Sovereignty
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Today's opponents, including Ayotte, DeMint, and Portman, focus on two issues. First, they argue, the treaty is an unacceptable encroachment on U.S. sovereignty; it empowers an international organization -- the International Seabed Authority -- to regulate commercial activity and distribute revenue from that activity. Yet sovereignty is not a problem: During the 1994 renegotiation, the United States ensured that it would have a veto over how the ISA distributes funds if it ever ratified the treaty. As written, UNCLOS would actually increase the United States' economic and resource jurisdiction. In fact, Ayotte, DeMint, and Portman's worst fears are more likely to come to pass if the United States does not ratify the treaty. If the country abdicates its leadership role in the ISA, others will be able to shape it to their own liking and to the United States' disadvantage.
Protecting national sovereignty is a legitimate aim -- and one that some liberal internationalists may have been too cavalier about in the past. But for the goal to have any meaning, it must be framed so that it can be met. This is certainly what Reagan had in mind when he articulated a specific set of problems with the original UNCLOS that could be (and eventually were) dealt with. This time around, however, those who object to the treaty have defined sovereignty in such ideological terms that they will never be satisfied. By their reckoning, the United States can never be party to an international organization, even if it has veto status in it.
An international organization might very marginally limit U.S. freedom of action, but this is negligible in comparison to the harm that instability and conflict in the South China Sea could inflict on U.S. interests. Previous presidents from both parties understood the trade-off: In challenging times, and to exercise global leadership, Washington protected its interests by making enlightened commitments overseas, whether in the form of alliances, institutions, or foreign assistance.
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
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
Even more laughable is the charge of a conspiracy to create a world government. In reality, the convention expanded national sovereign rights more than any international agreement in history. Its central thrust entails an extension of coastal resource and economic rights in a vastly enlarged exclusive economic zones (EEZ) and continental shelf, while furthering sovereign rights and navigational freedom. On the contrary, the corridors of the law of the sea negotiations were predominantly filled with thoughts of nationalism rather than internationalism. And ironically, in their attack on the convention, the critics join extreme internationalists who have been key opponents of the treaty because it focuses on national sovereign rights.
Now let me also say that by those first principles, I am deeply disappointed at voices which continue to violate, it seems to me, those principles in this Law of the Sea negotiation. Allow me to present a few examples. Over and over again we hear voices urging that the Convention would give our sovereignty away. The Convention gives away not a single ounce of United States’ sovereignty. This is not only false, but it is absolutely upside down. What was the reality of these negotiations? The reality is the greatest expansion of national resource jurisdiction in the history of the world. This was a coastal state win, hugely, not some kind of internationalist win for the straw argument Elisabeth Mann Borgese socialists24 that are cited over and over again by opponents.25 They lost one hundred percent. Some of the academic community did support that.26 They did not get anywhere near this Convention. This convention was a victory for nationalism and state sovereignty. And that is why you see the massive extension of 200-mile economic zones and continental shelves in this Convention.27
The final, and currently most prominent, argument against ratification surrounds sovereignty. Opponents say that, by limiting itself to a 200 nautical mile exclusive economic zone and whatever extended continental shelf it can claim, the United States is restricting its jurisdictional sovereignty. What this argument misses, however, is that the United States’ continental shelf is the largest of any—up to 600 miles offshore in the Arctic alone. John Norton Moore of the University of Virginia School of Law has argued that ratification would “massively increase [U.S.] sovereign jurisdiction” by more than the size of the Louisiana Purchase and Alaska combined.
President Reagan rejected the Law of the Sea Convention in 1982 and cited several major deficiencies, none of which have been remedied. Reagan was concerned that the U.S., though a major naval power, would have little influence at the International Seabed Authority that the convention created. Although the Authority is supposed to make decisions by consensus, nothing prevents the rest of the “international community” from consistently voting against the United States, as regularly occurs in similar U.N. bodies, such as the General Assembly. In addition, President Reagan was troubled by the fact that the International Seabed Authority has the power to amend the convention without U.S. consent. That concern has also not been remedied in the intervening years.
No wonder everyone from the head of the U.S. Chamber of Commerce to the president of the Natural Resources Defense Council to the chairman of the Joint Chiefs of Staff (along with every living secretary of state) has argued that the United States should ratify unclos. It is far past time for the Senate to follow their advice. Skeptical Senate Republicans have stood in the way of ratification, arguing that the treaty would place limits on U.S. sovereignty. But that argument is a red herring, since the United States already follows all of the treaty’s guidelines anyway, and ratifying it would in fact give Washington new rights and greater influence. There are probably enough votes from moderate Republicans for the treaty to pass, if the president decided to make ratification a priority.
Many other claims are simply misplaced. There is no transfer of sovereignty or wealth to the International Seabed Authority.
We have never claimed sovereignty over the seabeds beyond the continental shelf, and have consistently taken the position that any such claim would be unlawful. This is made abundantly clear by our own Deep Seabed Hard Minerals Act. We neither have nor assert jurisdiction over the activities of foreign states and their nationals on the deep seabeds.
Nothing that could rationally be called sovereignty was conferred on the Seabed Authority. The powers of the Seabed Authority are very carefully defined and circumscribed, and are controlled by a Council on which we will have a permanent seat and a veto over regulations. Private companies have the right to apply for and receive long-term exclusive rights to mine sites on a first-come, first-served basis and have legal title to the minerals they extract. All parties to the Convention are obliged to respect those mining rights and recognize that legal title.
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The sovereignty costs associated with the Convention are grossly overstated primarily because many of these costs have already been accepted by the United States. In addition, the U.S. stands to gain sovereignty over 4.1 million square miles of territory by acceeding to the treaty.
- U..S. does not forfeit its sovereignty by signing on to the convention
- U.S. sovereignty has more to lose by not being party to the treaty
- Signing on to international agreements is an exercise of U.S. sovereignty, not an abrogation
- Many sovereignty costs of the convention have already been accepted by U.S. in other agreements
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- Benefits to U.S. from UNCLOS support for freedom of navigation rights is outweighed by loss of sovereignty
- Ratifying the Law of the Sea treaty will undermine U.S. sovereignty
- UNCLOS represents a subjugation of American foreign policy to United Nations
- UNCLOS creates multiple institutions that would abrogate U.S. sovereignty
- UNCLOS would establish global rule of law over states subordinating their powers to a new authority
The area of resource jurisdiction the U.S. would gain legal status to by ratifying the treaty is approximately equal to that of the continental United States and exceeds the area of the Louisiana Purchase, the purchase of Alaska or any other addition to U.S. sovereignty in history.
- U.S. can extend sovereignty by 200,000 square miles by ratifying UNCLOS
- U.S. gain in sovereignty over territory is greatest among all parties due to its extensive coastlines
- US accession to UNCLOS would greatly increase territory under its sovereign control
- UNCLOS is not a transfer of either wealth or technology but a gain of resource jurisdiction the size of the Louisiana Purchase
- UNCLOS expands U.S. sovereignty by 4.1 million miles