Revision of UNCLOS is not administered by the United Nations from Fri, 07/04/2014 - 22:03
The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations. In addition, the only international organization UNCLOS creates (the International Seabed Authority) is no different from the hundreds of other international organizations the U.S. is already party to, including the U.S.- Canadian Fisheries Convention or the International Maritime Organization.
Quicktabs: Arguments
Myth: The convention would turn the oceans over to the United Nations.
This is completely and utterly false; not a drop of ocean water nor an ounce of oceans resources would be turned over to the United Nations. To the contrary, the convention disappointed extreme internationalists who believed in "blue helmet" solutions to oceans issues. It placed all coastal resources of the water column and the continental shelf under coastal nation, rather than international, jurisdiction. And it maintained and strengthened freedom of navigation on the world's oceans. These critical issues in the negotiation, by far the most important, hugely strengthened national sovereign rights. Even the ISA that the convention created is an independent international authority, supported by the United States, and is necessary to provide stability of property rights to deep seabed minerals owned by no other nation. Without such an authority providing exclusive property rights to seabed mine sites of the deep ocean floor, seabed mining, including that by U.S. interests, would never be realized. And remember that this body is limited to the mineral resources of the deep seabed beyond national jurisdiction that have yet to be mined, in contrast with the billions of dollars in fisheries, oil and gas production on the continental margins, all of which are under national jurisdiction.
Myth: The convention "is designed to place fishing rights, deep-sea mining, global pollution and more under the control of a new global bureaucracy ..." (13) This is so erroneous that it would he humorous were it not so insistently advanced by critics. The executive branch, which led U.S. negotiations on the convention and supports the Senate's advice and consent, would never have supported such nonsense. The ISA deals solely with mineral resources beyond national jurisdiction, not with fishing, global pollution or navigation, nor with activities in the water column. If U.S. mining firms are ever to mine the deep seabed, particularly sites under no nation's ownership, it is necessary to create enforceable rights to this end. The United States is already party to hundreds of specialized international organizations. The ISA would be an unremarkable addition, one that after 11 years of operation currently has a staff of 28.
Critics also argue that the convention will turn the world's oceans over to the United Nations. The United Nations has no decisional authority over any oceans issue in the convention, nor does the treaty create another UN agency. Rather, the three strictly limited organizations that the convention does create report to the state parties to the treaty, not to the United Nations. As with many U.S. arms control agreements, the negotiations proceeded under UN auspices, but the United Nations had no hand in developing the convention. And the negotiations leading to the convention were supported by the United States precisely because of its strategic and resource-based interests at sea. The real threat to these interests has been unbridled coastal state "unilateralism," sometimes referred to as "creeping jurisdiction."11 This is a threat for which multilateral negotiations provided the best forum for protecting core U.S. oceans interests.
Those who practice and profess international law should be profoundly grateful for this political moment. We can (and must) seek to inform the public about the realities of the institutional and dispute-settlement regimes in UNCLOS. The truth is, of course, that UNCLOS has relatively weak features in this regard, especially compared with such institutions as the WTO. The International Tribunal for the Law of the Sea (ITLOS) will have virtually no docket of cases, aside from applications for prompt release of vessels and crews and the occasional matter regarding fishing rights.19 The vast majority of disputes under UNCLOS will be resolved by ad hoc arbitrators, hand-picked by the parties.20 Likewise, the International Seabed Authority (ISA) is likely to be a rather sclerotic organization, given its limited mandate (with the modifications made to Part XI in 1994)21 until such time (if ever) that deep seabed mining for manganese nodules has even the remote prospect of profitability. Ironically, the work of one UNCLOS institution that does bear attention – the Continental Shelf Commission, which is the technical body that will rule on any U.S. application to extend its claims in the Arctic – has not yet been fully evaluated. As for the “international tax” that the ISA will assess on continental shelf oil and gas production beyond 200 nautical miles,22 that provision, ironically, was based on a proposal made by the Nixon Administration as an alternative to the cumbersome regime for manganese nodules.23
Now, how about this new agency [International Seabed Authority] being a precursor for world government? Well, it has been in existence for twenty-five years. It has a staff of thirty-five, counting the secretaries, and it has a total budget of less than $12 million.21 World government? I do not think so. This is simply yet another run-of-the-mill international organization. There are hundreds, like the U.S.- Canadian Fisheries Convention, the International Maritime Organization, and many others. This is not something fundamentally different.
Myth: Ratifying the Law of the Sea Treaty will create a United Nations bureaucracy. Fact: Not true. Ratifying the LOTS creates nothing. Ratifying the treaty will give the United States a seat on the already-formed International Seabed Authority. The International Seabed Authority has existed for over 20 years. The ISA is the international authority that grants exploration and mining and drilling permits to all nations. The ISA also creates clear, legally binding, protocols for ships while navigating foreign waters. This is long established, current international law. The U.S. opting not to join the ISA does nothing except prevent America from receiving mining and drilling permits, while also creating a gray area legally for our military and for U.S. companies when dealing with waterways belonging to foreign nations. That is why every U.S. business association, including the US Chamber of Commerce and the National Association of Manufacturers, and every sitting military leader of a U.S. Command – including the Secretaries of the Army, Navy and Air force and the Chairman of the Joint Chiefs of Staff - supports the treaty’s ratification.
The ISA, the institutional component that led the Reagan administration not to support the Convention in 1982, has remained a obstacle for a few vocal critics of the Convention in America. Although the ISA is the only new body created by the Convention that is explicitly authorized to make policy, its mandate is narrow, related to steps furthering security of tenure for those seeking to explore for minerals or mine on the seabed beyond the limits of national jurisdiction. The Part XI Implementation Agreement, which is now read together with the Convention to govern the ISA's operations, rectified all of the Reagan administration's objections to the original Part XI (the administration's only objections to the Convention). The objectionable provisions related to an asserted lack of guaranteed access for qualified private miners, the possibility of payments to national liberation movements, mandatory technology transfers, production limita- tions, and a review conference that could amend Part XI over the objection of the U.S. or other states. The George W. Bush administration has emphasized the 1994 changes with respect to these provisions. It has also emphasized 1994 changes concerning the U.S. role in how the ISA makes its decisions, changes that give the U.S. an effective veto over ISA decisions. Since its inception, the ISA has operated on a low budget and has confined its activities to its specified mandate, behavior that should reassure skeptics who fear an expensive, bloated international bureaucracy.
The critics seem naively to believe that America can simply shoot its way around the oceans, apparently including shooting our NATO allies, such as Canada, with whom we disagree about Arctic straits. Most shamefully, the critics repeat, despite all correction, that the Convention would turn the oceans over to the United Nations. But to the contrary, in its 200 nautical mile economic zones and extended coastal state continental shelves the Convention embodies one of the greatest expansions of national jurisdiction in history and absolutely nothing is turned over to the United Nations. Moreover, the closely cabined International Seabed Authority (ISA), necessary to create bankable property rights for seabed mining, only has jurisdiction over mineral resources of the seafloor in areas beyond national jurisdiction. Far from a menacing international agency poised to take over the world, after a quarter-century of operation the ISA has a staff of 39, considerably smaller than the staff of at least one of the domestic organizations most visibly opposing the Convention. The ISA is simply a small garden variety specialized international agency similar to many in which the United States participates, for example the Great Lakes Fisheries Commission. Even were the critics correct, United States non-adherence to the Convention would not in the slightest end the ISA or change the Convention which is one of the most widely adhered to in the world.
This brings us to the keystone in the arch of opposition. The treaty is officially titled the United Nations Convention on the Law of the Sea. And anything that bears the imprimatur of the United Nations is immediately and unconditionally dead on arrival in a certain tranche of senatorial offices. Sen. Jim DeMint (R-SC), for example, has suggested the United Nations is “ineffective, they’ve been wasteful, there’s corruption, and there is deep concern that there is a lot of anti-American sentiment.”
Here’s the thing: The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations.
The treaty itself does not establish U.N. oversight of any aspect of its implementation. It creates separate management bodies, like the International Seabed Authority, which work to regulate multinational operations in international waters without a direct link to the organization that has attracted so much vitriol from the protectionist wing of the conservative movement.
Apparently, conservative conspiracy theorists’ fears about the United Nations’s purported push for creation of a world government are stronger than their ties to Big Oil, corporate America, and military contractors. As Secretary Clinton put it, “Whatever arguments may have existed for delaying U.S. accession no longer exist and truly cannot even be taken with a straight face.”
The lack of support for this treaty among some GOP lawmakers is stunning. It shows once again that conservatives’ ideological opposition to the United Nations is getting in the way of smart planning for our natural resources.
In their letter to Senator Reid, the thirty-one signers were concerned with subjugating U.S. sovereignty “to a supranational government that is chartered by the United Nations.”10 Leading conservative activist Phyllis Schlafly described the conservative perspective on the treaty as follows:
LOST [UNCLOS] is the globalists’ dream bill [because] it would put the United Nations in a de facto world government that rules the world’s oceans under the pretense that they belong to the ‘common heritage of mankind.’ That is global speak for allowing the United Nations and its affiliated or- ganizations to carry out a massive unprecedented redistribution of wealth from the United States to other countries.11
This perspective ignores the fact that the United States had been in- volved in negotiations on the wording of UNCLOS since the time of Presi- dent Nixon.12 In 1983, during the Reagan administration, the United States supported the convention with the exception of the deep seabed provisions. President Reagan stated that the United States would recognize the rights of other states in the waters off their coasts as reflected in the convention.13 After President Reagan refused to endorse ratification due to the deep seabed issues, additional negotiations in the United Nations took place, resulting in the “Agreement Relating to the Implementation of Part XI of UNCLOS,” dated 28 July 1994, which satisfied the Reagan conditions. After a yearlong inter-agency review, the Bush administration concluded that all of the concerns raised by President Reagan were addressed by the 1994 Amendments.14 Thus, rather than UNCLOS being forced on the United States by the United Nations, it was instead negotiated with the full participation of the United States, and later specifically amended to answer the objections of President Reagan.