Evidence: Most Popular
Take the question of suspects captured in Afghanistan--and the few captured elsewhere who have been brought to Guantánamo. Are they prisoners of war, covered by the 1949 Geneva Convention on this subject? The U.S. position is that such unlawful combatants--those who do not fall within the categories set out in the convention--are neither legitimate prisoners of war nor need they be treated as criminal suspects, who (according to international human rights conventions) must be either prosecuted or released.
The Bush administration has sought, in various ways, to mollify critics of its detention policy. Congress and the Supreme Court have insisted on certain legal safeguards and may ultimately demand more. But would we like the matter to be settled for us, all at once, by an international tribunal?
That is exactly what the Law of the Sea treaty would do: If we seize and detain a foreign ship and/or its crew, we must arrange some form of international arbitration within 10 days or the Law of the Sea tribunal will have jurisdiction to hear appeals for "prompt release." It has heard about one case a year in this category, since it got organized in the late 1990s and has never encountered a case in which it regarded further detention as justified. So, if we commit to this treaty, we will commit to having ITLOS review any seizures made at sea.
Far from treating such seizures as remote hypotheticals, the Bush administration has invested considerable effort in a "Proliferation Security Initiative" (PSI) under which the United States has signed agreements with states that provide flags for most of the world's commercial shipping. These agreements may strengthen U.S. claims to intercept suspicious ships on the high seas, when flying with markings from the most common flagging states (such as Belize, Panama, and Libya, which have all signed such agreements). But the PSI agreements do not make clear when or whether ships or crews may be subject to long-term detention, and all the agreements stipulate that they do not supersede accepted standards of international law.
If we ratify the Law of the Sea treaty, even a PSI agreement with the flag state won't necessarily keep a dispute about the seizure from winding up before the Law of the Sea tribunal in Hamburg. That tribunal has asserted its right to hear claims for "prompt release" when filed by owners or operators of a ship, even when the nominal flag state takes no role in the proceedings. In past cases, ITLOS has ruled that ships cannot be detained, even when claimants refuse to supply full information about how the ship was acquired and on whose behalf. So while we have jealously reserved the right to detain terror suspects captured on land, we will, if we ratify this treaty, give up our right to decide when we can hold terror suspects seized at sea.
In the past, writers on international law acknowledged that states could not be expected to submit the most sensitive political questions--those most vital to national security--to international arbitration. Most of the world seems to have abandoned this view, but most nations no longer make great efforts to provide for their own defense. So, even as the United States has substantially reduced the scale of its naval forces, since the peak years of the Reagan build-up we have acquired a larger and larger share of the world's naval capacity. Others have shrunk their forces further and faster.
In past centuries, rules about the conduct of ships at sea emerged from agreements among major naval powers, and there were always a number of naval powers engaged in challenging, enforcing, and accommodating agreed-upon standards. Now, when the United States (by some estimates) actually deploys a majority of the world's naval capacity, we are told that our security requires us to participate with 150 other states in electing international judges to determine, in the last analysis, what rules our Navy must accept.
To find this convincing, one must be awed by the moral authority of the U.N. majority. To think that way means that we seek consensus at almost any price. Why do we claim to be independent, why do we invest so many billions in defense capacities, if we are prepared to go along with an international consensus, articulated (and -readjusted) by international jurists? The Senate should think long and hard before making the U.S. Navy answer to the U.N version of the Law of the Sea.
The Coast Guard needs a comprehensive legal framework that addresses activities on, over, and under the world’s oceans to further its statutory missions. We also need a solid legal framework that customary international law cannot provide as it remains subject to change based on state practice— whether at the local, regional or global level. The Convention is this certain framework. The Convention was, and still is, a resounding success for U.S. diplomacy. Acceding to the Convention will strengthen the Coast Guard’s ability to protect U.S. maritime interests. The Convention is widely accepted; there are currently 162 parties. Of the eight Arctic nations, only the U.S. is not a party to the Convention.
I can see no downside to the Coast Guard in the United States acceding to the Law of the Sea Convention. To the contrary, joining the Law of the Sea Convention will immensely enhance the Coast Guard’s ability to address emerging threats that challenge our Nation and safeguard the American people, our environment, and ocean resources that benefit all Americans.
The Convention also maximizes legal certainty for United States sovereign rights over ocean resources in the largest EEZ in the world, as well as energy and mineral and other resources on our extended continental shelf. The Convention provides the mechanism to assure international recognition of additional United States sovereign rights on an extended continental shelf. Moreover, due to overfished and depleted fish populations, effective management of migratory fish stocks and fisheries will continue to be a contentious issue for the foreseeable future. The Convention is widely accepted as the legal framework under which all international fisheries are regulated and enforced. The Convention imposes responsibilities on the coastal states to manage their fishery resources responsibly and provides a process for resolving conflicts between competing users. The Coast Guard defends United States sovereign rights by protecting our precious ocean resources from poaching, unlawful incursion, and illegal exploitation. Joining the Convention places these sovereign rights on a firmer legal foundation, bolstering the Coast Guard’s continued ability to ensure our Nation’s sovereign rights are respected.
In particular, becoming a party to the Convention will give the Coast Guard greater leverage in our efforts to eliminate illegal, unreported, and unregulated fishing. American fishermen are currently abiding by standards contemplated by the Convention and further detailed in the related UN Fish Stocks Agreement. They are adversely affected by foreign fishermen who illegally harvest highly migratory fish stocks. In another anomalous situation, the United States is a party to the UN Fish Stocks Agreement, which is directly related to the legal regime of the Law of the Sea Convention, even though we have not joined the underlying Convention. As a party to the Convention, we would be in a stronger position to persuade other nations to abide by the UN Fish Stocks Agreement and other modern international standards of fisheries management and thus advance our Nation’s interests in this field.
[MYTH] The Convention mandates another tribunal to adjudicate disputes.
- The Convention established the International Tribunal for the Law of the Sea. However, Parties are free to choose other methods of dispute settlement. The United States would choose two forms of arbitration rather than the Tribunal.
- The United States would be subject to the Sea-bed Disputes Chamber, should deep seabed mining ever take place under the regime established by the Convention. The proposed Resolution of Advice and Consent makes clear that the Sea-bed Disputes Chamber’s decisions “shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such procedures shall be subject to such legal and factual review as is constitutionally required and without precedential effect in any court of the United States.” The Chamber’s authority extends only to disputes involving the mining of minerals from the deep seabed; no other activities, including operations on the surface of the oceans, are subject to it.
Critics of the U.S. refusal to sign in 1982 predicted ocean chaos, but not once has an American ship been denied passage. No country has had either the incentive or the ability to interfere with U.S. shipping. And if they had, the treaty would have been of little help. In 1998 Law of the Sea Treaty supporters agitated for immediate ratification because several special exemptions for the United States were set to expire; Washington did not ratify, and no one seems to have noticed. Now Lugar worries that Washington could "forfeit our seat at the table of institutions that will make decisions about the use of the oceans." Yet last October Assistant Secretary of State John F. Turner told the Senate Foreign Relations Committee that America has "had considerable success" in asserting "its oceans interests as a nonparty to the Convention."
Law of the Sea Treaty proponents talk grandly of the need to "restore U.S. leadership," but real leadership can mean saying no as well as yes. Ronald Reagan was right to torpedo the Law of the Sea Treaty two decades ago. Creating a new oceans bureaucracy is no more attractive today.
Moreover, at a time when Washington is combating lawless terrorism, it should be evident that the only sure guarantee of free passage on the seas is the power of the U.S. Navy, combined with friendly relations with the states, few in number, that sit astride important sea lanes. Coastal nations make policy based on perceived national interest, not abstract legal norms. Remember the luckless USS Pueblo in 1968? International law did not prevent North Korea from seizing the intelligence ship; approval of the Law of the Sea Treaty would have offered the Pueblo no additional protection. America was similarly unaided by international law in its 2001 confrontation with China over our downed EP-3 surveillance plane.
Nor has signing the Law of the Sea Treaty prevented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed excessive by others. Indeed, last October Adm. Mullen warned that the benefits he believed to derive from treaty ratification did not "suggest that countries' attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention."
[MYTH]: The Convention gives the UN its first opportunity to levy taxes. The Convention does not provide for or authorize taxation of individuals or corporations. It does include revenue sharing provisions for oil/gas activities on the continental shelf beyond 200 miles and administrative fees for deep seabed mining operations. The amounts involved are modest in relation to the total economic benefits, and none of the revenues would go to the United Nations or be subject to its control. U.S. consent would be required for any expenditure of such revenues. With respect to deep seabed mining, because the United States is a non-party, U.S. companies currently lack the practical ability to engage in such mining under U.S. authority. Becoming a Party will give our firms such ability and will open up new revenue opportunities for them when deep seabed mining becomes economically viable. The alternative is no deep seabed mining for U.S. firms, except through other nations under the Convention. These minimal costs are worth it.