Legislature(2009 - 2010)BUTROVICH 205
03/30/2009 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SJR13 | |
| HJR21 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SJR 13 | TELECONFERENCED | |
| + | HJR 21 | TELECONFERENCED | |
| + | TELECONFERENCED |
SJR 13-URGING US TO RATIFY LAW OF THE SEA TREATY
3:34:00 PM
CO-CHAIR MCGUIRE announced the consideration of SJR 13.
ERIC LUND, Intern to Senator Wielechowski, said that SJR 13
urges the U.S. Senate to ratify the United Nations Convention on
the Law of the Seas. The Law of the Seas was established in 1982
to replace outdated laws governing oceans worldwide. This treaty
provides a legal framework to address ocean activities including
economic development, claim disputes, scientific research,
environmental protection, and defense.
The U.S. is the only Arctic nation that has yet to ratify this
treaty, which recognizes a country's right to a 12 nautical mile
territorial sea and a 200 nautical mile exclusive economic zone
(EEZ). Claims beyond the EEZ are allowed if a country is able to
prove that there is a seabed extension beyond the 200 mile zone.
Because the U.S. has not ratified the treaty, it cannot make any
such claim.
Recent studies suggest that the seabed off the Alaska coast
could be equivalent to the size of California and extend beyond
the 200-mile zone. The Arctic contains significant amounts of
oil and natural gas, which presents tremendous opportunity to
this state, he said. With recent Arctic melt there are new
routes open for maritime activities. Ratifying this treaty would
also help the U.S. defend jurisdiction over a portion of the
Beauford Sea that is currently in dispute with Canada.
Without ratification of the Law of the Sea Convention, the U.S.
is denied the opportunity to make claims and to participate in
future policy decisions.
MR. LUND, responding to a question from Senator Wagoner, said
that Mr. James Kraska, Navy professor of international law; Mead
Treadwell, Chair, Arctic Research Commission; and Buck Sharpton,
Vice Chancellor for Research, University of Alaska, Fairbanks
are online to answer questions.
3:38:02 PM
SENATOR FRENCH joined the committee.
CO-CHAIR WIELECHOWSKI said that when General Atkins gave a
presentation to the joint Armed Services Committee he
specifically mentioned the importance of ratifying this treaty.
He asked Mr. Lund if other high-rank members of the military
have voiced support for ratification.
MR. LUND answered yes and distributed a list to the committee.
SENATOR FRENCH recommended an article by Scott Borgerson, who is
a Visiting Fellow for Ocean Governance at the Council on Foreign
Relations, and noted that he makes many of the same points that
Mr. Lund just made. Given the apparent overwhelming support, he
asked who is opposed to ratification of the Law of the Sea
Convention.
3:40:17 PM
SENATOR HUGGINS joined the committee.
MR. LUND answered there are a lot of myths about the Law of the
Sea treaty one of which is that the U.S. would relinquish its
sovereign rights. This is not accurate. If the U.S. were to
ratify the treaty, it could participate in future policy
decisions.
3:42:00 PM
SENATOR STEVENS asked for the rationale behind the U.S. Senate
opposition to ratification.
MR. LUND explained that his research found that some members
continue to believe it may threaten U.S. sovereign rights. One
argument is that it will impede military activities, but that
has been proven false. A number of high-rank military officials
say that current laws and treaties protect military practices
and it is a high priority to ratify the treaty.
In 1994 amendments were made to the seabed mining provisions to
address issues that were initially raised by President Reagan.
Now the U.S. has exclusive access to resources within the 200-
mile EEZ and if it ratifies the treaty it could expand that
zone. He clarified that right now the U.S. is in voluntary
compliance with the territorial sea and the 200-mile EEZ. But
that zone cannot be expanded because of non-member status.
3:44:39 PM
SENATOR WAGONER said he wonders who becomes subservient to whom
if the U.S. becomes a signatory. Would the U.S. be subservient
to the United Nations?
MR. LUND answered the treaty serves as a way for countries to
come together to negotiate their position. Since the 1994
amendments, the U.S. has been guaranteed a strong position on
the Council of the International Seabed Authority. Some believe
that signing would place the U.S. in an inferior position, but
that isn't the case. No country dominates but the U.S. would
have a strong position being on the International Seabed
Authority.
SENATOR WAGONER said he sometimes wonders about laying claim to
anything outside of the 200 mile limit. IT already costs a lot
to police out 200 miles.
MR. LUND said the U.S. is at risk of other countries violating
its laws because it isn't an official member. It also gives way
for other countries to make claims within U.S. jurisdiction.
3:48:13 PM
CO-CHAIR MCGUIRE asked Mr. Kraska to comment on why the U.S.
Senate hasn't ratified the treaty.
JAMES KRASKA, Professor of International Law, Naval War College,
said the treaty was opposed primarily because of part 11 on
seabed mining. The treaty is basically a bargain between
maritime and coastal states and the creeping jurisdiction that
some coastal states have pursued for 100 years. This is to close
off large areas of the ocean to the international community.
The Law of the Sea Convention was negotiated in 1970 with the
main provisions protecting all those navigational rights. That
is why the Department of Defense strongly supports it. He noted
that the letter he provided is signed by the chair and vice-
chair of the Joint Chiefs of Staff as well as all the service
chiefs.
The opposition to the treaty is to part 11 on seabed mining. The
Law of the Sea Convention sets up the International Seabed
Authority to regulate seabed mining beyond 200 nautical miles
from every country's coastline. Part 11 emerged "out of the '70s
socialist new international economic order and it was pushed by
the group of 77 developing countries at the time." The 1994
amendments eliminated all the major offensive provisions on
seabed mining. By that time the Berlin Wall had come down and
the seabed mining regime had adopted market-oriented principles.
3:51:59 PM
MR. KRASKA said that 1994 was also the year that Senator Helms
was the chair of the Senate Foreign Relations Committee. He
generally disagreed to a large multi-lateral treaty that was
negotiated by the United Nations and he wouldn't bring it before
the committee. All the objections really demonstrated a lack of
understanding of the treaty and U.S. interests. This was
everything from the environment to fishing to oil and gas and
national security that are promoted by the Convention. After
Senator Helms stepped down, the treaty came before Senator Lugar
and was voted out of committee 19:0. Senator Frisk did not take
it to a full vote of the Senate because it was opposed by some
on the right. In 2007 another attempt was made and it was voted
out of the Senate Foreign Relations Committee 17:4. That was the
last action taken.
The Law of the Sea Convention is the most comprehensive treaty
in existence after the U.N. charter. Every major ocean interest
in the U.S. government and on the civilian side supports it, but
the opposition is generally related to a fear that the three
international organizations set up under the Convention will try
to assume too much power. Some of the fears are fanciful, he
said.
MR. KRASKA said that the treaty allows the U.S. to make an
extended continental shelf claim and assert sovereign rights and
jurisdiction over the seabed that is co-terminus with the
extended continental shelf. The U.S. would have exclusive rights
to all oil and gas and minerals in that extended area. All the
other areas throughout the seabed would be managed by the
International Seabed Authority. That Authority would charge a
levy in order that multinational corporations or conglomerates
could access seabed minerals and oil and gas. A major problem is
that some people believe that if you find something in the
middle of the ocean you should be able to keep it rather than
going through the International Seabed Authority.
SENATOR WAGONER asked what process Shell Oil would need to go
through if it wanted to drill 285 miles off the coast of Alaska
with or without the U.S. having signed the treaty.
MR. KRASKA replied Shell Oil effectively cannot do so if the
U.S. is not a party to the treaty because it would not have
security of legal tenure. Shell is a multinational country and
it could be sued in the courts of any of the 156 countries and
European Union that are a party to the Law of the Sea
Convention. If the U.S. were a party to the treaty, Shell Oil
could approach the International Seabed Authority with its
proposal. Some marginal fees are associated with claiming a
mining site. The ISA council, which has 36 members, distributes
those funds on a consensus basis. Because of a Convention
provision the U.S. would have a seat on the council and
effectively a permanent veto on how those development funds that
are extracted from the seabed mining fees or levies would be
distributed. Some say that the fees are nothing more than a U.N.
tax that U.S. corporations would be subject to and they don't
like it.
MR. KRASKA acknowledged that this approach to seabed mining
isn't perfect, but 156 countries and the EU have signed on and
the Law of the Sea Convention has already moved into the domain
of customary international law. In other words, it can be
binding even if the U.S. is not a party. In fact, U.S. courts
have viewed it as a binding set of legal regimes even though the
U.S. isn't a party. You'll certainly see that in foreign courts,
he said.
3:58:58 PM
MEAD TREADWELL, Chair, U.S. Arctic Research Commission, said the
Commission has seven members appointed by the President to work
with federal research agencies, the State of Alaska, and other
nations on its $400 million per year Arctic research program. He
said the timing here is interesting. This treaty has come into
force, people are beginning to carve up the extended continental
shelf of the Arctic Ocean, and there is a greater perception
that the Arctic Ocean is an accessible ocean. It was for that
reason that the commission went to the White House two years ago
to ask for a review of U.S. Arctic policy. Bedrock to that new
policy is the need for the U.S. to ratify the Law of the Sea
Convention. If it isn't a member the U.S. is not at the table as
the Arctic Ocean is carved up. If it is a member, the U.S. would
have the opportunity claim land in the extended OCS equivalent
to twice the size of California.
MR. TREADWELL pointed out that the U.S. has unresolved boundary
issues with Canada in the Bering Strait. If the U.S. were
signatory to the Convention it would have the capability to
manage the living resources offshore outside the 200-mile limit
and it would give the U.S. rights to the economic resources on
the ocean floor in the extended OCS. Article 234 of the Law of
the Sea allows the extension of certain environmental
regulations into the EEZ in traditional ice-covered waters. This
may be important to the U.S. in protecting against "rust bucket
ships" that might traverse the newly accessible ocean without
concern for oil spills, he said.
The Commission doesn't normally take a position on legislation
like this, he said, but this has been a driver for Arctic
research and would add significant Arctic resources to the U.S.
The supporting letter that Governor Palin submitted helped the
Alaska congressional delegation mitigate objections to the Law
of the Sea. The Commission is also cosponsoring a conference on
the issue in Seward in mid-May. The Center of Law and Oceans
Policy will bring world experts in to focus on the value of the
Law of the Sea in the Arctic. Without being at the table some of
the minor problems that the U.S. has with the Law of the Sea
can't be fixed. He hopes the resolution passes.
4:04:14 PM
SENATOR WAGONER asked if they can see a "poison pill" on either
side of the issue at this time.
MR. TREADWELL answered no. This will be the largest addition to
U.S. territory since the Louisiana Purchase, and it gives the
U.S. the power to regulate offshore resources instead of
allowing somebody else to do so.
MR. KRASKA agreed. The Law of the Sea has a mandatory dispute
resolution process that includes an international tribunal and
arbitration. Because international tribunals don't necessarily
favor the U.S. some people have expressed concern that other
countries could attempt to regulate U.S. naval activity off
their coast in the EEZ. That zone is open for high seas freedoms
and over flights by foreign military and as a global naval power
the U.S. is dependent upon those rights. He noted the recent
incident off the coast of China over this very issue. Some fear
that a country like China would take the U.S. to one of these
tribunals and the U.S. would lose because of an interpretation
within the Law of the Sea Convention that the U.S didn't concur
with. But if an international tribunal overstepped its bounds,
the U.S. simply wouldn't recognize the jurisdiction. Military
vessels and aircraft have sovereign immune status so a tribunal
would not be entitled to assert jurisdiction over U.S. military
activities. That is one of the claims that really is not a
problem, he said.
MR. TREADWELL highlighted that in his last job Mr. Kraska helped
the military sort through issues of missile defense as it
relates to the Law of the Sea. His work resulted in the joint
chiefs giving this treaty a clean bill of health.
MR. KRASKA said it's correct that the senior Pentagon leadership
has been briefed and every chief of naval operations since 1994
has supported the Convention. It's understood that global
mobility, maneuverability and access beyond 12 nautical miles as
well as the ability to transit through international straits are
guaranteed in the Law of the Sea Convention. Regardless of what
critics say, the U.S. has more authority and expends fewer
resources when it operates under color of law.
4:09:25 PM
MR. KRASKA pointed out that the U.S. has disagreements with
friendly countries like Australia and Canada so it's in its best
interest that this treaty ensures a liberal regime of freedom of
navigation for commercial vessels and military forces. If this
treaty was negotiated today, there likely wouldn't be the same
generous provisions for transiting throughout the world. When
the treaty first came about in 1982 all the major maritime
powers supported those navigational provisions, which means that
at the height of the Cold War both the U.S. and the Soviet Union
were in complete agreement on this. The Soviet Union realized it
was zone-locked and needed navigational freedom perhaps more
than the U.S. did. It was really the U.S., Soviet Union, France,
U.K., and Japan that worked on ensuring navigational freedom
throughout the globe. It's in the treaty. It's unlikely that the
U.S. and Russia today would have as much coastal influence as
they did back in 1982.
JIM FLOYD, representing himself, Tok, said he opposes the treaty
not the resolution. His perspective is that the only people who
don't know about this treaty are the average citizens. He
encouraged the committee to investigate some of the legal
arguments against the treaty because it has a lot of holes. His
understanding is that it would subjugate the U.S. Constitution
to international control.
4:14:43 PM
STEPHEN TAUFEN, Groundswell Fisheries Movement, Kodiak, said he
generally supports U.S. ratification of the Law of the Sea
Convention, but it's important to recognize that it was
established when world trade was conducted differently. It does
not recognize new knowledge in the conduct of trade in an era of
globalized casino-like economics that quickly devolve in times
of financial crisis. He suggested that the U.S. needs to heed
the National Intelligence Council's 2025 report regarding
strategic national resource protections. He asked committee
members to read his written submission that focuses on fisheries
and the international trade aspects of the treaty.
4:18:48 PM
SENATOR HUGGINS commented that he supports international
cooperation, but it's important that U.S. soldiers are not under
U.N. command. He isn't saying that the U.S. shouldn't be a party
but he wants to understand what it is that the U.S. might be
giving up if it signs the treaty.
CO-CHAIR WIELECHOWSKI said that is why he is particularly
heartened by the June 26 letter from the vice chair and every
member of the Joint Chiefs of Staff under President George W.
Bush. They said that becoming a party to the Convention will
ensure the U.S. leadership role in the continuing development of
oceans law and policy. They also stated that the Convention
furthers the U.S. national security strategy, strengthens the
coalition, and supports the President's Proliferation Security
Initiative. He has a high degree of confidence that the U.S.
military wouldn't urge signing a treaty that would threaten the
troops or U.S. sovereignty.
4:25:25 PM
O-CHAIR MCGUIRE announced that she would hold SJR 13 in
committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR 13 - Bill Packet.pdf |
SRES 3/30/2009 3:30:00 PM |
|
| SJR 21 - Bill Packet.pdf |
SRES 3/30/2009 3:30:00 PM |