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Print This PageUNCLOS 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
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http://opiniojuris.org/2007/09/28/unclos-at-the-sfrc/
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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 from the US military in support of the UN Law of the Sea Convention is a thorough analysis of the treaty’s more than 45 environmental articles, regulations and protocols, and numerous other standards that could be used to diminish the military’s right to freedom of navigation/ innocent passage.
In addition, recently released reports have described how the US military will be increasing its reliance on private contractors more than 50% during the next 5-10 years. The myriad activities of private contractors designing, formulating, producing, testing, delivering and deploying technologies for military application are highly unlikely to qualify for exemption as ‘military activities’ under the UNCLOS. The military brass is quite confident, at least publicly, about how they could unilaterally determine what is or is not a ‘military activity’ for purposes of qualifying for the treaty exemption. And, they believe that they could fit all such activities neatly under one ‘military activity’ tent. They are unlikely, however, to succeed in exempting their supply chains.
Furthermore, the environmentally-obsessed EU member states have 27 votes for every 1 vote cast by the US at the UNCLOS Secretariat meetings, which the administration has been less than forthcoming in explaining.
Lastly, there remains a quaint notion within US constitutional law which is commonly referred to as ‘due process’. In the context of the Senate Foreign Relations Committee hearings that are now underway, this means transparency and a thorough publicly aired review. Unfortunately, this has not yet occurred considering that a number of house and senate committees possess oversight jurisdiction which they have yet to exercise to review the various dimensions of the UNCLOS that have not been considered in light of new international environmental law developments since the previous UNCLOS hearings. The American people are entitled to know from their elected representatives how this expansive treaty which will reach into US sovereign territory (land, internal waterways and air above) and into the US regulatory and free enterprise systems, will affect American pocketbooks, small businesses and daily lives.
For this reason, my colleague and I have authored the following article that has yet to see the light of day in the press. Perhaps you and the other cognoscenti have something to say??
The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty
By J. William Middendorf II* and Lawrence A. Kogan**
During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.
These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.
Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.
While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.
Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.
These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.
This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.
Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.
More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.
In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.
The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.
* Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.
** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.
at 11:56 am EST Lawrence Kogan
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 international law as a special agreement is required).
This whole essay here seems to be a red herring–if the domestic experience is any indication, if the military in any way felt constrained by these provisions I am confident it would be speaking up loudly about it. Indeed, name-calling UNCLOS “LOST” has long been a tactic used by those with ideological, rather than practical, opposition to the treaty. As President Bush and his team well know, the objections the United States had in 1982 to the seabed mining provisions of Part XI–which were the real reason we pulled out back then–were resolved quite favorably with the 1994 Implementing Agreement. The puffery here about a socialist-inspired convention has long been rather silly–little (catholic) Malta was never a communist threat and neither was the CHM idea (which only applies to the seabed beyond national jurisdictions anyway!). To the extent the US has problems with those limited provisions, our interests will only be served by ratifying the Convention and taking our seat at the table in Kingston, Jamaica at the International Seabed Authority (which operates by consensus anyway, so our one vote should be enough to stop any truly objectionable action).
The time has come for the United States to ratify UNCLOS. These ill-conceived ideological objections should be dismissed easily by the relevant Senate committees. We should ratify the treaty the United States was so instrumental in negotiating and from which we stand to benefit from its provisions (on innocent passage, on the continental shelf, on dispute settlement, and many others), as every other State Party does.
at 2:39 am EST Peter Prows