Hearings - Testimony
 
Full Committee "United Nations Convention on the Law of the Sea".
Tuesday, March 23, 2004
 
Sen. Ted Stevens
of Alaska

Chairman Inhofe, thanks for inviting me to testify at this hearing today on ratification of the U.N. Convention on the Law of the Sea. In 1969, my first full year in the Senate, Senator Warren Magnuson asked me to monitor the Law of the Sea negotiations. As a freshman minority member then, and assigned to attend all of those negotiations, I learned a great deal from the discussions on the Law of the Sea that took place all over the world. I gained valuable perspectives on the need for international cooperation on the management of the world's oceans at meetings held in Caracas, Paris, London, Geneva, and at the United Nations in New York. I traveled with John ("Jack") Stevenson the Legal Adviser for the State Department from 1969 to 1973 to many of these places and worked with former Senator Claiborne Pell during the 1990s on the Law of the Sea.

My objections to the Law of the Sea Treaty during those times focused largely on fisheries concerns, and namely protecting U.S. interests in living marine resources off our coastline.

It was these concerns that led to the work on the Magnuson-Stevens Act and extending coastal State jurisdiction to 200 miles. Before passage of the Magnuson-Stevens Act fisheries around the world, including those off the coast of Alaska, were being overfished, primarily by distant foreign fleets. These fleets engaged in "pulse fishing" in U.S. waters. "Pulse fishing" exploits one fishery until its collapse and then moves on to another fishery and decimates those stocks. This practice was devastating for our fisheries, and until the 200mile exclusive economic zones were established there was very little international cooperation to manage or to protect shared fisheries.

Now, many of the provisions in the Law of the Sea Convention are consistent with the Magnuson-Stevens Act on living resource management, conservation and exploitation. In addition, the current resolution of advice and consent that Chairman Lugar of the Foreign Relations Committee has developed for ratification includes understandings and report language that further protect U.S. interests in abundant and sustainable fisheries. This is critical for fisheries off the coast of Alaska in the North Pacific where there are extremely conservative harvest caps in place that have allowed for increased abundance of fisheries resources.

These understandings provide the exclusive right for coastal States to determine the allowable catch of the living resources in its exclusive economic zone, whether it has the capacity to harvest the entire allowable catch, whether any surplus exists for allocation to other States, and to establish the terms and conditions under which access may be granted -- such determinations are not subject to binding dispute resolution under the Convention.

Other protections for our Nation's fisheries have also been included in the Convention on the Law of the Sea, some of particular interest to me in my career in the Senate are:

1. The Moratorium on High Seas Drift Nets. In 1987, the Driftnet Impact Monitoring, Assessment, and Control Act directed the Secretary of State to negotiate observer and enforcement agreements with nations whose vessels used large-scale driftnets on the high seas. It also began the process that eventually led to the U.S. recommendation that the U.N. adopt our suggestion for a global moratorium on large-scale driftnet fishing on the high seas.

2. The Agreement on Conservation and Management of Straddling Fish Stocks and Highly Migratory Species. The "Convention on Conservation and Management of Pollock Resources in the Central Bering Sea" otherwise know as the "Donut Hole," and the "1995 U.N. Fish Stocks Agreement" attempted to better define the obligations and redress for countries where highly migratory species and straddling fish stocks originate.

The Donut Hole agreement was the model for the global treaty that became the 1995 U.N. Fish Stocks Agreement. I carried the commitment to ratify this agreement to the United Nations General Assembly, and the U.S. did the right thing by ratifying it in August of 1996. I believe the "Donut Hole" and U.N. Fish Stocks Agreements cleared up many concerns that had been voiced about the efficacy of enforcing living marine resource laws internationally under the Convention. The agreements have proven to be critical first steps toward cooperative international management of transboundary stocks.

The Law of the Sea Convention incorporated the 200-mile exclusive economic zones and placed substantive restrictions, such as the moratorium on large-scale driftnets, on the freedom of fishing on the high seas under Article 87. These are real protections that will allow for conservation and management of the world's shared living marine resources. They establish a precedent that, particularly on the high seas outside the jurisdiction of any country, destructive fishing practices will not be tolerated. These important provisions make the Law of the Sea Convention a much better body of international law.

I am pleased with the declarations for U.S. accession to the treaty that the Administration worked out with the Foreign Relations Committee. Specifically, these declarations confirm the right and sovereignty of the United States to manage our natural resources, both living and nonliving, in our exclusive economic zone. The Law of the Sea can provide us with the comprehensive legal framework we need to maximize our use of the oceans' resources, while ensuring their healthiness and productivity for generations to come. Thank you.


International Fisheries and The Law of the Sea Convention

Ted Stevens

I am delighted to have an opportunity to be here with you and extend my thanks to the University of Virginia School of Law and particularly to Professor John Norton Moore, Director of the Center for Oceans Law and Policy. If I have been successful, John, it is because I have been blessed with a long string of able Alaskans, including Earl Comstock of my staff who is here tonight.

This seminar serves as a tribute to John R. ("Jack") Stevenson, and I have a special spot in my heart for Jack. As you know, Jack was the Legal Adviser for the State Department from 1969 to 1973, and I met with him often in those days. That was my first real year in the Senate, in 1969, and I remember so well when Senator Warren Magnuson, with whom I had contact during the Eisenhower days, asked me whether I would like to monitor the Law of the Sea negotiations. Of course I did, so he assigned me as a freshman minority member to attend all of those negotiations, and working with Jack Stevenson was one of the rewards of that assignment. We met often in New York, Geneva, and Caracas. I hope you will carry to him my best wishes. We do have great admiration and fondness for Jack Stevenson in my office.

It may seem like an exaggeration to some people to describe to you the Senate movement as "towards" consideration, much less ratification, of the Law of the Sea Convention. I have talked to Senator Helms, Chairman of the Senate Foreign Relations Committee, about it. He has a pretty clear expression so far about his concerns with the Convention. They are not new issues. I do not think they have scheduled any hearings yet and I seriously doubt that we will get any soon. I know that you know I have some reservations about some aspects of the Convention and I appreciate your inviting me to be here. I do want to tell you that in my judgment the Senate is not simply ignoring the advantages of having the United States formally adopt the Law of the Sea. We have listened to presentations by Ambassador David Colson and others in support of ratification, and are reviewing the contents. And Senator Claiborne Pell has had a series of meetings, as have others, with those who are involved in negotiations to try to generate more interest in moving the Convention in the Senate. Also, we are now aware fully, of course, of the military's position in support of ratification.

Tonight, I ask you to allow me to set aside the concerns that many have concerning the deep seabed mining provisions, and address, the area that is of great concern to me and important to my home state of Alaska the portion of the Convention that deals with fisheries. I know that two people are here tonight who have done a great deal in this area Maggie Hayes of NOAA [National Oceanic and Atmospheric Administration] and David Balton of the Department of State. These two have worked with us on these international issues and they deserve a great deal of credit for the success that I am going to speak to you about. First, I will review briefly for you the history of the 200-mile exclusive economic zone and then the recent international fishery agreements, which I believe must be fully protected in the Convention if we are to ratify the Convention. I worked with Howard Baker for eight years as the assistant [Republican] leader when he was leader and he used to say to me, "Teddy, if you don't toot your own horn no one will toot it for you." If I am tooting here, a little bit, I hope you remember that there are many other people, including the two I just mentioned, who did a lot of the work that I am talking about.

I have taken the time to mentally review things along with my assistant, Earl Comstock, and I think this goes back literally to that first year, 1969, when I first took the role that Senator Magnuson asked me to take on. It was then that I was fortunate enough to meet Jack Stevenson. Fisheries around the world, including* the fisheries off Alaska, were very much over-fished primarily by distant water fleets. There was very little international cooperation to manage or to protect those fisheries. We were a new state. We had only been a state for ten years in 1969 and we knew we had to have more protection for our fisheries. After all, fisheries then and now are the number one area of employment for Alaskans. I remember debating on the Senate floor in 1969 and in the early 1970s whether we should extend coastal State jurisdiction to 200 miles. I was not certain that we could implement that south enough to protect our fisheries.

It was not until 1971 that I introduced the first 200-mile bill, S. 46, although we had discussed it many times before. S-46 really was a unilateral offer by the United States to extend jurisdiction to 200 miles. At that time my thoughts were very extreme. By 1975, I had enlisted Senator Magnuson's help, and he sponsored the bill in that Congress and said he would work with me to get it done. There were others urging that we should not move forward to the 200-mile bill until we had ratified the product of the Law of the Sea negotiations. Those of us who supported passing that bill by then had named it the Fishery Conservation and Management Act. Later I was the one who offered the motion to name it in honor of Senator Warren Magnuson. I believe now we were ahead of the game by at least 20 years.

The Magnuson Act passed in 1976, yet we are still in the position where we have not ratified the Law of the Sea Convention for many other reasons. In fairness I think we would all agree that we do abide by most of the principles that have been the result of the negotiations we have all watched over these years. In my judgment, the fisheries off the United States received a significant increase in protection when we did extend our national jurisdiction Fisheries in other parts of the world also have received increased protection as they have extended their jurisdiction similarly. And now, 90 percent of the fisheries that are harvested off the United States are within the fishery conservation zone, which we call the "exclusive economic zone."

We have tried now to move beyond that 200-mile limitation, as you know, to stop fishing on the high seas. Ambassador Satya Nandan and I were talking about that and his efforts as chairman the UN Conference on Straddling Fish Stocks and Highly Migratory. Fish Stocks. As you know the salmon fishery is very important to us. We fought hard to stop the high seas interception salmon by the Japanese, Koreans, and Taiwanese. At first we had an international agreement on high seas fishing for salmon in North Pacific -- an agreement entered into by the United States, Japan, and Canada in 1954. In 1978 and 1985 it was renegotiated and strengthened in an attempt to stop over-fishing.

In the early 1980s, a young fisherman from Alaska took an airplane to Seattle and flew here to Washington, bringing with him a large box which he put in the middle of my desk. I had met him just once before, and that was my first introduction to a piece of a driftnet. He had lost his complete propeller unit because he had run into a driftnet that had been cut loose in our Alaska waters. After that we received increasing information about the significant impact that the large-scale driftnets were having on our fisheries.

I was Chairman, at that time, of the Ocean Subcommittee in the Senate, ' and we had hearings on the high seas driftnets. We received some opposition from the State Department spokesmen because they thought that the actions that we sought to take would violate the general rights of fishing vessels to fish on the high seas, embodied in article 116 of the Convention. We did back up a little bit and then passed another bill. I introduced the Driftnet Impact Monitoring, Assessment, and Control Act in 1987. That Act directed the Secretary of State to negotiate observer and enforcement agreements with nations whose vessels used large scale driftnets on the high seas. At that time I viewed the Driftnet Act as consistent with article 118 of the Convention,' which says that "States shall cooperate with each other in the conservation and management of living resources" on the high seas. That action by the United States is still considered extreme by many nations who continue to oppose any high seas fishing restrictions, and they have often argued that the Convention did not allow any restrictions on high seas fishing.

Once the Driftnet Act, was passed, we began to learn more about the impact of driftnets, particularly on other sea life -- sea birds and many other species --and we enlisted the aid of many organizations. I went to the United Nations to see if we could completely ban the use of driftnets worldwide. Other nations were concerned, too, particularly about the unrestricted use of such fishing gear, and they began to support the ban. We have this fraternity of people who go to various negotiations. They have made fast friendships with many people, as I have with Tom Pickering, who is now in Moscow. In 1989, he was at the United Nations as our Ambassador and he led a successful fight to stop driftnets. Ten other Senators had joined with me in approaching Ambassador Pickering to request such action by the United Nations. I think that was a significant action -- one for which Tom Pickering deserves a lot of credit and so does Earl Comstock. He wrote the resolution on which the United Nations took action.

In 1989, the UN General Assembly adopted a resolution to establish a global moratorium on large-scale driftnet fishing on the high seas. Since then they have adopted two more resolutions and have made three decisions to strengthen that moratorium. The driftnet ban and extension of the exclusive economic zone (EEZ) to 200 miles were the two most important initiatives, in my opinion, in the past quarter-century to conserve the fishery resources of the' world: the 200-mile limit because it gives the adjacent nation, which has the most direct stake, authority to conserve the fisheries close to its shore; and the driftnet ban because it sets the precedent that, even on the high seas, destructive fishing practices will not be tolerated by the world.. The 200-mile limit was explicitly adopted by the Convention; however, the UN action imposed by the moratorium on driftnets could be challenged sunder the Convention's mandatory dispute settlement procedures. As, I understand it, under Part XV of the Convention, any dispute concerning the interpretation or application of the invention is required, at the request of any signatory, to be submitted to compulsory dispute settlement proceedings. A dispute can be heard by an international tribunal under Annex VI, a general arbitration panel under Annex VII, or a special arbitration panel under Annex VIII. As most of you probably know, the decisions made under the tribunal or two panels cannot be appealed If challenges are made and dispute panels favor unrestricted high seas fishing, precedents such as the UN resolutions banning driftnets could be weakened or overturned by such challenges. That kind of vulnerability is, what worries me and what brings me before you tonight.

In the past five years, we have witnessed the development and maturity of a new kind of regional high seas fishery agreement. These agreements also may be vulnerable under the Convention. Regional internationals agreements are to me the key to improved fishery conservation in the next 25 years. Like the 200-mile limit, regional agreements provide nearby nations, working together and driven by an immediate interest, to form a forum in which to strive for sound conservation and management measures. Some of you, as Ambassador Satya Nandan and I discussed, are familiar with the treaty in the Central Bering Sea, the Doughnut Hole as it is commonly known, which is the patch of international waters between the 200-mile limit off the coast of Russia and 200-limit off of our state of Alaska. Negotiations began in 1998 when the Senate adopted a resolution that I offered to call for a moratorium on fishing in the international waters in the Central Bering Sea. Foreign fishing vessels were using the Doughnut Hole as a staging area for illegal fishing. These vessels would fish on the periphery of the U.S. or Soviet 200-mile zone and when the enforcement vessels were not looking would dart into our waters and use these large trawl nets with staggering impact on the stocks of Aleutian Basin pollock which were then collapsing. The Senate resolution did lead to initiation of the negotiation between six nations that had' fished in the Doughnut Hole: the United States, Russia, Japan, China, Korea, and Poland.

In 1992, Congress went further, passing another bill that I crafted that would deny U.S. port privileges to any foreign vessel that fished in the Doughnut Hole unless the fishing was done under an agreement to which both the United States and Russia were parties. This law, called the Central Bering Sea Fisheries Enforcement Act, also prohibited U.S. vessels from fishing in the Doughnut Hole in the absence of an international regime. We closed it to everyone. That .was passage of a tough law with enforceable sanctions and, like the passage of the Driftnet Enforcement Act before it, it got the attention o£ fishing nations. They agreed to a two-year moratorium on fishing in the Doughnut Hole, and during that time the parties entered intense negotiations.

Even then many observers did not believe an agreement between these different nations was possible or that other nations would respect it. At the end of the two-year moratorium -- in June of 1994 -- the six nations signed a new treaty to conserve and manage pollock within the Central Bering Sea. The Doughnut Hole Treaty set the precedent of authorizing the United States and Russia, as the coastal States nearest the Central Bering Sea, to establish harvest levels for the area if harvest levels could not be agreed to by all six countries. That treaty also set the precedent of allowing officials from Russia and the United States to board vessels suspected of violating the Doughnut Hole agreement. Aleutian basin pollock stocks in the Doughnut Hole are now recovering, and fishing is expected to commence again under a new regional agreement in just a year or two. These stocks could not have recovered without the type of cooperation or the potential sanction that was involved in the action by the United States Congress.

We believe the Doughnut Hole Treaty is consistent with the Convention, in particular article 63, dealing with fish stocks that occur both within and beyond a nation's EEZ (which are known, as you know, as "straddling" stocks). Article 63 says that the coastal State and any State whose vessels fish for the straddling stock should seek, either directly "or through appropriate subregional or regional organizations," to conserve the stock. However, the Doughnut Hole Treaty provisions which allow the United States and Russia to set the harvest levels and to board vessels are not specifically addressed by the Convention. If weakened or overturned by the Law of the Sea dispute panel, we would have no recourse for appeal. It would be a major, major setback for the nations of the North Pacific if agreements such as the UN driftnet moratorium and the Doughnut Hole Treaty were to be overturned by procedures contained within the Law of the Sea Convention.

Despite these concerns, which I hope you understand, I have always been open to debate on whether the Senate should commence ratification procedures for the Convention. Some argue the United States could be more effective in protecting fishery agreements, which I have addressed tonight, by adopting the Convention. I am willing to listen and willing to be shown that it is true. I am also considering arguments made by those who believe we would be better off by involving ourselves in the initial administrative decisions under the Convention rather than being outside of that process. They mention, for instance, selection of judges for dispute settlement panels. As you know, having been around for more than a quarter century, it does not seem to me that we should ever base a judgment on a convention, treaty, or an act of Congress that derives a temporary security from the participation of particular individuals in the initial administrative decisions. Agreements like the Convention must be clear enough to prevent misinterpretation by succeeding officials. We cannot rely entirely on the decisions and precedents set by the initial participants.

My personal feeling is that, notwithstanding continued reservations, members of the Senate may be and, I believe are, gradually warming up to the idea of ratifying the Convention. Though my focus is on fisheries, the primary reason I think the United States has not joined the Convention still lies in the same place it did in President Carter's days -- our concerns about the Convention's deep seabed mining provisions. Proponents, including the present Administration, tell us that the now agreement reached last year on seabed mining addresses these past concerns; the key to Senate ratification is simply to convince those who believe otherwise. The United States was heavily involved in the development of many basic concepts included in the Convention, and, for the most part, I think we all support the Law of the Sea principles. As I said, we have not interfered with the assumption that we should live under those principles as. a general agreement with the world.

As you know, there is a negotiation currently underway at the United Nations in New York to address the straddling stock and the highly migratory species issues. I understand that tomorrow morning's panel will address that specifically. It is the position of the United States, and of the Chairman's draft of the proposed treaty, that this new agreement would be consistent with all of the provisions in the Convention. I certainly hope that the final agreement clearly and unequivocally states the position that statement reflects. If the negotiation in New York on the straddling stocks issue is successful in incorporating the advances that have been made through the UN moratorium on driftnets and the Doughnut Hole Treaty in a new agreement that is broadly supported, then I think the concerns I have tried to articulate here will have been answered. And hopefully we will obtain similar clarification with respect to the seabed mining issues, which others continually raise as I have indicated. I have not raised, those concerns, but I do believe we should get the clarification so that the Senate of the United States should give its full consent to this Convention that we have all lived with over these past almost 30 years. It is nice to be with you and I appreciate your interest. Thank you very much.

 

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