U.S. ratification of UNCLOS would benefit Marine Conservation efforts
U.S. ratification of UNCLOS will have a positive effect on the environment as the conservation of ocean wildlife, the protection of delicate marine ecosystems, and the control of marine pollution are by their very nature multilateral issues. U.S. ratification will demonstrate U.S. commitment to address these problems in a cooperative manner at a time when some view U.S. policy as generally antithetical to multilateral arrangements. The environmental community strongly favors UNCLOS and U.S. ratification would send a message of support
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Leadership in Environmental Concerns. A fourth reason for the change in the American attitude toward the Convention was a new global attitude toward management of the environment. Part XII of the Convention deals extensively with the protection and preservation of the marine environment, covering a wide array of issues, from general principles to global and regional cooperation, technical assistance, monitoring and environmental assessment, and responsibility and liability.31 The inclusion of strong environmental protection measures in the Convention was an earlier and enduring goal of the United States. In the decade following its completion, the U.S., along with many other nations, became even more interested in preserving the environment, to the point that such concerns in many cases supplanted economic considerations.32 Given that Part XII creates an effective, if diffuse, international mechanism for controlling marine pollution and establishes a symbiotic relationship between the Convention and other issue-specific agreements, the Clinton administration decided that agreeing to the Convention would ensure a stable regime for environmental protection.33
Mr. Chairman, the Law of the Sea Convention is a powerful and successful environmental treaty precisely because it seeks to achieve a reasonable balance between environmental and other interests. For many years, in the law of the sea negotiations and in other fora, the United States has tried to make clear that environmental treaties must be carefully framed to produce a reasonable accommodation of diverse interests. Some people have characterized this as opposition to environmental protection. Some of the extreme rhetoric used abroad has been particularly damaging to our reputation in important allied countries. The Senate now has a signal opportunity to set the record straight. Its approval of the Convention and the Implementing Agreement would suggest that there is every reason to ensure that the multilateral agenda is pursued carefully and that, as long as it may take, at the end of the day relevant interests are reasonably accommodated. It would announce that when that is done, America will stand second to none in joining to strengthen multilateralism, to strengthen the rule of law in international affairs, and to strengthen international protection of the environment.
While these powers give us a great deal of control over our interests in both environmental protection and the productive use of our continental shelf, in themselves they are insufficient to protect the full range of either our environmental interests or our energy and other interests. To protect those interests, we need to influence the laws and practices of foreign countries. It is for this reason that the Convention establishes a floor of generally accepted international standards that every coastal state must apply. Among the American interests that this protects are the following:
- Our neighbors have the same exclusive rights over the continental shelf off their coasts as we have off ours. Pollution from their activities can easily affect our waters, our resources, and our shores. This became abundantly clear a number of years ago when a pollution incident on the Mexican continental shelf gave rise to extensive public concerns in Texas and other Gulf states that our waters and coastline would be polluted. As a party to the Convention, we will have increased credibility and leverage to protect ourselves from such incidents in a way that avoids any appearance that we are bullying our neighbors.
- While every coastal state has the right to impose higher standards on its continental shelf activities, and ours are among the strongest in the world, the oil and gas industry is a global enterprise that can achieve economic efficiencies from uniform global standards regarding equipment and operations. Those efficiencies can of course help to keep down the cost of energy and free up additional capital for investment. As a party to the Convention, we will have increased credibility and leverage to promote stronger and more efficient international standards and their general acceptance.
- We live in an era of instant global news. A serious pollution catastrophe on the continental shelf anywhere in the world is likely to be reported, and its consequences televised, throughout the globe. This can stimulate public demands in many countries for new restrictions on continental shelf development. To the extent that this means that we all continue to learn from each others’ mistakes, this is of course a good thing. But to the extent that public excitement can lead to hasty and ill-considered actions either in the United States or in other countries, the economic consequences can be adverse, and the result may be an unnecessary increase in the price of energy. As a party to the Convention, we will have increased credibility and leverage to ensure the emergence and enforcement of international standards that reduce the likelihood of such events.
- Our interest in the health of the oceans throughout the world is no mere abstraction. They comprise over two-thirds of our world, and are essential to our well-being and the overall ecological balance of the planet. Marine living resources from the far reaches of the globe supply us and the rest of the world with food, with sources of recreation, with valuable scientific knowledge, and with the promise of new and more effective medicines. We have neither an environmental nor an economic interest in a race to the bottom in pollution regulation in other parts of the world that destroys marine life. As a party to the Convention, we will have increased credibility and leverage to exercise the kind of balanced global leadership in protecting the oceans that is incumbent upon the leading maritime power in the world and that the American people expect.
This is but one example of the benefits of the approach taken by the Convention to environmental protection. There are many others. The provisions that successfully accommodate the interests of states with respect to freedoms and rights of navigation and their interests with respect to prevention of pollution are obviously of great importance. The maintenance over time of a reasonable balance responsive to both navigation and environmental interests would unquestionably be advanced by U.S. participation in the Convention.
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The Convention is also an environmental accord that provides a comprehensive framework for the prevention, reduction, and control of maritime pollution. The Coast Guard conducts a wide-ranging port state control program to purge our waters of substandard ships and is assisting other nations in doing the same. This initiative will be enhanced through the consistent application of the Convention’s broad enforcement mechanisms. Additionally, the Convention carefully balances the rights of coastal states to adopt certain measures to protect the marine environment adjacent to their shores and the general right of a flag state to set and enforce standards and requirements concerning the operation of its vessels. Becoming a party to the Law of the Sea Convention will strengthen the international credibility of the U.S. and our efforts to guide the development of internationally accepted vessel standards, thereby improving marine safety and protection of the marine environment.
The treaty champions the rights of the American people in the conservation of their offshore living marine resources, particularly fish. Ninety percent of the living marine resources are harvested within 200 miles of the coast. The convention confirms the validity of the United States Exclusive Economic Zone, proclaimed by President Reagan in 1983. The treaty's provisions relating to the conservation and management of living marine resources are consistent with U.S. law, policy, and practice. Its provisions on the conservation of high seas fishery resources are more critical today than they were a few years ago because of the dramatic overfishing that has occurred worldwide just in the past decade. The dispute settlement provisions of the convention as they relate to high seas fisheries will help us ensure that overfishing does not occur on the high seas adjacent to our 200-mile zone in a manner detrimental to the interests of our fishing industry.
The convention champions the rights of the American people to protect the marine mammals that inhabit the vast ocean space. Americans care about whales and giant sea turtles and other important sea creatures. Poll after poll confirms this interest, and the treaty sets up the mechanisms whereby the United States can work to respond to these uniquely international issues.
This treaty champions the rights of the American people in the environmental arena. How does it do this? It is the strongest and most comprehensive environmental treaty in existence or likely to emerge for quite some time. The convention establishes, for the first time, a comprehensive legal framework for the protection and preservation of the marine environment. By addressing all sources of marine pollution, such as pollution from vessels, seabed activities, ocean dumping, and land-based sources, it promotes the continuing improvement in the health of the world's oceans. This treaty effectively and expressly finds the right balance between economic and environmental interests. Of particular note, it finds the right balance between America's interests as a coastal state in protecting its environment and natural resources with the American armed forces' rights and freedoms of navigation around the world.
With respect to protection of the U.S. coastal marine environment in particular, I would note that the Executive Branch, through the Department of Justice, the Department of Homeland Security, the Coast Guard, and the Environmental Protection Agency, has pursued a vigorous, successful enforcement initiative to detect and deter pollution from ships. In line with the policy of successive Administrations since 1983 to act in accordance with the balance of interests reflected in the Convention’s provisions regarding traditional uses of the oceans, U.S. marine pollution enforcement efforts have been undertaken in a manner consistent with the Convention, including its allocation of enforcement responsibilities among coastal States, flag States, and port States in various situations.
In order to ensure that the relationship between U.S. law and the Convention’s enforcement provisions is a seamless one, the Administration recommended, and the proposed resolution of advice and consent contains, a number of understandings that, among other things, harmonize certain domestic terminology with the Convention and confirm the longstanding right of a State to impose and enforce conditions for entry of foreign vessels into its ports. The Convention’s support of a State’s ability to exercise its domestic authority to regulate the introduction of invasive species into the marine environment and to regulate marine pollution from industrial operations on board foreign vessels is also highlighted.
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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 cooperation 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.
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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 reaffirmed 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 ensuring 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.
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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 vessels.
UNCLOS, if interpreted too narrowly, could constrain the United States’ ability to adopt and enforce these important 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.
A U.N. working group is discussing a proposed "international mechanism" for the protection of oceans. Any such treaty or convention will be a new implementing agreement under the 1994 U.N. Convention on the Law of the Sea (UNCLOS).
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