Testimony of Peter Leitner: Oversight hearing to examine the "United Nations Convention on the Law of the Sea". (March 24, 2004)
In 1976 GAO was requested by several Committee Chairmen to independently report on the status of negotiations as they were deeply distrustful of the official delegation reports authored by the State Department. As a result, I attended many of the negotiating sessions in New York and Geneva as an observer attached to the US delegation. I joined the U.S. delegation in 1977 and reported regularly to Congress on the state of negotiations through 1982. I was present in New York when the Reagan Administration’s good faith attempt to make the Treaty acceptable was roundly rejected by a coalition of Developing and Communist nations.
Since that time I have closely tracked the accession process and the development of the International Seabed Authority. Having long since left the General Accounting Office and transferred to the Department of Defense I became deeply involved in the Export Licensing process. In this capacity I was assigned a case whereby the People’s Republic of China was using their status as a so-called “pioneer investor” in ocean mining to justify the acquisition of strategic/export-controlled technology under the guise of prospecting for manganese nodules in the mid-Pacific. Unfortunately, the level of technology they were attempting to acquire greatly exceeded the level of capability that either the United States or our industrialized allied used in undertaking such work. The quality of the side-scanning sonar, deep-ocean bathymetric equipment, cameras, lights, remotely operated vehicles, and associated submersible technology provided them the capability to locate, reach, and destroy, or salvage early-warning and intelligence sensors vital to our national security. Additionally, such technology also imparted an offensive capability to our chief potential military adversary by enabling them to map any portion of the ocean or continental shelves to determine submarine routing schemes or underwater bastions where missile-launching or intelligence gathering submarines may operate undetected just off the U.S. coast.
But even more importantly, the Treaty and its environmental provisions and the context they were negotiated in are relics of an earlier era -- an era where environmental damage was presumed to be accidental or incidental to economic activity. The current post-9/11 era, however, is defined by the non-conventional use of all tools available to a non-state or state-sponsored terrorist, or proxy warrior, to create a weapon of mass destruction. The very environment we cherish and this Committee seeks to protect and preserve is a likely battleground in this new era. The presumptions that underlie the environmental provisions of the Law of the Sea Treaty and other key elements of the document are woefully inadequate to meet the threats facing the United States in this very dangerous unconventional post-9/11 world.
We have ample evidence of terrorists targeting maritime commerce as a means of waging their worldwide attacks. A critical aspect of their planning is to cause as much environmental degradation as is possible. For terrorists with limited means or desire to engage in, or sustain, combat operations this is a lucrative area for them to attack the West. This method of fighting turns traditional Western war fighting doctrine – based upon limiting collateral damage as much as humanly possible -- on its head. Terrorists and their State Sponsors have high regard for the environment but, unfortunately, they see it as a “force multiplier” not as a treasure to be preserved. Recall the oil well fires in Kuwait set by Saddam’s retreating troops. Hideous environmental and health effects resulted from intentionally using the natural resources as a weapon. Recall the terrorist attack on the French oil tanker Limburg (October 10, 2002) carrying 158,000 tons of crude oil where the goal was to generate as large an oil spill as possible.
Imagine if you will, the scuttling of a Supertanker off our coast and the intentional, again think of the word intentional, release of millions of gallons of petroleum products into the water column. If done on the Grand Banks it would destroy some of the world’s most productive fisheries for generations. If done near a coastal nuclear power plant it can cause irreversible damage, or at a minimum, force it to shut down for years as its coolant is dependent upon clean coastal waters. Fears that a terrorist operation may use a ship to spread an air-borne pathogen or toxin such as Anthrax along our densely populated coastline are very real. So too is the possibility of utilizing an LNG tanker as an enormous Fuel Air Explosive. The several instances of Container Ships being used to mount terror attacks, such as the suicide bombings in Israel last week is a great cause for alarm. Recalling the extensive damage Texas City, Texas and Halifax, Nova Scotia were subjected to as a result of vessel-borne accidents should never be far from our minds.
The point of all this is that the environmental provisions of the Law of the Sea Treaty are inadequate to address the most likely and potentially most devastating, environmental threats facing the United States today. Of course, the environmental provisions are also closely coupled with the navigation and high seas articles found elsewhere in the Treaty – they are, in fact, inseparable. These treaty provisions afford a measure of immunity and freedom of access to our coastlines that, in the current era, are inimical to our national interests and the health and safety of the American public. While I am not advocating a draconian reversal of hundreds of years of traditional state practices I am stating that we are better off, as a nation, relying on the ambiguities of constantly evolving traditional practice than binding ourselves to a formal treaty that will severely constrain our ability to protect our population from devastating attack.
The United States should take the lead in developing new practices on the oceans that will at once facilitate commerce and peacetime deployment of warships but also protect our shores from the terrorist scourge. The President’s Proliferation Security Initiative is an example of such modern and creative thinking. This US-led multinational program of high seas interdiction and vessel boarding is barred by the Law of the Sea Treaty yet it is our overriding national security interest to execute. Ratification of the Treaty would effectively gut our ability to intercept the vessels of terrorists or hostile foreign governments even if they were transporting nuclear weapons. We must ensure that we not binding the government of the United States to a legal regime that makes us more vulnerable and trades the lives of our innocent citizens for the sake of participating in yet another unnecessary Treaty.