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AGREEMENT WITH THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE MARITIME BOUNDARY

JULY 31 (legislative day, July 8), 1991.---Ordered to be printed

Mr. PELL, from the Committee on Foreign Relations, submitted the following

REPORT

together with

ADDITIONAL VIEWS

[To accompany Treaty Doc. 101-22]

The Committee on Foreign Relations, to which was referred the Agreement Between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, with Annex, signed at Washington, June 1, 1990, having considered the same, reports favorably thereon without amendment and recommends that the Senate give its advice and consent to ratification thereof.

PURPOSE

The Maritime Boundary Agreement defines the maritime boundary between the United States and the Soviet Union off the coasts of Alaska and Siberia in the North Pacific Ocean, the Bering and Chukchi Seas, and the Arctic Ocean. It resolves conflicts concerning the sovereign rights and jurisdiction of the two countries with regard to territorial sea, Continental Shelf, and exclusive economic zones, thereby settling longstanding disputes over fishing rights and mineral resource development.

BACKGROUND ON THE NEGOTIATION

In the 1867 "United States-Russia Convention Ceding Alaska," Russia ceded to the United States all "territory and dominion" up to the "western limit" specified in the convention, which became the maritime boundary for purposes of defining jurisdiction over

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fisheries and oil and gas deposits in the seas between Alaska and Siberia. In 1977, when the United States and the Soviet Union both established 200-mile fisheries conservation zones, the Soviet Government accepted a United States proposal to respect treaties in force between them, in particular the 1867 convention, in establishing their respective 200-mile fisheries zones. Later that year, how ever, it became clear that the two countries were measuring the location of the 1867 line differently.

The United States measured the line by arcs of great circles, or "geodetic lines" -- the shortest distance between two points on the Earth. The Soviet Union used "rhumb lines" -- lines of constant direction used mainly by sailors. The two countries also disagreed on the location of one of the points that determined the 1867 line.

Those differences resulted in a disagreement over some 21,000 square nautical miles in the Bering Sea, which each country claimed were on its own side of the 1867 line. The disputed area contains rich fishing grounds and is viewed as a potentially valuable area for oil and gas exploration.

Part of the disputed territory involved areas where the two countries' 200-mile EEZ's overlap. (An "exclusive economic zone" -- or EEZ -- is the area within 200 miles of a nation's coastline within which it has the exclusive right to manage fish, seabed, and subsoil resources.) The rest is in the central Bering Sea where the two coastlines are more than 400 miles apart-an area known as the "donut hole." The United States and the Soviet Union had conflicting claims of Continental Shelf jurisdiction in this area.

The conflicting claims led to charges by United States fishermen and oil companies of harassment by Soviet authorities. Uncertainty about the maritime boundary may also have discouraged development of fish, oil, and other resources in the region.

The United States and the Soviet Union began discussions of these issues in 1981. The Maritime Boundary Agreement was signed June 1, 1990, and submitted to the Senate for its advice and consent to ratification on September 26, 1990 (Treaty Doc. 101-22).

EFFECT OF THE TREATY

The Maritime Boundary Agreement declares that the 1867 convention line is the maritime boundary between the United States and the Soviet Union, and it agrees on a common depiction of that line. The agreement divides the disputed area along a 1,600-mile boundary line. It clarifies the two countries' territorial sea, EEZ and Continental Shelf jurisdiction by establishing a precise boundary where their jurisdictions would otherwise overlap.

The agreement thus resolves significant differences as to where each party has the right to manage fisheries, oil and gas exploration and development, and other offshore resources of the seabed and subsoil.

The agreed depiction of the 1867 boundary line is a compromise. In the negotiations, the United States proposed splitting the difference between the two original depictions, At this point it emerged that the dispute was broader than simply the differing depictions of the line. The Soviets were unwilling to use the "split-the-difference" line in areas in which the two 200-mile zones did not overlap,

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because they believed that proposal would have deprived them of EEZ areas which are on the U.S. (eastern) side of the boundary line but more than 200 miles from the U.S. coast -- meaning neither party could have exercised economic rights in those areas. Splitting the difference also would have given most of the Continental Shelf to the United States.

The compromise shifts the "split-the-difference" line eastward to give the Soviet Union an area of EEZ equal to the amount of Bering Sea area transferred to the United States. The Soviet Union also withdraws its claim to that part of the Continental Shelf which is east of the 1867 line.

The agreement provides for the transfer of four potential "special areas" that lie within 200 miles of the coast of one party but are on the other party's side of the boundary line. The Soviet Union agrees to the exercise of EEZ jurisdiction and rights by the United States in three "eastern special areas"; the United States agrees to the exercise of such rights and jurisdiction by the Soviet Union in the single "western special area". (In fact, the United States has never asserted fishing or Continental Shelf jurisdiction in this area.)

Establishing the 1867 line as the maritime boundary without the "special areas" provision would result in neither party being able to exercise economic rights in those areas. This provision also minimizes the size of the "donut hole" in the Bering Sea that is beyond the fisheries jurisdiction of either party.

In order to take advantage of the provision granting the United States the right to exercise jurisdiction over any or all of the "eastern special areas", implementing legislation will be required.

Ratification of the Maritime Boundary Agreement would serve U.S. political and economic interests in several ways:

First, it will remove a significant potential source of political dispute between the United States.

Second, it will settle disputes concerning jurisdiction over fish, seabed, and subsoil resources, enabling development of these valuable resources -- especially fisheries and seabed riches -- to go forward.

Third, it will place 70 percent of the Bering Sea under U.S. resource jurisdiction.

Finally, it will end harassment of U.S. fishermen and companies in the maritime areas between Alaska and Siberia.

COMMITTEE ACTION

On June 19, 1991, the committee held a hearing on the Maritime Boundary Agreement. Testimony was received from:

Senator Ted Stevens of Alaska;

Edwin D. Williamson, legal adviser to the Department of State, accompanied by David Colson, Deputy Assistant Secretary for Oceans, International Environmental and Scientific Affairs; Alan J. Kreczko, deputy legal adviser; and James M. Hughes, Assistant to the Secretary and Director of Congressional and Legislative Affairs, Department of the Interior; and

Carl Olson of a private-sector group called State Department Watch, accompanied by Mr. Mark Seidenburg

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At a business meeting on June 27, 1991, the committee, by voice vote, approved the agreement and recommended that the Senate give its advice and consent to ratification thereof. Senator Helms was recorded in the negative at his request.

ARTICLE-BY-ARTICLE ANALYSIS

The Preamble to the agreement expresses the desire of the two parties to resolve issues concerning their maritime boundary. It also states the goal of insuring that where coastal state jurisdiction could be asserted by either party under international law in the absence of a maritime boundary, such jurisdiction is exercised.

Article 1 states the agreement of the parties that the 1867 convention line is the maritime boundary between the United States and the Soviet Union, and provides that each party will respect the maritime boundary as a limit on its coastal state jurisdiction.

Article 2 describes the maritime boundary and indicates that it is defined by lines connecting geographic positions set forth in the annex accompanying the agreement.

Article 3 provides for the transfer of jurisdiction in four "special areas" that lie within 200 miles of the coast of one party but are on the other party's side of the 1867 convention line.

Article 4 states that the maritime boundary does not affect or prejudice either party's position with respect to the rules of inter national law relating to the law of the sea.

Article 5 defines "coastal state jurisdiction" as referring to sovereignty, sovereign rights, or any other form of jurisdiction over waters or seabed and subsoil that may be exercised by a coastal state under international law of the sea.

Article 6 calls for any dispute under the agreement to be settled by negotiation or other peaceful means agreed by the parties.

Article 7 provides that the agreement will enter into effect on the date of the exchange of instruments of ratification.

TEXT OF THE RESOLUTION OF RATIFICATION

Resolved, (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Agreement Between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, with Annex, signed at Washington, June 1, 1990.

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United States - U.S.S.R. Maritime Boundary

ADDITIONAL VIEWS OF U.S. SENATOR JESSE HELMS ON THE U.S.-U.S.S.R. MARITIME BOUNDARY AGREEMENT

The maritime boundary agreement between the United States and the Soviet Union has been a matter of concern to this Senator for a number of years.

I have had four major areas of concern:

First, I have sought to ensure that the agreement be in treaty form and be duly submitted to the Senate for its advice and con sent as required by the Constitution.

Second, I have sought to protect the status of the DeLong Is lands -- Bennett, Henrietta, and Jeannette islands -- in the Arctic.

Third, I have sought to protect the status of Wrangel and Herald Islands in the Arctic. While several islands bear the name Wrangel or Wrangell, the island that I am referring to lies in the Chukchi Sea of the Arctic Ocean about 100 miles off the Siberian coast. The island is about 80-miles long and about 30-miles wide. A harbor in the southeastern part is in latitude 70 deg. 57 min N. and longitude 178 deg. 10 min. W. The island is about 2,925 square miles in area.

Finally, I have sought to ensure that the proposed maritime boundary treaty would not foreclose the U.S. right under international law to pursue its claims to sovereignty over the five islands. I believe these four goals have been achieved.

The first concern has been resolved to my satisfaction through the submission of the U.S.-U.S.S.R. Maritime Boundary Agreement to the Senate in treaty form for its advice and consent.

The second concern has been resolved to my satisfaction through assurances given by the Legal Adviser of the Department of State, Edwin D. Williamson, to the Committee on Foreign Relations and to me personally and through my staff. The Legal Adviser has as sured the committee that this maritime boundary agreement does not affect the status of the arctic islands. Further, the Legal Adviser has stated that the United States has neither relinquished claims to these islands nor officially acquiesced to other claims over these islands. Referring specifically to the five American Arctic Islands in his testimony before the committee, Mr. William son stated as follows:

The agreement is a maritime boundary agreement, It does not recognize Soviet sovereignty over those islands.

The third concern has also been resolved to my satisfaction with respect to Wrangel Island, since the statement of the Legal Adviser of the Department of State that the maritime boundary agreement does not affect the legal status of the five Arctic islands clearly includes Wrangel Island.

Therefore, the legal situation that obtains today with respect to these Arctic islands will remain exactly what it is today, namely one of conflicting claims under international law. The guarantee of

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the Legal Adviser of the Department of State that the U.S.-U.S.S.R. Maritime Boundary Agreement itself does not take a position with respect to the conflicting claims of the United States and the Soviet Union with respect to these five islands.

This means that the question of ultimate ownership is not prejudiced by the treaty, and remains open for future decision. The Legal Adviser has assured me that the United States has never officially relinquished its claims to these islands nor officially acquiesced to Soviet claims to these islands. In my judgment, the U.S. claims are sound, and should be pursued vigorously.

Unfortunately, past experience has shown that the State Department frequently regards legitimate American interests as obstacles to accomplishment of its grandiose plans for an international order based upon the subordination of national sovereignty to a global governmental regime.

Since I doubt that the State Department will make use of the opportunity to press U.S. claims to the five islands -- even though the right to do so is preserved -- I intend to vote against the treaty.

BOUNDARIES AND THE SENATE

On September 26, 1990, the White House submitted the U.S.-

U.S.S.R. Maritime Boundary Agreement to the Senate for its advice and consent. This action by the executive branch was the proper course of action and satisfied this Senator's concern that agreements affecting the boundaries of the United States -- whether land boundaries or maritime boundaries -- must be in treaty form and duly submitted to Congress and not merely in the form of an executive agreement.

I was concerned for a number of years that the executive branch would seek to use an Executive agreement procedure rather than a treaty procedure for our maritime boundary with the U.S.S.R. Such a procedure would circumvent congressional review of the matter and would circumvent the advice and consent of the Senate. There is nothing more fundamental to national sovereignty and to nation al security than the question of boundaries. Our land boundaries with Canada and Mexico were established by treaty. All previous maritime boundary agreements between the United States and foreign nations were established by treaty.

The issue of maritime boundaries has become important since World War II. Modern 20th century international law, owing to advances in science and technology, has had to concern itself with issues such as Continental Shelf rights and exclusive economic zones out to 200 miles from shore. The Alaska Purchase and the discovery and claim of the Arctic islands being considered here occurred in the 19th century.

The convention line of 1867 for purposes of the Alaska Purchase was never a boundary line as understood by international law

either at the time of the Alaska Purchase or under today's modern international law. The line was merely a line of demarcation to indicate what the United States had purchased from the Imperial

Russian Government; that is, everything east of the line. It by no means indicated the status of territories, such as the five islands

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under discussion, which were not claimed as part of Imperial Russia in 1867.

Nor did it relate to territories undiscovered at the time. The DeLong Islands were not discovered until 1881. Wrangel Island was sighted by an American whaling vessel in 1867 but claimed for the United States in 1881. Herald Island was sighted by a British ship in 1849 but later fell under the penumbra of the U.S. claim to Wrangel Island.

The Department of State in its own publication entitled, "International Boundary Study, No. 14, October 1, 1965, United States-Russia Convention Line of 1867" specifically states as follows:

Furthermore, in keeping with the policy that the line does not constitute a boundary, the standard symbol for the representation of an international boundary should never be used.

During the course of my staff's review over the past decade of the maritime boundary negotiations information reached my office that the Legal Adviser's Office in the Department of State was considering a procedure which would have alleged that the convention line of 1867 was indeed a boundary line. From this position the Department would then allege that all that was needed to arrive at a maritime boundary agreement with the U.S.S.R. was an Executive agreement which would have technically described a variation of the convention line, the supposedly already existing "boundary line."

The originally proposed procedure was averted because of congressional vigilence and action.

On December 18, 1985, I introduced Senate Resolution 279 relating to the transfer of U.S. territory in the Arctic Ocean. On January 25, 1989, I introduced Senate Resolution 20 relating to the preservation of U.S. territory in the Arctic Ocean. The purpose of these resolutions was to clarify the historical situation relating to these islands and to underscore the proper constitutional procedures relating to boundaries of the United States.

Fortunately, pressure from concerned Senators and Congressmen was sufficient to ensure that the executive branch follow the Constitution. On July 20, 1989, I submitted Amendment No. 387 to the Foreign Relations Authorization Act. The amendment, which was agreed to, stated as follows:

it is the sense of the Senate that--

The Department of State shall submit to the Senate in treaty form for advice and consent all agreements with the Soviet Union which relate to boundaries of the United States.

The final language which appears in title X, section 1007 of the Foreign Relations Authorization Act, fiscal years 1990 and 1991 is as follows:

It is the sense of the Congress that all international agreements pertaining to the international boundaries of the United States should be submitted to the Congress for such consideration as is appropriate pursuant to the re-

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spective constitutional responsibilities of the Senate and the House of Representatives.

For the record, it should be noted that opposition to the maritime boundary agreement has been registered in several resolutions passed by the Alaska State Legislature. For example, Alaskan Senate Joint Resolution No. 12 "Relating to the determination of the State's boundaries with the Soviet Union and Canada" was approved by both houses of the Alaska State Legislature and signed into law by the Governor in 1988. Alaskan Senate Joint Resolution No. 61 "Requesting the Government of the United States to reassert jurisdiction over Wrangel Island, Herald island, Henrietta Island, Jeannette Island, and Bennett Island" was approved by the State senate in February 1988.

The U.S. Supreme Court has repeatedly noted that the treaty power does not authorize the Federal Government unilaterally to divest a State of its territory without its consent. See, for example, DeGeofrey v. Riggs, 133 U.S. 258, 33 L.Ed. 642, 645 (1890); Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 541 (1885).

On May 17, 1991, the committee received an official letter from the Alaska State L signed by 47 Alaska State representatives and senators. The letter, an additional copy of which was for warded to me by Alaska State Senator Paul A. Fisher, states, in part, as follows:

No Alaskan official has ever been invited to participate in the treaty negotiations, in spite of abiding Alaskan interests in fisheries, petroleum, and other potential Continental Shelf resources and the consideration of navigation in the area. In the entire history of the treaty negotiations, Alaska has had no official voice. There is precedent. In 1842, at the behest of Secretary of State Daniel Webster, two commissioners from the State of Maine and three from Massachusetts participated in U.S. negotiations with England over a border disputed since the time of the Revolutionary War.

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* * * It is our purpose to urgently recommend that the presently proposed treaty not be ratified by the U.S. Senate, and that negotiations be continued to include appropriate Alaskan officials and current United States and Alaskan historic, territorial, and resource interests.

THE DELONG ISLANDS

The status of the five Arctic islands -- the three islands in the DeLong group and the Wrangel and Herald group -- which the United States had taken possession of during the last century also was of concern to this Senator.

The historical record is clear with respect to the history of the DeLong Islands. They were discovered in 1881 by an official U.S, expedition. They were immediately taken possession of in behalf of the United States in accordance with the accepted practices of the day. Numerous Senate and House documents as well as U.S. Government documents reveal this historical record.

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The Legal Adviser of the Department of State, as noted earlier, has assured the committee and this Senator that the U.S.-U.S.S.R. Maritime Boundary Agreement in no way affects the status of these three islands. That is to say, the United States by ratifying this treaty does not relinquish any claims to these islands nor does it acquiesce to any Soviet claims to these islands. This assurance by the Legal Adviser favorably resolves my concerns with respect to the status of these three islands.

The DeLong Islands were discovered and taken possession of in behalf of the United States during a congressionally authorized and financed expedition to discover the location of the North Pole. On March 18, 1878, the Congress approved an act in aid of a polar expedition designed by James Gordon Bennett, a citizen of the United States and widely known publisher of the New York Herald newspaper.

This act authorized the then Secretary of the Treasury to issue an American registry to the vessel Jeannette, purchased in Great Britain, in order that the ship could be used for the expedition. On February 27, 1879, Congress approved an act authorizing the Secretary of the Navy to accept and to take charge of the ship Jeannette for the use of a north polar expedition under the command of a U.S. naval officer.

Two congressional documents from the period, which include nautical charts, clearly reveal the historical record of the discovery of and the incorporation into U.S. territory of the three DeLong Is lands. These documents are, House of Representatives, 47th Congress, 2d session, Executive Document No. 108, "Loss of the Jeannette;" and House of Representatives, 48th Congress, 1st session, Mis. Doc. No. 66, "Jeannette Inquiry."

These documents establish through testimony of members of the expedition and official documents of the expedition, including the journals of Lt. Comdr. George W. DeLong (U.S.N.), commander of the polar expedition of 1879-81, the fact that the DeLong Islands were discovered and taken possession of in behalf of the United States by this congressionaly authorized and funded expedition.

Subsequent official documents and nautical charts published by the U.S. Government clearly reveal the three islands as part of the territory of the United States. Examples of these documents include the U.S. Geological Survey Document No. 187 entitled "Geographic Dictionary of Alaska," published in 1902 and printed in a second edition in 1906. It was written by Marcus Baker, the Secretary of the U.S. Geological Survey. Bennett, Henrietta, and Jeannette Islands are included in the book as part of the territory of Alaska.

In 1930, the U.S. Geological Survey published its Bulletin No. 817 which was entitled, "Boundaries, Areas, Geographic Centers and Altitudes of the United States and the Several States." This publication was written by Edward M. Douglas and was a revision and enlargement of the 1923 edition. The DeLong Islands are described as discovered by the DeLong polar expedition and claimed for the United States.

In 1916, the U.S. Naval Institute Press published a book entitled, "Icebound, The Jeannette Expedition's Quest for the North Pole", by Leonard F. Guttridge. The book is an authoritative and exhaustive

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study of the expedition and documents the discovery of the DeLong Islands and the fact that they were taken possession of in behalf of the United States.

WRANGEL ISLAND

The status of Wrangel Island and nearby Herald Island which is associated with it has also been of concern. Herald Island was discovered in 1849 by Captain Kellett of the British ship Herald but in 1924 a group of Americans visited the island, found it unoccupied, and raised the American flag claiming the island in behalf of the United States. Information relating to both islands and to the American claim of Wrangel Island was published in Senate, 48th Congress, 1st session, Ex. Doc. No. 204, "Report of the Cruise of the U.S. Revenue Steamer Thomas Corwin in the Arctic Ocean 1881," by Capt. C.L. Hooper, U.S.R.M. commanding.

The logbook of Captain Hooper for August 12, 1881, off "Wrangle Land" states as follows:

Went on shore and took possession of in the name of the United States.

The Corwin voyage, including this passage from the logbook, has been documented in a study entitled, "The Discovery of Wrangel Island," by Samuel L. Hooper, published by the California Academy of Sciences as Occasional Paper No. XXIV, San Francisco, 1956. John Muir, the famous American naturalist and founder of the Sierra Club, was a member of the Corwin voyage. In a memoir he wrote that "A notable addition was made to the national domain when Captain Calvin L. Hooper landed on Wrangel Island and took formal possession in the name of the United States."

The U.S. Geological Survey documents cited above also include Wrangel Island and Herald Island as part of the territory of the United States.

The "Digest of International Law" by Green Haywood Hack- worth, 1973 edition, in volume I, chapter IV, page 464 states as follows:

The United States has not relinquished its claim to Wrangel Island.

While the Legal Adviser stated that the U.S.-U.S.S.R. Maritime Agreement does not affect the status of these two islands, it must be noted that in order to implement the treaty provision relating to the northern "Eastern Special Region" a baseline must be used from Herald Island in order to depict this special region. Using such a method, Herald Island would apparently be considered to be "Soviet" territory. However, the status of Wrangel Island would not be affected nor would the status of the three DeLong Islands.

In my view, there can be no question that the DeLong Islands are a part of the territory of the United States. Even though Wrangel Island has been under Soviet occupation since 1924, the Legal Adviser to the Department of State as noted above has stated that the United States has never officially relinquished its claim to it and that this maritime boundary agreement does not do so.

ADDITIONAL VIEWS OF SENATOR FRANK M. MURKOWSKI PERTAINING TO THE UNITED STATES-SOVIET MARITIME BOUNDARY TREATY

History will surely judge Imperial Russia' sale of Alaska to the United States in 1867 for 3 cents an acre as a czarist blunder of truly classic proportions. Now we will blunder if we do not ratify the United States-Soviet Maritime Boundary Treaty. Both the United States and the U.S.S.R. gain from the treaty, since it resolves areas which have for some time been in dispute between our country and the Soviets over fishing rights and mineral exploration in the Bering Sea and Arctic Ocean.

Once in place, the Maritime Boundary Treaty will delimit the world's longest maritime boundary, and will serve important U.S. national interests. Seventy percent of the Bering Sea will fall under American resource jurisdiction. U.S. rights to manage fishing and mineral exploration in the area will be clearly established. Moreover, the treaty ensures that no maritime area within 200 nautical miles of either the United States or the U.S.S.R. goes unregulated. It keeps to the minimum required by international law the area of the high seas in the Bering Sea known as the "doughnut hole," that area being beyond the 200-nautical-mile jurisdiction of both parties. Minimizing the size of the doughnut hole is particularly important with regard to protecting our salmon and pollock fishing interests from unlawful fishing practices.

The issue of the so-called five islands, although peripheral to consideration of the Maritime Boundary Treaty, has attached itself to it. There have been allegations that by ratifying the treaty the United States would recognize Soviet claims to these islands in the Chukchi and East Siberian Seas. But this is not true. The treaty is a maritime agreement, not an instrument that addresses the issue of sovereignty over territory. The five islands are not alluded to in the treaty, and a vote in favor of it in no way prejudices potential future U.S. claims to them.

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