Revision of U.S. participation in UNCLOS will not undermine national sovereignty from Thu, 02/10/2022 - 17:44
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.
Quicktabs: Arguments
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.
Myth: The United States is giving up sovereignty to a new international authority that will control the oceans.
Nothing could be further from the truth. The United States does not give up an ounce of sovereignty in this Convention. Rather, the Convention solidifies a truly massive increase in resource and economic jurisdiction of the United States, not only to 200 nautical miles off our coasts, but to a broad continental margin in many areas even beyond that. The new International Seabed Authority created by this Convention, which, as noted, has existed for a decade and will continue to exist regardless of United States actions, deals solely with the mineral resources of the deep seabed beyond national jurisdiction. That is an area in which we not only have no sovereignty but also in which we and the entire world have opposed extension of national sovereignty claims. Moreover, to mine the deep seabed minerals requires security of tenure for the billion dollar plus costs of such an operation. Our industry has emphatically told us that they can not mine under a 'fishing approach' in which everyone simply goes out to seize the minerals. The Authority was a necessary specialized agency, of strictly limited jurisdiction, to deal with this need for security of tenure. Quite contrary to the recent testimony of one witness before the Senate Committee on Environment and Public Works, the Seabed Authority would not have "the exclusive right to regulate what is done, by whom, when and under what circumstances in subsurface international waters and on the sea-floor."5 Rather, the Authority is a small, narrowly mandated specialized international agency that, emphatically, has no ability to control the water column and only has functional authority over the mining of the minerals of the deep seabed beyond national jurisdiction. Again, this is a necessary requirement for seabed mining, in an area beyond where any nation has sovereignty, to provide security of tenure to mine sites, without which mining will not occur6;
In contrast, quite to the contrary of arguments advanced against the Convention by some opponents, the Convention does not remove United States sovereignty or sovereign rights over the resources of the deep seabed. Neither the United States nor any other Nation has now, or has ever had, sovereignty over the mineral resources beyond the continental margins. In fact, it has been a consistent position of the United States and other developed nations to oppose any extension of national sovereignty into this area. Indeed, it is precisely because no nation in the world controls the mineral resources of the ocean basins that the Convention has created a narrowly limited international mechanism to permit mining of these resources. For without such a regime, industry simply cannot obtain the legal rights necessary for the over billion dollar cost of a deep seabed mining operation.
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.
Myth: The United States is giving up sovereignty to a new international authority that will control the oceans.
Nothing could be further from the truth. The United States does not give up an ounce of sovereignty in this convention. Rather, as noted, the convention solidifies a massive increase in resource and economic jurisdiction for the United States, not only to 200 nautical miles off our coasts, but to a broad continental margin in many areas even beyond that. The new International Seabed Authority (ISA) created by this convention, which, as noted, has existed for a decade and will continue to exist regardless of U.S. actions, deals solely with mineral resources of the deep seabed beyond national jurisdiction--it has nothing to do with the water column above the seabed. The deep seabed is not only an area in which the United States has no sovereignty; but one on which the United States and the entire world have consistently opposed extension of national sovereignty claims.
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
Ultimately, the Convention settled on an outer limit for the continental shelf of 200 miles,38 which satisfied many geographically disadvantaged states (those that do have a naturally wide shelf), but also allowed special considerations for states with naturally broad shelves by granting them a potentially deeper shelf of up to 350 miles instead of the standard 200.39 With the exception of the special considerations, Convention provisions limiting the continental shelf echoed those in the 1964 Convention on the Continental Shelf which set the limit as 200 miles and gave coastal states exclusive rights over its continental shelf.40 The United States is a party to the 1964 Convention on the Continental Shelf and thus bound by these limits.41 However, if the United States qualifies for the special considerations provided for in the Convention for states with naturally broader shelves, it has the potential to increase its continental shelf.42
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