Evidence: Recently Added
It remains a fair question whether a complex U.N. regulatory bureaucracy—especially one that counts international wealth redistribution as one of its functions—is a reassuring presence for investors. The 1994 Agreement does not actually abolish the Planning Commission, but simply suspends its operations until the regulatory council of the Authority “decides otherwise.”15 The Seabed Authority still proclaims, on its official website, that it will oversee “action to protect land-based mineral producers in the third world from adverse economic effects of seabed production.” The 1994 Agreement seems to give at least tacit support to this notion in empowering the Authority to provide “economic assistance” to “developing countries which suffer serious adverse effects on their export earnings” from deep seabed mining.16 The Authority can still direct proceeds from mining or drilling approved for the continental shelf to compensate “affected developing land-based producer States.” If the world wants to encourage mining in the deep seabed, this is no way to do it.
UNCLOS seems to provide protection against these concerns by stipulating that states may opt out of its compulsory arbitration requirements when disputes concern “military activities...by government vessels and aircraft engaged in non-commercial service.”6 At its narrowest reading, this provision might mean only that ITLOS will avoid intervening in full-scale confrontations between opposing battle fleets—a situation that would create problems far beyond those of dispute resolution. At its broadest, this exemption might mean that any seizure could be excluded from ITLOS review, since seizures are never effectuated by unarmed commercial vessels, which would entirely negate the provision bestowing mandatory jurisdiction on ITLOS for seizures at sea. So which is it?
The only thing certain is that it will be up to ITLOS to decide how far it wants to intrude into U.S. naval strategy. The State Department has proposed ratification with an “understanding” that the military exemption will be read broadly. (Sec. 2, Par. 2 of ‘Text of Resolution of Advice and Consent to Ratification,” printed with Treaty Doc. 103-39 in Hearings on the UN Convention on the Law of the Sea, Ot. 21, 2003, along with “Statement of William H.Taft, Legal Adviser to the Department of State) But UNCLOS itself stipulates that states may not attach “reservations” to their ratification.7 Again, it will be up to ITLOS to decide what significance, if any, should be accorded such unilateral U.S. “understandings.” And the court’s composition is not encouraging. As of September 2005, a clear majority of the court’s 21 judges were from states that cannot be supposed to be friendly to American naval action—including Russia, China, Brazil, Cameroon, Ghana, Senegal, Cape Verde, Tunisia, Lebanon, Grenada, and Trinidad.
Nor is there much consolation in the prospect of appealing to ITLOS against the seizure of an American ship, since the most vulnerable American ships would be small craft, gathering intelligence near the coasts of unfriendly states. UNCLOS couples transit rights with provisions for national regulatory measures in coastal waters, including the right of the coastal state to prohibit intelligence gathering in these waters. Suppose an American ship were seized outside the territorial waters of a hostile state, on the claim that it had earlier traversed these waters for illicit purposes and then been pursued into “contiguous” waters—as UNCLOS allows, for a belt of water extending twelve nautical miles beyond the twelve mile reach of “territorial waters.”5 The United States being required to document for ITLOS exactly what its ship was doing in exactly which waters could very well compromise sensitive U.S. intelligence gathering operations.
UNCLOS III provides that, if a ship or its crew are seized on the high seas, the flag state can appeal to the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, for a prompt decision on the legality of the seizure.3 The treaty allows states to opt for other forms of arbitration on other disputes, but other forms of arbitration require all nations involved to agree on a specific panel of arbitrators. The only important category of dispute where one party can force another to answer before ITLOS is when a ship has been detained on the high seas and the complaining party seeks its immediate release.
Seizing a ship on the high seas without the consent of its home government would inevitably trigger a diplomatic confrontation. But in the right circumstances, the United States or its allies might feel obliged to act first and try to handle the diplomatic protests later. If intelligence gives reasonably firm indications of an imminent terror attack to be launched from a particular ship, the U.S. could insist on intervening, claiming a right of self-defense that supersedes the general “rules of the road” at sea. Alternatively, the United States might claim that a ship operated by terrorists was so closely analogous to a pirate ship that intervention could be justified under the UNCLOS exemption for piracy. In still another variant, the United States might interpret a bilateral agreement with the flag state as covering a particular intervention, while the flag state insisted on a different interpretation. In any of these cases, the flag state would likely sit on the sidelines while the ship’s operators pursued a claim on their own initiative, “on behalf of the flag State,” as UNCLOS allows.4 It is easy to imagine situations in which U.S. intervention might trigger a complaint to ITLOS. It is hard to imagine situations in which ITLOS would be other than a complicating factor in ensuing U.S. diplomacy toward the flag state.
The United Nations did not invent the law of the sea. There has been a law of the sea in effect for many centuries. When Spanish and Portuguese explorers first charted new sea routes to the Americas and Asia, their governments imagined that they could lay claim to all the ocean vastness in between. Successful challenges by new maritime powers, especially Britain and Holland, soon established the principle that the high seas should be open to all. In the early 17th century, the Dutch jurist Hugo Grotius published an extremely learned treatise which summed up the new approach in a catchy phrase: “freedom of the seas.” To secure freedom on the seas, there had to be rules applicable to most situations that also acknowledged—and thereby constrained—necessary exceptions. These rules were developed over centuries in a process of mutual accommodation—and occasional challenge by war at sea—among major maritime powers. Nearly all of this law was “customary law,” meaning that it reflected actual practice among maritime states—including particular agreements among particular states—without being set down in any formal document.
Hans Morgenthau, an astute observer of international politics and founder of the modern school of political realism, dedicated his life to the study of the “struggle for power.” “All history shows,” he wrote in his classic treatise, “that nations active in international politics are continuously preparing for, actively involved in, or recovering from organized violence in the form of war.”123 The Convention serves as a powerful tool to shift maritime political dis- putes from being a cause for violence and naval warfare to a legal based order, approaching the vision of Myres S. McDougal and William T. Burke of a “public order of the oceans.”124 As the negotiations for the Convention were drawing to a close, Ambassador John Norton Moore understood that the United States was reaching its objective of replacing the “struggle for power” at sea with the “struggle for law” in the world’s oceans, reducing, and perhaps one day eliminating, an entire class of maritime conflicts as a cause of war.125 Toward that end, the Convention successfully has influenced numerous countries to conform their conduct and maritime claims to the Convention, typically in a manner that inures great benefit to global stability and security. These positive adjustments and reductions in excessive maritime claims constitute the “dogs that didn’t bark” in law of the sea. Over time, the individual and cumulative effect on U.S. national security and global interests has been positive.
Many of these arguments have been put into perspective, however, by the actual history and operation of UNCLOS. Instead of posing a threat to national sovereignty, U.S. ratification of UNCLOS would actually enlarge U.S. power by providing a permanent seat on the ISA,58 and would be ―the greatest expansion of U.S. resource jurisdiction in the history of the nation.59 A permanent seat on the ISA would give the United States a strategic advantage, namely a ―greater ability to defeat amendments that are not in the U.S. interest, by blocking consensus or voting against such amendments.60
Concerns about abuse of power by the ISA are similarly unfounded, as the ISA operates independently from the U.N.61 and is comparable to other specialized U.N. organizations, many of which the U.S. already endorses. Further, the navigational protections for American ships on the high seas would enhance, not diminish, U.S. sovereignty.62 Some UNCLOS proponents also argue that claims to U.S. sovereignty are overstated in the context of a shared resource like the world‘s oceans.63 Finally, due to the inevitability of international reliance on UNCLOS to form international maritime law and regulate maritime disputes, the United States will suffer a huge loss of power if it fails to accede to the treaty.64
[MYTH]: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining.24 Not true—in fact, each objection has been addressed. Among other things, the 1994 Agreement:
- Provides for access by American industry to deep seabed minerals on the basis of nondiscriminatory and reasonable terms and conditions.25
- Overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires two-thirds majorities that will enable the United States to protect its interests by putting together small blocking minorities.26
- Restructures the regime to comport with free market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.27