U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   03/24/2004
 
Statement of Paul Kelly,
Senior Vice President
Rowan Companies, Inc.
Member, U.S. Commission on Ocean Policy
Oversight Hearing to examine the "United Nations Convention on the Law of the Sea"

Statement by Paul L. Kelly Senior Vice President Rowan Companies, Inc. Member, U.S. Commission on Ocean Policy Before the Committee on Environment and Public Works U.S. Senate March 23, 2004

Mr. Chairman: Thank you for inviting me to testify before your Committee today on the important subject of United States accession to the United Nations Law of the Sea (LOS) Convention. I am here representing the U.S. Commission on Ocean Policy.

The U.S. Commission on Ocean Policy has taken a strong interest in the international implications of ocean policy since the inception of our work. Our 16 Commissioners were appointed by the President – 12 from a list of nominees submitted by the leadership of Congress – and represent a broad spectrum of ocean interests. The Oceans Act of 2000 (P.L. 106-256) specifically charged our Commission with developing recommendations on a range of ocean issues, including recommendations for a national ocean policy that “…will preserve the role of the United States as a leader in ocean and coastal activities.”

With this charge in mind, the Commission took up the issue of accession to the LOS Convention at an early stage. At its second meeting in November, 2001, the Commissioners heard testimony from Members of Congress, federal agencies, trade associations, conservation organizations, the scientific community and coastal states. We heard compelling testimony from many diverse perspectives – all in support of ratification of the LOS Convention. After reviewing these statements and related information, our Commissioners unanimously passed a resolution in support of United States accession to the LOS Convention. The fact that this resolution was our Commission’s first policy pronouncement speaks to the real sense of urgency and importance attached to this issue by my colleagues on the Commission.

The Commission’s resolution was forwarded to the President, Members of Congress, the Secretaries of State and Defense, and to other interested parties. I have attached a copy of our resolution for the record. The responses we received have been very positive. Secretary of State Colin Powell wrote that he “shared our views on the importance of the Convention,” and Admiral Vern Clark, Chief of Naval Operations, stated that he “…strongly believe[d] that acceding to this Convention will benefit the United States by advancing our national security interests and ensuring our continued leadership in the development and interpretation of the law of the sea.”

Ensuing hearings, and the additional information we have gathered, have served to reinforce our conviction that ratification of the LOS Convention is very much in our national interest. I would like to share with you some of the reasons that our Commissioners have unanimously adopted this view of the Convention.

· The LOS Convention was described by those who appeared before the Ocean Commission as the “foundation of public order of the oceans” and as the “overarching framework governing rights and obligations in the oceans.” The United States was involved in all aspects of the development of the Convention, including reshaping the seabed mining provisions in the early 1990s. As a consequence, the Convention contains many provisions favorable to U.S. interests. The oceans provide vital food and energy supplies, facilitate waterborne commerce, and create valuable recreational opportunities. It is in America’s interest to work with the international community to preserve the productivity and health of the oceans and to secure cooperation among nations everywhere in managing marine assets wisely.

· The Convention is subject to interpretation and will no doubt continue to evolve through time. The United States needs to be an active leader in this process, working to preserve the carefully crafted balance of interests that we were instrumental in developing, and playing a leadership role in the evolution of ocean law and policy. Acceding to the Convention will allow us to fully and effectively fulfill that leadership role, and will enhance United States economic, environmental and security interests. There are a series of issues currently being considered by parties to the Convention which could have tremendous economic implications for the United States. Of particular interest is the work of the Convention’s Commission on the Limits of the Continental Shelf, which is charged with reviewing claims and making recommendations on the outer limits of the Continental Shelf. This determination will in turn be used to establish the extent of coastal state jurisdiction over Continental Shelf resources. There are several reasons why direct U.S. participation in this process would be beneficial, namely:

· The LOS Convention sets up the ground rules by which coastal nations may assert jurisdiction over exploration and exploitation of natural resources beyond 200 miles to the outer edge of the continental margin. This is particularly important to the United States, which is one of only a few nations in the world with broad continental margins.

· The continental margins beyond the United States’ Exclusive Economic Zone (EEZ) are rich not only in oil and natural gas, but also appear to contain large concentrations of gas hydrates, which may represent an important potential energy source for the future.

The work of the Continental Shelf Commission is now at a critical stage. The Russians have submitted a claim in the Arctic and have received comments on their claim from the Commission. Other States are preparing their submissions, which are due in 2009 or within ten years of a State’s becoming a party, whichever is later. Considering the technical work to be done in order to delineate our own shelf, ten years is a short time horizon. The Continental Shelf Commission’s action on these submissions will directly impact U.S. jurisdictional interests, particularly in the Arctic. If we do not become a party to the LOS Convention, we are in danger of having the world leave us behind on issues of continental shelf delimitation because we will continue to be ineligible to participate in the selection of members of the Commission or nominate U.S. citizens for election to that body.

We need to conduct extensive multi-beam sonar mapping of the U.S. continental shelf, where substantial resources (including hydrocarbons, minerals and sedentary species) could become available under the LOS Convention provisions concerning extensions of the continental shelf. If the United States accedes to the Convention, it would be able to present evidence to the Continental Shelf Commission on the Limits of the Continental Shelf in support of U.S. jurisdictional claims to its continental shelf. The University of New Hampshire’s Center for Coastal and Ocean Mapping/Joint Hydrographic Center, in conjunction with NOAA and USGS, has already identified regions in U.S. waters where the continental shelf is likely to extend beyond 200 nautical miles and is developing strategies for surveying these areas. Bathymetric and seismic data will be required to establish and meet a range of other environmental, geologic, engineering and resource needs. Acceding to the LOS Convention will also allow the United States to play an active leadership role in a host of other issues of economic importance. As a party to the Convention, the U.S. can participate fully in International Seabed Authority efforts to develop rules and practices that will govern future commercial activities on the deep seabed. Currently, the U.S. is relegated to observer status. In 1994 an agreement was reached addressing U.S. concerns on implementing the deep seabed mining provisions of the Convention, after which the Administration sent the treaty to the Senate for advice and consent. As a party to the Convention, the United States will be in a much stronger position to ensure the preservation of the balance between coastal state authority and freedom of navigation. The United States, whose international trade and economic health relies so heavily on maritime commerce, cannot afford to remain on the sidelines while parties to the LOS Convention make decisions that directly impact navigational rights and maritime commerce.

Further, the LOS Convention provides a comprehensive framework for protection of the marine environment. The Convention includes articles mandating global and regional cooperation, technical assistance, monitoring and environmental assessment, and establishing a comprehensive enforcement regime. The Convention specifically addresses pollution from a variety of sources, including land-based pollution, ocean dumping, vessel and atmospheric pollution, and pollution from offshore activities. The principles, rights and obligations outlined in this framework are the foundation on which more specific international environmental agreements are based.

The United States is party to many international agreements – including conventions pertaining to vessel safety, environmental protection and fisheries management – which are based directly on the LOS framework. Those United States representatives who participate in the negotiation of these agreements, such as the U.S. Coast Guard, are among the strongest advocates for accession to the LOS Convention. In testimony before our Commission, then-Commandant Admiral James Loy, and more recently the current Commandant, Admiral Thomas Collins, both strongly supported United States accession to the LOS Convention. The Coast Guard, which has played a lead role in developing international agreements on maritime safety, security and environmental protection at the International Maritime Organization (IMO), and also participates in fisheries negotiations, told our Commission that: “[A] failure to accede to the Convention materially detracts from United States credibility when we seek to advance our various ocean interests based upon Convention principles. Also, as a non-party, we risk losing our ability to influence international oceans policy by leaving important questions of implementation and interpretation to others who may not share our views.”

From a security perspective, the LOS Convention provides a balance of interests that protect freedom of navigation and overflight in support of United States’ national security objectives. The provisions were carefully crafted during negotiations of the LOS Convention, and reflect the substantial input that the United States had in their development. In particular, the Convention provides core navigational rights through foreign territorial seas, international straits and archipelagic waters, and preserves critical high seas freedoms of navigation and overflight seaward of the territorial sea, including in the EEZ. The navigational freedoms guaranteed by the Convention allow timely movement by sea of U.S. forces throughout the world, and provide recognized navigational routes which can be used to expeditiously transport U.S. military cargo – 95 percent of which moves by ship. The Convention’s law enforcement provisions establish a regime that has proven to be effective in furthering international efforts to combat the flow of illegal drugs and aliens by vessel – efforts which directly impact our nation’s security. The Convention establishes the rights and obligations of flag states, port states, and coastal states with respect to oversight of vessel activities, and provides an enforcement framework to expeditiously address emerging maritime security threats.

There are many other examples of benefits that would be derived from U.S. accession to the LOS Convention. For example, the U.S. research fleet frequently suffers costly delays in ship scheduling when other nations fail to respond in a timely manner to our research requests. Currently, we are not in a position to rely on articles in the Convention that address this issue, such as the “Implied Consent” article (Article 252) that allows research to proceed within 6 months if no reply to the request has been received, and other provisions that outline acceptable reasons for refusal of a research request. Also, as a party to the Convention, the U.S. could participate in the member selection process, including nominating our own representatives, for the International Law of the Sea Tribunal, as well as the Continental Shelf Commission and the various organs of the International Seabed Authority.

U.S. accession to the LOS Convention has received bipartisan support from past and current Administrations. On November 27, 2001, Ambassador Sichan Siv, U.S. representative on the United Nations Economic and Social Council, in his statement in the General Assembly on Oceans and Law of the Sea, said: “Because the rules of the Convention meet U.S. national security, economic and environmental interests, I am pleased to inform you that the Administration of President George W. Bush supports accession of the United States to the [LOS] Convention.” More recently the G-8 Summit held in June, 2003, produced a G-8 Action Plan for Marine Environment and Tanker Safety which stated: “Specifically, we commit to: [1.1] The ratification or acceding to and implementation of the United Nations Convention on the Law of the Sea, which provides the overall legal framework for oceans.”

The input received by the U.S. Commission on Ocean Policy reflects a broad consensus among many diverse groups in favor of ratification of the LOS Convention. 145 nations are now party to the Convention. There are many important decisions being made right now within the framework of the Convention which will impact the future of the public order of the oceans and directly impact U.S. interests. Until we are a party to the Convention, we cannot participate directly in the many bodies established under the Convention that are making decisions critical to our interests.

While we remain outside the Convention, we lack the credibility and position we need to influence the evolution of ocean law and policy. That law and policy is evolving as the provisions of the Convention are interpreted and implemented. It is interesting to note, in this regard, that the Convention will be open for amendment for the first time beginning in 2004. The Ocean Commission was directed by our enabling legislation to make recommendations to preserve the role of the United States as a leader in ocean activities. We cannot be a leader while remaining outside of the process that provides the framework for the future of ocean activities. For this reason, I renew our Commission’s unanimous call for United States accession to the United Nations Law of the Sea Convention.

Thank you, Mr. Chairman. I stand ready to answer any questions that the Committee may have.