LOST Law of the Sea Treaty

Source: Council on Foreign Relations

Is the United States Ready to Approve the Law of the Sea Treaty?                     

       

Author:	Maggie Goodlander

                               

July 19, 2007

Introduction

               

The Bush administration is urging the U.S. Senate to ratify the Convention of the Law of the Sea. The treaty provides universal legal standards for shipping, fishing, and mining and codifies customary navigation and transit principles already followed by most states. Proponents of the convention, including President Bush, say it will enhance U.S. security on the high seas. But a number of conservative lawmakers remain concerned the treaty may harm U.S. industry and hinder counterterrorism efforts.

               

What are the treaty’s origins?

               

Historically, nations have had claims to a very narrow belt of three miles from their coastlines, leaving the rest of the high seas generally without legal checks. By 1967, international rivalries, technological advances, and new maritime uses pushed states to clarify sea boundaries and use of resources with stricter legal parameters. The 1982 Law of the Seas Convention was the result of these efforts and won ratification from more than 150 nations. President Reagan refused to endorse the treaty because of its provisions related to seabed mining, most of which were amended in 1994.

               

What does the Law of the Sea Treaty cover?

               

As John Temple Swing wrote in a 1976 Foreign Affairs article, the treaty signifies a “constitution for the sea” that governs activities on, over, and beneath the ocean’s surface. Among the main legal areas it codifies:

• Territorial Limitations and Navigation Rights.The treaty establishes a twelve-mile territorial sea limit from shorelines that allows foreign ships to pass inside freely with a right of “innocent passage” unless they carry out hostile behavior—i.e. spying, unwarranted fishing, or polluting—as outlined by the treaty. Later reforms of the treaty provide that nations may temporarily suspend innocent-passage rights within their territorial jurisdiction in the interest of national security. The treaty also provides a mandatory system for resolving conflicts over navigational rights. Disputing parties are offered a number of options for settling a conflict including the International Court of Justice, a tribunal in Hamburg established for the Law of the Sea, and a special tribunal for settling disputes about fisheries and protection of the marine environment.
• Exclusive Economic Zones. The treaty establishes exclusive economic zones (EEZs) that grant coastal nations the right to manage all resources found in the waters and on continental shelves up to two hundred nautical miles from shore. In addition to exclusive rights, the EEZ provision provides that states observe their responsibilities to reduce pollution and promote scientific research. While the zones permit cultivation of continental shelves, the deep seabed remains out of a coastal nation’s jurisdiction under the convention.
• Continental shelves. The treaty establishes the right of a state to harvest mineral material in the subsoil of its continental shelf, up to 350 nautical miles from shore. Therefore, some coastal states wish to extend the outer limits of their continental shelves. The Commission on the Limits of the Continental Shelf (CLCS), which regulates and makes recommendations for the final limits on a nation’s continental shelf, recently rejected Russia ’s territorial claims on the North Pole, in addition to an eighteen-thousand-square-mile piece of the Bering Sea that separates Alaska from Russia . Responsibility for regulating the ocean’s depths lies with a body called the International Seabed Authority (ISA).
• Protection of marine life. Part of the EEZ provision in the treaty requires that coastal states cultivate fish stocks while remaining mindful of overfishing. Ninety percent of the world’s fisheries lie within EEZs and therefore fall under the care and responsibility of coastal nations. The convention also places the burden of preventing pollution on coastal states, including preventing oil spills, ocean dumping, and runoff that produces pollutants like sewage and radioactive waste.

               

What is the International Seabed Authority?

               

The Law of the Sea treaty created the International Seabed Authority, or ISA, to administer mining rights and seabed resources in the areas outside exclusive economic zones. The Law of the Sea Treaty operates under the “Common Heritage of Mankind” principle, which provides that maritime resources cannot be claimed or controlled by any one individual or nation. While the treaty offers individual nations fixed areas of national jurisdiction, the rest of the ocean is left under the control of the ISA. The organization is based in Kingston, Jamaica, where an eleven-member chamber deals with any disputes that may arise over seabed activities within the ISA’s jurisdiction.

               

What are the main U.S. objections to the treaty?

               

• It may endanger U.S. sovereignty. The ISA’s membership consists of a disproportionate number of developing countries, raising fears the United States will hold no stake in the organization’s decision-making process. As former U.S. Ambassador to the UN Jeanne Kirkpatrick told the U.S. Senate in April 2004: “The formula for representation guaranteed that the industrialized ‘producer’ countries would be a permanent minority (PDF).” Frank J. Gaffney Jr. of the Center for Security Policy, writing in National Review, argues that granting this unprecedented authority to an international body like the ISA would stand as the “most egregious transfer of American sovereignty, wealth and power to the UN.”
• It may harm U.S. economic interests. Opponents argue that for a company to win mining rights to mineral resources, a fee of over one million dollars is required, in addition to other requirements and restrictions, including the responsibility to provide a “bonus site” for the ISA to carry out its own mining efforts. Gaffney argues that taxes the ISA raises on companies essentially allow the body to implement “what amount to taxes on commercial activities”—an act that he argues would deter U.S. maritime trade and industry.
• It would weaken U.S. national security. In a recent Washington Post piece, former assistant attorney general and Harvard Law professor Jack Goldsmith and George Mason University law professor Jeremy Rabkin raise concerns the treaty might hinder the U.S. Navy’s ability to make seizures of weapons-related material on the high seas. “In every case,” they argue, “a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.” Opponents say it would undermine counterterrorism efforts like the Proliferation Security Initiative.

               

How do proponents of the treaty respond?

               

Ken Adelman, who opposed the treaty during his years in the Reagan administration as the president’s special envoy, has changed his views. Writing in the Wall Street Journal, he dismisses criticisms it would undermine U.S. industry or American sovereignty because “there's no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation.” He also points out Washington is guaranteed veto power over the treaty’s decision-making body. Military officials share Adelman’s views. The former chairman of the Joint Chiefs of Staff, Gen. Richard Myers, has repeatedly told Congress of the importance of the treaty to national security (PDF).

The treaty would now provide U.S. ships a right of passage through international straits (i.e. Indonesia). Such provisions are “the crown jewels of the treaty,” write Vern Clark, former chief of naval operations, and Thomas R. Pickering, former U.S. ambassador to the UN, in the New York Times, and did not exist before 1982. “Our security and economic interests are tied directly to these rights,” they add.

               

What are the chances of the treaty winning U.S. ratification?

               

Daniel Drezner, who teaches international politics at Tufts University’s Fletcher School of Law and Diplomacy, predicts most Republican senators will oppose the treaty but it may still receive enough support to be ratified. Both the chairman and ranking member of the Senate Foreign Relations committee support the treaty. Still, Don Kraus of Citizens for Global Solutions, a U.S.-based advocacy group, says “ratification is not a sure thing,” adding that “if the Senate doesn’t act on ratification before the summer recess [in August], it may miss the golden opportunity to address the increasing fragility of the oceans.”

               

What explains the White House’s support for the treaty?

               

Some experts are surprised by the Bush administration’s backing of the Law of the Sea Treaty, given the president’s previous lack of support for international covenants like the International Criminal Court. President Bush has said that by ratifying the treaty, it will “give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.” Deputy Secretary of State John D. Negroponte and Deputy Secretary of Defense Gordon England, writing in the Washington Times, also say supporting the convention would “powerfully and publicly” demonstrate to the international community the United States’ commitment to the rule of law in foreign affairs. Finally, administration officials argue that the treaty will reinforce, not diminish, nonproliferation efforts like the Proliferation Security Initiative.

Comments

[Informed Lawyer]

Building a Bridge to Nowhere But Oblivion - Actual & Proposed State Department Funding of the UN Environment Program & UNCLOS

This recent blog entry from the new & improved ITSSD Journal on the UN Law of the Sea Convention provides some interesting information tidbits.

It is time that U.S. citizens exercise their constitutional rights and ask the 'hard' questions. Constitutional rights are like muscles; if you don't use them they atrophy. See:

http://itssdjournalunclos-lost.blogspot.com/2008/02/building-bridge-to-nowhere-but-oblivion.html .

[Informed Lawyer]

The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty

By J. William Middendorf II* and Lawrence A. Kogan**

During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.

These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.

Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.

While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.

Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.

These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.

This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.

More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.

In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.

The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.

* Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.
** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.