Evidence: Most Popular
If the words “United Nations” are a red flag to some, the concept of a foreign entity taxing a U.S. corporation is anathema. This is what some, including Senator Risch, see in UNCLOS. He argues that since 1776, the United States has never ceded its authority to tax anyone else.29 As Secretary Clinton pointed out, UNCLOS is a royalty agreement related to drilling and extraction in areas beyond 200 nautical miles from a coast.30 She has stated that U.S. companies already pay royalties to at least one commission—the Inter- national Telecommunication Union—so a precedent exists.31 U.S. oil and gas companies routinely pay royalties to foreign nations based on profits made from the materials pumped or extracted in these countries. Another leading isolationist, Senator James Inhofe of Oklahoma, argued that the royalties were taxes paid to a foreign entity. The Chairman of the Committee, Senator John Kerry, responded that President Reagan renegotiated this issue “with the oil companies and gas companies at the table” and they all agreed to the royalties. He also pointed out that the UNCLOS royalties were far less than the royalties paid in the Gulf of Mexico. Indeed, while certain isolationists may object to these royalties, those who would be paying them—the Exxons, Shells and Lockheed Martins—support UNCLOS. These companies realize that 93 percent of some profit is much better than 100 percent of nothing, as they are wary of drilling on the Continental Shelf since the United States has not ratified UNCLOS.
Another concern, as voiced by U.S. Senator James Risch of Idaho, is that ratification of UNCLOS could be grounds for ratifying the Kyoto Protocol on Climate Change and all other conventions drafted by international bodies.26 Legal advisor John Bellinger in the first Bush administration commented that Section 222 of UNCLOS encompasses applicable international rules and standards, and if the United States does not ratify Kyoto or other conventions, these treaties are not applicable to the United States.27 This logic does not satisfy U.S. senators like Risch.28
Senator Mike Lee of Utah took this argument one step further. He hypothesized that the Assembly could take the position in the future that UNCLOS ties the United States into a climate change regime like the Kyoto Protocol. Secretary Clinton disagreed and stated that the United States had no obligation to accept anything decided by the Assembly on climate change. Should this thinking—that in ratifying UNCLOS, the United Nations can call for blanket application of other international laws—become an eventuality, the United States can simply withdraw from UNCLOS. This could be something agreed by all in advance of the ratification.
The isolationists were also concerned that U.S. corporations could be subject to the compulsory dispute resolution measures in the Convention. This highlights the limited knowledge of those who signed the letter to Senator Reid. Lawyers who practice international law prefer international arbitration or appearing before an international tribunal rather than local adjudication in a country whose legal system may not be well-established. These U.S. senators seem to believe that by bypassing UNCLOS ratification, disputes will be subject exclusively to U.S. law. This belief is incorrect, as U.S. corporations have subsidiaries worldwide that are subject to lawsuits in local jurisdictions.
Contrary to the isolationists’ belief, the United Nations is not involved in implementing, administering, or enforcing UNCLOS. The convention not the United Nations, establishes a number of distinct bodies, separate from the United Nations, to handle specific issues. These include the Commission on the Limits of the Continental Shelf15 and the International Sea Bed Authority.16 The Authority is composed of three bodies: the Assembly, the Council, and the Secretariat.17 Each member nation has one representa- tive in the Assembly.18 The Council is a body of thirty-six persons. As the largest economy in terms of gross national product, if the United States ratified UNCLOS, the United States would have a permanent place on the Council.19 The Council nominates persons for the Secretariat and the As- sembly votes on them.20 An agency called the Enterprise, which works in deep seabed mining, has not been called into action, as mining has yet to start.21 The final organization is the International Tribunal for the Law of the Sea.22 The Tribunal consists of twenty-one members elected by the parties to the Convention and is based in Hamburg, Germany. While UNCLOS establishes various bodies, they are distinct from and independent of the United Nations, which is not involved in administering UNCLOS.
In their letter to Senator Reid, the thirty-one signers were concerned with subjugating U.S. sovereignty “to a supranational government that is chartered by the United Nations.”10 Leading conservative activist Phyllis Schlafly described the conservative perspective on the treaty as follows:
LOST [UNCLOS] is the globalists’ dream bill [because] it would put the United Nations in a de facto world government that rules the world’s oceans under the pretense that they belong to the ‘common heritage of mankind.’ That is global speak for allowing the United Nations and its affiliated or- ganizations to carry out a massive unprecedented redistribution of wealth from the United States to other countries.11
This perspective ignores the fact that the United States had been in- volved in negotiations on the wording of UNCLOS since the time of Presi- dent Nixon.12 In 1983, during the Reagan administration, the United States supported the convention with the exception of the deep seabed provisions. President Reagan stated that the United States would recognize the rights of other states in the waters off their coasts as reflected in the convention.13 After President Reagan refused to endorse ratification due to the deep seabed issues, additional negotiations in the United Nations took place, resulting in the “Agreement Relating to the Implementation of Part XI of UNCLOS,” dated 28 July 1994, which satisfied the Reagan conditions. After a yearlong inter-agency review, the Bush administration concluded that all of the concerns raised by President Reagan were addressed by the 1994 Amendments.14 Thus, rather than UNCLOS being forced on the United States by the United Nations, it was instead negotiated with the full participation of the United States, and later specifically amended to answer the objections of President Reagan.
The costs of conducting frequent naval Freedom of Navigation missions may be significant—in political, economic, and military terms. Beyond the incidental financial costs of conducting such exercises, they sometimes require deploying naval vessels to regions they would not normally patrol. While some Freedom of Navigation missions would still be conducted, regardless of the U.S. position on the 1982 Convention, we believe that, from an operational standpoint, our dwindling naval forces would be able to shed some Freedom of Navigation commitments and that we would face fewer contentious issues if the United States were a signatory to the Treaty. As one observer put it, “If freedom of the seas has to be bought by vigilance and violence, then it will be, and the U.S. Navy will bear the brunt.”11 While there have been no flagrant incidents of a Treaty signatory denying navigational rights to the United States as a nonsignatory, a climate of periodic discord and confusion has developed surrounding some maritime controversies.12 This climate has the potential to be particularly acute for the United States. Without a Treaty, the United States has but two instruments to safeguard these freedoms should one or more nations fail to abide customary law: freedom of navigation assertions and diplomatic actions. This method is politically costly and detracts from other Navy missions.13
The immediate effect of our failure to sign the Convention was a loss of political capital. Had we been only a peripheral player in the UNCLOS process, or had we objected earlier and more vigorously to certain proposals, our refusal to sign would not have been so conspicuous. Unfortunately, our 25 years of active participation in the process, and our mild objections to the initial deep seabed mining provisions, gave the community of nations every reason to believe we were going to sign and support the Treaty. Our refusal to sign at the end of the process was viewed as a capricious policy reversal, resulting in significant political cost.
This situation was exacerbated by the 1983 Reagan Proclamation, which appeared to the international community as an attempt to mold the Treaty for our own use. We lost significant political credibility with our decision not to sign the Treaty and touched off a further torrent of criticism in the wake of the Presidential statement. Some of the international community refused to accept the U.S. contention that the non-seabed provisions of the Treaty reflected customary law and therefore were applicable to all states, whether or not they were parties to it. As one of the most influential UNCLOS negotiators expressed it: “The provisions of the Convention are closely interrelated and form an integral package. Thus, it is not possible for a state to pick what it likesand disregard what it does not like.”10 
Without venturing into the intricacies of how an RFMO for the Arctic Ocean might be established and operated, the point is that the United States, Russia, and the other Arctic states are familiar with the challenges of managing sustainable fisheries and the consequences of failing to act proactively. Furthermore, all eight Arctic states have ratified the Fish Stocks Agreement, a strong indication “that all eight states have already accepted the principles established by [UNCLOS] that includes the enforcement of regional fisheries agreements in the high seas.”92 In short, cooperation among the Arctic states, including Russia, seems more likely than conflict on fisheries issues. The real question may be whether those states allocate sufficient resources to the enforcement of whatever regime is put in place.
For purposes of this assessment, however, the crucial point is that mechanisms exist for the peaceful establishment of these claims through the submission of scientific evidence to the Commission.58 And the Arctic states, including Russia, have been following the rules of the game, and, in some instances, working together to develop the necessary scientific data.59 It is important to keep in mind that while these claims may implicate very large tracts of territory (as Russia’s initial application certainly did), there is nothing inherently illegitimate about such claims; the extent of “the submerged prolongation of the land mass of the coastal State” and “the slope and the rise” of “the sea-bed and subsoil of the shelf” does not command a pari passu distribution of continental shelf among the Arctic states.60 In brief, some states’ shelves may simply be bigger than others. This outcome could be entirely consistent with the rule of law.
While there are legitimate reasons to be concerned that the Commission is overworked and understaffed, there is currently no indication that any country, Russia included, is prepared to charge ahead with an Arctic claim that has not received the Commission’s approval.61 Consistent with that view, it has emerged that February 2009 talks between Canada and Russia included discussion of a potential joint submission from Canada, Denmark, and Russia to the Commission.62 Such an application would not determine competing claims among the three countries, but would allow for demarcation of the area under the control of those coastal states from the area beyond. Furthermore, the collaboration required to produce a joint submission could itself be a valuable confidence-building measure that would defuse nascent disagreements over exactly where final borders should be drawn.
In sum, UNCLOS and a wide range of complementary international agreements and organizations provide a legal framework for the issues we face—or soon will face—in the Arctic. That is not to say the existing framework provides clear or robust rules for every situation. Nor can it guarantee that any state—Russia, the United States, or any other—will always conduct itself in a manner that lives up to international standards. But the framework provides an adequate starting point, and it should also remind us that “new” challenges facing the Arctic are not necessarily unique or unfamiliar. Many of these issues—from drawing maritime borders to promoting safe navigation to protecting the marine environment— are quintessential law of the sea issues to which international policymakers bring a wealth of experience.