Evidence: Recently Added
Another sovereignty-related issue that the Convention addresses is conservation and pollution on the seas, a pressing concern given the widespread exploitation of the sea and its resources.43 Part XII of the Convention, entitled Protection and Preservation of the Marine Environment, imposes upon states the “obligation to protect and preserve the marine environment.”44 The Convention also includes detailed provisions that explicitly require state parties to take measures to prevent, reduce and control pollution.45 States are required to cooperate with global and regional efforts in combating pollution by setting standards, rules, and recommended practices, many of these through appropriate international organizations.46 Furthermore, the Convention requires states to take the affirmative step of implementing systems for monitoring and reporting the risks and effects of pollution to their marine environments.47
Conservation and pollution provisions are included in the 1966 Convention on Fishing and Conservation of the Living Resources of the High Seas, to which the United States is also a party.48 As mentioned previously, this convention permits high seas fishing while also requiring states take steps to conserve the seas’ living resources.49
“[S]ubmarine cables provide backbone international transmission facilities for the global internet, electronic commerce and other international voice and data communications services that are major drivers of the 21st Century global information-based economy….[I]t has never been more important to our U.S. economic infrastructure, and our participation in the global economy, to strengthen the protection and reliability of international submarine cables. The Law of the Sea Convention, particularly as assisted by the enforcement mechanisms available to parties under Article 297, is a critical element of this protection.”
The sovereignty costs associated with the Convention are grossly overstated primarily because many of these costs have already been accepted by the United States. Provisions of the Convention that infringe upon sovereignty include limitations on unilaterally claiming territorial waters, limitations on economically exploitable areas on the seas, limitations on the continental shelf, revenue sharing provisions for exploitation of resources on the high seas, imposition of environmental obligations, and a mandatory dispute resolution mechanism.22 As will be discussed next, the United States has already agreed to most of these provisions through a variety of previously signed treaties.23
Worse still, these sizable "royalties" could go to corrupt dictatorships and state sponsors of terrorism. For example, as a Treaty signatory and a member of the "Authority's" executive council, the government of Sudan which has harbored terrorists and conducted a mass extermination campaign against its own people -- would have just as much say as the United States on issues to be decided by the "Authority." Disagreements among Treaty signatories are to be decided through mandatory dispute resolution processes of uncertain integrity. Americans should be uncomfortable with unelected and unaccountable tribunals appointed by the Secretary General of the United Nations serving as the final arbiter of such disagreements.
Even if one were to agree with the principle of global wealth redistribution from the United States to other nations, other UN bodies have proven notably unskilled at financial management. The UN Oil-for-Food program in Iraq, for instance, resulted in hundreds of millions of dollars in corruption and graft that directly benefited Saddam Hussein and those nations friendly to Iraq. The Law of the Sea treaty is another grand opportunity for scandal on an even larger scale.
The most persuasive argument for the Law of the Sea Treaty is the U.S. Navy's desire to shore up international navigation rights. It is true that the Treaty might produce some benefits, clarifying some principles and perhaps making it easier to resolve certain disputes. But our Navy has done quite well without this treaty for the past two hundred years, relying often on centuries-old, well-established customary international law to assert navigational rights. Ultimately, it is our naval power that protects international freedom of navigation. The Law of the Sea Treaty would not make a large enough additional contribution to counterbalance the problems it would create.
Every year that goes by without the U.S. joining the Convention results in deepening our country's submission to ocean laws and practices determined by foreign governments without U.S. input. Our Navy and our ocean industries operate every day in a maritime environment that is increasingly dominated by foreign decision-making. In almost any other context, the Senate would be outraged at subjecting Americans to foreign controls without U.S. input.
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. International decisions related to resource exploitation, navigation rights, and other matters 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.
By not joining the treaty, we are abetting Russian ambitions in the Arctic. We are making the job of our Navy more difficult, despite the longstanding and nearly unanimous pleas of Navy leaders that U.S. participation in Law of the Sea will help them maintain navigational rights more effectively and with less risk to the men and women they command. We are turning our backs on the requests of important American industries that use the oceans and must abide by rules established under this Convention. We are diminishing our chances for energy independence by making U.S. oil and gas exploration in international waters less likely. And we will not even be able to participate in the amendment process to this treaty, which is far more likely to impose new requirements on our Navy and ocean industries if the U.S. is absent.
Suggestions that somehow our maritime interests can be asserted solely through robust naval power are not relevant to the real world. The overwhelming majority of ocean disputes do not involve enemies or issues that warrant military action. As Admiral Patrick Walsh testified at our first hearing in 2007"Statement of Admiral Patrick M. Walsh: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (4 quotes) ]: "Many of the partners that we have in the Global War on Terror who have put life, limb, and national treasure on the line are some of the same ones where we have disagreements on what they view as their economic zone or their environmental laws. It does not seem to me to be wise to now conduct Freedom of Navigation operations against those very partners that are in our headquarters trying to pursue a more difficult challenge ahead of us, a Global War on Terror." Even a mythical 1,000 ship U.S. Navy could not patrol every strait, protect every economic interest, or assert every navigational right. Attempting to do so would be prohibitively expensive and destructively confrontational.
Supporters note that many of the treaty's "freedom of the seas" provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are "already widely accepted in practice." They maintain that ratifying the convention would nonetheless provide "welcome legal certainty." In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.
President Bush invokes a different rationale for ratifying the convention, arguing that it would "give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted." What this really means is that American views of the law of the sea, even on issues related to national security, could be outvoted by a majority in an international forum. How can this make us safer?
Deputy Secretary of State John D. Negroponte and Deputy Defense Secretary Gordon England maintain that the convention will enhance U.S. security. They argued in the Washington Times last monthReap the bounty — John D. Negroponte and Gordon England. — Washington Times — Jun 12, 2007 [ More ] that to meet the "complex array of global and transnational security challenges," the United States must have "unimpeded maritime mobility -- the ability of our forces to respond any time, anywhere, if so required."
This is true, but ratifying the convention won't bring this benefit. Instead it would put America's naval counterterrorism efforts under the control of foreign judges. Suppose the United States seizes a vessel it suspects of shipping dual-use items that might be utilized to build weapons of mass destruction or other tools of terrorism. It's not a wild supposition. Under the Proliferation Security Initiative, the United States has since 2003 secured proliferation-related high-seas interdiction agreements with countries such as Belize and Panama, which provide registration for much international shipping. If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.
The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.
The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N. secretary general or the president of the Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention -- not just China and Russia but other unfriendly nations such as Cuba and Burma -- can contribute.