Evidence: Most Popular
More importantly, having a “seat at the table” is just that – one nation, one vote. And, clearly, the last two decades have witnessed a continued decline in U.S. diplomatic and economic influence in multilateral negotiations (e.g., Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997); Kyoto Protocol to the UN Framework Convention on Climate Change (1997); Rome Statute of the International Criminal Court (1998); 2008 Oslo Convention on Cluster Munitions, to name a few.) Additionally, do the authors really believe that Canada and Russia will change their positions regarding the status of the waters of the Northwest Passage and the Northern Sea Route/Northeast Passage or that they will rescind their illegal straight baselines in the Arctic if the United States joins the Convention? Or that China will change its position regarding the legality of military activities in the EEZ or that Beijing will rescind its illegal straight baselines along its entire coast or relinquish its illegal claims to the South China Sea islands and their surrounding waters? U.S. accession to the Convention will have absolutely no impact on these or other nations’ illegal maritime claims. The only way to effectively challenge these excessive claims and prevent them from becoming ingrained in customary law is through routine, firm and tar- geted diplomatic protests by the State Department and frequent operational challenges by DoD ships and aircraft. But to do that, we need to maintain naval superiority, and have the political will to exercise it.
U.S. industry and trade groups have fallen in behind the Law of the Sea Convention in order to be able to sponsor U.S.-based businesses in operations that involve territory within and beyond America’s Exclusive Economic Zone, and particularly in the Arctic, areas that call for “the maximum level of international legal certainty,” Clinton said at the May hearing.
To that end, American companies like Lockheed Martin, which has a 40-year history in sea floor exploration and is known as a “pioneer investor” under terms of the Convention, refuse to pursue exploitation of minerals as a U.S. operation without being party to the Convention, because it is the accepted international framework for obtaining secure title to deep seabed mining claims.
Bill Eichbaum, vice president, Marine and Arctic Policy, at the World Wildlife Fund, said that such a scenario would be easier to grapple with as a member of the Convention.
“In terms of the environmental communities, the fact is today, under the Treaty, there is a regime for managing claims for deep seabed mining,” he said. “Countries and companies are pursuing those claims and going forward, and the United States is [not pres- ent] for managing that system.
“One of the things we believe is that the United States tends to be, as compared with most other countries, a pretty good environmental steward. And, so, if the United States was at the table helping to set the standards, helping to set the regulatory scheme, it would probably be, from an environmental perspective, better than it is likely to be with the United States not at the table,” he said.
“What many observers fail to understand about Law of the Sea is that the Convention already forms the basis of maritime law regardless of whether the United States is a party,” Lugar said in opening remarks at the May hearings. “International decisions related to resource exploitation, navigation rights and other mat- ters will be made in the context of the Convention, whether we join or not. Because of this, there is virtual unanimity in favor of this treaty among people who actually deal with oceans on a daily basis and invest their money in job-creating activities on the oceans.”
Groves said the Deep Seabed Hard Mineral Resources Act (DSHMRA) of 1980 set forth the mechanism for com- panies like Lockheed Martin to obtain its licenses to engage in deep seabed mining and to renew their claims in the eastern Pacific Ocean. These licenses were obtained by Lockheed nearly 40 years ago and are known as legacy claims that pre-date the Law of the Sea, he maintains.
Under U.S. and international law, Groves said Lockheed Martin has every right and ability to engage in deep seabed mining.
“These [legacy claims] go back to pre-Law of the Sea Treaty. They had to be specifically written into the annexes of the Treaty, and so we [the United States] have those claims,” Groves said, underscoring the argument that DSHMRA already covers rights and titles over claims in international waters.
“Lockheed Martin has just decided at this point in time that it is not economically feasible for them to do it. Now what they do, and what’s their right as a company to do, is lobby the Senate, making a claim. This is not a fact, this is not set in granite, this is a claim that they need the treaty in order to get the necessary certainty to engage in the expensive process of deep seabed mining.”
Assertion #3: U.S. participation in UNCLOS will not undermine intelligence operations. Fact: It is impossible to confirm this assertion because the relevant intelligence activities are classified. It is clear, however, that U.S. participation in UNCLOS is unlikely to facilitate U.S. intelligence activities. For example, a coastal state may demand that all submarines entering its exclusive economic zone surface and identify themselves. Even if the U.S. were a party to the treaty, the Navy would not invoke UNCLOS to justify its presence in these waters when it engages in intelligence operations. Instead, it would simply ignore the demand and avoid being caught. On this basis, it is unclear how the U.S. intelligence community would suffer by not joining the treaty.
Assertion #1: The U.S. needs to join UNCLOS to “lock in” the navigation rights it currently enjoys under customary international practice. Implied in this argument is the presumption that other nations, the vast majority of which are UNCLOS participants, will ignore their obligations under the treaty and forgo the concurrent privileges regarding navigation rights afforded by customary international practice just because the U.S. is not a party to the treaty. This, according to the Bush Administration, will manifest itself in the form of some coastal states demanding notification by U.S. ships entering their waters or airspace.
Fact: These states have reciprocal interests in navigation rights that will discourage them from making such demands. Second, the few irresponsible states that may decide to make such challenges are not going to be dissuaded by the “locking in” argument or U.S. appeals to the navigation provisions of UNCLOS.
Further, U.N.-related multilateral treaties often create unaccountable international bureaucracies. The UNCLOS bureaucracy is called the International Seabed Authority Secretariat, which is headed by a secretary-general. The Secretariat has a strong incentive to enhance its own authority at the expense of state sovereignty. Thus University of Virginia School of Law Professor John Norton Moore describes this sort of treaty as a “law-defining international convention.” The law that is being defined and applied by international bureaucrats is one designed to govern the actions of the participating states, not to serve their joint interests. For example, a provision of UNCLOS that would impose direct levies on the revenues of U.S. companies generated through the extraction of resources from the deep seabed reveals this bias against state sovereignty. When international bureaucracies are unac- countable they, like all unaccountable institutions, seek to insulate themselves from scrutiny and become prone to corruption. The International Seabed Authority Secretariat is vulnerable to the same corrupt practices that have been present at the U.N. for years. The most pertinent example of this potential for corruption is the United Nations Oil-for- Food scandal, in which the Iraqi government benefited from a system of bribes and kickbacks involving billions of dollars and 2,000 companies in nearly 70 countries. Despite ample evidence of the U.N.’s systemic weaknesses and vulnerability to corruption, the U.N. General Assembly has yet to adopt the reforms to increase transparency and accountability proposed by former Secretary-General Kofi Annan and others. This example is particularly pertinent considering that the Authority could oversee significant resources through fees and charges on commercial activities within its authority and potentially create a system of royalties and profit sharing.
Much to Lose, Little to Gain. As a multilateral treaty negotiated under the auspices of the U.N, UNCLOS poses the usual risks to U.S. interests of such multilateral treaties. In the international organizations created by such treaties, the U.S. often faces regional, economic, or political blocs that coordinate their votes to support outcomes counter to U.S. interests. The bloc voting process is fre- quently driven by the same overtly anti-American agenda that is often apparent in the U.N. General Assembly. While the U.S. can achieve positive out- comes in these forums, its successes are usually limited, having been watered down or coupled with demands from other participating states that it would otherwise not accept.
One example of U.S. interests being thwarted by bloc voting is the new U.N. Human Rights Council. The U.S. was a strong proponent of creating a new body to replace the discredited U.N. Commission on Human Rights, which had became a haven for human rights abusers to protect one another from scrutiny and censure. Once locked into negotiations over the specifics of the new council, however, the U.S. was repeatedly outnumbered and isolated. As a result, the council has minimal requirements for membership, and China, Cuba, Pakistan, Saudi Arabia, and other repressive states have won council seats. Unsurprisingly, the council has performed just as badly, if not worse, as its predecessor, and the U.S. has declined even to seek a seat on it.
Support for U.S. accession to the Convention is surprisingly broad14. Some of the architects of plans to scuttle the Convention treaty under the Reagan administration have now come around to support it because the more odious provisions were amended or eliminated since that time15 The Navy, Coast Guard, National Oceanic and Atmospheric Administration, the State Department and the White House, support accession. These groups support accession despite the fact that they occasionally squabble over its implementation, largely due to the dual interest of the U.S. (e.g., the environmental protection mandate of the Coast Guard vs. the security mandate of the Navy has put these two forces at odds in the past16). Likewise, major resource extracting industries and their trade groups, who are often at odds with environmental groups over regulations, share a common interest with many of these groups in ratifying the Convention. Finally, the most authoritative body on U.S. ocean science and policy ever assembled, the Joint Ocean Commissions Initiative, chaired by retired Navy Admiral James Watkins and former Congressman and White House Chief of Staff Leon Panetta, has indicated U.S. accession to the Convention as one of its highest priorities.