Questions for the record from Senator Richard G. Lugar Nomination Hearing for Dr. Condoleezza Rice January 18 & 19, 2005

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?

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.

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?

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.

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 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; and
by providing for the laying and maintenance of submarine cables and pipelines.
U.S. Armed Forces rely on these navigation and overflight rights daily, and their protection is of paramount importance to U.S. national security.

Becoming a party to the Convention would strengthen our ability to deflect potential proposals that would be inconsistent with U.S. national security interests, including those affecting freedom of navigation.

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 Foundation, 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?

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; and
- by 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, commercial, 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 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.

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 procedures with respect to the use of the oceans to conduct military operations?

As the Chief of Naval Operations, Admiral Vern Clark, testified before the Senate Armed Services Committee on April 8, 2004, “I am convinced that joining the Law of the Sea Convention will have no adverse 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 Relations Committee on May 12, 2004, that the Navy “currently operate[s] – willingly because it is our national 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.”

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 destruction?

The Convention’s navigation provisions derive from the 1958 law of the sea conventions, to which the United States is a party, and also reflect customary international law accepted by the United States.

As such, the Convention will not affect applicable maritime law or policy regarding interdiction of weapons of mass destruction.

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

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).

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?

PSI requires participating countries to act consistent with national legal authorities and “relevant international law and frameworks,” which includes the law reflected in the Law of the Sea Convention.

As such, the Convention will not affect applicable maritime law or policy regarding interdiction of weapons of mass destruction, their means of delivery, and related materials.

Some commentators have asserted that the Law of the Sea Convention gives the United Nations the 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 regulating uses of the oceans by the United States if the United States were to accede to the Law of the Sea Convention.

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.

Some commentators have asserted that acceding to the Law of the Sea Convention would involve giving 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?

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

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 Agreement 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?

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

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.

Some commentators have asserted that there is uncertainty as to the legal status of the 1994 Agreement 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.