Statement of Roger Rufe: On the U.N. Convention on the Law of the Sea (October 21, 2003)
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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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Although generally the United States exercises jurisdiction in accordance with UNCLOS provisions, the Oil Pollution Act of 1990 (OPA) is one example of the U.S. exercising extraterritorial jurisdiction and exceeding the standards in UNCLOS.6 OPA requires all ships operating in U.S. waters to be constructed with a double-hulled design.7 Additionally foreign vessels lightering in the U.S. EEZ, including “those not intending to enter United States waters,” must maintain certificates of financial responsibility if some of the oil is destined for the United States. OPA also imposes a series of additional requirements for vessels transferring oil or hazardous materials in the marine environment. Passed in response to the devastating Exxon Valdez oil spill off the coast of Prince William Sound in Alaska, OPA is a clear example of the need to protect the United States’ ability to act in the absence of adequately protective international standards.
The Senate must therefore ensure in its advice and consent that the provisions in UNCLOS do not overly limit the current authority of the United States to regulate pollution from vessels by clarifying the phrase “generally accepted international standards.” The Senate should also specify that the U.S. believes it is free to act where necessary to protect its waters where the regulated activity is not addressed by a specific international rule or standard to prevent, reduce or control its pollution.
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UNCLOS, however, fails to clearly address the problem of invasive species. If the treaty were interpreted such that invasive species were intended to be covered by the broad definition of “pollution” as defined in Article 1.1.3, then coastal states would be potentially constrained in their ability to prevent the spread of these invasive species from ships operating outside of the territorial sea. As the IMO has failed to prescribe international standards for the treatment of ballast water, more stringent measures by the U.S. could be interpreted as being “beyond generally accepted international rules or standards.”9 This would leave the United States reliant upon the remaining authority granted in 211 to require treatment and practices as a condition of entry into port.
We urge instead the better interpretation that alien species are not intended to be addressed by the definition of “pollution” by UNCLOS. This interpretation is supported by the fact that invasive species are addressed by Article 196, and not in Article 194, which addresses the regulation of various types of marine pollution generally. Moreover Article 196 distinguishes invasive species from pollution within the provision. We recommend that the Senate include an interpretive statement on this issue as part of its advice and consent to be included with the instrument of accession specifying that the United States does not view invasive species as “pollution” for purposes of UNCLOS.
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UNCLOS allows coastal states fairly wide authority to prescribe conditions of entry upon foreign vessels. This constitutes perhaps the most obvious mechanism for addressing illegal or problematic shipping discharges of pollution. Yet the U.S. should ensure its right to establish more stringent or targeted measures as necessary to protect and conserve the marine environment. For example, since 1996 the U.S. has required ships entering the Great Lakes to exchange ballast water from beyond the Exclusive Economic Zone as a condition of entering into the Great Lakes system to minimize the spread of invasive species.10
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. This statement should clarify that the U.S. interprets Articles 25.2 and 211.3 to recognize longstanding rights of states to impose conditions on the entry of vessels into ports or internal waters. Conditions on port of entry include conditions on operation and design of a vessel as it proceeds to a given U.S. port of call, extending seaward as necessary.
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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.