The American Society of International Law2223 Massachusetts Avenue, NW Washington DC 20008 • Phone 202-939-6000

Page 110

The question of the amount of seabed to which a coastal nation is entitled is addressed in the United Nations Convention on the Law of the Sea (UNCLOS). This treaty, ratified by 153 nations and in force since 1994, specifies national obligations, rights, and jurisdiction in the oceans, and it allows nations a continental shelf out to at least 200 nautical miles or to a maritime boundary. Article 76 (A76) of the convention enables coastal nations to establish their continental shelves beyond 200 nautical miles and there-fore to control, among other things, access for scientific research and the use of seabed resources that would otherwise be consid-ered to lie beyond national jurisdiction.

To date, seven submissions for extended continental shelves (ECS) have been filed under UNCLOS (Table 1). These submissions have begun to define the ambiguities in A76. How these ambiguities are resolved into final ECS boundaries will probably set important precedents guiding the future delimitation of the ECS by the United States, which has not ratified the convention, and other coastal nations. This report uses exam-ples from the first three submissions—by the Russian Federation, Brazil, and Australia—to identify outstanding issues encountered in applying A76 to ECS delimitation.

Article 76 and Submissions

A76 (http://www.un.org/Depts/los/convention_agreements/texts/unclos/part6.htm) represents the consensus text of UNCLOS negotiators from more than 100 nations. The resulting definition of the continental shelf is legal, with little or no relationship to geosci-ence definitions. The implementation of A76, however, emphasizes marine geoscience: UNCLOS establishes a Commission on Limits of the Continental Shelf (CLCS), composed of geoscientists, to provide expertise and make recommendations about ECS boundaries. CLCS tasks are complicated by continuous

advances in technology and scientific knowl-edge about continental margins and ocean floor processes [Nordquist et al., 2004].

Submissions to the CLCS are confidential, as are deliberations between the submitting nation and the CLCS. Comments from nations sharing common borders are taken into con-sideration, but other comments are not consid-ered. Only executive summaries posted to the Web are publicly available. This lack of trans-parency precludes significant peer review of submissions by geoscientists who are not CLCS members [Macnab, 2004].

Natural prolongation of the continental shelf is a key concept in allowing a nation to extend its jurisdiction beyond 200 nautical miles. The continental margin is the seabed and subsoil of the shelf, slope, and rise and does not include the deep ocean floor with its oceanic ridges or subsoil. In Australia’s submis-sion, Macquarie Island illustrates the challenge in interpreting ‘natural prolongation.’ The island is the subaerial exposure of the curvilinear, segmented oceanic ridge/trench system form-ing the complex transform boundary between the Australian and Pacific plates [Meckel et al., 2003]. The submitted ECS follows this ridge/trench system well beyond 200 nautical miles, indicating that the ridge/trench system is inter-preted as a natural prolongation of the island (Figure 1). When the CLCS makes a recom-mendation on this ECS, it will set a precedent regarding oceanic ridges on which islands sit.

In the Russian submission, both the Lomonosov and Alpha-Mendeleev ridges were used in an effort to extend Russian juris-diction across the Arctic basin. Published data from the continental shelves and these ridges are sparse, although newer studies (e.g., Integrated Ocean Drilling Program Expedi-tion 302) are clarifying details of Arctic basin evolution. In 2002, the CLCS recommended that Russia make a revised submission, sug-gesting that additional information is required to substantiate its ECS. CLCS has no set dead-lines for making revised submissions.

Formula and Constraint Lines

Two alternative methods for determining the ECS are defined in A76:

1. Sediment thickness: The coastal nation delineates a line seaward to points where the thickness of seabed sedimentary rocks is at least 1% of the shortest distance from the foot of the continental slope (FOS). This for-mula is used in all submissions, although much less frequently than points based on the second, bathymetric, formula. Evaluating sediment thickness points without access to the submitted data is virtually impossible. Brazil submitted a revision that moved its southern ECS seaward from a sediment thickness (Figure 2) to a constraint line (defined below). This suggests new interpre-tations of existing data or the use of new data to expand the ECS.

2. Bathymetry: The coastal nation delin-eates a line seaward to points 60 nautical miles from the FOS. The FOS is broadly defined as the point of maximum change in gradient, requiring clear documentation of

VOLUME 88 NUMBER 22

29 MAY 2007

PAGES 237–244

Eos, Vol. 88, No. 22, 29 May 2007

EOS, TRANSACTIONS, AMERICAN GEOPHYSICAL UNION

PAGES 237, 240

Law of the Sea, the Continental Shelf, and Marine Research

BY D. R. HUTCHINSON AND R. W. ROWLAND

Table 1. Submission Information

Nationa Submission Date200-nm Area,

× 106 km2

ECS Added Area,× 106 km2

Russian Federation 20 Dec 2001 6.38 ?

Brazil17 May 2004

and 1 Mar 20063.62 0.95

Australia 15 Nov 2004 8.25 2.69

Ireland (partial) 25 May 2005

New Zealand 19 Apr 2006 4.0 1.7

France, Ireland, Spain, United Kingdom

19 May 2006 ? 0.08

Norway 27 Nov 2006 0.82 0.25

aExecutive summaries are available at http://www.un.org/Depts/los/clcs_new/clcs_home.htm.

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Eos, Vol. 88, No. 22, 29 May 2007

all methods, sources, and filters used [CLCS, 1999]. Of the current submissions, bathyme-try is invoked more frequently than any other criteria in establishing the ECS. Unfor-tunately, the FOS is not consistently shown in executive summaries.

Nations may also define FOS using ‘evi-dence to the contrary,’ which takes into account those situations where, for example, the continent-ocean transition might lie sea-ward of the maximum gradient change. None of the executive summaries specifies using evidence to the contrary, so its use remains uncertain. A possible example is the FOS in the Great Australian Bight (Figure 1). Measuring back 60 nautical miles from the 86 bathymetric points places the FOS in water depths of 4000–5000 meters, which is more typical of the foot of the continental rise.

A76 defines maximum limits for the loca-tion of the ECS at either 350 nautical miles from the baselines used to establish the ter-ritorial sea or 100 nautical miles from the 2500-meter isobath. Both constraint lines are used in varying amounts. In A76, only the 350-nautical-mile constraint line applies to submarine ridges (not defined), but both constraints apply to submarine elevations, which are broadly defined as natural com-ponents of the continental margin, such as plateaus, rises, caps, banks, and spurs. These names have been applied by hydrographers to seafloor features without rigorous bathymet-ric or compositional criteria, creating confu-sion for treatment within A76. The Brazil sub-mission describes a feature at 20.5°S as the Vitória-Trindade Ridge, whereas the General Bathymetric Chart of the Oceans (GEBCO) Sub-Committee on Undersea Feature Names calls the same feature the Vitória-Trindade Seamount Chain (Figure 2).

The Kerguelen Plateau of Australia affords a location to examine the application of the 350-nautical-mile constraint line to a feature that is arguably part of the deep ocean floor yet is also considered a natural prolongation of the continental margin defined by Heard and McDonald islands. The submitted ECS extends more than 400 nautical miles south of the 200-nautical-mile boundary (Figure 1). Three Ocean Drilling Program (ODP) legs (119, 129, and 183) revealed that the Ker-guelen Plateau contains four distinct prov-inces—North, Central, and South Kerguelen plateaus, and Elan Bank—which are bathy-metrically distinct and composed of mostly oceanic basalts with unique geologic histo-ries.

Elan Bank (Figure 1) illustrates the chal-lenges in determining whether a submarine elevation is a natural component of a mar-gin. Drilling at ODP site 1137 recovered clasts of garnet-biotite gneiss, a rock that is commonly found only on continents. This gneiss is interpreted as having been part of India when it separated from Antarctica, then became stranded on the Australian plate by a plate reorganization [Borissova et al., 2003]. For CLCS, the question is

whether Elan Bank is a natural prolongation of the volcanic Central Kerguelen Plateau with its two islands. The recommendations by CLCS will test definitions of oceanic

ridges, submarine ridges, submarine eleva-tions, and natural prolongations, and it will establish precedents for the interpretation of A76.

Fig. 2. Map showing the 2004 and revised 2006 positions of the submitted ECS off southern Brazil. Pale yellow indicates regions of discrepancy between the two boundaries.

Fig. 1. Map showing the 200-nautical-mile boundary for Australia (white), extended continental shelves (ECS) (red), and treaty lines (black). KP designates Kerguelen Plateau.

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Eos, Vol. 88, No. 22, 29 May 2007

Implications

With the seven submissions, CLCS has finally begun evaluating ECS boundaries. Rec-ognizing the huge amounts of data and interpretations needing analysis, CLCS has requested GIS support from the United Nations. The workload will only increase through 2009, when the 10-year limit on mak-ing submissions expires for the approxi-mately 50 coastal nations that ratified UNCLOS before 1999. Each nation acceding to UNCLOS after 1999 can submit its ECS boundaries any time within a 10-year win-dow that begins at its date of ratification.

New ECS boundaries will have far-reaching implications for scientific research and gover-nance. The increase in potential juridical conti-nental shelf is large (Table 1), posing man-agement and security challenges as well as potential economic benefits to coastal nations. The collection of data for the prepa-ration of A76 submissions offers opportuni-ties for new research, and will increase our knowledge of continental margins and ocean floor processes worldwide. As funding for scientific research becomes more com-petitive, the marine research community can advocate transparency, so these new data would be published and available for uses other than mapping the ECS [e.g., Gardner et al., 2006]. Scientific research within new ECS requires the approval of the coastal nation (UNCLOS Article 246), which may limit access to large ocean areas. Marine research is not yet limited in ECS regions because no final and binding ECS boundaries have been made in accordance with Article 76. The CLCS recommendations to Brazil and Ire-land, expected to be made public within the next 6–12 months, may initiate the process

of final boundary delimitation, requiring marine research in these ECS regions to have approval.

The U.S. Congress has funded research to begin mapping the FOS around most of the U.S. mainland and insular continental mar-gins [Gardner et al., 2006]. Desktop studies to evaluate data sources relevant to a future submission are under way [Hutchinson et al., 2004; Mayer et al., 2002]. Ongoing national and international marine programs will pro-vide useful data, but additional bathymetric and sediment thickness data will be needed, especially along the Arctic margin, where data are sparse and ice conditions limit ship operations.

The CLCS process is iterative and may involve requests for additional data. Hence, final recommendations by the CLCS may be years away. Meanwhile, CLCS responses to submissions will influence other nations in the preparation of their own submissions. Potential controversies and workload could be lessened by joint submissions, such as those from France, Ireland, Spain, and the United Kingdom.

Acknowledgments

Figure 1 incorporates maritime boundary data from the Commonwealth of Australia (2006) (http://www.ga.gov.au/nmd/products/thematic/ambis.jsp). We thank R. S. Williams, P. E. Hart, and anonymous reviewers for con-structive comments.

References

Borissova, I., M. F. Coffin, P. Charvis, and S. Operto (2003), Structure and development of a micro-continent: Elan Bank in the southern Indian

Ocean, Geochem. Geophys. Geosyst., 4(9), 1071, doi:10.1029/2003GC000535.

Commission on the Limits of the Continental Shelf (1999), Scientific and technical guidelines of the Commission on the Limits of the Continental Shelf, adopted 13 May 1999, United Nations, New York. (Available at http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Guidelines)

Gardner, J. V., L. A. Mayer, and A. Armstrong (2006), Mapping supports potential submission to U.N. Law of the Sea, Eos Trans. AGU, 87(16), 157, 160.

Hutchinson, D. R., J. R. Childs, E. Hammar-Klose, S. Dadisman, T. Edgar, and G. Barth (2004), A prelimi-nary assessment of the geologic framework and sediment thickness studies relevant to prospective U.S. submission on extended continental shelf [CD-ROM], U.S. Geol. Surv. Open File Rep., 2004-1447.

Macnab, R. (2004), The case for transparency in the delimitation of the outer continental shelf in accordance with UNCLOS Article 76, Ocean Dev. Int. Law, 35, 1–17.

Mayer, L., M. Jakobsson, and A. Armstrong (2002), The compilation and analysis of data relevant to a U.S. claim under United Nations Law of the Sea Article 76: A preliminary report, 75 pp., Cent. for Coastal and Ocean Mapp./Joint Hydrograph. Cent., Univ. of N. H., Durham, 31 May. (Available at http://www.ccom-jhc.unh.edu/unclos/reports_pdf/CCOM_JHC_REP.pdf)

Meckel, T. A., M. F. Coffin, S. Mosher, P. Symonds, G. Bernardel, and P. Mann (2003), Underthrusting at the Hjort Trench, Australian-Pacific plate boundary: Incipient subduction?, Geochem. Geophys. Geosyst., 4(2), 1099, doi:10.1029/2002GC000498.

Nordquist, M. H., J. Norton-Moore, and T. H. Heidar (2004), Legal and Scientific Aspects of Continental Shelf Limits, 467 pp., Martinus Nijhoff, Zoetermeer, Netherlands.

Author Information

Deborah R. Hutchinson, U.S. Geological Survey, Woods Hole, Mass.; E-mail: [email protected]; and Robert W. Rowland, U.S. Geological Survey, retired, Elkhart, Ind.

Page 113

June 28, 2007, 10:42 am

Russian Scientists Say the Arctic Is Theirs

By Mike Nizza

Toss another stick or two on to that smoldering Cold War fire: There’s renewed talk of expanding the Russian Empire.

This time, it’s not President Vladimir V. Putin spawning the headlines, but a group of geologists. After a 45-day expedition, the scientists say they have discovered new evidence that would bol-ster a Russian claim to a vast part of the Arctic region beyond the 230-mile maritime economic zone belonging to Russia and the four other nations bordering the Arctic Ocean: Canada, Den-mark (through its posession of Greenland), Norway and the United States.

One Russian paper celebrated the discovery by publishing a large map of the Arctic under the Russian flag, the Guardian reported.

By identifying a geological link between the continental shelf abutting Russia’s Far North and the North pole by way of a sea-floor feature called the Lomonosov Ridge, Russia could report-edly press a claim to roughly 460,000 square miles of ocean as its territorial waters — an area whose size approaches the Mexican Cession (529,189 square miles), which added Texas, Califor-nia and states in between to the United States. (Still short of the Louisiana Purchase’s 828,000, though.) And Russia wouldn’t be paying a ruble for it, either.

A BBC map shows Russia’s proposal; this set of maps from The New York Times illustrates the area at stake and different ways it might be divided.

In this battle for Arctic territory, the United States is on the sidelines for the moment, as conservatives in Congress delay ratification of the United Nations Convention on the Law of the Sea, which governs all claims. Once that treaty is ratified, there is a ten-year deadline for claiming new areas of the sea as territorial waters.

In a somewhat unlikely alliance, though, Canada and Denmark are stepping up instead. They are trying to establish that, contrary to the Russian claim, the Lomonosov Ridge “belongs not to the Siberian continental shelf but to the Canadian-Greenland shelf,” according to a Chicago Tribune report earlier this month.

The Russians have tried to advance their claim before, and were turned away by the United Na-tions in 2001. The new geological data is evidently meant to improve the odds for a second try.What Russia and all the other nations are after isn’t the vastness of icy brine between their shores so much as what is underneath it — potential oil and gas reserves worth hundreds of billions of dollars, which are growing more feasible to explore and develop as the polar ice cap shrinks, eas-ing access for drilling rigs.

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A 2005 report in The Times set the stage for the fight for other potential Boreal treasure as well, including “lucrative shipping routes, perhaps even the storied Northwest Passage; new cruise ship destinations; and important commercial fisheries.”

“It’s the positive side of global warming, if there is a positive side,” a Canadian official said at the time.

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The great Arctic Circle oil rushMelting icecaps are giving way to oil-rich waters -- that the U.S. can’t claim, writes Fortune’s Telis Demos.

By Telis Demos, Fortune reporterAugust 8 2007: 5:47 AM EDT

(Fortune Magazine) -- It’s an irony that even Al Gore might appreciate. As global warming causes the polar icecaps to recede, potentially oil-rich seabeds are being uncovered beneath the Arctic Circle in the suddenly navigable -- and drillable -- territory.

The area has long been thought to hold substantial reserves: Some say up to 25% of the world’s undiscovered oil and natural gas may lie below the thawing ice.

But as the countries bordering the Arctic hammer out who can lay claim to what parts of the ocean, one major player is missing: the U.S. Why? Because of an unlikely spat between Big Oil and a group of Republicans over the UN treaty that governs who can claim rights to those waters.

The next energy crisisBack in 1982, the United Nations Convention on the Law of the Sea went into effect, a treaty that defined ocean boundaries and set up regulations for ship traffic. The U.S. signed the treaty in 1994, but the Senate refused to ratify it, opposing the idea of UN sovereignty.

But what was then just a diplomatic absence is now seen as a lapse in judgment that could cost billions of dol-lars. Under Law of the Sea, countries are entitled to control any waters above landmasses that extend from their continental shelf.

If the U.S. were to claim that entitlement, it would gain Arctic territory roughly half the size of Alaska. But since the U.S. is not a party to the treaty, many worry that it won’t have a say before the North Pole is sliced up for good.

What’s in the way? A small but vocal group of Senate Republicans who are fiercely opposed to participation -- and the notion that UN panels could trump U.S. control over resources.

Frank Gaffney, a former Reagan advisor and current president of the Center for Security Policy, has called the treaty the “most egregious transfer of American sovereignty, wealth, and power to the UN.” Senator James Inhofe (R-Oklahoma) has said he’ll use “whatever means it takes” to keep the U.S. from joining the treaty. That included leading the charge to kill a bill that surfaced for ratification in 2004.

Going nuclearWhile there has been little commercial Arctic exploration so far, the potential is huge. London-based consul-tancy Wood Mackenzie estimates that at least 166 billion barrels of oil and gas might lie undiscovered in the near-shore Arctic. There could be much more in areas closer to the North Pole.

In potential U.S. territory alone there could be 15 billion barrels. With global reserves falling, any sizable field would be a prize.

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An Arctic land grab is already well underway. In early June, Russian scientists claimed they found evidence of 70 billion barrels of oil and natural gas reserves on the Lomonosov Ridge, a huge rock formation that extends through the North Pole from Siberia to Greenland.

Russia has slapped a claim on nearly half the Arctic -- a territory of half a million square miles -- and granted a monopoly to its own companies to exploit it. Denmark is crying foul, saying it, too, has rights to the ridge.

The U.S. could play a huge diplomatic role in any negotiation, and without its involvement, many feel the bor-ders will never truly be settled. “It makes exploration a lot more risky,” says Paul Kelly, former general counsel at drilling firm Rowan Cos., since bankers, he says, won’t put up the money for ventures in “murky waters.”

Exxon Mobil gushes profitsThe oil lobby has been working furiously to push past its Senate detractors -- and it is making some unlikely bedfellows in the process.

Lobbyists representing companies including Exxon Mobil (Charts, Fortune 500), Chevron (Charts, Fortune 500), and ConocoPhillips (Charts, Fortune 500) are allying with environmental groups, who want UN protec-tion for Arctic wildlife and ecosystems, as well as with the U.S. Navy, which says it won’t be able to patrol the Arctic effectively without the rights the treaty provides to the territory.

The consortium got a big boost in May when President Bush came out in support of ratification, breaking ranks with many members of his own party. New hearings in the Senate Foreign Relations Committee are set for this fall. Should things go well, a bill could hit the Senate by the end of the year.

Advocates are hopeful. “We’ve been pushing for this for years,” says Brian Petty, a drilling industry lobbyist, “and I think now we’ll finally get over the goal line.”

The region’s recent turf wars, they say, may give the issue a new sense of urgency. “The Russians have made their claim,” says a committee aide. “If we don’t act fast, we’re missing the boat.”

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Our view on Law of the Sea treaty: Who owns Arctic’s wealth?Five nations, including USA, unless we freeze ourselves out.

Earlier this month, Russia audaciously planted its national flag, encased in titanium, on the seabed below the North Pole. National fervor erupted as the stunt was compared to the U.S. planting of the Stars and Stripes on the moon in the 1960s.

Russia is laying claim to the area under the Arctic that is becoming more accessible as global warming thaws the ice above it. Potentially at stake: 460,000 square miles of Arctic seabed that could hold as much as 25% of the world’s undiscovered oil and gas, valuable commodities like gold and diamonds, fishing stocks and lucrative freight routes.

The days are long gone when the “doctrine of discovery” ruled and planting a flag was enough to claim tracts of the New World. But Russia’s gambit is a timely wake-up call for the United States and the three other countries that border the Arctic Circle (Canada, Norway and Denmark, which manages Greenland’s interests).

The “new world” beneath the Arctic, along with the rest of the sea and the seabed, are governed by the 1982 U.N. Law of the Sea Convention, which gives nations a 200-nautical-mile “economic zone” from their coast-lines. More than 150 countries have ratified the treaty, but the United States isn’t one of them — initially be-cause of issues such as mining rights that have since been addressed, then because of general conservative dislike of the United Nations.

President Bush, who has opposed other international accords, rightly supports this one. He is urging the Senate to ratify the treaty so that the United States would have a “seat at the table” in the case of deciding this and other sea disputes. It’s not a moment too soon.

Russia’s submarine mission under the North Pole — led by charismatic explorer Artur Chilingarov, whom President Vladimir Putin made a “presidential envoy” to the Arctic — did far more than plant a flag. It took rock samples to support Russia’s contention that the Lomonosov Ridge of underwater mountains is a continuation of Russia, and thus entitles it to much of the territory.

Russia’s claims have so far been turned down by the body that administers much of the treaty. Denmark and Norway also claim the Lomonosov Ridge. One promising formula would carve the area up among the five Arc-tic Circle nations according to their nearest coastlines. In that case, Denmark would get the North Pole.

Global warming is not so rapid that the Arctic will unfreeze overnight, but it’s best to have in place a way to resolve disputes peacefully if and when it does. Already, Canada, angered at Russia’s move, is planning to spend $7 billion on new Arctic patrol vessels. The United States could update three polar icebreakers and build two more. At least one Russian lawmaker is talking of military reinforcements.

When President Reagan refused to endorse the Law of the Sea back in the 1980s, one of his chief U.N. envoys was Ken Adelman. Adelman now has changed his mind. Many Republican senators are still opposed, but they, too, should reconsider. Ratifying the treaty will help the United States assert its stake to Arctic riches and curb Russia’s appetite for them.

Posted at 12:21 AM/ET, August 14, 2007

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U.S. Resistance to Sea Treaty ThawsWall Street Journal; August 22, 2007; http://online.wsj.com/article/SB118772758771704410.html

WASHINGTON -- What do the Nature Conservancy, Exxon Mobil Corp., offshore oil drillers, the fishing, shipping and diamond industries, President Bush and the U.S. Navy have in common?

Answer: They all support a little-known but highly contentious international treaty -- set to come before the U.S. Senate next month for ratification -- that governs nearly every aspect of ocean law, from underwater mineral rights to access to shipping lanes.

The 208-page Law of the Sea Convention, debated since the 1930s and sealed in 1982, has stirred passions for decades in Washington. Critics in the Senate have repeatedly blocked its ratification, saying the pact would undercut U.S. sover-eignty. Supporters tout the treaty as a pillar of international law and key to long-term U.S. security. The U.S. is now one of fewer than 40 countries, and the only significant power, not to have joined.

That is now almost certain to change, for three reasons: scarce energy sources, the thawing Arctic ice cap and the U.S. Navy’s desire for unfettered access to the world’s seaways. These motivations have helped galvanize an odd coalition of environmentalists, oil interests and military brass to persuade enough senators to back the treaty.

The renewed interest has grown more intense amid a scramble to claim undersea territories in the resource-rich Arctic.

Looking to buttress its legal case for ownership of a massive undersea ridge, Russia planted its flag earlier this month on a seabed more than 15,000 feet below the North Pole. Canada, asserting its disputed rights, plans a new fleet of ice-breaking ships and a deepwater Arctic port; yesterday, Canadian Prime Minister Stephen Harper asserted his country’s claim to the so-called Northwest Passage along its northern coast during a meeting with Mr. Bush in Quebec. And Denmark is sending a research team to push its own claim to undersea holdings that extend far from Greenland.

All this has put the U.S. in a jam. The Law of the Sea Treaty allows countries -- even nonsignatories -- exclusive rights to the seabed extending 200 nautical miles from their shores. Countries can then present evidence to claim rights to any of their continental shelf beyond that. Claims and disputes fall to one of several arbitration bodies established by the treaty. Without being a party to the treaty, the U.S. has no clear way -- short of threatening force -- to assert its claims.

U.S. officials said the stakes are literally vast. In the Arctic alone, the U.S. could lay claim to more than 200,000 square miles of additional undersea territories. The U.S. Coast Guard Cutter Healy is in the region to continue mapping the ocean floor to help strengthen the U.S. case. By some estimates, the country’s total additional undersea holdings, includ-ing extensions off the East Coast and the Gulf of Mexico, could exceed 300,000 square miles, or roughly twice the size of California.

Recent estimates have found the Arctic could contain the equivalent of more than 400 billion barrels of oil and gas and massive amounts of another potential energy source, crystallized methane. The U.S. Geological Survey has estimated the amount of carbon found in hydrate form world-wide is “conservatively” twice the amount found in all the world’s fossil fuels.

Increased thawing of the Arctic ice cap is also beginning to open up seaways, such as the long-heralded Northwest Pas-sage that is expected to revolutionize shipping. Still blocked by ice much of the year, the polar pathway linking China to Northern Europe and the Northwest U.S. is about 5,000 miles shorter than routes through the Suez or Panama canals. Canada for years has asserted its sovereignty over the passage, a claim the U.S. and other countries dispute.

Environmentalists back the Law of the Sea Treaty because of its provisions for controlling pollution, from ships and un-derwater exploration.

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Policy makers in Washington have generally been slow to champion the treaty. President Reagan opposed the original pact’s undersea-mining rules as biased against U.S. interests, a position that still carries much weight with many conserva-tives. President Clinton signed the treaty after those rules were amended, but the Republican-controlled Senate refused to go along. In 2004, the measure withered again on Capitol Hill.

Under pressure from oil groups and diplomats in his administration, Mr. Bush in May endorsed the pact’s ratification for the first time. The heads of the Army, Navy, Air Force and Marines followed suit with an unusual joint letter urging Senate passage.

The pact still has some vocal critics in Washington. Former Reagan adviser Frank Gaffney calls it “a socialist manifesto for the redistribution of wealth.” Now the head of the Center for Security Policy, a conservative think tank in Washington, Mr. Gaffney says “no senator who has actually read this treaty would vote for it.”

Republican Sen. James Inhofe of Oklahoma, one of at least a dozen conservatives who oppose the treaty, calls it “a disas-ter” and vows to work to block it from a full Senate vote. Other critics say the treaty will weaken U.S. efforts to inter-dict illicit shipments of nuclear materials and entangle the armed forces in a web of international regulations. As for the Arctic’s resource potential, they say the U.S. could work out an accommodation with the half-dozen other nations with a stake there.

The Navy, the pact’s most ardent supporter, dismisses such claims. “This for us is global mobility. That’s what it’s all about,” says Rear Adm. Bruce MacDonald, the Navy’s judge advocate general.

The treaty is now the world’s primary legal blueprint for what constitutes international waters and airspace. It grants all navies the right to “innocent passage” through the world’s seaways. Yet dozens of countries, from Ecuador and Somalia to China, South Korea and Vietnam, continue to try to limit the rights of warships to pass through their waters.

Joining the pact, Adm. MacDonald said, would give the U.S. a forum to contest such claims. “We need this treaty to lock in the rights we already have.”

Administration officials also argue that Washington’s failure to sign on to the treaty has, in fact, undercut the Prolifera-tion Security Initiative, a U.S. effort to enlist international help to cut off shipments of nuclear and missile technology to countries such as Iran or North Korea.

Two countries that have declined to join PSI, Malaysia and Indonesia, recently cited Washington’s spurning of the Law of the Sea Treaty as their main reason.

Others argue that the U.S. is already losing out in what promises to be a multibillion-dollar opportunity: the undersea min-ing of copper, zinc, cobalt and even diamonds. John Norton Moore, a top legal expert on the law of the sea at the Uni-versity of Virginia, said Russian and Chinese firms have already laid claim to some of the biggest undersea mines in the world. Without joining the treaty, the U.S. has no forum in which to stake a claim.

“Our sitting on the sidelines all these years has already cost us,” he said.

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VI.lInkstoMoreInforMatIon(treatytext,etc.)

A. Official Treaty Website:

http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm

B. Citizens for Global Solutions website on The United States and the Law of the Sea Treaty:

http://globalsolutions.org/in_the_beltway/united_states_and_law_sea_time_join

C. The Rule of Law Committee for the Oceans Website:

http://www.oceanlaw.org

D. Law of the Sea Institute:

http://repositories.cdlib.org/losi/

E. Center for Oceans Law and Policy

http://www.virginia.edu/colp/

F. American Society of International Law UNCLOS Research Tools

http://www.asil.org/resources/los.html

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