Evidence: Recently Added
Despite opposition by a few members of Congress, UNCLOS ratification has widespread support in the military, diplomatic and intelligence communities. The Departments of Defense, State and National Intelligence have consistently advocated that the Senate should ratify the treaty.65 In fact, all of the members of the Joint Chiefs of Staff have written the Senate letters seeking the Senate’s advice and consent.66 Moreover, in his last NSPD before leaving office, President George W. Bush explicitly sought UNCLOS’s ratification.67 At the end of 2007, the Senate Committee on Foreign Relations voted to recommend ratification.68 The U.S. Senate’s vote is pending.
Opponents to ratification argue that ratifying the treaty undermines U.S. sovereignty.64 In essence, in the event of a dispute, the ISA would have the ability to rule against the interests of the United States. Not only is this position outdated, it is incorrect. It assumes that the United States has the naval power to assure its interests at sea. However, U.S. naval power in the Arctic is limited, at best. Moreover, the continental shelf extensions in the Arctic are a perfect example of how ratifying the treaty would actually enhance U.S. sovereignty, rather than limit it. Additionally, ratifying a multilateral treaty would signal to the world that the United States will operate on the same set of rules agreed to by everyone. At a minimum, ratification would buy some badly needed international goodwill.
The United States must ratify UNCLOS as soon as possible. It is the entrance fee to sit at the table and discuss international law in the Arctic. With 156 other nations belonging to UNCLOS, the absence of the United States signals to the world that it intends to be a unilateral actor.60 Moreover, it also decreases the strength of international law in the region. Given that international law is the only constraint to massive power projection and militarization in the region, continuing to be a signatory without ratification is detrimental to regional security. In addition, there is considerable evidence showing that the continental shelf off the Alaskan coastline extends well beyond the 200 nautical mile EEZ limit.61 It is estimated that United States could claim an extra 291,000 square miles.62 This extra seabed could yield approximately 27 billion barrels of oil.63 As a party to UNCLOS, the United States would be able to formally submit its claim to the CLCS and have this continental shelf extension to the EEZ internationally recognized.
The United States should accede to UNCLOS and file an internationally accepted claim for jurisdic- tion over the continental shelf extending beyond the 200-nautical mile Exclusive Economic Zone. In taking this step, the United States would legitimize its claim to nearly 300,000 square miles of sovereign underwater territory for scientific exploration, marine stewardship and natural resource exploration and extraction.38 Most importantly, acceding to UNCLOS would protect the nation’s sovereignty, ensure freedom of navigation in the Arctic for U.S. commercial and military vessels and prevent competing maritime claims against U.S. sovereignty.
In May 2008, the United States signed the Ilulissat Declaration, an agreement among the five coastal states bordering the Arctic Ocean to abide by the customary law of the sea framework, even while it has not yet ratified the broadly accepted United Nation Convention on Law of the Sea (UNCLOS).10 While the Ilulissat Declaration establishes the body of law for managing the rights and obligations of states specifically within the Arctic Ocean, UNCLOS provides the primary mechanism for peaceful resolution of disputes and recognizes underwater territorial boundaries on the extended continental shelf.
Without ratification of UNCLOS, the United States lacks the legal power to contest the claims of other states in issues of overlapping maritime boundaries and the rights to resources on the continental shelf. This could give rise to what the international legal community terms excessive maritime claims. Therefore, unless the United States ratifies UNCLOS, the nation cannot properly protect its freedom of navigation as well as natural resource, energy and environmental interests in the Arctic.11
Yet another “environmental impact” could arise from limitations the treaty imposes on measures we might take to assure our national security and homeland defense. If, for instance, foreign vessels operating on the high seas do not fit into one of three categories (i.e., they are engaged in piracy, flying no flag or transmitting radio broadcasts), LOST would prohibit U.S. Navy or Coast Guard vessels from intercepting, searching or seizing them.
As you know Mr. Chairman, such constraints would preclude President Bush’s most important recent counterproliferation measure – the Proliferation Security Initiative (PSI). The same would be true, however, if the crew of the foreign ship was engaged not in the sort of activity the PSI is meant to interrupt (namely, the covert transfer of weapons of mass destruction and/or related equipment), but in the shipment of heavy crude oil or other toxic materials that could cause an environmental disaster were the vessel to be blown up or scuttled in or near our waters.
Worries about the sorts of decisions UN bureaucrats might make that could harm American environmental and other equities have only been heightened by recent press accounts. According to successive investigative reports in the Wall Street Journal, there is evidence of systemic corruption and malfeasance on the part of senior UN personnel – and, in the case of the Secretary General, one of his relatives – in connection with the Iraq Oil-for-Food programs. The House International Relations Committee has announced its intention to investigate this evidence. The Senate would be well-advised to conduct its own inquiry.
At the very least, I would respectfully submit that Senators cannot responsibly act on the Law of the Sea Treaty until they can satisfy their constituents that turning over to a new UN bureaucracy the authority to make decisions about and generate revenues from what could be billions of dollars worth of ocean-related commerce will not amount – literally – to a license to steal on an unprecedented scale.
What might such decisions entail? Thanks to the regulatory powers granted by the Law of the Sea Treaty, the ISA could decide, for example, to issue permits for deep-sea oil or gas exploration and exploitation just beyond our 200-mile Exclusive Economic Zone – without regard for the views of members of this Committee, the Congress more generally or the American people who may consider such activities to be environmentally unsound.
Not only could those concerns be shunted aside as the United States would be, at best, outvoted. An international tribunal created to adjudicate and enforce ISA decisions could levy penalties for any efforts to impede such activities once authorized by the International Seabed Authority – even if we had reason to be fearful that such activities posed an environmental hazard to our coastal areas. Worse yet, the ISA and its tribunal are authorized to ask member states to enforce its judgments, possibly leading to conflict.
Environmental implications could be exacerbated by the ISA’s authority to apportion drilling and mining rights to other nations who may be less scrupulous than American companies in complying with environmental standards and practices this country holds dear. Such apportioning could occur even in situations where this country’s companies provide the research, seed investment and fees – the first a UN agency has ever been allowed to levy – associated with securing the required ISA permits.
The United States should take the lead in developing new practices on the oceans that will at once facilitate commerce and peacetime deployment of warships but also protect our shores from the terrorist scourge. The President’s Proliferation Security Initiative is an example of such modern and creative thinking. This US-led multinational program of high seas interdiction and vessel boarding is barred by the Law of the Sea Treaty yet it is our overriding national security interest to execute. Ratification of the Treaty would effectively gut our ability to intercept the vessels of terrorists or hostile foreign governments even if they were transporting nuclear weapons. We must ensure that we not binding the government of the United States to a legal regime that makes us more vulnerable and trades the lives of our innocent citizens for the sake of participating in yet another unnecessary Treaty.
Imagine if you will, the scuttling of a Supertanker off our coast and the intentional, again think of the word intentional, release of millions of gallons of petroleum products into the water column. If done on the Grand Banks it would destroy some of the world’s most productive fisheries for generations. If done near a coastal nuclear power plant it can cause irreversible damage, or at a minimum, force it to shut down for years as its coolant is dependent upon clean coastal waters. Fears that a terrorist operation may use a ship to spread an air-borne pathogen or toxin such as Anthrax along our densely populated coastline are very real. So too is the possibility of utilizing an LNG tanker as an enormous Fuel Air Explosive. The several instances of Container Ships being used to mount terror attacks, such as the suicide bombings in Israel last week is a great cause for alarm. Recalling the extensive damage Texas City, Texas and Halifax, Nova Scotia were subjected to as a result of vessel-borne accidents should never be far from our minds.
The point of all this is that the environmental provisions of the Law of the Sea Treaty are inadequate to address the most likely and potentially most devastating, environmental threats facing the United States today. Of course, the environmental provisions are also closely coupled with the navigation and high seas articles found elsewhere in the Treaty – they are, in fact, inseparable. These treaty provisions afford a measure of immunity and freedom of access to our coastlines that, in the current era, are inimical to our national interests and the health and safety of the American public. While I am not advocating a draconian reversal of hundreds of years of traditional state practices I am stating that we are better off, as a nation, relying on the ambiguities of constantly evolving traditional practice than binding ourselves to a formal treaty that will severely constrain our ability to protect our population from devastating attack.