28 Sep UNCLOS at the SFRC
Yesterday, the U.S. Senate Foreign Relations Committee (SFRC) held the first of two hearings on U.S. accession to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The hearing gave the Administration its chance to elaborate on why President Bush so strongly favors U.S. accession as soon as possible. You can access the testimony of State Department Deputy Secretary John Negroponte, Deputy Secretary of Defense Gordon England, and Admiral Patrick M. Walsh, Vice Chief of Naval Operations on the SFRC website. Not surprisingly, all three come out strongly in favor of the treaty. Negroponte’s testimony is of particular interest, especially since he worked on amending UNCLOS through the 1994 Agreement when he was an Assistant Secretary of State. He offers a surprisingly candid explanation for why the United States might really want to join a treaty with which it has largely complied since 1982 as a matter of customary international law:
Customary law is not universally accepted and, in any event, changes over time – in this case, potentially to the detriment of our interests. There are increasing pressures from coastal States around the world to evolve the law of the sea in ways that would unacceptably alter the balance of interests struck in the Convention. Operational challenges are inherently risky and resource-intensive. Joining the Convention would put the navigational rights reflected in the Convention on the firmest legal footing. We would have treaty rights rather than have to rely solely upon the acceptance of customary international law rights by other states or upon the threat or use of force. Securing these treaty rights, and obtaining a seat at the table in treaty-based institutions, would provide a safeguard against changes in State practice that could cause customary law to drift in an unfavorable direction.
Negroponte goes on to emphasize how the Convention would advance U.S. Sovereignty (noting recent Russian attempts to plant its flag in the Arctic Sea) and the overall sustainability of the oceans. In a portion of the speech particularly candid for these sorts of hearings, Negroponte goes over a series of “myths” about UNCLOS and provides a point-by-point rebuttal, e.g.:
Myth: Joining the Convention would surrender U.S. sovereignty.
Reality: On the contrary. Some have called the Convention a “U.S. land grab.” It expands U.S. sovereignty and sovereign rights over extensive maritime territory and natural resources off its coast, as described earlier in my testimony. It is rare that a treaty actually increases the area over which a country exercises sovereign rights, but this treaty does. The Convention does not harm U.S. sovereignty in any respect. As sought by the United States, the dispute resolution mechanisms provide appropriate flexibility in terms of both the forum and the exclusion of sensitive subject matter. The deep seabed mining provisions do not apply to any areas in which the United States has sovereignty or sovereign rights; further, these rules will facilitate mining activities by U.S. companies. And the navigational provisions affirm the freedoms that are important to the worldwide mobility of U.S. military and commercial vessels.
A second hearing is scheduled for next Thursday, October 4, and will allow voices from outside the government to speak in favor of (or against) U.S. accession. In the meantime, I thought I’d open this thread for comments on the Executive Branch’s position favoring accession and how significant a step it would be for the United States to join this treaty 25 years after its original conclusion.
Hat Tip: Jacob Cogan of the International Law Reporter
Dear Duncan, It’s been a while since we met at the EPA and then at the Council on Environmental Quality offices three years ago to discuss my findings concerning how the European Union was endeavoring to ensnare the United States in its enlightened web of global sustainable development oriented environmental regulations which happen also to serve as disguised non-tariff barriers to trade. It is quite interesting how the administration has done back-flips on this issue having in mind the need to create some kind of ‘positive’ legacy for the president before he leaves office. The current efforts underway to push the UNCLOS through the Senate Foreign Relations Committee without even more than a cursory review of its many environmental provisions is appalling from a constitutional point of view. What does ‘due process of law’ mean anymore if the public cannot rely on its elected representatives to publicly and transparently vet what is perhaps the largest environmental regulatory treaty in the world? What does it say about the US military brass if it does not even know that the UNCLOS applies to land-based, internal waterway-based and US airspace-based emissions?? Indeed, one of the most blaring omissions in the statements coming forth… Read more »
This is a silly critique. The UNCLOS environmental provisions were negotiated well before the Uruguay Round and, in any event, are pretty weak tea. (Incidentally, the 1995 Fish Stocks Agreement has already been signed and ratified by the United States–with this country’s considerable leadership in negotiating it–so it is a little late to complain about its endorsement of the precautionary principle!) The innocent passage provisions of UNCLOS are quite generous, as even a cursory reading of 19, 21, and 23 demonstrate. Article 19 does deem as ‘prejudicial’ such passage that includes “any act of wilful and serious pollution contrary to this Convention” (hardly objectionable), Article 21 allows a coastal State to enact regulations for the environmental protection of its territorial waters “in conformity with the provisions of this Convention and other rules of international law” (again, this is something we do for our own territorial sea so it can hardly be objectionable), and Article 23 provides simply that ships carrying “inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements” (again, there is little danger here of creeping customary… Read more »