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Strange Bedfellows: The Law of the Sea and Its Stakeholders [Rush Transcript; Federal News Service]

Speakers: John Norton Moore, Director, School Of Law, Center for National Security Law, University Of Virginia, and James Watkins, Co-Chair, Joint Ocean Commission Initiative, Former Chief of Naval Operations, 1982-1986, Former U.S. Secretary Of Energy, 1989-1993
Presider: Scott G. Borgerson, International Affairs Fellow, Council on Foreign Relations
March 20, 2008
Council on Foreign Relations


SCOTT BORGERSON:  Well, I'd like to first begin by thanking everyone for coming to this evening's council meeting titled "Strange Bedfellows:  The Law of the Sea and its Stakeholders."  My name is Scott Borgerson.  I'm a fellow here at the Council on Foreign Relations, and I'll serve as the moderator for this evening.

Before we can get into issues of substance, however, I have a few administrative measures here I have to quickly check off.  And the first is the old advice to please turn off your cell phones and pagers and BlackBerrys and everything else.  Not only might they ring, but they also interfere with our sound system.  So more than just silencing it, please turn them off.

Second, and this is sometimes unusual for a council meeting, but this meeting will be on the record.  So those things stated this evening can be for attribution.  Media have been invited, and there may be some in the room this evening.

And then, quickly, just an overview of our agenda for this evening.  After introductions, Professor Moore and Admiral Watkins will have about 10 minutes or so to make some introductory remarks.  Afterwards, we'll have discussion up until about say 7:00.  And then the last half an hour, which is always the best part of these meetings, will be a question-and-answer and interactive session with you.  So if you could, please, if you have a question, sort of a bee in your bonnet, write it down, because you'll have your opportunity at the end of the meeting.

So I'm particularly honored to introduce tonight our two panelists who were invited because of their rich, varied and diverse backgrounds on this issue.  First, Professor Moore is the director of the Center for National Security Law at the University of Virginia.  He also has served as the U.S. ambassador to the law of the sea.  And he also served as the director of the National Security Council's Task Force on the Law of the Sea.

Admiral Watkins, former chief of Naval Operations, former U.S. secretary of Energy, and also the co-chair of the Joint Ocean Commission Initiative which reflects a broad interest of those in the law of the sea, which is not just Navy and Navy background but, as we titled for this evening's panel, this is one issue in which you find sort of energy companies, environmentalists, those interested in security and so forth all sort of in consensus or agreement on one issue.  And so we're very honored to have you with us this evening, Admiral.  Thank you for coming.

So before beginning, just for some context, the law of the sea has been with us now for a quarter of a century.  And yet, the United States has not signed up for this treaty.  Despite the fact that this president has endorsed it, numerous CNOs and those in industry, national security, leader in environmental coalitions and groups have all backed its support, and yet there still remains a strong or at least vocal group opposing this treaty who say that it's giving up too much U.S. sovereignty, that the Senate should not give its advice and consent, because we already have the world's most powerful Navy, we don't need this treaty and so forth.  And there's a long list of objections that I think perhaps Professor Moore and Admiral Watkins may address in their comments.

So other questions maybe we should think about before they begin is, why now?  Why is it important with this president at the end of his term and administration?  In this Congress, why is the timing important?  And the critical juncture here with the law of the sea once again emerging from the Senate Foreign Relations Committee, where are we politically with this treaty?  And is it really in the U.S. interest to join?

So with that, Professor Moore, if you could get us started.

JOHN NORTON MOORE:  Thank you, Scott.  And thank you to the Council for this opportunity to share a few thoughts with this group that includes so many whom I admire on areas of international relations and international law.

My comments in 10 minutes will very briefly cover three things.  I'd like to talk a little bit about the convention and its benefits for the United States.  I would like to talk, secondly, a little bit about the costs of non-adherence to date for the United States; this is not simply a theoretical issue.  And finally to talk a little bit about the rather extraordinary nature of the arguments that are made in opposition to the convention.

Now, this convention is one of the most important multilateral conventions in history.  Today it is enforced for 154 countries plus the European Union.  It is enforced for all permanent members of the Security Council with the exception of the United States.  The U.S. was the most important and most influential nation in the world in the negotiations.  And it ultimately achieved every single one of its negotiating objectives in this treaty.  I wish we could say that in all of the others.

Ultimately, of course, the last ones were achieved in the renegotiation in 1994 on Part 11, seabed mining, that enabled us to achieve, and more, all of the conditions set by Ronald Reagan.  Now, this was not simply an accident.  The United States was extremely well organized for this negotiation.  We had an 18-agency interagency task force.  We had 100-member advisory board that included virtually every affected industry group and environmental group in the United States.  And it is not surprising that today every single president after this has been adopted, of both parties, certainly all of our government agencies, particularly our military and our chiefs of staff and our Coast Guard, all industry groups, environmental groups and basically every affected interest group in the United States is a strong supporter of moving forward.

Now, what are some of the things that we achieved?  The United States achieved an expansion of resource jurisdiction that is far greater than what we achieved in the acquisition of Alaska and the Louisiana Purchase combined, an area of resource jurisdiction larger than the entire continental United States.  The United States achieved every single one of its national security objectives, including particularly transit passage through, over and under straits used for international navigation.

We achieved assured access to seabed minerals with four sites set aside for the United States with an aggregate resource value of over $1 trillion.  The United States basically also received a stable rule of law and stable expectations for oil and gas and fisheries and other economic development in the oceans.  And even precedentially, we achieved a breakthrough.  The United States, on the counsel of the authority, was the only nation in the world given a permanent seat on the council and a veto on the council.

Now, let's look for a moment at some of the cost of non-adherence.  Non-adherence on a treaty like that, by the way, rather extraordinary.  Now, let's look at the cost of non-adherence.  The United States has gone from THE leader in the world in oceans policy -- and make no mistake, we were the leader throughout this process -- to simply observer status.  The United States has no member on the Continental Shelf Commission making the rules and regulations for the shelf.  Not surprisingly, Russia chose basically to go to the commission when the United States was not on it.  No wonder it was the first one to go to the commission in its Arctic claim.

The United States does not participate in the international authority in making the rules and regulations for seabed mining.  And if we don't join soon, we are at risk in losing all four of our mine sites, again, with the aggregate value of about 1 trillion (dollars) in cooper, nickel, cobalt and manganese.  We've already lost one out of the four sites.  Russia is out there with a site.  India is with a site.  China is with a site.  Others are with a site.  We're about ready to throw them away, because the United States is not adhering to the convention.

In addition to that, the United States is achieving a delay in development on the Continental Shelf oil and gas, because we have no stable legal regime until we join and demarcate the outer area of the boundary.  The United States is harmed in its PSI initiative when states such as Malaysia refuse to join with us, because they say we're not a member.  The United States is harmed potentially in relation to what we negotiated in losing it simply as a result of others being able to amend the treaty.  And if we are not a party, their amendments will then become binding on the treaty on everyone in the world.  Whereas, rather interestingly, if we are a party, they cannot amend for us in a way that will be binding on the United States, and the original treated we negotiated would be the one that would be applying to us.

In addition to that, we have difficulties with countries around the world that seek to harm United States' interests.  Iran today, for example, says the U.S. has no right to go through Strait of Tehran in transit passage mode because we are, quote, "not a party to the Law of the Sea Convention."

Now let's turn to the last point, very briefly, the nature of the arguments in opposition and, I believe, the threat to an effective United States foreign policy that goes far beyond the law of the sea in relation to the rather extraordinary nature of this opposition.  All of us with a background in international relations are, of course, expecting and aware of the fact that you have, you know, tough and difficult negotiations relating to treaties and reasonable arguments that are made on the two sides.  This, however, is something new.  I have never seen a serious debate about a serious issue in which the arguments were basically false.  One argument after another absolutely false and repeated over and over again in the standard tradition of the big lie.

Now, it's actually even worse than that, because some of the arguments are not only false, they're 180 degrees out of whack in terms of the direction.  Let me just give you a few of those.  What's the principal argument we heard initially out of the opponents?  This was going to remove the sovereignty of the United States.  They cannot point to an ounce of removal of sovereignty for the United States.  And as I've already pointed out, this is the greatest expansion of U.S. resource jurisdiction in the history of the nation.  Removal of sovereignty?  Give me a break!  What was one of the core issues that the United States won?  Protection of navigational freedom of our war ships and our ships on the high seas.  Protection of U.S. sovereignty, absolutely a core issue.  There is no loss of U.S. sovereignty whatsoever.

Second point -- they argue somehow this will be counter to the security and national military interests of the United States of America.  Extraordinary since we won absolutely everything that the chiefs sought.  They were a very important part of the effort.  I traveled around the world with a representative of the Joint Chiefs and DOD in all of the negotiations.  We won everything that the chiefs wanted.  And you might note that the strongest proponents of this treaty from day one have been the United States military.  So a group of non-law of the sea experts, non-international law experts, who do not know the issues, believe that somehow they know better than the chiefs of the United States who have signed a letter that I have in the back of the room called a rare 24-star letter.  It's not just from the chairman of the chiefs.  Every single one of the chiefs signed it and sent it to the Senate saying this is what we need.

I'm running out of time, but let me just very briefly give you one last, and we could go on for five or six more of these.  In fact, recently I was looking at one of their core briefing books in opposition.  And every single one of the 10 issues they had as a reason to vote against it were completely false.

Now, let me just give you a third one.  Third one -- that somehow this is a massive globalization, an internationalization of the world's oceans that's turning it over to the United Nations.  Nothing could be further from the truth.  What this convention really is is a massive win for coastal states.  This is the greatest expansion of coastal-state jurisdiction in the history of oceans policy.

What is the international institution they're talking about?  A small, new, international organization called the International Seabed Authority with, after 10 years of operations, 38 employees and a combined cost of the operation of about $5 million, the U.S. share of less than 2 million (dollars) is less than the cost of the Great Lakes Fisheries Commission participation.  For us, this is nothing more than one of about 100 other specialized organizations.

Why do you have it?  Because we had to have assured access to seabed minerals and get property rights, something conservatives ought to be in favor of.  How do you get property rights?  It's an area beyond any national jurisdiction, so you have to create something that gives you stable property rights.  That's what we did with assured access, with the four sites already out there, one of which has been lost, and we're about ready to lose the others.

Thank you, Scott.

BORGERSON:  Wow, I think I heard an opinion in there.  (Laughter.) Thank you, Professor Moore, for those remarks.  And I believe that four of those stars are actually sitting to your left.

So Admiral Watkins, thank you for joining us this evening, sir.  And now is your opportunity if you'd like to make any opening remarks.


Well, John just laid out most of my speech.  (Laughter.)  The wonderful thing, though, that he's talking about is international leadership, woefully in adequate in this country today.  We're not respected overseas.  We're using military force too often, too readily without going through all of the process, which we know is difficult.

But we were set up as a commission by the Congress, and that commission was chartered, and it sat up there and languished on political grounds on Capitol Hill in the Senate of the United States for 10 years before it was finally passed, to urge the United States to establish a U.S. national ocean policy.  We were set up to do that by law.  The act was finally passed in the year 2000.  We met for the first time in 2001.

So it's not just law of the sea, but law of the sea comes into view in every single chapter that we wrote in our 300-page report.  It's all there.  And if we don't understand the international ramifications of ocean processes, we're going to make very bad decisions.  And we need this framework and this forum to work.

We built the U.N.  It's ours, and we need to be a participant in it.  And the sad story of these opponents is no matter what we say, if it's connected with the U.N., we're destroying the conservative base, whatever the heck that means.  We're not doing it in the best interest of the United States.  We're doing it to save the hides in an election year of a handful of opponents that don't know what they're talking about.

And John mentioned the rationale used by those opponents and their trivial arguments.  They're wrong, and we somehow have not been able to expose that.  And God knows we've tried.  The first act of our commission, the U.S. Commission on Ocean Policy that I chaired, was to come out with a letter to the leader in the Senate to say, for God's sake, will you get that to the floor of the Senate.  It's been passed a couple of times by committee, the Foreign Relations Committee.  I was up talking to the Foreign Relations Committee.  They said, we're all for it.  But we're held up by the leadership over here, because the White House has lined up these opponents on the Republican camp on the very conservative side who detest the U.N. and all connected with it.  They come from the great ocean states of Oklahoma and Nevada.  (Laughter.)  You know, it's so frustrating.

So we signed the letter out in 2003 I think it was -- it might have been late 2002 -- after we had gone around the country and listened.  And we listened to former ambassadors, to State Department officials, to the military leadership, to U.N. representatives, people with great respect for this issue and who understood this issue, clamoring for U.S. to take a leadership role.

We have the intellectual qualities here in our national laboratories, in our academic institutions and in the government sufficient to research the scientific basis for what our decisions are made of.  We know how to do it.  We know what has to be done.  And yet somehow we can't bring ourselves to doing what's in the best interest of the United States.

Unfortunately, every year is an election year.  That's a problem.  And I'm not going to get elected if I vote anything for the U.N.  And I was told this by the leadership on Capitol Hill that yeah, we're ready to bring it to the floor.  But we can't because the Senate rules allow them to put a hold on this thing.  And if we break it, then what happens is that the Republican very conservative right-wing side get upset, as though that is a goal in the best interest of the United States, which it's not.

So we have a serious problem that is all political.  It has nothing to do with the things that John mentioned are so critically important right now in law of the sea.  As claims come up in '09 for adjudication, as we see the Russian flag planted on the base of the North Pole, there's some signals there.  Are we going to go to battle stations every time we have a conflict on who owns the Continental Shelf extensions beyond the EEC?  What's all that about?  Is that going to be the pattern for the future?  I don't think so.

And the rules of the game in the convention, as John mentioned, are so clear that we aren't going to lose any sovereign rights.  What's all that about?  It's quite the other way around.  And so we have this history of impediments to getting on with this Law of the Sea Convention now for a long time, I'm going to say for at least 14 years.

After the deep seabed mining controversy was resolved in '94, we thought, we on the commission thought, this is going to sail through now.  We're ready.  This is the objection that Ronald Reagan had, and it's the objection that the presidents had.  That's all been resolved, they've all signed off on this.  Well, that was wishful thinking on our part.  It has to do with a childish political problem associated with the rules in the Senate that allow somebody to keep a permanent hold, don't even have to tell you why, on any bill, even though it's in the best interest of the United States.

We reported out for the first time in '04.  And it was well received in the White House.  The president set up a series of subcommittees and committees to follow the recommendations of the commission which he appointed.  Although the Congress gave him 12 of the 16 names, he got four, and he was pleased with the results, or at least he said he was.  He set up these committees by executive order.  And the Congress began to draft bills.  H.R. 21 comes to mind, an omnibus bill, a big one, on U.S. ocean policy, virtually taking and capturing the words right out of our report which took three years to build with a wonderful group of commissioners.

And we heard everything that we could possibly hear on this subject around the nation.  We went to every region.  We saw the different cultures in those regions and the different priorities.  We saw the governors very concerned, because they had the real load on dealing with pollution and contamination and all that sort of thing that eats into their pocketbook.  And they don't like it.  And they were not getting the partnership with the federal government that would make their monies go farther and do more.  And so they were upset as a group, the Northeast.  New York was in the process of drafting up their new convention on oceans.  California was very strong, but California was on the outs with the administration, and it wasn't their kind of Republican.

So we've got to the point now where we've made a good report and well received by the Congress.  The words are excellent.  Good work, Watkins.  This is a great report.  Thanks very much.  And nothing has been done.  So it's the standard old practice of lots of rhetoric and no real action.  No resources have been added, but we talk a lot about it.

So that's kind of how we came to this point in our commission work.  We're still pounding on Law of the Sea Convention and acceding to it.  We are up seeing members of Congress, and they all just shake their heads.  And they say, we're not going to be able to get it to the floor, because it won't pass.  And the leader says, I need 75 votes.  And so I hope one of the questions tonight is, what can the council do?  So if you want to ask me that, that's okay.  (Laughter.)

Anyway, I thank you for listening.  John is the expert in the details of this convention.  And he and I have worked very closely together over the years and are fighting the battle together.  We may win, but we've got to keep up the fight, and we need your help.  It's not going to come from me or from John.  It's going to come from you all.  And the more noise we can make, the better.  So we'll open ourselves later on to Qs and As.

BORGERSON:  Thank you, sir.

I would point out, though, that the council is nonpartisan and is, in the interest of that, trying to stimulate debate.  I'm in the unenviable position of trying to play devil's advocate against two men who served in a Republican administration on this issue.  But nonetheless, I'll give it a shot. And despite all the arguments that the two of you made, nonetheless, the Senate still, of course, has yet to give its advice and consent on the treaty.

And those in opposition raise sort of a list of arguments.  Each of you took some of them on individually, but three I'd like to raise specifically, if you could comment on, all three relate to national security.

The first has to do with intelligence, that the law of the sea actually reins in our Navy too much as it relates to intelligence.  And even though the CNOs and others in the security establishment endorse the treaty, they under appreciate that limitation.

Second is trade of applications outside the law of the sea that would be tools taken off the table for national security.  And I would raise and an example the quarantine of Cuba during the Cuban Missile Crisis.  Could we still, as a country, do that if our hands were tied with this treaty?

And lastly, and it's one I hear I think most often, and that is, well, we don't really need to sign this treaty, because it's really become customary international law.  And so we get all the privileges that come with the treaty.  We have the Navy to sort of sail where we want.  And so customary international law is good enough.

What would be your response to those reactions?

MOORE:  Well, perhaps I can give you a quick reaction to each of those and then Admiral Watkins.

But first, let me just say how much I admire the superb work Admiral Watkins did with the commission and the fact that the first act of the commission was a unanimous resolution.  Remember, this is all the American industry, all the affected groups, environmental groups, fisheries and all the rest saying the United States needed to adhere to this convention as one of the most important elements on oceans policy.

Let me also endorse very strongly the broader point that the admiral was making.  This really goes far beyond law of the sea.  This is an issue of effectiveness in United States foreign policy.  This is a question of whether we are going to permit an isolationist and ideologically driven group basically to control the ability of the United States to enter into very important treaties.  It would be difficult to find any international agreement in the history of the country that was clearer in our national interests than this one.  So if we're going to have this held up in our process and it's going to be unable to move forward with this kind of ideological sniping, we've got a serious problem that goes far beyond law of the sea.

Now, on those questions, first, on the issue of, is there any interference with intelligence.  Point number one -- the intelligence community fully participated in the interagency task force.  This is not some little operation run in a separate office of the State Department.  This is run out of the NSC.  There is nothing in the intelligence community that they wanted they did not get in the Law of the Sea Convention.  And there are some sensitive things in there in fact that the United States got for the intelligence community.

To my knowledge, there is not a single issue that is a problem in intelligence that I have seen.  There was a hearing held from the Intelligence Committee.  And the CIA and the Defense Department and all of those involved in this testified there was no issue.  This is an absolutely false issue being raised against the convention.

The second point in relations to, are we going to be inhibited in something like the Cuban Missile Crisis, for example.  And this is, I think, also something that has some misperceptions about the treaty.  This is basically a treaty for peacetime settings.  This does not in any way, shape or form interfere with the legal rights of the United States for defense, individual or collective defense, or any of our fundamental kinds of foreign policy issues that we're engaged in.  There is nothing in the treaty that has any kind of inhibition that would be a problem for the United States in the Cuban Missile Crisis or in any of the other national security and defense issues that this country has been involved in.

In fact, the chiefs have testified over and over again just to the contrary of that.  That is that this helps United States mobility.  It helps us move around the world's oceans.  And for those who have noticed the latest strategy, Naval strategy of the United States, it's called a 1,000-ship Navy. It is a matter of cooperation with countries all over the world in dealing with terrorism and piracy and all the other issues.  We are severely harmed if we are not part of this treaty and are empowered basically to deal with that issue.

The third question is, well, why do we really need to have adhered to the convention?  I hope I have answered that in giving you some of the issues already.  Let me just say, if you really believe that you prefer the United States not to be THE oceans leader in the world but simply to be an observer while the rest of the world changes the law and things, then you should be for this opposition.  Because that's exactly what is happening.

We are being harmed and being harmed in very serious ways.  And one of those that I've been particularly paying attention to economically that has not gotten much attention is literally we have remaining three huge mine sites in the deep ocean floor.  A mine site is approximately the size of the state of Rhode Island, each one somewhere around $1 trillion in aggregate value of hard minerals for the United States.  We've lost one out of the four of those already because of the delay.  The companies just got tired of this and basically sold it for nothing.  And if the United States doesn't adhere in a reasonable period of time, what's going to happen is those sites will be turned over to the Chinese and the Russians and the others.  And this will be one of the greatest travesties, I think, in the history of U.S. foreign policy.

Let me just turn it around as well.  I find rather interesting the notion that the argument is made that, well, it's all customary international law.  Why do you need to sign?  If it is already customary international law and binding on the United States, why shouldn't we go ahead and sign?  What's the harm?  In fact, one of the greatest errors in the series of arguments is even if every one of these arguments were true, which take one little, you know, bits and pieces of this thing and make an argument against it, even if they were all true, they miss the aggregate of the overall benefit for the United States of America.  And by staying out, nothing that they are concerned about will stop.  We just simply will be non-empowered.

For example, the International Seabed Authority is not going to go away.  It's out there.  If we've turned it all over to the United Nations so far, which is nonsense, it's already done.  It will not go away.  There are 153 countries and the European Union.  So these are really nonsense arguments that are being made.

BORGERSON:  Admiral, would you like to respond to any of those, the criticisms there?

WATKINS:  I'll just pick up on one that's very special to me, and that's on intelligence.  There was a Senate Select Committee hearing on this intelligence issue on law of the sea in 2004.  And witnesses came from the CIA, from Defense, and they all confirmed that the U.S. intelligence plus submarine activities would not be impaired by this convention.

And so, again, the hearings have gone into detail across some of the questions you raised and the myths that are thrown out there by the opponents that somehow this is going to do great damage.  And you know, when our P-3 was very closely monitored by the People's Republic of China a few years ago, one of the things we were accused of is getting intelligence over international waters with our air phones headed towards China mainland.  And we were sitting there as non-members of the Law of the Sea Convention and would have weak grounds on which to base -- we would have good grounds on which to base it, but whether they would be listened to was questionable.

So again, intelligence is not only gathering information in national waters but also international.  So the whole issue of intelligence gathering is another one of these myths that's thrown out there that we're going to lose our ability to do what we have to do to be number one in our national security efforts through good intelligence gathering.  So I think that that is, again, one thing that's thrown up there in the air that has no basis whatsoever.

And as far as the other issues are concerned, I mentioned them in my opening remarks.  But I think the tendency that we have shown to use military forces as the answer to confrontation is scary.  And we better be careful about how we use that weapon.  Maybe in the Cuban Missile Crisis it was getting to the point -- I don't know, because I was not involved directly -- but getting to the point where something rather remarkable had to be laid on the table to stop the nonsense, and it worked.

But to use that mechanism every time as a matter of national policy is very questionable.  And it doesn't look good for the United States to take that kind of an arrogant role.  So I'd mention that again, because I think it's so critically important right now to get back on track to doing things by the normal political process that we have well laid out in the past, done a good job on many occasions and need to get back on it.  And we need to see that come from the highest level of government and certainly carried through with some very fine people at State.

One of the things we haven't talked about, and I hope it will come up, is science.  Science and foreign policy -- what we have done there to degrade our scientific endeavors in State is unfortunate.  This has been addressed by the national academies, and they followed through, under Colin Powell, to set up an adviser and begin to bring back some scientists in our major embassies around the world.  We don't have any anymore.  We got rid of them all, which is sad, because so much of the decision-making is based on good scientific facts.  And as you know, those are warped all the time and used for political reasons, which should be disallowed by certainly us and the outsiders, because it's one of our strong, intellectual suits in this country.

BORGERSON:  Excellent.  Thank you, sir, for addressing those three criticisms.

I had a burning question to ask about the melting Arctic and the law of the sea which is something I have interest in.  I don't want the clock to get away from us and not have an opportunity to shift to the audience here, to the council members.  So maybe Arctic will come up in those answers.

So now I'd like to invite council members to join in on this discussion.  Please wait for the microphone.  We have two people who will bring them to you.  Please state your name and affiliation.  And I'd ask that you make your question concise -- make sure there's a question in there and not just a comment.  And I would ask our panelists, please, to keep your answers as concise as possible.  And we'll spend the rest of the time in the meeting with questions.

So one here, and there afterwards, and there third.

QUESTIONER:  Hi.  Thank you for your remarks.  I'm Spencer Boyer with the Center for American Progress.

I have two very quick questions.  Why do you think those in Congress are more concerned with the potential wrath of a small group of individuals who are concerned about sovereignty issues as opposed to the potential wrath of the larger business and military community that overwhelmingly supports the convention?  Is it just that the small group of opposition is just louder?

And secondly, why do you think President Bush, who's on record as being very supportive of the treaty, hasn't been willing to put more weight behind it recently to get it to the floor and potentially ratified?

Thank you.

BORGERSON:  Thank you.  Why don't we just take the next question as well, and then we'll address them all together if we could.

QUESTIONER:  Thank you very much.  I'm Evan Williamson from Sullivan & Cromwell.

Scott, I'd like just a real quick comment on one of your questions about the reliance on customary international law.  I think it's quite ironic that -- I mean, customary international law is one of the biggest bugaboos of conservatives like myself.  And the idea that one would resort to that as an argument I really find quite ironic.

But on like most issues, the opponents are not totally without some merit.  And the concern that I think I share most with the opponents is this whole question of the subjection of disputes over the extremely important issues to settlement by really uncontrollable tribunals that, I think, are likely to harbor positions that are contrary to U.S. interests.  And recently, an ad hoc panel in the Guyana versus Suriname arbitration unanimously went out of its way to find that instructions by a Suriname naval vessel to a Guyana-sponsored drilling rig to leave disputed waters, quote, "or suffer the consequences," close quote, was an illegal use of force and violation of the convention and the U.N. charter.

I heard one of Guyana's advocates express his absolute surprise that the panel bought this argument, but it did.  And I think this kind of tribunal activism adds credibility to the conservative's concern.  And I think it raises a fundamental issue as to whether or not we should rely on those kinds of tribunals for such an important issue.

And so I'd ask John and Admiral Watkins, you know, what should be the approach of the U.S. in the event of an adverse decision by a tribunal like that?

BORGERSON:  Great, thank you.  So I heard three questions there.  First is, how do you explain the strength of what seems to be a rather small group of interest whose voice has been loud in opposing the treaty?  Second, the politics of it as it sits in the Senate now.  And then lastly, how do you rein in this tribunal activism?  And how can the U.S. sort of control that?

WATKINS:  Well, let me take up the first question about what's going on in the Senate.  What's that all about?  It's not about deep-seated feelings against the details in the convention on law of the sea.  That isn't what it is.  What it is is, will this help me get elected this year?  Or am I doing something that makes me not as conservative as I should be?

It's a scary turn of events, I think.  I think it's somewhat unusual to use the Senate rules which allows a hold to be placed on a bill for any length of time.  There's no constraint on it.  It's not a 120-day hold.  It's a hold forever, and I don't even have to tell you why.  So unless there's pressure put on by the leadership of that particular group to say, you know, we don't care about that base, the best interests of the United States are going to be served by acceding to this convention, that doesn't hold any water.  I'm sorry to say that, but it doesn't.

And so we have a handful of individuals who, unless they release their hold on this and tell the leadership up there that they can amass 75 votes which is comfortable above the 67 required to get it to the Senate floor, it will still sit there and languish as it has for so many years.  It's sad, in my opinion.  I think it's somewhat undemocratic to allow this to take place without a change in the rules.  So it's a rather simple but unfortunately badly supported concept when it comes to this convention.

In fact, almost anything connected with the U.N. is (stopped ?) by that same group.

BORGERSON:  And tribunal activism, would you like to take that on?  Or would you?

MOORE:  Why don't I perhaps take that one if that's all right.  We'll divide it.

Ed, in relation to dealing with tribunal activism -- and by the way, let me thank you for your strong support as a former legal adviser to State, in general, for this treaty.  I appreciate everything you've been doing.

First, this is one of the few treaties that we've negotiated in which we specifically put in an exemption for all military activities with respect to submission to dispute settlement.  You and I indeed are on record together as sending a letter to the Senate Foreign Relations Committee basically indicating that all military activities have been withdrawn from dispute settlement.  And if that were not enough, the Senate resolution of advice and consent that's proposed basically indicates that any determination of whether that is true or not is in fact left to the United States to determine.

Let me also suggest that we're never, in the real world, going always to be able to control every arbitrator.  There are going to be bad arbitrations.  Unfortunately, all the judges are not Judge Steve Schwable (ph).  And there are others that don't understand international law.

But in the aggregate, I believe it is strongly in the interest of the United States to continue to support compulsory dispute settlement.  There's nothing un-American about this.  Indeed, George Washington indicated that the single most important achievement of his administration was the arbitration provisions contained in the Jay Treaty.

In addition to that, the United States, at present, is a party to some 85 treaties with arbitration provisions, some of which are extremely important, and some 16 multilateral conventions that submit to a variety of different kinds of tribunals.  So this is certainly nothing new.  I think the simple answer is, one, for the tribunals that we're involved in, we will have the ability to select some of those judges, of course, in the way they're selected -- two out of the five in the general arbitration -- so we don't know what those other parties may have accepted.  The arbitration only binding on them, not on other parties.  So we're the ones that participate when we enter into arbitration in selecting the judges.  A military exclusion would be applicable, so that's not an issue whatsoever in the case.

And finally, if they clearly did something that is ultra vires, as I would regard this as ultra vires, it clearly is simply not binding on the United States under normal rules of international law.  That decisions that go beyond the jurisdiction of the tribunal are simply void.

BORGERSON:  Okay.  Although an interesting historical follow on is that after the Jay Treaty, we had to fight a quasi war with France to get out of the previous legal arrangement.  But good point.

I think we have a question here and then one at the end of the table.

QUESTIONER:  I'd just like to follow up on the first gentleman's political question.  You've made a very compelling case that the arguments of the opponents are, as John put it, entirely false.  That suggests that the opponents are either stupid, dishonest or both.  And I for one am prepared to accept both.  (Laughter.)

I assume that that small group of rather obstinate people could be turned around if the president picked up the telephone and called them.  And the question is, he's on the record supporting the treaty, why can't he take the 10 minutes that would be necessary to do so for something that is so manifestly in the national interest?

WATKINS:  The answer to that is, what can we on the council do?  When I asked the question about the U.S. national ocean policy at a convention in Monaco where I was given a seakeepers award, it's called, international, I said, who in the room knows the president of the United States?  Two hands went up.  I said, you should go see the president and talk to him about how important this is, because the president had never mentioned oceans at all in the climate change debate or any other debate let alone the Law of the Sea Convention.

I said, who knows Karl Rove?  Five hands went up.  I'm going to ask this group, who knows these people over there?  Who can have access to them and say, come on, let's get on with it, what are you talking about.  So how do you get politics out of an election year on such an issue that this conservative base feels will make you less conservative?  In fact, we've noticed some of the senators who were strongly on our side, Republicans, that have quieted down on the issue.

The president had made his comment last May in support of the convention.  That's the end of it.  We haven't heard.  Again, as we get into the election year, it's not going to get easier.  Because they really do believe that this is going to prevent them from being elected, not just the presidential election but the congressional and senatorial election as well.  And I don't know how you deal with that, you know.  But the best way to deal with it is to go up and talk to the members, and that's what we've been doing.  But we're reeds shaking in the wind.

BORGERSON:  John, do you want to quickly take this on?

MOORE:  Just very quickly.  I think it would be a great mistake to assume that the opponents are stupid or dishonest or either.  This is a group of very dedicated isolationists and unilateralists.  They are very effective.  They are extremely well organized.  They are producing calls into the Senate of the United States in the hundreds in numbers into the offices with very little going in on the other side.  This is one of the things that makes this, I think, of particular concern for the future.

This is a very serious issue for effective United States foreign policy going beyond this treaty.  And the only answer is that all of those, the industry, those that are affected, those that understand the reality of this, need to get out there in the marketplace, they need to be organized, they need to be much more effective.  I think that's happening.  I think we will prevail on this treaty.  It will go through.  We will get the votes in the United States Senate.  But it is a tough fight.  And I think it would be a mistake to underestimate a series of, in many cases, very bright and very dedicated people on the other side.

BORGERSON:  And if you had to give a number, if I put you on the spot to say how many senators you think at this moment tonight would vote in favor, what number would you give?

WATKINS:  I think -- (inaudible).

MOORE:  We have the votes right now in the Senate.

BORGERSON:  In favor.

MOORE:  In favor.

WATKINS:  Five against.

BORGERSON:  So 95-4, five against?

WATKINS:  Well, you can't get it much lower, you're not going to get a vote like that.

BORGERSON:  Would you venture a number?

MOORE:  I was just going to tell you that we would prevail in a vote at this time in the Senate.  We would solidly prevail in a vote at this time.  I also think there's a very interesting question that nobody ever raises about constitutional issues and the ability to set side the Senate moving forward when the president submits a treaty to the Senate with the notion that one or two members of the Senate or four or five have the ability to stop and block.  The Constitution says one-third can block.  It does not say a single individual or five members can block.  And I think it's time that we begin to focus on that issue and effectiveness of the functioning of the United States Senate.

BORGERSON:  Okay.  We're starting to bump up against the clock here.  So let's take a bunch of questions if we can.

I see one, I think there was two, three four.  And please make it concise and answers concise.

QUESTIONER:  Allan Wendt.

From everything you've both said, I would draw the conclusion that the president has not played the role that he might in bringing this issue to the fore.  What more could be done to persuade the president to get directly and personally involved with the recalcitrant senators?  And where is the National Security Council on this in terms of persuading the president, national security adviser, the secretary of State, secretary of the Treasury and so on and so forth?

BORGERSON:  Yes.  Okay, thank you.

At the end of the table, there was a question there.

QUESTIONER:  Benny Garrett (sp) from the Asia Society.

Scott has written a very important piece in Foreign Affairs on the Arctic and climate change and the law of the sea.  I hope you've all read it.  And I think he presents a good case that climate change is creating more urgency for the law of the sea treaty in regards to the Arctic.  And I'd be curious to know if you think that there are other grounds on which climate change, rising sea levels, extreme weather, et cetera, as it is obviously occurring, is going to make passage of the law of the sea, one, more urgent and also politically more viable to push forward, as you're saying.

BORGERSON:  Thanks, Benny.  I knew we'd get the Arctic in there.

I think we had here at the end.  Yes, ma'am.



QUESTIONER:  This is very reminiscent to me of the Panama Canal treaties and what we went through.  And there was a very dedicated opposition, as I think many of us know or some of those who were involved in it at that time.


QUESTIONER:  The point that I wanted to ask you, there's so much focus on the president who, I think, has limited interest despite what he may have said about his support for the treaty but limited ability perhaps now with the Senate.  Has there been any push on the part of our three candidates, all of whom are senators, to address this issue publicly?  And I'm wondering whether any of you have had any conversations, either with them or with their staff with the notion that this be a priority looking ahead?

BORGERSON:  Okay, great, thank you.

And Caitlin, just quickly, please.

QUESTIONER:  Caitlin Antrim (sp).

I guess this mostly for John.  Look at the Law of the Sea Convention by itself, it's a large, complicated convention.  Very few people here have read it.  So I'd like to put it in perspective.  We are a party to the 1958 Geneva Conventions on the territorial sea, on fishing, on Continental Shelf and the high seas.  We are a party to the U.N. charter.  Is there anything in the 1982 convention, the 1994 agreement on implementation that is detrimental to our interests relative to the conventions we are already party to?

BORGERSON:  Okay.  So we're in the lightning round here.  And if we could get just quick answers so we can get one more round before we have to go home.  We have that question.  What are the candidate's positions?  How about the law of the sea and climate change?  How can we persuade the president?  I don't have his phone numbers, so what do we actually do here?  And then I'll throw a fifth one in there just so we can make the 30 seconds as rich as possible.  The Democrats now control the Congress.  Why can't the Senate majority leader just put it up for a vote?

MOORE:  Lightning round.  First, the question of consistency with the '58 convention, et cetera, anything that's harmful.  The answer is overwhelmingly we have better things in the '82 convention.  One of the things the opponents ignore is the '58 conventions that are already there.  They point to a variety of things in '82 and fail to note that they are already there, and we've done a much better job in the '82 conventions.  So they're clearly, clearly better in '82 than '58, which are already in force for the United States of America.

The question of the Arctic, I very much admired Scott's point in the article of the importance of this rapid melting in the Arctic for the law of the sea and the resource issues and the need to adhere to the Law of the Sea Convention on it.  He is absolutely right.  There are other issues that he and I can talk about as to the best ways to move forward.  I believe, as does the foreign minister of Norway in his statement earlier at the EU meeting last week --

BORGERSON:  In contrast, the EU higher representative for foreign affairs --

MOORE:  -- that in fact this is an issue that the law of the sea had appropriately dealt with.  And I'd be delighted to talk to Scott later about that.

Let me just say I personally negotiated those provisions on the Arctic and so have a pretty good sense of what they are.  We do not believe or need, as far as I'm concerned, a new multilateral convention on the Arctic.

BORGERSON:  And the candidates?

MOORE:  But it is a strong reason, Scott is right, to move forward in relation to that.

As to the candidates, sadly, as we've seen in trade and a number of other issues, elections sometimes do not bring out the best in those.  And I'm afraid that, at least on the Republican side, there had been considerable pandering, much less so from now the nominee we expect of Senator McCain, who initially had supported it and has been making some somewhat less clear statements recently.

BORGERSON:  Has he formally come out in opposition?

MOORE:  I would not characterize it that way at all.  And I would anticipate that, in the end, his clearer, earlier statements would hopefully be the ones that we would be adhering to.

With respect to the president on this, the president does support the law of the sea.  I think it's important to put that on the table.  I met with the political side of the White House a few weeks ago and was assured, again, this is absolutely true.  His personal view, this is not something just put out there, the president supports the Law of the Sea Convention.

I do believe it is sad that there has not been greater involvement in simply picking up the telephone and talking to the Senate Minority Leader McConnell and moving forward.  And I think it is also bad politics.

BORGERSON:  Do the rules prevent the Democratic majority, though, from just scheduling it?

MOORE:  The problem with the Democratic majority, the last of the five points, is the parliamentarian tells the Democratic majority, tells Senator Reid, that it will take six to nine days of floor time to move forward with this with the current Republican opposition of a few of the Republicans.  And he doesn't have that amount of time.  So that plus his needing assurance that he really clearly has the votes on the Republican side, I think in addition to a hold, perhaps even more than a hold, is what's stopping it from going forward at this time.

BORGERSON:  Okay.  I think we're running out of time.  So let's take one more question if there is one.

Yes, sir, here.

QUESTIONER:  Hi.  I'm Bob Herstein.

In the case of the WTO and the NAFTA which were commercial treaties, the private sector mounted very large, well-financed lobbying efforts which succeeded in bringing home state and home constituency pressure on congressmen, many of whom started out strongly against the treaties.  And it brought some of them around to support it, at least neutralized others.  I'm interested in your comment, Professor Moore, that there is some kind of private-sector effort going.  Is it organized along those lines?  It seems hard to believe here that they wouldn't have an incentive to mount the same kind of effort.

MOORE:  That's an excellent analogy.  It got off to a very slow start.  I think we're beginning to see it accelerate at this point.  And I'm very hopeful that it will accelerate and achieve the same result you did at WTO and NAFTA.

BORGERSON:  Admiral Watkins, any concluding thoughts?

WATKINS:  I want to go back to the question that came up earlier.  Why has the president not done enough?  The president, while he's endorsed this and gone on record as such, we have dealt with our White House contacts a lot on this very issue.  And he's not going to get in the middle of a scrap with his own Republican leadership on the Senate side who are acquiescing to the five who are keeping this bill from coming to the floor.  So I don't believe it's going to happen unless some dramatic change takes place.  And the Republican lead candidate, for example, gets personally involved and wants to be seen as less conservative than people would like him to be.  He's not conservative enough.  We've heard that in the political campaign.

And so I don't think that's going to change unless there is some personal contact with president that anyone in the room or friends of those in this room can bring to bear.  We know at the State Department, John Negroponte, I've talked to him at great length.  He's very much on our side and is doing everything he can within the White House to continue putting pressure on the Senate to get this to the floor.  And I agree that if we get it to the floor, it will pass.  But the leader wants to have more than just enough to pass going in, because he doesn't want to lose this one.  And he says he needs 74 votes to be assured so when he brings it to the Senate floor it's going to be a winner.  If it's a loser on the Senate floor, it would be a huge loss to us.  So we want to go in with a winner.

And is the president doing enough?  I don't think so.  But then, you know, I'm not a politician that way.  I understand politics.  I don't like a lot of it.  But he's doing all that politics will allow him to do right now with a principal nominee and other members up there on the Hill, his own minority leader and others who want to be sure that they're not wasting their time up there.

BORGERSON:  Thank you, sir.  Thank you, Admiral Watkins, for coming this evening and for Professor Moore.

It sounds like if President Bush is watching the basketball tournament this evening, he's going to be distracted by his phone ringing off the hook either for or against.  So everybody go home and call the president.  (Laughter.)

Thank you for coming.











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