Revision of UNCLOS would give far-reaching regulatory powers to international and national bureacracies from Tue, 07/02/2013 - 10:04
Quicktabs: Arguments
Even where the United States retains a veto, it does so in common with all other parties to the treaty, not just with a few major powers, as in the U.N. Security Council. So even if the U.S. can force a stalemate, others can do the same and most of those others have no stake at all in seeing development go forward. The U.S. veto on rules about licensing of specific efforts does not, of course, ensure that favorable rules can be enacted. If mining does ever become financially attractive in the deep seabed, the Authority will remain an awkward regulatory structure. In effect, it subjects the handful of countries—or rather firms from such countries—to regulatory oversight from all the other countries in the world, on the grounds that all have a stake in what happens on the deep seabed. So far, the Authority has only issued one set of regulations (governing exploration for manganese or polymetallic nodules, which might be recovered from the surface of the ocean bottom). It has begun work on a new set of regulations on sulfide crusts, found around volcanic hot springs. Regulations are not likely to be restricted to such mining operations, however. Already, the Authority has been urged to issue regulations to limit bioprospecting for commercial applications of new species—mostly microbial—discovered on vents at the depths of the seas. Here again,the handful of firms with the capacity to undertake such initiatives will be subject to control from bystanders. Yet scientists think that exotic bacteria found only at extreme depths of the sea may offer keys to the development of new antibiotics, antitumor agents for treatment of cancer, and other pharmaceutical applications. And the regulatory reach may extend even further. Given its authority to protect the “marine environment” in the deep seas, the Authority might claim some authority to regulate what is done in territorial waters or even on land, when such activities have some effect on the deep seas.
LOST will allow interference with and the penalization of American businesses, including those that conduct research for, equip and provide logistical support to the U.S. military. It will: impose the “Precautionary Principle” (according to which innovations cannot be introduced unless proven free of any adverse consequences); give standing to Alien Torts claims in U.S. courts; require sharing proprietary information and technology with international bureaucrats and competitors; compromise WTO rights; and give precedence to European- dominated international standards. The costs of such derogations of our sovereignty could be high, perhaps even crippling, for affected businesses – including those supporting our armed forces.
By ratifying UNCLOS, the United States would be submitting itself to a much wider range of international controls than it has in the past. Allowing ITLOS to sit in judgment on U.S. naval tactics or allowing the Authority to press U.S. firms to share strategic technologies with countries like China can only prove damaging to U.S. national security. It may also be detrimental to U.S. economic interests to allow the Authority to place conditions on when and how U.S. firms can search for minerals or commercially valuable microbes in the deep seas. In addition, in the long term, there are serious risks involved to American national sovereignty in accepting the underlying premise of UNCLOS III. The most valuable provisions, regarding transit rights and national regulatory rights in exclusive economic zones, are widely accepted. They have therefore a solid claim to be regarded as customary international law. By ratifying the treaty, the United States would be saying that it cannot retain its rights under customary international law unless it agrees to accept new international institutions that other countries happen to favor. Worse, ratification would seem to endorse the notion that American rights can only be secured by appealing to new international institutions. From there it is only a small step to the claim that further progress on other international matters requires submission to new and more far-reaching international controls, developed and implemented by new supranational organs.
Inevitably, American ratification will be a major step towards the one- worlders’ agenda of global, supranational government. One prominent Transnationalist, Arvid Pardo, the former Maltan Ambassador to the UN who is credited with coining LOST’s leitmotif phrase “the common heritage of mankind,” has said that American acceptance of LOST “however qualified, reluctant, or defective, would validate the global democratic approach to decision-making.” On that score, at least, Pardo is absolutely right.
The charge has been made that this is a modest treaty, and we have not had any problem with people trying to use it to interfere with the use of our military and its mobility around the world, because it has not happened yet. This minor staff, this innocuous multilateral organization, is so inconsequential as to be of no concern in any of these respects. I must say again, that may be true today. In fact, it is not entirely surprising that it is true today since I believe that everyone who wishes to use this treaty against us has understood that they need to get us into the treaty before they start doing that, or else we will not get into the treaty. Now, does that sound conspiratorial? Well, again, I think if you are a conservative, the old adage "just because you're paranoid doesn't mean they're not out to get you" applies. We need to be suspicious, especially when dealing with the U.N. or agencies like the U.N., to say nothing of an organization that was crafted by a majority that was determined to create supra- national organizations to run two-thirds of the world; that is to say, the two-thirds of the planet that is covered by international waters.
LOST is a heavily regulatory bill, creating a body charged with protecting the seas. But, everything eventually flows into the seas. Thus, the UN gains the power to look upstream and into the skies to ensure that everything that has – or might have – impact on the seas be scrutinized and disciplined. The unintended consequences of this regulatory overreach cannot be under-estimated; its potential for damage is massive. This Committee has not done “due diligence” on this topic. And, for the complacent, note that the proponents of this bill – environmental alarmists and legal enthusiasts – are adept at converting hortatory language into legal prohibitions. Did anyone expect the Endangered Species Act to become a national land use planning act? Did anyone expect Superfund to become one of the most costly green pork barrel measures in history or that the Clean Water Act would compel the Corps of Engineers to ban development throughout any area that might have been or might become at some time a “wetland?”
The proponents of this bill know full well that it will empower their special interests to gain massive power over the economic hopes of peoples throughout the world. Development is unlikely under the clumsy management of the UN bureaucracy. Moreover, the treaty by empowering environmental elites to raise significant new legal objections against agriculture, manufacturing, transportation and even technology will gain new abilities to stop or slow economic development. Ratifying LOST would be to open not one but a myriad of Pandora’s boxes – exacerbating the problems of an already overly litigious society, an America that already finds it difficult to site and build anything. We do not build a better future by empowering the forces of stasis. The NIMBY problems that America now faces may fade as LOST moves us toward NOPE policies.
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