Round 2 Law of the Sea Senate Hearing Controversial

By Lindsay Aylesworth

A short synopsis of the second Senate Foreign Relations Committee meeting regarding the Law of the Sea Convention.

Despite the fact that in the first hearing, the Department of State, Navy, and Defense, fully supported ratification of the UN Law of the Sea Convention, the second round of panel hearings provided a brief showcase of the tense debate around the Law of the Sea, as two out of the seven witnesses called before the Committee vehemently opposed the treaty.
The second senate hearing on the UN Convention of the Law of the Sea began much as the first, citing widespread support for the treaty across all sectors. Senator Menendez (D-NJ) opened with a statement asking his fellow senators to “listen to the experts”. Senator Lugar (R-IN) echoed his statement and cautioned that this treaty has been in operation for many years and that it will go forward as the basis for international maritime law regardless of whether or not it is ratified by the United States.

Arctic Issues:
The UN Law of the Sea Convention is not the only way to solve Arctic conflicts according to one witness, Mr. Gaffney, President of the Center for Security Policy. His interpretation is that the Arctic conflict is a border dispute and US interests can be more favorably served to deal with these borders disputes in other forums such as the Arctic Council or bilateral treaties. With Russia’s effort to prove its sea floor and thus continental shelf extends over half of the Arctic Ocean, undoubtedly the US will want to put in its own claim.
Currently the extension of a country’s continental shelf falls under the Law of the Sea Convention and the authority in determining the validity of extension claims is vested in the Commission on the Limits of the Continental Shelf. Although Gaffney claims that the Arctic Council is one way to resolve Arctic conflicts, the Arctic Council has no authority to extend a country’s continental shelf. A bilateral treaty could be possible but since the other Arctic States have agreed to Law of the Sea, their claims will be affirmed or denied by the Continental Shelf Commission- a commission in which the US currently has no voice. A law professor, Mr. Oxman, who also testified before Congress, stressed the importance of being a member to the treaty. He argued that in order to ensure the US has a “seat at the table” when future rights of the treaty are modified and to protect US interests concerning jurisdiction in the Arctic, the US needs to sign onto the Law of the Sea Convention.

Threats to US Sovereignty
Much of the opposition to the Law of the Sea Treaty comes from fear that the treaty will threaten US sovereignty. It is important to keep in mind the inherent nature of any international law treaty; in order to sign onto the treaty a state must make some concessions and some view these concessions as threats to sovereignty. Much of the testimony in opposition addressed these concerns.

Arbitration and Dispute Settlement:
The main objection to the treaty claimed to threaten US sovereignty regards the procedures for arbitration and dispute settlement. Gaffney and Smith, President of the Competitive Enterprise Institute, argue that because mandatory settlement procedures are not just for navigation rules but also to any ocean-related disputes that the US would find itself undoubtedly before one of several international tribunals. If the disputing parties cannot agree on which type of dispute resolution tribunal, the dispute automatically goes to an arbitral tribunal whose decisions are binding.
Gaffney, Smith, and Senator Vitter (R-LA) are concerned about the selection procedures to determine the judges for the tribunals because there could be a situation where the majority of tribunal judges were from countries not friendly to US interests. The US is allowed to decide at least on arbiter for the tribunal and in some instances two. But on a panel where majority decisions are made with 5 judges, this decision could be “a recipe for disaster” according to Vitter (R-LA) because the decisions are binding. Oxman confirmed that if the two countries requiring arbitration could not agree on arbitrators, three would be appointed by the United Nations Secretary-General, possibly ending in a panel with 4 out of 5 arbiters from countries not friendly to US interests.

Military Actions: Are they Exempt?
Despite the military branches being in favor of the treaty, Gaffney, Smith and Senator Vitter (R-LA) are concerned about UNCLOS regulating military actions. All three oppose the treaty because they say the treaty does not specify who is to determine what actions fall under military exemptions and it is unclear whether intelligence gathering would also fall into this category. This issue is important because military actions are exempt from dispute resolution procedures.  Mr. Oxman’s response to this issue was to restate the letters of support from the military and intelligence communities. He further clarified the issue by explaining that as part of the ratification process each country is allowed to declare certain interpretations of the treaty. The most common one in regards to law of the sea is the declaration that only the home country can determine what constitutes a military action.

Veto Power
Questions were raised by Senator DeMint (R-SC), Gaffney and Smith, about the validity of US veto power on the Council of the International Seabed Authority. The treaty guarantees the US a seat on the Council, but Gaffney and Smith argued that this in no way guarantees the US the right to veto issues pertaining to economic use of taxes or other financial matters. Senator DeMint (R-SC) argued that it was naive to assume that other countries will follow treaty rules even if the US does and that would put the US at a disadvantage. Mr. Oxman refuted all claims by referring everyone to section 161.8.D that assures procedures in the Council of a financial matter are conducted by consensus, thus giving the US veto power. This issue arises as important because it has to do with taxes to be paid from mining operations that take place in high seas areas, and can be extrapolated to future concerns about the Arctic.

Land Based Pollution: a backdoor to Kyoto?
The Land based pollution clause was also a contentious issue in this hearing as it was in the first. The testimonies of Mr. Gaffney and Mr. Smith conflicted with Mr. Oxman’s on the outcome and interpretation of this clause, and questions from Senator Corker (R-TN) and Senator Vitter (R-LA) attempted to clarify these discrepancies. In the first hearing on Law of the Sea several senators expressed concerns that the land based pollution clause of UNCLOS in essence would be a way to force Kyoto regulations on the United States because the treaty reads that any input to the oceans, including those man made as well as those that come from the atmosphere, are viewed as a pollutant. Carbon dioxide is emitted via the burning of fossil fuels into the atmosphere, and CO2 from the atmosphere is taken up by the ocean, critics fear this section of the treaty would be a way to force the US to comply with the Kyoto Protocol.
The testimony of Mr. Smith supported this argument. His interpretation of this clause is that the UN will “look upstream” at causes of marine pollution and pass regulations binding the US to international standards.  He cited an example of a legal battle over a MOX fuel plant in the UK and the battle before an UNCLOS tribunal between the UK and Ireland over issues regarding radioactive waste. Senator Corker (R-TN) tried to confirm this issue with Mr. Oxman, the professor of law, asking if the language of UNCLOS could be applied to global warming issues. Oxman disagreed with the testimony by Smith quoting the article directly, Article 207-Land Based Pollution, and stated that in an international law context the language in the treaty is designed to encourage member states to regulate pollution. He emphasized that it does not include hard obligations, binding standards or dispute settlement. Senator Vitter (R-LA) further questioned Oxman, as to why there was a section of the treaty labeled enforcement with respect to pollution from land-based sources. Oxman clarified this point stating that similarly this part of the treaty encourages member states to enforce land based pollution regulation. Since the US does have land-based marine pollution regulations and that the US enforces those rules, this section has satisfied the requirements set out by the treaty. Therefore signing onto the UN Law of the Sea Convention would not change current US land-based marine pollution regulations or enforce harsher standards.

Hearing Proceedings Flawed
Gaffney and Smith both raised objections to the process by which the Senate was gathering information about the Law of the Sea Treaty. They both objected that the number of witnesses called to testify against the treaty were far less (2 of 11) than those called in favor. Both witnesses also complained that the first hearing did not have any witnesses that were against the treaty. Gaffney called the procedure “ hasty, ill-considered and lethal” because of its bias in witnesses in favor of the treaty. Gaffney and Smith also resented the time allocation (of 5 minutes) to present their arguments against the treaty, although this is the same amount allotted for all witnesses. Due to Gaffney and Smith’s objections, Senator Vitter (R-LA) requested that the hearings be continued at least one more session to allow more groups opposed to the treaty to testify. Whether or not this will actually happen is up to Senator Biden (D-DE), the head of the Foreign Affairs Committee.
The second round of the Senate Hearing on the UN Law of the Sea Convention drew out several of the conflicting views on what ratification of the hearing would mean. Senator Isakson (R-GA), apparently frustrated with the he-said, she-said manner of the second hearing proceedings, requested that Gaffney and Oxman both write statements supporting their positions and submit them to the Committee. It is unknown if the Senate Committee will indeed hold a third round of testimonies on the issue, however urgency in addressing the UN Law of the Sea Convention should not be forgotten. As claims in the Arctic and extension of coastal states continental shelves are left up to the procedures outlined in the Law of the Sea Convention, the United States will not have a “seat at the table” to discuss the nuances of these procedures or to stake a claim for its own extension.


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