Hearing of the Senate Foreign Relations Committee - The U.N. Convention on the Law of the Sea
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SEN. DAVID VITTER (R-LA): Thank you all for being here, and more importantly, thank you all for your service.
My concerns about the treaty have a lot to do with our military and our sovereignty. We discussed -- and you made a very important point that military activities are not subject to review by these arbitral bodies under the treaty. I have one big concern about that, which is, who decides what is and what is not a military activity?
MR. NEGROPONTE: We will decide that. I mean, as --
SEN. VITTER: Where does --
MR. NEGROPONTE: -- we consider that within our sovereign prerogative.
SEN. VITTER: Where does the treaty say that we decide that and an arbitral body does not decide that?
MR. NEGROPONTE: My understanding, and I'll ask, I guess, my lord behind me, that that's in the treaty, that we make that determination, and that's not subject to review by anyone else.
MR. ENGLAND: It's not in the treaty, because I'd point you to Article 298(1)(b), where it simply says, disputes concerning military activities are not subject to dispute resolution. But it doesn't say who decides what is and what is not a military activity.
SEN. VITTER: No, you're right. In my confusion -- I believe that's in the resolution of advice and consent that in 2003 -- is that correct -- that went -- came before the Senate. So that would be a provision of approval, so we would reserve that right as part of our approval of this convention. Have I said that right?
MR. ENGLAND: But that provision, which is in the ratification resolution, is our language that's not in the treaty. And the treaty says -- the treaty is the treaty, and people can't make up provisions that aren't in the treaty. I mean, the fact that we've stuck it in the ratification resolution only heightens my concern, because it underscores --
MR. : Could I take a crack at that?
SEN. VITTER: Yeah, go ahead. We need a --
MR. : With respect to almost all treaties, there are vague terms in the treaties. And the -- if they're not defined, then a country will take understandings as to how it understands certain terms to be accepted. And this is the regular thing that this committee does.
So in this case, with military activities not defined in the treaty, it is up to the countries to decide what that is going to mean. And in this case, we were sufficiently concerned that we want to make clear that we decide that we would put that in as a understanding, as part of the Senate's understanding, and this is a very common practice. Almost all treaties that the Senate approves have got some understandings as to what the shared understanding between the executive and the Senate is with respect to particular terms.
SEN. VITTER: Right, but my point is that that is our understanding. That is not necessarily the understanding of any other signatory to the treaty. Is that correct?
MR. ENGLAND: Can I ask the admiral to make a comment on this -- behind me, who's our legal counsel? Because I believe there are declarations that are allowed, and this is one of the declarations. And could I have my legal just comment? Because this is a technical but hugely important point.
SEN. VITTER: Sure.
MR. : Senator, you're correct in saying that the treaty doesn't allow reservations to be taken. It specifically says you cannot take a reservation to the treaty. But it does specifically provide that you can take -- you can make a declaration, and that's what we're going to take. And if the Senate approves the treaty, in the resolution of advice and consent, we would make this a declaration that the United States alone determines what is or is not a military activity.
Other nations have done the same. When this was debated back in 2004, this was in issue in 2004. And after the debate, the PRC, the Chinese, came in and took a similar declaration said, it's up to them to decide what is or is not a military activity.
SEN. VITTER: Let me rephrase my concern another way. Isn't it true that there would be nothing to prevent another country with a different understanding about U.S. military activities to bring that dispute regarding what is or is not a U.S. military activity to this mandatory arbitral process to which we would be bound?
MR. : Senator, they can always try, but the treaty specifically states that parties may opt out of any disputes having to do with military activity. All other major countries have done that and we would do that.
SEN. VITTER: But if a matter is not a military activity, which is what the disagreement would be about, then it's still under the treaty.
MR. : We would -- it is up to countries to decide what are their own military activities.
SEN. VITTER: Where -- that was my first question; where does it say that in the treaty?
MR. : It's going to -- unless an interpretation is contrary to the object and purpose of a treaty, it is going to be up to a country to decide what those terms mean. And this is, in fact, an issue that we've thought about. It's one reason why the administration recommended in the resolution of advice and consent that we be very clear on this point.
But I would defer to my -- I give you the law, but I turn to my military -- (cross talk) --
SEN. VITTER: I have limited time, so I want to go on to some other things. I would just say that the fact that this is actually included in the ratification resolution heightens my concern, doesn't lessen my concern, because it underscores the fact that the treaty doesn't say it; we say it.
But let me go on to some other points, or related issue. Are intelligence activities military activities?
MR. ENGLAND: Is the question are they affected?
SEN. VITTER: Are intelligence activities included in that body of excluded military activities?
MR. ENGLAND: To the best of my knowledge, they are. Again -- (to staff) -- Bruce, can you help me specific to language? I just -- you need to answer -- I need to get -- (pause).
MR./ADM. : Senator, why don't I take a crack at that also. It would be up to us to determine whether -- there is nothing in the treaty that limits our intelligence collection. And it would be up to us if we considered an intelligence activity to be a military activity. And you've heard the Senate Intelligence Committee, both sides, assure us that they do not think it would interfere with our intelligence collection.
SEN. VITTER: Well, again, this is heightening my concern because we say it would be up to us; no other treaty signatory says it would be up to us, number one. Number two, around Capitol Hill, for instance, in terms of committee jurisdiction, we consider intelligence a distinct category separate from military, in terms of committees and everything else. So that's really heightening my concern.
If I could have one or two more minutes, Mr. Chairman, just --
SEN. WEBB: Certainly.
SEN. VITTER: Thank you very much.
Another concern is regulation of domestic activity. It seems to me the treaty clearly states jurisdiction over land-based pollution sources.
Why do we want to open that Pandora's box?
MR./ADM. : Senator, I think it clearly does not allow regulation over land-based pollution sources. The -- that would stop at the water's edge. The -- as far as at least dispute resolution involving them, there can be limitations on the pollution that could emanate, but as far as the ability of any other country to complain and bring us to dispute resolution over pollution that would come from land, that's not permitted under the treaty.
SEN. VITTER: Well, Article 213 says -- states, "Shall enforce their laws on and shall" -- shall, mandatory -- "adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution."
Well, it sounds to me like the Kyoto Protocol is an international standard, and we shall pass laws to enforce that.
MR./ADM. : Well, this is -- this is not a backdoor way to subject us to the Kyoto Protocol. There is no way that the standard that those standards could be standards that someone could subject us to in dispute resolutions.
SEN. VITTER: Why? Because of the -- it says we shall do this, we shall pass laws to enforce international environmental standards. So why couldn't a state clearly take us to dispute resolution to say you're not doing that; you need to heighten environmental laws A, B, C, D and E?
MR./ADM. : There are some environmental issues that are the subject of international agreement such as ocean dumping, for example, but the -- when you talk about land-based pollution, you know, our view is that that's just not covered by the treaty, Senator. I think that's the point, that we believe that there is no jurisdiction over marine pollution disputes involving land-based sources.
SEN. VITTER: If it is completely not covered by the treaty, why is there a section entitled "Pollution From Land-Based Sources"?
MR. : I think on -- this gets sufficiently technical. We've worked our way through the treaty. We are confident that pollution from land-based sources would not be subject to the jurisdiction of the tribunals or arbitral panels. But we're happy to write it down for you on paper and get it to you, Senator.
SEN. VITTER: Well, I would point you to Section 6, Article 213, page 176, which is about enforcement with respect to pollution from land-based sources. It seems to me the very title of that article at least sets up a prima facie case that your statement is incorrect.
MR. : We will have a look at it Senator, although again, I think the -- absolutely we'll have a look at it. I think, though, again, the bigger picture of the enormous national security benefits of the treaty and certainly our military will tell you that they would not enter into anything where they thought there would be lethal risks to the military. But we will have a close look at the provision on land-based pollution.
SEN. WEBB: Would the senator be amenable to receiving a response in writing within a reasonable -- like, a really reasonable period of time addressing this point?
SEN. VITTER: Sure.
SEN. WEBB: Good. Thank you.
And one follow-on question before we close the hearing.
I want to make sure that, for the record, your position on the other point that Senator Vitter mentioned is clearly stated. Let me just ask you if my understanding is correct. I believe what you were saying is -- looking at Article 298, it basically exempts disputes concerning military activities, but -- from my reading of it -- is silent as to what the enforcement mechanism would be.
And as someone who used to draft legislation here, I'm not sure this directly applies, but I want to -- this is my understanding. What your position is, that any time legislation is silent, existing law prevails. And any time this sort of treaty provision is silent, it goes back to the law of the individual country involved. Is that essentially what you're saying?
MR. : Yes, sir. We specifically negotiated the treaty, and we had the same interest as other major powers, like the Russians or Chinese, who certainly did not want to have their military activities subject to dispute resolution, so we had a commonality of interest here to have a provision that allowed us in the treaty to opt out of any dispute resolution involving our militaries. That's a right you have under the treaty, and we would do that.
Then the senator has raised a fair question as to, well, who decides what's a military activity? It's not defined in the treaty, so under general treaty practice, if it's not contrary to language in the treaty, it would be up to us to decide. And I'm sure that other major countries would take exactly the same position.
SEN. WEBB: Yeah, that was my understanding of what you were saying. I wanted to make sure we had that clear for the record.
SEN. VITTER: Mr. Chairman, if I can follow up on that very briefly. Again, my concern is when the treaty's silent about defining what's military, and the treaty sets up specifically a mandatory dispute resolution mechanism, it would be a very reasonable position to take that that dispute resolution mechanism decides what's military and not military. Number one.
Number two, I'm particularly concerned that we think and hope intelligence is considered military, but that certainly isn't stated. And around here, just again to use Capitol Hill as an example with committee jurisdictions, et cetera, intelligence is treated as a very distinct smokestack from military.
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