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 The Law of the Seas was established in 1982 to replace outdated laws governing oceans worldwide.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.