Legislature(2007 - 2008)CAPITOL 106
03/27/2008 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HJR39 | |
| HB412 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 39 | TELECONFERENCED | |
| *+ | HB 412 | TELECONFERENCED | |
| *+ | HCR 23 | TELECONFERENCED | |
| + | TELECONFERENCED |
HJR 39-URGING US TO RATIFY LAW OF THE SEA TREATY 8:08:36 AM CHAIR LYNN announced that the first order of business was HOUSE JOINT RESOLUTION NO. 39, Urging the United States Senate to ratify the Law of the Sea Treaty. CHAIR LYNN 8:09:30 AM REPRESENTATIVE GRUENBERG introduced HJR 39 on behalf of the House State Affairs Standing Committee, sponsor, which is chaired by Representative Lynn. He said the proposed legislation is based upon the "Compass" piece penned by U.S. Senator Lisa Murkowski [included in the committee packet]. He paraphrased the sponsor statement, which read as follows [original punctuation provided]: This resolution urges the U.S. Senate to ratify the United States Convention on the Law of the Sea ("Law of the Sea") treaty. As Senator Lisa Murkowski said in her recent address to the joint session, ratification of this treaty is extremely important to protect U.S. interests concerning the use and development of the high seas off Alaska and elsewhere. For example, other nations are aggressively seeking to stake their claims to the Arctic Ocean as far as the North Pole itself. The treaty permits member nations to extend their exclusive economic zones and will govern the development of oceanic resources, the uses and navigational rules governing ocean transit, and other issues, as well. 155 nations, including all allies of the United States and the world's maritime powers, as well as all other nations bordering the Arctic Ocean, have ratified the treaty. Although some critics have stated that this country can reap the benefits of the treaty without binding itself to its limitations, this ignores the over-riding interest the United States has in participating fully in all negotiations, deliberations, and ratification of key documents emanating from the treaty. Only treaty signatories will have the right to sit on the important governing bodies convened under the auspices of the treaty. Because the Senate Foreign Relations Committee has now reported the treaty to the Senate floor, it is particularly important and timely that this legislature passes HJR 39 and transmits it to all members of the U.S. Senate expressing this state's strong interest in the treaty and support for its th passage during the remaining months of the 110 Congress. 8:12:49 AM ISAAC EDWARDS, Legislative Director, Senator Lisa Murkowski, United States Congress, testified on behalf of Senator Murkowski in support of HJR 39. He emphasized Senator Murkowski's support of the treaty and her hope that it would be ratified this year. Regarding the treaty, he noted that on October 31, 2007, the Senate Foreign Relations Committee voted 17:4 to recommend Senate advice and consent to the treaty. That is the second time a committee has recommended advice and consent - the first time occurring in 2004. The treaty is now pending on the full Senate's calendar, but no time has been set aside for the consideration. Treaties require 67 votes in order to be ratified, he said. MR. EDWARDS said opponents of the treaty express concern that there would be a loss of sovereignty if the U.S. were to become a party of the treaty. Opponents question why the U.S. would put itself in situation where it might be limited in its actions. Proponents, including the U.S. Navy and Coast Guard, he said, respond that it is necessary to "lock in" the freedom of navigation, rather than depend on customary international law. Currently, the U.S. Navy transits through narrow straights around the world, which are shown to be international waters. The Law of the Sea Treaty would secure those navigational rights. MR. EDWARDS, as an example of the tendency for international customary law to change, reminded the committee that over one year ago, 15 British sailors were seized for being in Iranian waters, although evidence shows they were in Iraqi territorial waters. Following the Iraq/Iran war from 1988, there was dispute over which country owned what water. He said, "Since that point in time, it's been more of a custom or a practice of who owns what, rather than a specific delineation." Proponents of the treaty say [the U.S.] should not put itself in a similar position where customary law could change over time, but rather, should secure the rights now. MR. EDWARDS pointed out that the Law of the Sea Treaty expands [the United States'] territorial waters, in which it has absolute sovereignty to 12 nautical miles. In a previous treaty from 1958, the territorial water of the U.S. was only extended to 3 nautical miles. Furthermore, he noted, the Law of the Sea Treaty would provide for a new, 200 nautical mile exclusive economic zone - a provision that has not existed in any treaty to which the U.S. has heretofore been a party. He stated, "So, although we're currently operating as if we have rights provided under the Law of the Sea Treaty to those zones and sovereignty, as a non-party to the treaty, other nations do not necessarily need to recognize our claims to those areas." That fact is particularly important to Alaska, because over half the nation's coastline is in Alaska. 8:16:33 AM MR. EDWARDS named international treaties that resulted from the Law of the Sea Treaty: the Convention on Straggling and Highly Migratory Stocks, which provides both access to and protections for fish stalks that migrate through the high seas and jurisdictions of other nations, including the pollock fishery in the Bering Sea; and the Convention of Fisheries in the Central Bering Sea, which gives an unprecedented degree of control over the activities of other fishing nations in the central portion of the Bering Sea beyond the United States' and Russia's exclusive economic zone. MR. EDWARDS pointed out that the 1991 Maritime Boundary Treaty, between Russia and the United States, which is widely regarded as highly favorable to the U.S., in terms of fishing grounds and mineral rights, is consistent with the Law of the Sea Treaty. The U.S. Senate has ratified the Maritime Boundary Treaty, but the Russian Duma has not. He stated, "There are increasing cries from Moscow to renegotiate that treaty because it's so favorable to the U.S." He explained that if the U.S. does not become part to the Law of the Sea Treaty, its Maritime Boundary Treaty "may also be in doubt," because Russia has not ratified it, and "it would be extremely difficult to renegotiate a boundary agreement with similar popular results for the U.S." MR. EDWARDS, regarding sovereignty, said the issue of subjecting the U.S. to an international dispute resolution tribunal has been raised as an objection. Opponents question why the U.S. should put its interests, including its military activities, in hands not sympathetic to the United State's position. Mr. Edwards said that concern is valid, and is addressed in the Senate Resolution on Advice and Consent that would ratify the treaty. He continued: Article 287 of the treaty allows for declaration of which form of dispute resolution a party wishes to use. And the Senate Resolution on Advice and Consent ... says that the U.S. would choose a special arbitration tribunal for matters related to fisheries, marine environment, marine scientific research, and navigation - including pollution from vessels. ... Most importantly, Article 298 of the treaty says that a state may declare that it does not accept any other procedures for dispute settlement for any of three types of disputes. ... Those include: boundary delimitations for territorial waters, exclusive economic zones, or the continental shelf; disputes concerning military activities or law enforcement activities, including the definition of those activities; and disputes in which the U.N. Security Council is exercising its ... function. And so, the Senate Resolution on Advice and Consent exempts the U.S. from all three of those categories, from boundaries, military activities, and U.N. Security Council activities. So, we're not subject to international dispute resolution under the Law of the Sea Treaty in those areas. MR. EDWARDS said another issue raised asks why the U.S. should become a party to the treaty now, rather than waiting. He offered his view that the answer concerns the amendment process of the treaty. He explained that when the treaty was formed, it delayed the possibility of any amendment being made to it until 10 years after its entry into force. That 10 years came about as of November, 2004. He stated that the U.S. needs to be a party to the treaty to block objectionable amendments. He continued: ... Even if an objectionable amendment would somehow come into force, ... if the U.S. were to be a party to the treaty, the language doesn't necessarily impact us because the only language that impacts us is what the Senate provides in the Advice and Consent to Ratify the treaty - not language that occurs after the Senate has ratified the treaty, unless ... the Senate ... provides an amendment to the treaty. So, that's why it's important to be a party now, before any objectionable amendments might be adopted. 8:20:39 AM MR. EDWARDS stated that the U.S. needs to be able to defend its claims to the Arctic in its extended continental shelf. He said the Arctic ocean covers about 3 percent of the earth's surface, but accounts for about 25 percent of the world's continental shelf. The mapping expedition by the Coast Guard Cutter Healy found that the continental shelf off of Northern Alaska extends for an additional hundred miles beyond what was previously thought. However, the U.S. cannot claim that area and the resources that are in it, without being a party to the treaty, or at least cannot have its claims recognized by the international community. He reviewed that Russia has already laid claim to its extended continental shelf, which gives it control over half of the Arctic. The Commission on the Limits of the Continental Shelf currently is examining that claim. Other nations are making claims as well, he relayed. In fact, eight submissions have already been made for extended continental shelf claims since December 2001, and more are expected. Mr. Edwards said the aforementioned commission is made up of 21 members who not only are experts in various fields of geology, geophysics, and hydrography, but also are parties to the Law of the Sea Treaty. The U.S. cannot have a member on that commission, because it is not party to the treaty. 8:22:24 AM REPRESENTATIVE COGHILL, regarding sovereignty, asked if the [area of continental shelf] claimed by Russia has been authorized under the treaty. MR. EDWARDS answered that Russia can make that claim through the Commission on the Limitation of the Continental Shelf. He explained that a country can claim an extended portion of the continental shelf if it can show that the subsurface area comes from the land mass that belongs to the that country. Previously, he said, countries were not able to make those claims because technology did not exist with the necessary mapping capabilities under the ocean. In response to a follow- up question from Representative Coghill, he clarified that in order to be internationally recognized, the claims Russia made had to be submitted to the commission. REPRESENTATIVE COGHILL asked if the Maritime Boundary has not been ratified because of the change in government from the U.S.S.R. to Russia. MR. EDWARDS said no, but said he would not rule that possibility out. He stated that the Russian government has said it will "follow this agreement" and "act as if this treaty is in place." He said there have been an increasing number of articles and comments from Russia that show that the country does not like the good deal the U.S. got regarding fishing grounds and potential mineral rights, and Russia wants to renegotiate that deal. REPRESENTATIVE COGHILL said he would argue that Russia is "ever encroaching." He asked, "How many disparate resolutions have happened within this treaty that have been resolved to the U.N.'s satisfaction?" MR. EDWARDS said he does not know, but he emphasized that the U.N. plays a limited role in this issue - "in name only." REPRESENTATIVE COGHILL said he is glad to hear that. MR. EDWARDS added that the treaty was negotiated under the offices of the U.N., but that entity has no role in the governance of the treaty itself or the commissions that are set up by the treaty. MR. EDWARDS, in response to a question from Representative Coghill, explained that a treaty does not need the vote of the U.S. House of Representatives. The last step in the process is Senate ratification of the treaty. 8:27:03 AM REPRESENTATIVE COGHILL explained that he had asked about disparate resolution history because his understanding is that Russia has displayed an absolute disregard for treaties. He said, "I'm feeling that ... we might end up being 155, plus one, if we sit on the council, or we might be just one to one, if we stay outside of the treaty." MR. EDWARDS pointed out that the Convention on the Straddling and Highly Migratory Stocks and the Convention on Fisheries in the Central Bering Sea both have dispute resolution arbitration clauses, which are what the U.S. would adhere to in the Law of the Sea Treaty. Russia is involved in those, as well, he noted. REPRESENTATIVE COGHILL emphasized his need to know who would be in charge of the dispute resolution and how it would be handled before supporting the proposed resolution. He stated, "Because what we're going to do is subject ourselves, as a nation, to a panel that may not be ... of our choosing, and may not be sympathetic at all to the United States." 8:28:57 AM MR. EDWARDS, explained how the members of the panel are selected, as follows: Article 287 says that a state can choose from a number of mechanisms for dispute resolution: You have the international tribunal for a law of the sea; there's the International Court of Justice; and then there's the Arbitration Tribunal. There's two different types of arbitrating tribunals: a plain arbitration tribunal and a special arbitration tribunal. The Senate's Resolution on Advice and Consent says the U.S. will choose the arbitration. ... Under the special arbitration process, which is the principally chosen one for maritime issues, both parties select two arbitrators, and then those four arbitrators select a fifth and a final arbitrator. If they are unable to agree on that fifth arbitrator, they can agree on a third party to select a fifth arbitrator. And if still no agreement can be reached, the Secretary General of the U.N. would then appoint the fifth arbitrator. Under regular arbitration, each party selects one arbitrator, and then mutually agree on three other arbitrators. And if there's no agreement, a third party may appoint the three remaining arbitrators. MR. EDWARDS, in response to Representative Coghill, said the third party would not necessarily have to be the Secretary General of the U.N. - it could be whatever the two countries agreed to. 8:30:38 AM REPRESENTATIVE DOLL asked if there have been instances in the past when the U.S. has wished that it had been part of the treaty. MR. EDWARDS answered that currently Senator Murkowski wishes the U.S. could be part of the treaty, because of Russia's claim to the Commission on the Limitation of the Continental Shelf that it should have control of over half of the Arctic Ocean. Without being part of the treaty, the U.S. is not in a position where it can refute that claim. In response to Representative Doll, he said the Law of the Sea Treaty was "open to signature" in 1982 - the text having been more or less agreed to by the negotiators, and then it was opened up to countries around the world to become a party to it if they so wished. The U.S. declined to be a party to it because of a provision on deep seabed mining, which Mr. Edwards said was socialistic in nature, in terms of the transfer of technology. No developed nation wanted to be involved, because they would not get any of the benefits. A renegotiation of that portion of the treaty led to a 1994 agreement on deep seabed mining. He stated, "Enough parties - enough states - had ratified and become a member to the Law of the Sea Treaty by 1994, with the agreement of this deep seabed mining provision, that it went into effect ..., and so, that's when the 10-year clock started ticking in terms of when amendments could take place." REPRESENTATIVE DOLL clarified that she wants to know if there have been any times in the past, not including current times, when the U.S. has been limited by not being a party to the treaty. MR. EDWARDS answered, "Not so much." He explained that was partially because of the 10-year window of time when no amendments to the treaty could be offered. He said the U.S. has, since the Reagan Administration, been operating as if under the treaty, so there have been no times when the U.S. has been "challenged on it." He reiterated that the military wants the U.S. to lock into those rights. 8:34:27 AM REPRESENTATIVE GRUENBERG asked Mr. Edwards to confirm that "all of the administrations" and "both parties" have supported the treaty since its initiation. MR. EDWARDS answered that is correct, with the exception that the Reagan Administration would not "sign off on it" in 1982 until the deep seabed mining provision had been "fixed." In response to Representative Gruenberg, he speculated that it would be possible to make sure there are the required 67 votes in support of the treaty before bringing it up to a vote. He said a resolution from the State of Alaska would be helpful in showing that there is support for the treaty outside of Washington, D.C., and in showing that the one state in the U.S. that makes the U.S. an Arctic nation recognizes the importance of the Law of the Sea and how it could impact the Arctic and other nation's claims. MR. EDWARDS, in response to Representative Gruenberg, noted that in 2004, the Resolution on Advice and Consent was reported out by a vote of 19-0; therefore, there "was no minority view." The resolution in 2007 was voted out with a vote of 17-4, so there were some objections. He stated, "I don't believe the committee has yet put out the actual report on the treaty itself." In response to a follow-up question, he said he will find out if there is a report and get that information to the House State Affairs Standing Committee if it is available. 8:37:41 AM REPRESENTATIVE COGHILL asked if there are any other Arctic nations outside of the northern coast of the U.S. that are not part of the treaty. MR. EDWARDS answered no. He said there are 155 nations that are part of the treaty. He told Representative Coghill that he will supply the committee with a history of dispute resolutions. 8:39 :07 AM CHAIR LYNN closed public testimony. 8:39:15 AM REPRESENTATIVE GRUENBERG moved to adopt Amendment 1, which read as follows: Page 2, line 7: Delete "for ratification" Page 2, line 18: Delete "claims of" Insert "claim of authority by" Page 2, lines 23 - 26: Delete "oil, gas, and mineral resources in the Arctic Ocean and other northern waters, the conduct of essential scientific research in the world's oceans, the right of the United States to the use of the seas, the rules of navigation, and the effect of the use of the seas on the world's economic development and environmental concerns" Insert new paragraphs to read: "(1) oil, gas, and mineral resources in the Arctic Ocean and other northern waters; (2) conduct of essential scientific research in the world's oceans; (3) right of the United States to the use of the seas; (4) rules of navigation; (5) effect of the use of the seas on world economic development; and (6) environmental concerns related to the use of the seas" REPRESENTATIVE COGHILL objected for discussion purposes. REPRESENTATIVE GRUENBERG offered his understanding that there are no substantive changes made by Amendment 1; the changes proposed address a typographical error, a correction of terminology recommended by the bill drafter, and a simplification of confusing language. 8:42:13 AM REPRESENTATIVE COGHILL removed his objection. There being no further objection, Amendment 1 was adopted. 8:42:38 AM REPRESENTATIVE JOHNSON directed attention to Article 26, [shown on page 33 of "Oceans and Law of the Sea; Division for Ocean Affairs and the Law of the Sea; United Nations Convention on the Law of the Seas Agreement Relating to the Implementation of Part XI of the Convention; (Full texts)," prepared by Representative Coghill's Office, included in the committee packet], which read as follows [original punctuation provided]: Article 26 Charges which may be levied upon foreign ships 1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea. 2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination. REPRESENTATIVE JOHNSON said he would like to know what effect that would have on Alaska's taxation of cruise ships and "if we would be in violation of the treaty if we didn't treat every ship the same - specifically big ships and the smaller ships that don't pay the tax." 8:43:49 AM STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, stated, "I don't believe this would have any impact on cruise ships that are making landing in Alaska." He said the right of innocent passage means passage through a territorial sea without making a landing within the state. REPRESENTATIVE JOHNSON said the genesis of his question is derived from paragraph (2) of Article 26 [text provided previously]. 8:44:42 AM MR. EDWARDS said he would have to check with the state department to find out what its reading of that language would be. REPRESENTATIVE JOHNSON stated for the record that he did not support the cruise tax and, thus, hopes that "it might, in fact, be something that the cruise line could hang their hat on." 8:45:57 AM REPRESENTATIVE DOLL cited language [beginning on page 2, line 31, through page 3, line 2], which read as follows: WHEREAS the United Nations Convention on the Law of the Sea will not interfere with the intelligence- gathering efforts of the United States or the navigational freedom of the United States Navy; and REPRESENTATIVE DOLL asked if that sovereignty is "under Article 298," to which Mr. Edwards previously referred. MR. EDWARDS answered that is correct. In response to a follow- up question from Representative Doll, he said it would be up to the U.S. to determine what a military activity is and what intelligence-gathering activity is, in terms of the U.S.'s own activities. Along those lines, he said, under the Senate's Resolution on Advice and Consent, the U.S. would have exempted itself "from anybody questioning our ability to do that under the Law of the Sea." REPRESENTATIVE DOLL asked, "And so, that would also pertain to Canada, Russia, and others who would also be gathering intelligence?" MR. EDWARDS answered: If they have exempted themselves from that Article of the Law of the Sea, they would define, in their own terms, what they believe their military activity is. 8:47:44 AM REPRESENTATIVE ROSES moved to report HJR 39, as amended, out of committee with individual recommendations and the accompanying fiscal notes. 8:48:05 AM REPRESENTATIVE COGHILL objected to state that he is not yet comfortable with the Law of the Sea Treaty. He said he understands that Alaska has the majority of coast line in the U.S., thus, he said he is open to the discussion. He said he will be checking out the dispute resolution claims and settlements. He reiterated his observation that the Russians have disregarded treaties in the past - even taking land from the U.S. He said he is confident that the governments of Canada, Greenland, Iceland, Denmark, and Norway will be easier to deal with. He said he thinks "we" might inadvertently end up in the position he previously described as being one of 155, rather than 1:1. He said it seems that historically, America has been willing to submit itself, while others have not. He stated that he wanted these thoughts on the record, as well as voiced to Senator Murkowski's office, and he said he needs "some comfort level" before he is willing to "agree to this." 8:49:45 AM CHAIR LYNN said he thinks Representative Coghill raises a valid point. The U.S. must maintain its sovereignty. 8:50:22 AM MR. EDWARDS said he understands that there is concern that other nations may not live up to their commitment. He said, "We have many, many treaties that we are a party to, both multilateral and bilateral." He repeated that he would get information to Representative Coghill regarding dispute resolution history and "whether or not there have been issues out there with Russia, in particular." The issue of whether or not other countries are going to play by the rules is one that the U.S. will always face, he remarked. He added, "I don't have a good answer to say to that, other than that's part of what people look up to the United States for is that we do play by the rules." CHAIR LYNN noted that Representative Coghill chairs the House Rules Standing Committee - the next committee of referral for HJR 39. 8:51:43 AM REPRESENTATIVE COGHILL removed his objection to the motion to move HJR 39, as amended, out of committee with individual recommendations and the attached fiscal notes. There being no further objection, CSHJR 39(STA) was reported out of the House State Affairs Standing Committee.
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