Revision of UNCLOS would give far-reaching regulatory powers to international and national bureacracies from Wed, 02/09/2022 - 22:47
By ratifying UNCLOS, the United States would be submitting itself to a much wider range of international controls than it has in the past and would give more power and legitimacy to misguided efforts to establish a supra-national government at the United Nations.
Quicktabs: Arguments
The Authority, though so far of modest size, would suffer from the same perverse incentives that afflict the U.N., since the United States would be responsible for 25 percent of the budget but easily outmaneuvered. Proposals by industrialized signatories to limit their contributions have so far received an unfriendly reception. Still, when it signed the Law of the Sea Treaty, the Clinton administration said there was no reason to worry, because the treaty proclaims that "all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective." Right. Presumably just as cost-effective as the U.N.
As if this weren’t a broad enough agenda for U.N. regulators, the ISA sees an opportunity to do more. In 2004 it proclaimed:
The Authority represents a unique experiment in international relations. It is the only international body with the responsibility of administering a global commons for the benefit of mankind. As a global body with an institutional structure and finely balanced decision-making mechanism that safeguards the interests of all States, the Authority is well equipped to deal with new developments relating to the deep ocean and to play a more meaningful role in the international system of ocean governance.23
The U.N.’s Division for Ocean Affairs and the Law of the Sea boldly announced that the LOST “is not...a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”24
Such regulatory activism would inhibit entrepreneurship. Investors seek legal stability and flee political uncertainty. A secure economic environment would be particularly important for entrepreneurs entering high-risk investment fields, notably underwater and in space, where the viability of the very process, let alone the security of the expected profit, would be in doubt. And with entrepreneurship in jeopardy, the future of the world’s poor would also be at risk, as the economic development that could allow them to exit poverty is eroded.
Burdensome Environmental Regulations. If the United States joins UNCLOS, U.S. companies engaging in seabed exploration will be subject to a rigorous environmental regime administered by the Authority. The Authority has the power to adopt “rules, regulations and procedures” for the protection of the marine environment, with “particular attention being paid” to harm caused by drilling, dredging, and excavation.46 One regulation requires companies to apply a “precautionary approach” in regard to the marine environment “as reflected in principle 15 of the Rio Declaration.”47 This is notable, given that neither UNCLOS nor the 1994 Agreement even mentions the controversial “precautionary approach”—a principle that requires absolute scientific certainty that an action will not cause environmental harm.
U.S. companies would be required to establish an environmental “baseline” at the outset of their contracts and continually monitor and report the impact of their activities on the marine environment.48 To establish a baseline, U.S. companies would be required to collect data “on the sea- floor communities specifically relat- ing to megafauna, macrofauna, meiofauna, microfauna, nodule fauna and demersal scavengers” (bottom feed- ers) and “record sightings of marine mammals, identifying the relevant species and behavior.”49 before engaging even in preliminary testing activities, companies would have to submit a site-specific environmental impact statement to the Authority, as well as a contingency plan to respond to environmental incidents.50
Funding remains a problem as well. The United States, naturally, would be expected to provide the largest share of the ISA’s budget: 25 percent to start. How much that would be is impossible to predict; the budget is to be developed through “consensus” by the Finance Committee, on which the United States is temporarily guaranteed a seat (“until the Authority has sufficient funds other than assessed contributions to meet its administrative expenses”).32 After the Finance Committee vote, the budget must be approved by the Assembly and the council. Years ago the United Nations estimated that the ISA would cost between $41 million and $53 million annually, on top of initial office construction costs of between $104 million and $225 million.33 The Clinton administration contended that the revised agreement provided for “reducing the size and costs of the regime’s institutions.”34 How? By adopting a paragraph pledging that “all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective.”35 Similarly, states the amended accord, the royalty “system should not be complicated and should not impose major administrative costs on the Authority or on a contractor.”36
These sentiments might be genuine. So far the ISA has been spending only about $5 million annually. But then, the world’s wealthiest nation is not yet a member. Moreover, the revised agreement has changed none of the underlying institutional incentives that bias virtually every international organization, most obviously the UN itself, toward extravagance.
In fact, concern over bloated budgets was a major factor in Moscow’s initial decision in 1994 not to endorse the treaty. (Russia has since ratified the LOST.) Russian ambassador to the UN Yakov Ostrovsky explained to the General Assembly that though the revisions were “a step forward,” he doubted the new agreement would limit costs. Of particular concern was the fact that “general guidelines such as necessity to promote cost-effectiveness cannot be seriously regarded as a reliable dis-incentive [to spending].” Before the treaty had even gone into force Ambassador Ostrovsky pointed to “a trend to establish high-paying positions which are not yet required.”37
Much to Lose, Little to Gain. As a multilateral treaty negotiated under the auspices of the U.N, UNCLOS poses the usual risks to U.S. interests of such multilateral treaties. In the international organizations created by such treaties, the U.S. often faces regional, economic, or political blocs that coordinate their votes to support outcomes counter to U.S. interests. The bloc voting process is fre- quently driven by the same overtly anti-American agenda that is often apparent in the U.N. General Assembly. While the U.S. can achieve positive out- comes in these forums, its successes are usually limited, having been watered down or coupled with demands from other participating states that it would otherwise not accept.
One example of U.S. interests being thwarted by bloc voting is the new U.N. Human Rights Council. The U.S. was a strong proponent of creating a new body to replace the discredited U.N. Commission on Human Rights, which had became a haven for human rights abusers to protect one another from scrutiny and censure. Once locked into negotiations over the specifics of the new council, however, the U.S. was repeatedly outnumbered and isolated. As a result, the council has minimal requirements for membership, and China, Cuba, Pakistan, Saudi Arabia, and other repressive states have won council seats. Unsurprisingly, the council has performed just as badly, if not worse, as its predecessor, and the U.S. has declined even to seek a seat on it.
Further, U.N.-related multilateral treaties often create unaccountable international bureaucracies. The UNCLOS bureaucracy is called the International Seabed Authority Secretariat, which is headed by a secretary-general. The Secretariat has a strong incentive to enhance its own authority at the expense of state sovereignty. Thus University of Virginia School of Law Professor John Norton Moore describes this sort of treaty as a “law-defining international convention.” The law that is being defined and applied by international bureaucrats is one designed to govern the actions of the participating states, not to serve their joint interests. For example, a provision of UNCLOS that would impose direct levies on the revenues of U.S. companies generated through the extraction of resources from the deep seabed reveals this bias against state sovereignty. When international bureaucracies are unac- countable they, like all unaccountable institutions, seek to insulate themselves from scrutiny and become prone to corruption. The International Seabed Authority Secretariat is vulnerable to the same corrupt practices that have been present at the U.N. for years. The most pertinent example of this potential for corruption is the United Nations Oil-for- Food scandal, in which the Iraqi government benefited from a system of bribes and kickbacks involving billions of dollars and 2,000 companies in nearly 70 countries. Despite ample evidence of the U.N.’s systemic weaknesses and vulnerability to corruption, the U.N. General Assembly has yet to adopt the reforms to increase transparency and accountability proposed by former Secretary-General Kofi Annan and others. This example is particularly pertinent considering that the Authority could oversee significant resources through fees and charges on commercial activities within its authority and potentially create a system of royalties and profit sharing.
Neoconservatives have been concerned about rampant anti- Americanism in the United Nations system. And make no doubt about it: this particular treaty is part of the broader United Nations system. Are we creating yet another institution among many that are already there that will pursue essentially this kind of agenda? I think that we are. And I think that the international institutions this Convention establishes, such as the International Seabed Authority/ are going to be subject to the same procedural shenanigans that we see in the United Nations system regarding this anti-American agenda.
Thus, I think it was not coincidental that, prior to her passing, former U.N. Ambassador Jeane Kirkpatrick warned strongly against the United States rushing to join this particular Convention. I have no doubts that the U.N.'s systematic anti- Americanism will be pursued in the Law of the Sea institutions.
Social conservatives—what are near and dear to their hearts? Preserving moral values and the moral standing of the United States. And once again, we come back to the question of the Law of the Sea Convention and the international institutions that it would create, as to whether they would behave consistendy with the highest aspirations humans are called to achieve. To put it mildly, the United Nations system is not a paragon of virtue. We have seen things like the "Oil for Food scandal;" we have seen things like U.N. peacekeepers exploiting women in African peacekeeping missions. We have seen the adoption of resolutions saying that Zionism is a form of racism. All of these are things that have been essential elements of the ongoing United Nations system of which this treaty is a part.
It should not surprise anybody that one of the most prominent social conservatives that ever served in the Senate, Senator Jesse Helms of North Carolina, took it as a personal responsibility to see that the United States did not join this Convention. He was successful during his tenure in doing that, and I think he made very compelling arguments regarding not just this particular institution, but also about the broader problems with the United Nations system as a whole.'"