“ECOSYSTEM-BASED MANAGEMENT”: A STEALTH VEHICLE TO INJECT EURO-STYLE PRECAUTION INTO U.S. REGULATION

http://itssd.org/7-10-09Kogan2_LegalBackgrounder%20(2).pdf

“ECOSYSTEM-BASED MANAGEMENT”: A STEALTH VEHICLE TO INJECT EURO-STYLE PRECAUTION INTO U.S. REGULATION

By Lawrence A. Kogan


Washington Legal Foundation Legal Backgrounder


Vol. 24 No. 23


July 10, 2009


"As debate continues over whether the United States will accede to the UN Convention on the Law of the Sea (UNCLOS), recent developments in Congress and the Executive Branch indicate a quiet but concerted effort to inject UNCLOS environmental principles into U.S. law. Some, including this author, have argued that U.S. accession to UNCLOS would explicitly usher into the U.S. legal system an aggressive version of Europe’s precautionary approach to regulating economic conduct.1 In advance of accession, though, this “Precautionary Principle” is finding its way into U.S. policy statements and proposed legislation in the more politically palatable and innocuous-sounding, but no less unscientific, form of “ecosystem-based management” (EBM). As this LEGAL BACKGROUNDER will illustrate, application of EBM to use and exploration of the sea, and even land could substantially frustrate critical economic activity such as offshore oil exploration and marine genetic prospecting, while also imperiling U.S. sovereignty.


...The administration and the 111th Congress convey the impression that these proposals do not relate to the UNCLOS.31 Presumably, they wish to avoid a time-consuming and politically risky Senate floor debate that would reveal to an uninformed and economically weary American public the costs, as well as the putative benefits, actually associated with U.S. UNCLOS accession.


The reality, however, is that the U.S. government would be hard pressed to avoid a discussion of how the proposals discussed above, or an even more formal embrace of the ecosystem-based management precaution embodied in UNCLOS, would impair important American economic and sovereignty interests. Such obligations, being consistent with Europe’s Precautionary Principle, would require the strict and costly preservation and protection of the oceans from land, air and water-based sources of pollution within the U.S., without any need to prove or quantify the environmental benefits resulting from government regulation.


Our government is asking the American public to bear the costs which will result from precaution-driven EBM. In turn, we [WE THE PEOPLE] deserve that such measures be examined in venues such as congressional hearings on U.S. UNCLOS accession, rather than disguised via use of obtuse administration policy statements, a raft of amendments to existing federal environmental laws, and arcane regulatory proceedings."


[See also Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009), abstract available online at Social Science Research Network (SSRN) at 53, 56-97, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837 ].


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Two reports issued by the U.S. Joint Oceans Commission Initiative (‘JOCI’), in which former U.S. Admiral James Watkins and new CIA Director Leon Panetta likely participated as Commissioners are illustrate the Obama administration's gameplan concerning how to introduce the matter of ecosystem-based management into U.S. environmental law. An April 6, 2009 report recommended US Congressional accession to the UN Law of the Sea Convention, while a prior June 2006 JOCI report recommended changes to U.S. legislation and regulation to “[e]nable the transition toward an ecosystem-based approach”.


[An excerpt from the 2009 report, entitled, Changing Oceans, Changing World: Ocean Priorities for the Obama Administration and Congress: Recommendations from the Joint Ocean Commission Initiative, the cover of which is reproduced above, states the following:]

"The Administration and Congress have failed to act on most of the core recommendations of the Commissions, including the establishment of a national ocean policy, securing Senate support for U.S. accession to the Convention on the Law of the Sea, codifying and reorganizing the National Oceanic and Atmospheric Administration (NOAA), significantly increasing federal support for regional coordination efforts, and addressing chronic underfunding of ocean and coastal science, management, and conservation. Action on these recommendations is essential if we are to begin the transition toward a more integrated and ecosystem-based approach to management." (p. 8).

"...A catalyst is now needed to take this effort to the next level, and it must come in the form of leadership by the Administration and Congress. Specifically, legislation is needed to identify the goals and objectives of a national ocean policy, and the responsibilities of NOAA must be updated and the agency’s structure reorganized to realize its full potential. There must also be a coherent federal strategy for working with the states and regions, whose work is often stymied by confusion and conflict at the federal level. Oceans and coasts must be fully integrated into national climate and energy strategies, and the United States must reassert international leadership by acceding to the Law of the Sea Convention." (Id., at p. 9).

[An excerpt from the 2006 report, entitled,From Sea to Shining Sea: Priorities for Ocean Policy Reform, Report to the United States Senate, Joint Ocean Commission Initiative(June 2006) at p. 3).states the following:

"...Congress should enact legislation to create incentives for ecosystem-based management that builds on existing regional efforts. The incentives should provide a framework of policies and programs to guide the development and implementation of collaborative efforts that involve federal, state, tribal, and local governments, as well as the private sector, nongovernmental organizations, and academic institutions, working together toward regional actions that advance national ocean and coastal interests. The framework should be flexible in order to promote collaborative efforts that are responsive to regional realities, while ensuring accountability for making meaningful progress toward ecosystem-based management..." (p. 3).

"...PRINCIPLES TO GUIDE NATIONAL OCEAN GOVERNANCE REFORM

...Management Decisions Grounded in an Ecosystem-based Approach. In carrying out a national ocean policy, we need to implement an ecosystem-based management approach that examines the links among living and nonliving resources. Instead of managing one issue or resource in isolation, we need to move toward a management approach that considers human activities, their benefits, and their potential impacts within the broader context of interconnected social, economic, and ecological factors.


A Stronger NOAA Capable of Implementing an Ecosystem-based Management Approach. Since its creation by a reorganization order in 1970, NOAA has worked to advance the understanding, management, and protection of ocean and atmospheric resources. However, the agency suffers from programmatic and functional overlaps, disconnects among current line offices, and changing organizational priorities. NOAA needs congressional action to codify the agency and thereby enhance its mission, improve its structure, and better enable it to carry out existing and new responsibilities in a manner that is consistent with ecosystem-based management." (Id., at p. 16).

"...Congress should expressly acknowledge that management of all marine resources should be carried out in an ecosystem-based approach. Further, Congress should call upon federal agencies to develop guidelines that enable improved coordination and analysis to assist in the transition toward an integrated management approach that considers the entire ecosystem. Such an express acknowledgment should be part of law currently up for reauthorization, including the Magnuson-Stevens Fishery Conservation and Management Act, the Coastal Zone Management Act (CZMA), the National Marine Sanctuaries Act, the Clean Water Act, and other statutory regimes governing the use and management of ocean and coastal resources. Through reauthorization or passage of these statutes, Congress can provide that the goals for management should be set to ensure that ocean and coastal ecosystems remain productive with respect to all resources.


For example, through language included in the reauthorization of the Magnuson-Stevens Act, Congress can acknowledge that a first step toward effective ecosystem-based management of fisheries is to enable coordinated analysis of cumulative impacts of activities on fishery resources, as well as the impacts of fishing activities on other sectors, by developing guidelines for Regional Fishery Management Councils and other state and federal agencies and management entities to perform such analyses.


Likewise, through reauthorization of the CZMA, Congress can require that state coastal programs work with federal, state, and local agencies to provide for periodic assessments of the state’s natural, cultural, and economic resources, and based on those assessments, set specific, measurable goals that reflect the growing understanding of ocean and coastal environments and the need to manage growth in regions under pressure from coastal development. Congress can also direct that states redefine the landward reach of their coastal zones to include coastal watersheds, thus better enabling coastal programs to look across political boundaries and incorporate a coastal watershed focus and the basic tenets of ecosystem-based management. Statutory acknowledgement of the need to incorporate ecosystem-based management into marine resource management regimes is intended be a first step toward ecosystem-based management by enabling improved coordination and analysis among agencies managing marine resources and providing for a transition toward an integrated management approach that considers the entire ecosystem." (Id., a pp. 19-20).

[These two JOCI reports were discussed in: Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (May 2009) at: p. 2, and accompanying footnotes 19-20, at: http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf ].

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http://www.defra.gov.uk/marine/environment/stewardship.htm

Safeguarding our Seas: A strategy for the conservation and sustainable development of our marine environment ((c) 2002)


UK Department for Environment, Food and Rural Affairs (DEFRA)


"This report sets out our vision for the marine environment - clean, healthy, safe, productive and biologically diverse oceans and seas. It is underpinned by the principles of sustainable development, integrated management, the conservation of biological diversity, robust science, the precautionary principle and stakeholder involvement.

It outlines how we are adopting an ecosystem-based approach to marine management to better integrate marine protection objectives with sustainable social and economic goals. It covers the broad spectrum of policies that affect the marine environment. As well as describing past achievements and progress made, it contains new ideas and initiatives to turn our vision into reality.

These include initiatives to improve marine conservation and conserve biodiversity. They will also improve our management of our marine resources and develop scientific research and involve stakeholders. Our initiatives will also streamline regulation affecting development in coastal waters whilst protecting the marine environment. The report is a valuable first step in turning our vision into reality."

http://www.defra.gov.uk/marine/pdf/environment/marine_stewardship.pdf


"...We need to use the resources and opportunities offered by our oceans and seas while protecting ecological processes and ecosystems. This is the foundation for sustainable development. We can achieve our vision by adopting an ecosystem-based management approach.


...For the UK, and our Overseas Territories and Crown Dependencies, the principles that underpin our policy for the marine environment are:


• the precautionary principle – sensibly erring on the side of caution where the scientific evidence is not conclusive;" (Exec. Summ. at p. 3).


"...OUR VISION

1.8 Within the framework of the United Nations Convention on the Law of the Sea (UNCLOS2) and international law, our vision for the marine environment can be summarised as working for clean, healthy, safe, productive and biologically diverse oceans and seas. Within one generation we want to have made a real difference to tackling the threats that marine ecosystems face. This vision covers all oceans and seas and their adjacent coastal areas. It is a long term vision, but one that requires short to medium term outputs, targets and aspirations."


"2UNCLOS came into force in 1994. It contains a legal framework covering navigation, maritime boundaries, fisheries, the marine environment and marine scientific research. To date, 138 states are members, including the UK. We strongly support it and encourage all states to join."

"...1.17 An ecosystem-based approach to management represents a new and more strategic way of thinking. It puts the emphasis on a management regime that maintains the health of ecosystems alongside appropriate human use of the marine environment, for the benefit of current and future generations. This requires setting clear environmental objectives both at the general and specific level, basing management of the marine environment on the principles of sustainable development, integrated management, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement." (p. 7)


...1.20 Where scientific evidence is not conclusive, we need sensibly to apply the precautionary principle. This means, for example, taking preventive measures where there are reasonable grounds for concern that direct or indirect inputs to the marine environment may harm human health, living resources and marine ecosystems or other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects. (p. 7)


...TAKING THINGS FORWARD


1.41 This chapter has summarised our vision and the key initiatives that will help us to deliver clean, healthy, safe, productive and biologically diverse oceans and seas. It outlines how an ecosystem-based approach can deliver this goal based on the principles of sustainable development, integrated management, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement. The remainder of the report sets out in more detail what we have already achieved and how we will deliver our vision based on the initiatives summarised in this chapter. (p. 11)

Americans' Constitutional Rights Will Be Trampled Unless Senator Kerry & Other Congressional Committee Chairs Hold Public Hearings to Vet the UNCLOS

http://www.theenergydaily.com/pressreleases/environmental_services/200905051030PR_NEWS_USPR_____DC10103.html


http://www.upi.com/finance//?ChannelID=3197&GUID=8749816&Page=MediaViewer


Energy Daily/ UPI.com


May 5, 2009

In a new article appearing within the forthcoming issue of the Santa Clara Journal of International Law entitled, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe's Precautionary Principle as US Law, international attorney Lawrence Kogan calls upon all Americans to immediately exercise their constitutionally guaranteed 'right to know'. This article identifies the multiple pathways through which global environmental extremists, US trans-nationalists, and the 111th Congressional supermajority seek to use the highly complex United Nations Convention on the Law of the Sea (UNCLOS) as a loading platform from which to import into the American heartland very harmful UN and European-anchored environmental treaty and customary international law rules. "Unless the public demands due process of law from their congressional representatives," emphasized Kogan, "such rules, resembling rogue waves, will collectively override US sovereignty and the supremacy of the US Constitution and its accompanying Bill of Rights".

According to Kogan, "The US Navy continues to publicly deny the likely adverse consequences of the more than 45 plus environmental UNCLOS articles, regulations, protocols and annexes that implicitly and explicitly incorporate Europe's Precautionary Principle. This principle is known not only to raise indirect taxes and to threaten American free enterprise by chilling investments in technological innovations, reducing economic activity and increasing product manufacturing, processing and distribution costs and service fees, but to also severely impact military planning. Indeed, since, at least the late 1990's, foreign governments and environmental activist groups have invoked this controversial European legal nostrum to block US commercial activity, to curtail the Navy's ability to train offshore with sonar equipment, and to impair the timely US naval exercise of customary international law rights to freedom of navigation and innocent passage, both on the high seas and in territorial waters and at the north and south poles."

[There are embedded hyperlinks which may be accessed by clicking on the highlighted words above - 'north' & 'south'].

"Meanwhile," notes Kogan, "there are 'environmentally-enlightened' congressional committee chairs and ranking members who appear to be enamored with the legislative and associated regulatory powers derived from Europe's political civil law Precautionary Principle, especially those who hail from the coastal States of Alaska, California, Maine, Massachusetts, New Jersey and New York. They are busily preparing amendments to a host of US federal environmental, chemical and energy statutes that would expressly incorporate said principle as US law from within our own borders and thereby obviate the need for special US legislation to implement the UNCLOS' land and air-based pollution provisions. For example, these amended statutes, the new carbon cap-and-trade regime currently under development and the proposal for a new federal oceans policy are designed to achieve regulatory harmonization with socialist Europe. Their effect is to attenuate and subjugate US constitutionally guaranteed individual rights, including private property, to global communal interests. In addition to raising the cost of living for all Americans, they would also create disguised environmental trade barriers that are likely to injure and trigger retaliation from US trading partners, all at a time when the US is suffering from a deep financial crisis."

It has been observed that the Obama administration is paying lip service to ensuring Americans greater public transparency and a higher standard of governmental ethics than had its predecessors, even as it devises how to exploit the opaque federal administrative regulatory process to enshrine Europe's Precautionary Principle as US law. Perhaps, this explains why it has yet to 'walk the talk' to move those congressional committees possessing oversight jurisdiction concerning the UNCLOS' environmental, economic and tribunal components to hold open public hearings, prior to ratification, that substantively discuss their impact on the US economy, US national security, US constitutional rights and US sovereignty. If, however, 'change' is in the air as this administration insists, then nothing less than full disclosure will make it authentic.

The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. An annotated version of this press release is accessible at: http://itssd.org/news.html.

[A fully annoted version of this summary / press release is accessible at:

http://www.itssd.org/ITSSD%20-%20Americans'%20Constitutional%20Rights%20Will%20Be%20Trampled%20Unless%20Congress%20Convenes%20Public%20UNCLOS%20Hearings%20-%20III.doc ]

[The full law rev

iew article is accessible at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837.]

Arguably, given the sheer number and scope of UNCLOS environmental regulatory and judicial enforcement provisions, their potential impact on court proceedings, interstate and foreign commerce and military subcontractors, as well as, their potential to trigger new or amended U.S. legislation and/or federal agency regulations, Americans should demand from their congressional representatives that the environmental provisions of the UNCLOS should be reviewed by more than just the Senate Committee on Foreign Relations chaired by Massachusetts Senator John Kerry.

In the Senate, these UNCLOS provisions should be reviewed also by:

1) the Committee on Energy and Natural Resources;
2) the Committee on Commerce, Science and Transportation;
3) the Committee on Intelligence;
4) the Committee on Finance;
5) the Committee on Environment and Public Works; and
6) the Committee on Judiciary.

In the House of Representatives, these UNCLOS provisions should be reviewed also by:

1) the Committee on Energy;
2) the Committee on Foreign Affairs;
3) the Committee on Intelligence;
4) the Committee on the Judiciary;
5) the Committee on Natural Resources;
6) the Committee on Science;
7) the Committee on Transportation and Infrastructure; and
8) the Committee on Ways and Means.

US UNCLOS Accession NOT Necessary to Secure Vast Majority of U.S. Energy Needs, US Army War College Research Paper Finds; Amendment Preferred

http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA497652&Location=U2&doc=GetTRDoc.pdf

TOWARD AN ARCTIC STRATEGY

By Lieutenant Colonel Alan L. Kollien

United States Air Force

U.S. Army War College Strategy Research Report

February 17, 2009

ABSTRACT

Rising temperatures and a corresponding icepack melt in the Arctic accelerates to levels not previously envisioned. The rapidly receding polar ice pack opens a new Arctic area of opportunity in ways not witnessed until this century. This emerging area of operations holds new economic opportunity recognized by many nations, but especially Arctic border nations rushing to stake their claims in the Arctic Ocean and its seabed. Despite the accelerating Arctic Rush and its emerging conflicts, the United States lacks a strategy to achieve its interests in the region. This paper provides the foundation for strategy makers to move toward an Arctic strategy. It discusses the major regional stakes and definesArctic strategic objectives in terms of the most recent executive Arctic policy directive. It examines options for a legal regime to frame the strategy and recommends a combatant command structure that incorporates a circumpolar perspective to maximize unity of unity of effort throughout the Arctic area of operations. In total, this paper aims to spawn vigorous efforts among U.S. leadership to rapidly design and codify a comprehensive strategy to achieve U.S. Arctic objectives.

…This paper aims to spark American strategists to build and codify an already “late to need” comprehensive Arctic strategy. It examines two factual cause and effect trends that illustrate the urgent need for this strategy. First, Arctic ice retreat measurements point to increased regional accessibility faster than scientific models predicted earlier this decade. That trend, in turn, encourages previously unforeseen economic, scientific and other activities on America’s increasingly exposed northern flank. The paper then identifies U.S. Arctic objectives (ends) based on the latest executive Arctic policy directive signed by the President. In light of the ends, it then proposes, analyzes and recommends two foundational ways toward an effective Arctic strategy. First, it proposes that the United States requires legal transparency and should strive for a common international legal regime to stake and defend its Arctic claims and interests. Second, it proposes that the United States requires unified command reorganization to eliminate seams and effectively execute a comprehensive Arctic strategy. When added to the growing body of literature regarding the emerging Arctic’s importance, this paper should embolden U.S. leaders to rapidly end the current Arctic strategy void. (pp. 1-2)

… Arctic Legal Regime

The most pressing challenge the United States faces is choosing a way to legally stake and enforce its Arctic territorial claims in order to meet national security, homeland security and economic objectives as stated in the policy. (p. 5).

To achieve a common international legal regime, NSPD-66/HSPD-25 urges the Senate to ratify the United Nations Convention on the Law of the Sea (UNCLOS).23 However, an opposition group, including recently re-elected Senator Jim Inhofe (R-OK), believes ratification of the current convention gains little, but costs too much. Before determining legal regime options, strategists should carefully examine arguments from both sides of the UNCLOS issue to develop the necessary political consensus on complex national security issues.

Ratification foes for accepting the current UNCLOS treaty provide the following reasons, many with implications beyond the Arctic, to support their opposition. First, some UNCLOS provisions open new avenues for traditionally anti-U.S. environmental groups to affect U.S. policies through domestic or international court actions.24 Second, UNCLOS requires taxable licenses for companies seeking to harvest resources from the seabed beyond the 200-nautical-mile (EEZ), whereas companies may currently do so without a fee. Third, UNCLOS articles regarding intellectual property could force the United States to share some technologies with potential competitor or adversary states.25 Fourth, UNCLOS provisions govern the management of fisheries, overriding some management aspects of sovereign states.26 Fifth, UNCLOS’ definitions of internal and archipelagic waters as well as articles defining boarding and investigation may limit U.S. Navy and Coast Guard freedoms to an unacceptable degree, including within the northern Canadian islands.27 Some countries even seek to stake increased sovereignty claims within their EEZs by establishing Particularly Sensitive Sea Areas or Marine Protected Areas that legally compel naval and commercial vessels to avoid these areas.28 Sixth, in case of disputes, the United States should not submit itself to UNCLOS’ International Tribunal for the Law of the Sea.29 (p. 10)

24 Lawrence A. Kogan, “UNCLOS Alchemy,” November 2, 2008, linked from The Minority Report, http://www.theminorityreportblog.com/story/steven_foley/2007/11/02/unclos_alchemy_law_of_the_sea_treaty (accessed November 10, 2008).

28 Kogan, “UNCLOS Alchemy.”

(p.10)

...Ratification advocates believe that unless the United States ratifies the treaty, it will also lose the claims race for areas of the resource-rich Arctic and will lack representation in various United Nations committees designed to administrate the treaty’s broad enterprises. (p.11)

Energy companies currently operating on Alaska’s North Slope and in the Beaufort Sea who advocate UNCLOS ratification want to extend their drilling fields and exclusively secure the resources along, and eventually beyond, the continental shelf. Exemplifying their enthusiasm, Chukchi Sea leases fetched a record $2.6 billion at a February 2008 auction.35 UNCLOS provisions allow a nation to claim exclusive seabed mineral rights up to 350 nautical miles from its shoreline if its continental shelf extends beyond the current 200-nautical-mile EEZ (depicted for the United States, Canada, Denmark, Norway and Russia by the bold line in Figure 3). (p. 11). Nations must submit claims for co ntinental shelf rights beyond the 200-nautical-mile limit to the Commission on the Limits of the Continental Shelf (CLCS).36 Such claims must be submitted within ten years of treaty ratification. They may also apply for licenses to claim mineral resources beyond national limits in the deep seabed through the International Seabed Authority (ISA). (pp. 11-12).

However, the 2008 USGS data suggest ratification may not be necessary to secure the vast majority of U.S. energy interests. The majority of undiscovered oil and natural gas resources likely lie along the continen tal shelf, within nations’ current EEZs, rendering claims to the CLCS and ISA unnecessary to harvest those resources.38 T he Arctic Alaska province contains 30 BBO and 221 TCF of natural gas, all within the U.S. EEZ. The province also likely contains an undiscovered 5.9 billion barrels of natural gas. .liquids (BNGL). (p.12)

All total, the estimated sum of undiscovered energy in the province equals 72.77 billion barrels of oil and oil-equivalent natural gas (BOE).39 Claims submitted under UNCLOS provisions could increase the U.S. stake for resources in only one area, the Amerasian Basin province, to a limited degree. The USGS study indicates that 9.7 BBO, 56.89 TCF of natural gas, and 0.54 BNGL lie undiscovered in the province. However, the highest concentrations of these resources likely exist along the Canadian and U.S. (Alaskan) continental shelves. Compared to the 72.77 BOE suspected to lie within the Arctic Alaska province, 19.75 BOE likely lies within the Amerasian Basin. The vast majority of that 19.75 BOE lies within the Canadian and U.S. EEZs, therefore little remains available for the United States to claim.40 A U.S. claim submission to the CLCS to extend economic rights could increase total U.S. energy reserves, but only by a miniscule amount according to the most current USGS appraisal. Additionally, under UNCLOS, a claim beyond the current U.S. EEZ would require a license fee, making the scant amount of additional resources even less economically attractive.41 (pp. 12-13).

...The United States also needs to carefully measure the effectiveness of UNCLOS in its current form to meet U.S. Arctic policy objectives without jeopardizing other national interests and objectives abroad. Freedom of navigation issues, for example, put NSPD-66/HSPD-25 objectives at odds with its own recommendations. While the joint policy directive recommends ratifying UNCLOS, it also explicitly seeks to preserve U.S. freedom of navigation “rights throughout the world, including through strategic straits” and claims the “regime of transit passage” for international navigation through the Northwest Passage and Northern Sea Route.42 (p.13).


Canada, meanwhile, invokes U.N. rulings in other parts of the world to justify claiming portions of the Northwest Passage as internal waters.43 In this light, building the legal regime strategy block requires a cautious balancing act to maximize achievement of all U.S. interests.44. (pp. 13-14).

Having examined the UNCLOS arguments, it is time to analyze the three options that use UNCLOS as the basis for a legal regime. In Option 1 (Modification), the United States seeks to modify, then ratify the convention. In Option 2 (Ratification), the U.S. Senate ratifies UNCLOS in its current form. In Option 3 (Codification), the United States defines and codifies which provisions it treats as customary international law. (p.14)

Option 1, the most complex, requires modification submissions to the United Nations that may or may not prove acceptable to UNCLOS signatory nations. This process would likely be lengthy based on standard U.N. consensus building practices. The United States would require a special team of subject matter experts from each of the disputed topic areas to address all of the issues previously discussed. To gain greater bipartisan consensus, the team should also include knowledgeable representatives from Senator Inhofe’s and other ratification foes’ offices and appropriate legal experts. The team must thoroughly review all UNCLOS provisions questioned by ratification foes and then codify a comprehensive and detailed update proposal to the convention that will gain U.S. Senate support.

All six issues previously identified by ratification opponents need to be addressed by examining and, where required, amending UNCLOS articles. Fees and taxes listed in Article 82 require elimination for U.S. businesses to avoid unfavorable treatment with respect to businesses of developing nations. Transfer of technology provisions listed in Article 144 require modification to avoid mandates of U.S. technology transfer, .especially dual-use technology transfer, to potentially anti-U.S. or rogue actors. Articles 61 through 69 require modification to preclude sovereignty infractions regarding U.S. EEZ fisheries and marine life harvests. Articles 47 through 53 require clarification or changes in order to not limit naval vessels’ practices deemed vital to U.S. security. Articles 224 through 227 require review to ensure USCG and Navy operations are not unduly impeded, especially in an era of active counter-proliferation and increased piracy. Article 236 needs legal review to ensure, and perhaps broaden, USCG and Navy vessels’ immunity from UNCLOS legal provisions. Finally, Part XI of UNCLOS requires a thorough review and modifications to prevent international authorities, courts and tribunals from unduly overriding U.S. sovereignty.


If the team’s proposed adjustments, approved by appropriate U.S. authorities, prove acceptable to the United Nations, then the U.S. Senate should ratify the modified UNCLOS and the United States recognize all provisions as treaty law. This provides a common legal regime for all Arctic nations to stake claims and enforce the rule of law in this rapidly emerging region of importance. This option, though the most time consuming and potentially difficult to achieve, provides a path to minimum conflict and maximum international legitimacy. Fundamentally, it fully achieves all related U.S. Arctic policy objectives to the maximum extent possible. (pp. 14-15)

Option 2 requires U.S. Senate ratification of the current treaty, but may prove politically difficult to obtain because senate ratification requires 67 votes, and this support may not currently be available. If ratified, UNCLOS becomes treaty law common to all ratifying nations. Option 2 also maximizes the potential of U.S. energy interests in the Arctic, but cedes aspects of U.S. sovereignty throughout the world in some of its articles as mentioned earlier. While most U.S. government agencies recommend treaty ratification, political sensitivities as espoused by Senator Inhofe and his supporters may prevent or at least delay it. It remains to be seen if the 2009 presidential administration and congressional changes will overcome the opposition. (pp. 15-16)

Option 3 achieves most, if not all, U.S. economic objectives according to the most recent USGS data and protects U.S. sovereignty, but falls short of providing an international legal regime completely common to all Arctic states. The United States already treats most UNCLOS provisions as customary international law. This option maintains the status quo, but requires the United States to codify which UNCLOS provisions it recognizes as law and which provisions it rejects in order to provide legal transparency in lieu of a completely common legal regime. With Option 3, the United States continues to pursue all resources within its EEZ and operate abroad as it currently does without ceding sovereignty. It simultaneously pursues bilateral agreements with Russia and Canada to resolve its Bering Strait and Beaufort Sea disputes, respectively, with each nation.


This option potentially casts the United States as a “unilateralist” nation since it does not achieve the common legal regime championed by the United Nations and those nations who have already ratified the measure. It could reinforce a negative image among certain governments and anti-U.S. groups. For example, these actors may disparage the United States in the same manner they do regarding the Kyoto protocols. (p. 16)


While Option 3 does not create a common international legal regime, it does clarify America’s view and buys time to pursue Option 1. This transparency could alleviate potential conflicts regarding territorial and resource claims in the Arctic and naval freedoms throughout the world. At least other nations would know the United States’ position regarding every UNCLOS provision. Option 3 provides flexibility since it may represent the United States’ final position regarding UNCLOS or just fill the gap until achieving Option 1 in the future. It could be a steppingstone while seeking a politically acceptable option that better achieves a common legal regime. (pp. 16-17)

...Based on the preceding analysis, this paper recommends Option 1 (Modification). It provides the best solution using UNCLOS as a foundation to provide a legal regime for an Arctic strategy. It maximizes U.S. energy and sovereignty objectives at stake while achieving a common international legal regime that is politically acceptable. The other two options fall short.


Option 3 (Codification) nearly maximizes U.S. energy objectives while maintaining sovereignty, but fails to provide a truly common legal regime. In the interim, however, Option 3 could possibly be used to minimize potential conflicts while pursuing Option 1.


Finally, Option 2 (Ratification) maximizes U.S. energy interests and legal regime compatibility, but the expense of ceding sovereignty makes it politically unpopular and strategically inferior. It clearly provides the least favorable solution. In fact, Option 2 would likely hinder achieving some of the global objectives explained in NSPD-66/HSPD-25. (p. 17)


...Conclusion


...This paper provides the foundation for strategy makers to move toward an Arctic strategy. It examines the major regional stakes primarily related to economic opportunities created by climate change. Using the newly approved Arctic objectives identified in NSPD-66/HSPD-25, it analyzes three legal regime options and two. combatant command options. It then recommends modifying UNCLOS to achieve a common international legal regime and modifying the UCP to incorporate a circumpolar perspective for maximizing unity of effort throughout this emerging region of importance. In total, this paper aims to spawn vigorous efforts to rapidly design and codify a comprehensive strategy to achieve U.S. Arctic objectives. (pp. 23-24)

CFR Report Uses Climate Change, Piracy & Continental Shelf as Bogeymen to Promote UNCLOS Ratification Without Congressional Hearings

http://www.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf

The National Interest and the Law of the Sea


By


Scott G. Borgerson


Council on Foreign Relations Special Report No. 46


May 2009


Foreword

..."Among other things, the report argues, accession to the convention would secure rights for U.S. commercial and naval ships, boost the competitiveness of American firms in activities at sea, and increase U.S. influence in important policy decisions, such as adjudications of national claims to potentially resource-rich sections of the continental shelf."


...Richard N. Haass
President
Council on Foreign Relations
May 2009


[THIS REPORT MAKES A SERIES OF UNSUBSTANTIATED CLAIMS THAT CAN BE EASILY DEBUNKED AS 'MYTHS'.]


[The only UNCLOS truth which the CFR Report speaks about is that set forth immediately below. Otherwise, there are at least 3 UNCLOS Myths they have promoted.]


" UNCLOS ENVIRONMENTAL" TRUTH

"Protection of the marine environment was a core U.S. objective during the Law of the Sea negotiations...The convention’s living-resources articles create a framework for international cooperation in the sustainable management of fish stocks and the conservation of marine mammals...The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles... create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life." (pp. 29-30)


[CFR Report MYTH #1]


"Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention."


"Oceans are among the first casualties of increased greenhouse-gas emissions. In preindustrial times, the oceans released an amount of carbon that roughly equaled the quantity they absorbed. But with rising levels of atmospheric CO2, the seas are being asked to absorb more carbon than ever before, a process that has already increased the acidity of ocean surface waters by approximately 30 percent.21 It is projected that global surface pH will decrease by a further 40 percent to 120 percent by the end of the century,22 at which point the amount of CO2 in the ocean will exceed levels seen at any time in the last three hundred million years."


"Strategic Imperatives"


"Acidification carries with it the potential to devastate ocean ecosystems. 23 It will deprive marine animals of access to the calcium carbonate many of them require, weakening the formation of calcium carbonate shells. Commercially fished species that will be directly affected include corals, mussels, oysters, lobsters, and crabs. More important, however, is the likely impact on many species of small planktonic plants and animals that are crucial to marine food webs. In short, acidification has the potential to transform ocean life, and its impact is already being felt by America’s marine environment."


"A related consequence of climate change is ocean warming. The absorption by the ocean of excess heat in the atmosphere elevated ocean temperatures in the upper 700 meters by 0.1 degree Celsius between 1961 and 2003.24 That ostensibly small temperature rise over such a vast expanse of water is, in fact, potentially devastating not only to ocean life but to life in general, because of the role ocean temperature plays in driving the planet’s climate. The oceans store huge amounts of heat and distribute it across the globe. Even small changes in ocean temperature will have consequences for how that process occurs. As the oceans continue to warm, both the frequency and the intensity of hurricanes are predicted to increase. Scientists also predict more extreme maximum temperatures and more frequent heavy precipitation.25"


"Change is happening most rapidly, and can be seen most vividly, in the Arctic. The Arctic Ocean is the least understood of all the world’s oceans, but we know it is warming at approximately twice the rate of the rest of the oceans. That is causing the rapid retreat of Arctic sea ice. In September 2007, the minimum ice extent at the end of summer was 23 percent lower than what it had been in 2005, the previous record low, and 50 percent lower than was typical in the 1950s through the 1970s.26 Scientists from the National Snow and Ice Data Center and the National Center for Atmospheric Research have found that Arctic sea ice is melting even faster than models have projected, giving rise to predictions that the Arctic might be seasonally ice free as soon as 2013, and possibly earlier. Such rapid change will lead to the local loss—or, in some cases, complete extinction—of certain Arctic species. Ice-associated marine algae and amphipods provide the base of the unique food web that includes a rich variety of invertebrates, fish, and birds. Ice-dependent ocean mammals, such as bowhead whales, narwhals, polar bears, ringed seals, and walruses, will also be directly affected by loss of habitat. The changes in the extent of Arctic sea ice will also have profound consequences for the world’s climate, increasing the retention of solar heat and reducing the vital temperature gradient between the warmer tropics and colder polar regions, thus altering ocean currents and weather patterns throughout the Northern Hemisphere."


"Attempts to mitigate climate change are the subject of separate international discussions. There is a strong argument to be made that acceding to the Law of the Sea Convention would strengthen America’s diplomatic hand in those negotiations. Quite apart from that, however, the far-reaching changes to ocean ecosystems that are occurring as a result of climate change provide an answer to the question “Why now?” Full U.S. participation in the convention is vital as the international community adjusts to a rapidly changing ocean environment. The need to find ways to help humankind adapt to a changing climate will become increasingly important. Efforts to restore the natural resilience of marine ecosystems and species through their protection, maintenance, and restoration will be a central part of that effort. Given the geopolitical context of the Arctic region, U.S. leadership will be crucial."


"The Arctic offers a particularly sobering environmental imperative. As its ecosystem comes under increasing strain from climate change, melting sea ice will expose it to unprecedented pressures that will accompany increased human access. Concerted international engagement to ensure effective and integrated ecosystem-based management of human activities in the Arctic is essential. Acceding to the convention would help the United States advance new governance initiatives in this important region, such as shipping-traffic schemes through the Bering Strait, coordinated sea route authorities, and possibly even the establishment of a marine scientific park at the North Pole. The convention provides solid legal bedrock on which to build elegant and effective governance structures for the future Arctic."


"As the Law of the Sea regime becomes more entrenched, the international organs it has created are becoming more important policymaking centers. The continued absence of the United States from this international management regime deprives the United States of the opportunity to exercise environmental leadership over nearly three quarters of the earth. Joining the convention would permit the United States to become the main force for responsible ocean stewardship at this critical juncture, rather than see the fate of the oceans determined by other players..." (CFR Report at pp. 29-32)


[UNFORTUNATELY, THIS CLAIM IS UNTRUE, AS EXPLAINED BELOW.]


[UNCLOS REALITY #1 - COUNTERING CFR REPORT]


[Apparently, during its final twenty-four months, the legacy-oriented Bush administration had sought to secure U.S. ratification of the UN Law of the Sea Convention for the alleged purpose of preserving the ocean’s critical ability to absorb atmospheric carbon dioxide. According to at least one prominent scientist who was formerly a member of the United Nations Intergovernmental Panel on Climate Change (IPCC), this effort was not only ill-advised but also without scientific foundation. "Since geologic processes ultimately determine the level of atmospheric CO2," the director of the Geological Museum at the University of Oslo, formerly an expert reviewer with the IPCC, argues that IPCC scientists must acquire the [geologic] knowledge that is central to understanding climate change ..."to avoid making fundamental mistakes"...[W]ith the advent of IPCC-influenced science, the length of time that carbon stays in the atmosphere became controversial. Climate change scientists began creating carbon cycle models to explain what they thought must be an excess of carbon dioxide in the atmosphere. These computer models calculated a long life for carbondioxide. Amazingly, the hypothetical results from climate models have trumped the real worldmeasurements of carbon dioxide’s longevity in the atmosphere. Those who claim that CO2 lasts decades or centuries have no such measurements or other physical evidence to support their claims...In the real world, as measurable by science, CO2 in the atmosphere and in the oceanreach a stable balance when the oceans contain 50 times as much CO2 as the atmosphere. "The IPCC postulates an atmospheric doubling of CO2, meaning that the oceans would need to receive 50 times more CO2 to obtain chemical equilibrium," explains Prof. Segalstad. "This total of 51 times the present amount of carbon in atmospheric CO2 exceeds the known reserves of fossil carbon—it represents more carbon than exists in all the coal, gas, and oil that we can exploit anywhere in the world." ]


[See: Lawrence Solomon, Models Trump Measurements, CAN. FIN. POST (July 7, 2007), available at: http://www.financialpost.com/story.html?id=433b593b-6637-4a42-970b-bdef8947fa4e&p=2 ].

[We are doomed, say climate change scientists associated with United Nations Intergovernmental Panel on Climate Change, United Nations body organizing most climate change research occurring world today. Carbon dioxide man-made sources rises atmosphere then stays 50, 100, even 200 years. unprecedented buildup CO2 then traps heat would otherwise escape atmosphere, threatening us all.

"This nonsense," says Tom V. Segalstad, head Geological Museum University Oslo formerly an expert reviewer with same IPCC. He laments paucity geologic knowledge among IPCC scientists – knowledge central understanding climate change, view, since geologic processes ultimately determine level atmospheric CO2.

"The IPCC needs lesson geology avoid making fundamental mistakes," he says. "Most leading geologists, throughout world, know IPCC's view Earth processes are implausible if not impossible."

Catastrophic theories climate change depend on carbon dioxide staying atmosphere long periods time – otherwise, CO2 enveloping globe wouldn't dense enough keep heat in. Until recently, world science near-unanimous CO2 couldn't stay atmosphere more than about five 10 years because oceans' near-limitless ability absorb CO2.

"This time period has been established measurements based on natural carbon-14 readings carbon-14 nuclear weapons testing, has been established radon-222 measurements, has been established measurements solubility atmospheric gases oceans, has been established comparing isotope mass balance, has been established through other mechanisms, too, over many decades, many scientists many disciplines," says Prof. Segalstad, whose work has often relied upon such measurements.

Then, with advent IPCC-influenced science, length time carbon stays atmosphere became controversial. Climate change scientists began creating carbon cycle models explain what thought must an excess carbon dioxide atmosphere. These computer models calculated long life carbon dioxide.

Amazingly, hypothetical results climate models have trumped real world measurements carbon dioxide's longevity atmosphere. Those who claim CO2 lasts decades centuries have such measurements other physical evidence support their claims.

Neither can demonstrate various forms measurement are erroneous.

"They don't even try," says Prof. Segalstad. "They simply dismiss evidence is, intents purposes, irrefutable. Instead, substitute their faith, constructing kind science fiction fantasy world process."

In real world, measurable science, CO2 atmosphere ocean reach stable balance when oceans contain 50 times much CO2 atmosphere. "The IPCC postulates an atmospheric doubling CO2, meaning oceans would need receive 50 times more CO2 obtain chemical equilibrium," explains Prof. Segalstad. "This total 51 times present amount carbon atmospheric CO2 exceeds known reserves fossil carbon – represents more carbon than exists coal, gas, oil can explo anywhere world."

Also real world, Prof. Segalstad's isotope mass balance calculations – standard technique science – show if CO2 atmosphere had lifetime 50 200 years, claimed IPCC scientists, atmosphere would necessarily have half its current CO2 mass. Because nonsensical outcome, IPCC model postulates half CO2 must hiding somewhere, "a missing sink." Many studies have sought missing sink – Holy Grail climate science research – without success.

"It search mythical CO2 sink explain an immeasurable CO2 lifetime of hypothetical CO2 computer model purports show an impossible amount fossil fuel burning heating atmosphere," Prof. Segalstad concludes. "It [is] fiction." ].

See: Lawrence Solomon, The Deniers, Part XXIX: Models Trump Measurements, Urban Renaissance Institute website, accessible at: http://www.urban-renaissance.org/urbanren/index.cfm?DSP=content&ContentID=17666 . Lawrence Solomon is executive director of Urban Renaissance Institute Consumer Policy Institute, divisions Energy Probe Research Foundation].

[CFR REPORT MYTH #2]


"HOW REMAINING OUTSIDE THE CONVENTION DAMAGES U.S. NATIONAL INTERESTS"

"... The convention provides two essential and immediate components for responding to piracy off the coast of Somalia. First, the convention permits any state to arrest pirates, seize pirate vessels, and prosecute pirates in the courts of the interdicting naval authority. Second, and equally important, the convention protects the sovereign rights of ocean-going states that participate in antipiracy naval operations in the territorial seas of failed states such as Somalia. This is critical for building international naval flotillas for combating the growing pirate problem in the Indian Ocean..." (CFR Report at p. 33)

[UNCLOS REALITY #2 - COUNTERING CFR REPORT]

THE UNCLOS DOES NOT PROVIDE THE ESSENTIAL & IMMEDIATE COMPONENTS FOR [ADEQUATELY] RESPONDING TO PIRACY OFFSHORE']

["Article 110 of the U.N.'s Law of the Sea Convention -- ratified by most nations, but not by the U.S. -- enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates. A recent U.N. Security Council resolution allows foreign navies to pursue pirates into Somali waters -- provided Somalia's tottering government agrees -- but the resolution expires next week. As for the idea of laying waste, Stephen Decatur-like, to the pirate's prospering capital port city of Eyl, this too would require U.N. authorization. Yesterday [November 24, 2008], a shippers' organization asked NATO to blockade the Somali coast. NATO promptly declined".].


[See: BRET STEPHENS, Why Don't We Hang Pirates Anymore?, Wall Street Journal Op-ed (Nov. 25, 2008) at: http://online.wsj.com/article/SB122757123487054681.html?mod=djemEditorialPage ].


["[T]he navies say it is virtually impossible to patrol the vast sea around the gulf. NATO has ruled out a blockade. 'Blocking ports is not contemplated by NATO,' said NATO Secretary General Jaap de Hoop Scheffer in Brussels. U.N. Security Council resolutions 'do not include these kind of actions and as far as NATO is concerned, this is at the moment not on the cards,' he said..."]

[See: EILEEN NG, NATO Rejects Call for Blockade Along Somali Coast, Associated Press (Nov. 24, 2008) accessible at: ITSSD Journal on the UN Law of the Sea Convention (Nov. 2008) at: http://itssdjournalunclos-lost.blogspot.com/2008/11/futility-of-relying-upon-unclos-to.html ].

["'The authorities these days have a real problem because of international law...As in the days of the Caribbean pirates, everything is on the pirates' side'. says Dr David Cordingly Maritime writer."

"These days, there is no question of a bombardment of the port of Eyl, the main pirate base on the Somali coast. That might be the most effective response but it would require a UN Security Council resolution."

"There is a resolution (1838, passed in October [2008]) which authorises the use of 'necessary means', meaning force if need be, to stop piracy in international waters. There is also another resolution (1816) which allows anti-pirate operations within Somali waters, but only with the agreement of the Somali transitional government. But even all these operations have to be conducted within international law, defined in this case as the provisions of the UN Law of the Sea Convention."

"The Law of the Sea Convention places limitations on daring action. Under Article 100 of the convention a warship has first to send an officer-led party to board a suspected pirate ship to verify any suspicions."


"The warship cannot just open fire. Any inspection has to be carried out 'with all possible consideration'. That sounds rather tentative...'The authorities these days have a real problem because of international law. There are measures ship owners can take like having fire hoses to aim at the pirates, acoustic devices to hurt their hearing or electric fences but, as in the days of the Caribbean pirates, everything is on the pirates' side".]

[See Paul Reynolds, Rules Frustrate Anti-Piracy Efforts, BBC News (Nov. 19, 2008) at: http://news.bbc.co.uk/2/hi/africa/7735144.stm .]


["Summary - Articles 100 to 107 of the 1982 Convention merely allow the community of states to take police action at sea but not to prosecute offences. On the high seas, this right is reserved for the individual states and based on their national law."

"The 1982 Convention in itself is not sufficient to ensure adequate protection against piracy. Since the offence is restricted to the high seas, many cases do not qualify as piracy, for some 80% of all attacks occur in territorial waters and in ports."

"A further shortcoming of the 1982 Convention is that an attack only qualifies as piracy according to the Convention’s own definition if it is committed for “private purposes”. The rights of intervention granted by the 1982 Convention therefore do not encompass the growing number of terrorist acts."

"Furthermore, Article 100 of the 1982 Convention obliges the states to work together in the fight against piracy. That, however, does not mean that the states are under any obligation to incorporate standards penalising piracy in their legal systems."

"The term 'piracy' was defined by the Geneva Convention on the High Seas in 1958. This definition was adopted by the 1982 [UN] Convention [on the Law of the Sea UNCLOS]."

"For acts of violence against ships, persons, or property on board to be classified as piracy in accordance with Articles 101 and 102 of the 1982 Convention, the following conditions must all be met simultaneously:

The act of violence must be:

– committed by the crew or passengers of another vessel,

– illegal and serve private purposes,

– and it must be committed on the high seas or at a place not subject to state sovereignty."

"Article 101 of the 1982 Convention defines the act of piracy very narrowly. Politically motivated acts, such as terrorist attacks, are not included according to the 1982 Convention."

"The definition is unclear on the meaning of the word 'illegal'. It is left to the courts of the prosecuting countries to decide whether the act is to be designated “illegal” according to international law or according to the national law of the prosecuting countries."

"...Right of intervention against piracy"

"Article 110 of the 1982 Convention...grants warships the right to stop other vessels for the purpose of verifying their right to fly a flag. However, this is not a general right. It must be based on certain reasons, such as the suspicion of piracy, slave trading, or statelessness. The warship may send a so-called boarding team on board the stopped vessel in order to verify its right to fly the flag. The vessel may be searched if the suspicion is confirmed after inspecting the ship’s papers (Article 110, paragraph 2, 1982 Convention). When exercising this right, however, the commanding officers must remember that, if the suspicion proves to be unfounded, Article 110, paragraph 3 of the 1982 Convention stipulates that the shipping company be reimbursed for all losses incurred."

"...According to the first sentence of Article 105 of the 1982 Convention, every state may take action against pirates (arrest and seizure) at any time in international waters (= high seas and waters not controlled by any state)."

"The second sentence of Article 105 states that the courts of the state which has seized the vessel (i.e. whose colours are being flown) can also decide on the penalties to be imposed and on the action to be taken with regard to the vessel or property..."

"...At the same time, Article 105 of the 1982 Convention specifies that a pirate ship cannot be pursued further once it has reached national waters."

"Article 107 of the 1982 Convention, however, restricts the right of such intervention in international waters to warships or 'other ships which are clearly marked and identifiable as being on government service and are authorized to that effect'.

– Exception: 'consent of the flag state'..."

[See: Munich Re Group ((c) 2006), Piracy - Threat at Sea: A Risk Analysis, at pp. 24-27, accessible online at: http://www.munichre.com/publications/302-05053_en.pdf . ]

[THERE IS ACTUALLY A BETTER LEGAL INSTRUMENT, BUT IT, TOO, HAS LIMITATIONS. - The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1988 (SUA Convention)]

["...The purpose of the SUA Convention was to fill the loopholes of the 1982 Convention. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was signed in Rome on 10 March 1988 and was prompted by the Achille Lauro incident in 1985...By 30 April 2006, 135 states had acceded to the SUA Convention, including China, India, Japan, Korea, Vietnam, and Nigeria."

"…Summary

Although not all the loopholes of the 1982 Convention have been filled, the SUA Convention does constitute a further step towards repressing violence at sea. It compels states to make more efficient use of national legal standards. The signatories must exercise jurisdiction against all suspected offenders or extradite them. Unfortunately, however, this still does not mean that the offenders will also be punished."

"…Definition of piracy according to the SUA Convention"

"While the first two Articles of the SUA Convention are devoted to the scope and definition of a “vessel”, Article 3 and the following articles are concerned with the definition and response to illegal actions against maritime navigation."

"Among other things, illegal actions include the unlawful seizure of vessels, the attachment of materials to or installation of materials in vessels which could lead to damage or destruction of the vessel in question, and the killing of persons on board. Consequently, the SUA Convention, unlike the 1982 Convention, mainly relates to politically motivated terrorist acts. But it can also be applied to acts of piracy."

"In addition, it covers a significantly larger geographical territory than the 1982 Convention. According to Article 4 of the SUA Convention, the vessel can be at sea anywhere at the time of the illegal act – on the high seas, in the exclusive economic zone, in coastal waters – and also on inland waterways. However, the vessel must be in international transit at the time of the illegal act, i.e. it must have come from a foreign territory or from the high seas or it must be passing through or heading for such areas at the time of the illegal act."

"A loophole arises if the vessels only transit the territorial waters of one state – but that loophole could be filled by national laws."

"Right of intervention permitted by the SUA Convention"

"Unlike the 1982 Convention, the SUA Convention does not grant any powers to take action against pirates and avert pirate attacks. Only the flag state (under the so-called flag state principle) and the state whose coastal waters are being transited by foreign vessels (territoriality principle) or whose citizens commit the offence (personality principle) have the right to take such action...This means that the SUA Convention, like the 1982 Convention, does not provide states with any right to pursue offenders in the territorial waters of other states..."

"...Criminal prosecution"

"Unlike the 1982 Convention, however, the SUA Convention does provide a legal foundation for the prosecution of pirates. Article 7, paragraph 1, SUA Convention obliges the treaty states to detain suspected persons in their territory or to take other measures to prevent their escape. This applies until criminal proceedings or extradition proceedings are instituted..."]

[“IMO Maritime Safety Committee Circulars 622/Revision 1 of June 16, 1999 and 623/Revision 3 of May 29, 2002 provide recommendations to governments and guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. These publications emphasize self-protection measures, reporting events, and coordination among countries.”

“…The IMO initiatives establish a framework under which ship operators take their own precautions to protect themselves against piracy. The Somali situation has given rise to a number of specific recommendations, including:

• Transiting at high speed to outrun attackers. An option for certain ships, such as container ships, but not others, such as tankers.
• Take the long road around Africa. Adds time and expense and will be less attractive in Southern Hemisphere winter.
• Discourage or repel attackers by using long-range acoustical devices ($20,000 to $30,000 apiece), raising boarding ladders, dangling fire hoses over the side or installing razor wire at access points.
• Call for help and either lock the crew up or use Molotov cocktails, beer bottles and other missiles until rescue forces arrive.”

“There is also the much-discussed delicate question of the use of force by vessel operators or their contractors. Testifying before Congress in early February, Rear Adm. William D. Baumgartner, judge advocate general of the U.S. Coast Guard, said, ‘The U.S. government does recognize that that’s an option available to a shipowner’, although one that ‘has to be thought out very carefully in advance’.”]

[See: K&L Gates, Legal Issues and Somali Piracy: A Maritime Whitepaper, The Journal of Commerce (April 27, 2009) at p. 16, at: http://www.joc-digital.com/joc/20090427/?pg=16 ].

[“Prior to the current situation in Somalia, anyone with even a passing familiarity with UNCLOS would have thought – correctly – that international law was very simple and clear on the subject of piracy. A distinguished international law scholar who is an expert on UNCLOS and the SUA Convention wrote to us that: ‘[UNCLOS] contains very clear provisions on this matter. It is for the states parties to the Convention to implement these provisions and that is where the major problem seems to lie. Furthermore, there are certainly complicated legal and practical issues in bringing pirates arrested off the coast of Somalia to trial in countries far away from the region.’”

“Somali pirates have illustrated these practical shortcomings of the legal system. U.S. Navy Vice Adm. William Gortney, commander of the U.S. Fifth Fleet and of the Combined Maritime Forces who directed the establishment of the Maritime Security Patrol Area and established Combined Task Force 151, indicated in a Pentagon briefing earlier this year that without orders to capture pirates and a procedure to turn them over for prosecution somewhere, there is a serious gap in the arsenal of anti-piracy measures. This admission should have been a surprise to no one.”

“…IMO MSC/Circular 622/Revision 1 addresses criminal jurisdiction by recommending that countries prosecuting persons apprehended at sea outside the territorial seas of any country should do so under mutual agreement with other substantially interested countries. This is consistent with a provision in UNCLOS that the actions of a state that seizes a pirate ship are “subject to the rights of third parties acting in good faith.” Additionally, IMO Resolution A.922(22) adopted a Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships.”]

[See: K&L Gates, The Pirates of Puntland: Practical, Legal and Policy Issues in the Fight Against Somali Piracy (March 2009), at p. 5, at: http://www.klgates.com/files/Publication/ac22f46f-de64-41d5-a99c-8566b961c41e/Presentation/PublicationAttachment/fbdacf5a-55e1-408d-833b-a4bc8a15dc70/3_09_The_Pirates_of_Puntland.pdf ].

[CFR REPORT MYTH #3]

"The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sovereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic. This is especially urgent this year, as the commission will review an influx of claims expected in May 2009, the deadline for twenty-six states to make their submissions based on the procedural clock that began ticking when they ratified the convention. (The United States would have ten years to make its claim if it were to join the convention.)" (CFR Report at pp. 33-34)


[UNCLOS REALITY # 3 - COUNTERING CFR REPORT]

UNCLOS RATIFICATION IS NOT NECESSARY FOR U.S. TO EXTEND ITS CONTINENTAL SHELF

§

The ‘‘as soon as possible but in any case within 10 years of the entry into force of this Convention for that State’ language of Art. 4 of Annex II and the drafting history of UNCLOS suggests that it was not intended to accord this right to States that are not parties to the Convention.”


"...The rules concerning continental shelf entitlement and outer limits contained in article 76 of the Convention have attracted broad support in State practice, also from States that have not signed or ratified the Convention. A difference between article 76 of the Convention and customary international law is that in the latter case there does not exist an obligation (or a right) to make a submission to the CLCS concerning the outer limits of the continental shelf. One of the implications of this distinction would seem to be that outer limits established on the basis of customary international law may not as easily gain the same amount of recognition as outer limits established in accordance with the procedures under article 76."


"One option to address this issue would be for a third State to make a submission to the CLCS... It can be observed that the CLCS has requested the SPLOS for clarification and/or possible recommendation whether:


In the light of article 4 of annex II to the Convention, do the terms "a coastal State" and "a State" include a non-State party to the Convention, or do they only refer to a coastal State or a State which is a State party to the Convention? (Letter Dated 12 March 1998 from the Chairman of the Commission on the Limits of the Continental Shelf Addressed to the President of the Eighth Meeting of States Parties (Doc. SPLOS/26 of 12 March 1998), para. 5)."


"It is not clear if such a right has been accorded to non-parties under the Convention. Rights can be accorded to non-parties to a treaty by the parties under the treaty. However, it is questionable whether the Convention accords a right to third States to make a submission to the CLCS. Such a right would have to be stated in a sufficiently clear manner and there has to be an intention on the part of the States that have drawn up the instrument concerned to accord a right and an acceptance of the right by the third State."


"Article 4 of Annex II to the Convention provides that a coastal State shall make a submission ‘as soon as possible but in any case within 10 years of the entry into force of this Convention for that State’. This language indicates that the time frame for making of a submission is linked to the date of entry into force of the Convention for a State. This suggests that it was not intended to accord this right to States that are not parties to the Convention. This language in any case does not seem to meet the criteria set out by the Permanent Court in the Free Zones case."


"...As was observed by the Permanent Court of International Justice in the Free Zones of Upper Savoy and the District of Gex case:


It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such ([1932] Permanent Court of International Justice, Series A/B No. 46, at 147)."


"The drafting history of the Convention provides support for the interpretation that Article 4 of its Annex II was not intended to accord a right to third States. The acceptance of the compromise concerning the extent of the continental shelf in article 76 was based on the inclusion in the Convention of article 82 on revenue sharing in respect of the outer continental shelf. Article 82 has not created an obligation for third States."

“...In this light, it would seem desirable that the consideration of the question by the States parties to the Convention to accord third States the right to establish the limits of their outer continental shelf in accordance with the procedures under article 76 is linked to the acceptance by these States of the obligation concerning revenue sharing under article 82 of the Convention.”

[See International Law Association Berlin Conference (2004) – Legal Issues of the Outer Continental Shelf, at pp. 29-31, at: http://www.ila-hq.org/download.cfm/docid/B5A51216-8125-4A4B-ABA5D2CAD1CF4E98 ; International Law Association Toronto Conference (2006) – Legal Issues of the Outer Continental Shelf, at pp. 20-21, at: http://www.ila-hq.org/download.cfm/docid/435A6BA1-4F85-47B3-9ED23A6F64924414. See also generally Atsuko Kanehara, The Revenue Sharing Scheme with Respect to the Exploitation of the Outer Continental Shelf under Article 82 of the United Nations Convention on the Law of the Sea —A Plethora of Entangling Issues, Presented at Seminar on the Establishment of the Outer Limits of the Continental Shelf beyond 200 Nautical Miles under UNCLOS—Its Implications for International Law (Ocean Policy Research Foundation (Feb. 27, 2008), at: http://www.sof.or.jp/en/topics/pdf/aca.pdf ].

"While UNCLOS ratification would likely enable the U.S. “to appoint someone to the continental shelf commission and have a seat at the table when Law of the Sea-related negotiations are taking place...The United States is not going to be deprived of a seat at the table even if it is not a treaty member... So a virtual or indirect seat will be found, in some way or another...(though one of 21 votes probably makes no difference).” See Eric Posner, The Race to the Arctic and International Law, The Law School Faculty Blog, University of Chicago (Aug. 13, 2007), at: http://uchicagolaw.typepad.com/faculty/2007/08/the-race-to-the.html ].

[Continental Shelf Commission determinations are NOT binding. If countries refuse to accept them, they will likely end up in dispute with each other, and subsequently, arbitration/litigation, unless the opt-out provision is invoked. (See: UNCLOS Arts. 76(8) and (10) and 298(1)(a)(i)). And the Commission cannot rule on rule on territory claimed by more than one state, which is subject to dispute resolution. (See UNCLOS Art. 83)].

Where is Obama's & Kerry's Promised Governmental Accountability as Concerns the UN Law of the Sea Convention Ratification Process?

http://www.nytimes.com/gwire/2009/05/07/07greenwire-sen-kerry-looks-for-window-to-ratify-law-of-th-12208.html

CSI [Cetecean Society International]

Whales Alive! - Vol. XIII No. 3 - July 2004

"Director Emeritus Dr. Robbins Barstow in Washington office of Massachusetts Senator John Kerry, on April 28, 2004 lobbying mission for the United Nations Law of the Sea Treaty. Kerry, the presumed Democratic candidate for President in this year's critical election, has one of the strongest environmental voting records of any U.S. Senator and has been a long-time supporter of the treaty.

...CSI Lobbying Efforts

On April 28, at the request of the CSI Board of Directors, I went to Washington and personally visited the offices of five United States Senators to urge support for immediate Senate action on the UN Law of the Sea Treaty..."

Sen. Kerry looks for window to ratify Law of the Sea

By ALLISON WINTER, Greenwire

New York Times - Energy and Environment


May 7, 2009

Senate Foreign Relations Chairman John Kerry (D-Mass.) is crafting a strategy to ratify the long-stalled Law of the Sea Treaty this year -- a move that ocean and foreign policy experts say is increasingly important as climate change reshapes the Arctic.

Kerry said this week that he is working to find time for a hearing and votes on the treaty, which governs navigation, fishing, economic development and environmental standards on the open seas.

"I hope we're ready to ratify it. I am going to do everything in my power, but I want to do it on the right schedule," Kerry told reporters. "We're sort of working through that process carefully."

His remarks came after a "roundtable" that the Foreign Relations Committee hosted to get advice on the Arctic from experts on the region, ocean conservation advocates and foreign policy strategists. Among the panelists' many recommendations to address the drastic changes in the Arctic economy and ecosystem, they listed the Law of the Sea as paramount.

"The sea ice is melting faster than policy can keep up with it," said Scott Borgerson, a former Coast Guard instructor who is now a visiting fellow at the Council on Foreign Relations. "First and foremost, my strongest recommendation is to finally get on with it -- it is high time that the U.S. finally accedes to the Law of the Sea."

He added: "At all the conferences we go to we have to defend -- and it's impossible to defend, why the U.S. is not party to this treaty."

More than 150 other nations have ratified the U.N. Convention on the Law of the Sea. U.S. leaders have signed onto the agreement and the George W. Bush administration supported it, but several Senate conservatives have stymied its ratification.

Becoming a party to the 25-year-old international treaty would allow the United States to claim rights to mineral-rich portions of the Arctic seafloor. Experts told the Foreign Relations Committee that will be even more important as nations rush to make new claims in the Arctic.

[AS A MATTER OF CUSTOMARY INTERNATIONAL LAW, INTERPRETED BY THE U.S. GOVERNMENT CONSISTENT WITH THE UNCLOS, THE U.S. ALREADY HAS RECOGNIZED RIGHTS TO ALL MINERALS, OIL & GAS RESERVES AND MARINE GENETIC RESOURCES ON ITS CONTINENTAL SHELF AND WITHIN ITS 'EXCLUSIVE ECONOMIC ZONE'. THE U.S. NEED NOT RATIFY THE UNCLOS TO ASSERT THESE CLAIMS. ANY SUCH STATEMENT IS PATENTLY FALSE.]

"It is very clear the U.S. has to be a part of the Law of the Sea," said David Carlson, director of the International Polar Year program office.

[WHY, MUST THE U.S. IMMEDIATELY RATIFY THE UNCLOS WITHOUT HOLDING PUBLIC HEARINGS, MR. CARLSON???]

Recent studies have shown that Arctic sea ice has receded rapidly in recent years, leading to concerns about conflicts over environmental protection, control of recently opened waterways and access to natural resources as nations scramble to exploit the resource-rich region.

Nations bordering the Arctic are already making claims on the oil, gas and mineral-rich territory, but several disputes have already arisen over competing claims and witnesses warned lawmakers that more disputes would likely arise if stronger international policies are not developed.

Getting the votes

The treaty, first negotiated in the 1980s, has garnered an impressive, wide-ranging list of supporters -- including the Joint Chiefs of Staff, all living former chiefs of naval operations, four former secretaries of state, the heads of the American Petroleum Institute and the Natural Resources Defense Council, the U.S. Chamber of Commerce, and the governors of seven coastal states.

[THIS IS AN IMPRESSIVE LIST OF 'PERSONAGES'. BUT HOW MANY OF THEM KNOW VERY MUCH ABOUT THE PROVISIONS, REGULATIONS, PROTOCALS AND ANNEXES OF THE UNCLOS?? WE ARE CERTAIN THAT THERE ARE NOT MANY SUCH PERSONS.]

The treaty's backers are hopeful that after years of delay, the Senate may finally approve it this year.

Potentially helping it on that path is the solid Democratic majority in the Senate and advocates in the Obama administration. Secretary of State Hillary Rodham Clinton has said ratification is "long overdue" and will be a top priority. And Vice President Joe Biden was a major proponent of its ratification when he chaired the Senate Foreign Relations Committee.

While the Bush administration gave its support to the treaty, lobbyists and lawmakers who support the Law of the Sea said they expect the Obama administration might be more active in pushing for its approval.

"[Biden] understands it, and I hope he's going to be very -- part of the game plan," Kerry said.

The treaty also has a major advocate on the Republican side in Sen. Lisa Murkowski (R-Alaska). At the roundtable earlier this week, the ranking member of the Energy and Natural Resources Committee urged Kerry to schedule hearings on the treaty "expeditiously" and push the issue with the White House.

"I will help you," Murkowski told the chairman.

Kerry replied: "I hope you are going table to table in the Republican caucus."

[NEITHER KERRY NOR MURKOWSKI HAVE ANY RESPECT FOR THE U.S. CONSTITUTION, ITS BILL OF RIGHTS OR FOR AMERICANS AT LARGE. THEY ARE SELF-ABSORBED, POWER-HUNGRY POLITICIANS WHO BELIEVE THEY ARE ABOVE THE LAW OF THE LAND.]

It would take 67 votes to ratify the treaty. If all of the Democrats voted in favor, Kerry would only need to find eight more Republicans at present. Advocates for the bill say there are easily 80 votes in support of ratification, but the problem is finding time for it on the Senate floor. They hope that given that 2009 is not an election year, lawmakers might find a window.

"It's not a question of getting the votes to approve it, it's a question of time ... it's a parliamentary issue at this point," said Caitlyn Antrim, who tracks the issue for Rule of Law Committee for the Oceans.

Kerry said his aides are assessing the Senate agenda, timing, availability of witnesses and President Obama's timing in an effort to come up with a schedule for ratifying the treaty.

The Republicans who oppose the treaty would likely use Senate procedure to prolong the debate, meaning it could take up to a week of floor time. Indeed, one of the more vocal opponents of the treaty, Sen. James Inhofe (R-Okla.), said in an interview this week that he would "do all I could" to block the measure if it came to the Senate floor.

"It's called sovereignty. We seem to be in such a hurry to give up our sovereignty to multinational organizations; the Law of the Sea certainly fits into that," Inhofe said.

The treaty provides a framework for protection of the marine environment and claims on energy resources. The polar region contains 22 percent of the world's undiscovered but technically recoverable oil and gas, according to the U.S. Geological Survey, with about 84 percent of those deposits located offshore.

[YES, MOST CLAIMS ARE LOCATED OFFSHORE, BUT WITHIN THE U.S. 'EXCLUSIVE ECONOMIC ZONE' ALREADY RECOGNIZED AS BEING UNDER U.S. SOVEREIGN CONTROL BY THE WORLD. U.S. RATIFICATION OF THE UNCLOS WILL NOT CHANGE THIS.]

Among the countries that are already party to the treaty, there has been a recent rush in claims on the Arctic. The Commission on the Limits of the Continental Shelf -- a body of specialized undersea geographers and hydrographers established under the 1982 Law of the Sea Convention -- has seen its workload double from late last year, fulfilling its members' predictions of a backlog that could take years to resolve (Greenwire, April 13).

From 2001 through 2007, just nine claims were put forward as more advanced Law of the Sea Treaty countries surveyed their continental shelves. But since Japan issued its sweeping claim to Pacific Ocean territory last November, many smaller states have leaped into the fray. All told, the commission now has 36 applications.

[AND, THE COMMISSION IS ONLY STAFFED WITH PART-TIME EXPERTS WHO, ADMITTEDLY, ARE 'OVER THEIR HEADS' OR 'UNDER WATER' WITH COMPLEX CLAIMS. See: Continental Shelf Confusion Over Detritus Of The Deep, ITSSD Journal on the UN Law of the Sea Convention (March 2008) at:

http://itssdjournalunclos-lost.blogspot.com/2008/03/continental-shelf-confusion-over.html ].

Kerry said he has a personal interest in the issues facing the Arctic and recognizes the need for swift action: "This is very interesting to me. It is very challenging, but it is also very urgent. We need to get on this fast."

[YES. KERRY HAS A PERSONAL INTEREST IN ENSURING THAT THE U.S. ADOPTS EUROPE'S PRECAUTIONARY PRINCIPLE AS U.S. LAW, WHICH WILL HAVE THE EFFECT OF ABRIDGING THE U.S. CONSTITUTION AND ITS ACCOMPANYING BILL OF RIGHTS, ESPECIALLY THE RIGHT TO PROTECT PRIVATE PROPERTY.]


Copyright 2009 E&E Publishing. All Rights Reserved.

-------------------------------------------------------------------------------------------------

http://www.foxnews.com/politics/2009/03/12/lost-found-senate-moves-ratification-un-treaty

LOST and Found: Senate Moves Toward Ratification of U.N.'s 'Law of the Sea Treaty'

The Senate is gearing up to ratify a decades-old U.N. treaty that critics warn could create a massive U.N. bureaucracy that could even claim powers over American waterways.

By Joseph Abrams

FOXNews.com

Thursday, March 12, 2009

The Senate is gearing up to ratify a Nixon-era U.N. treaty meant to create universal laws to govern the seas -- a treaty critics say will create a massive U.N. bureaucracy that could even claim powers over American waterways.

LOST -- the U.N. Convention on the Law of the Sea, also called the Law of the Sea Treaty -- regulates all things oceanic, from fishing rights, navigation lanes and environmental concerns to what lies beneath: the seabed's oil and mineral wealth that companies hope to explore and exploit in coming years.

But critics say the treaty, which declares the sea and its bounty the "universal heritage of mankind," would redistribute American profits and have a reach extending into rivers and streams all the way up the mighty Mississippi.

[YES. THE UNCLOS' LAND, AIR & WATER-BASED SOURCES OF POLLUTION PROVISIONS WILL REQUIRE THE U.S. GOVERNMENT TO RE-LEGISLATE & RE-REGULATE THE CONTINENTAL UNITED STATES, CONSISTENT WITH EUROPE'S PRECAUTIONARY PRINCIPLE.]

The U.N. began working on LOST in 1973, and 157 nations have signed on to the treaty since it was concluded in 1982. Yet it has been stuck in dry dock for nearly 30 years in the U.S. and never even been brought to a full vote before the Senate.

But swelling approval in the Senate and the combined support of the White House, State Department and U.S. Navy mean LOST may be ready to unfurl its sails again.

Sen. John Kerry, chairman of the Senate Foreign Relations Committee, said during a January confirmation hearing that he intends to push for ratification. "We are now laying the groundwork for and expect to try to take up the Law of the Sea Treaty. So that will be one of the priorities of the committee, and the key here is just timing -- how we proceed."

[MR. KERRY, WHO IS ON THE RECORD FOR SUPPORTING U.S. ADOPTION OF EUROPE'S PRECAUTIONARY PRINCIPLE, A KIND OF 'OUTSOURCING' OF THE U.S. LEGISLATIVE FUNCTION TO EUROPEAN SOCIALIST BUREAUCRATS. MR. KERRY DOESN'T CARE ABOUT BEING ACCOUNTABLE TO THE AMERICAN PUBLIC, LET ALONE, TO HIS MASSACHUSETTS CONSTITUENTS.]

Secretary of State Hillary Clinton, saying the treaty is vital for American businesses and the Navy, told Kerry that his committee "will have a very receptive audience in our State Department and in our administration."

[MS. CLINTON HAS STILL NOT ARTICULATED A VALID REASON WHY IT IS VITAL.]

LOST apportions "Exclusive Economic Zones" that stretch 200 miles from a country's coast and establishes the International Seabed Authority to administer the communal territory farther out. The treaty's proponents say it clears up a murky legal area that has prevented companies from taking advantage of the deep seas' wealth.

[THE U.S. ALREADY RECOGNIZES THE 200 MILE 'EXCLUSIVE ECONOMIC ZONE' AS A MATTER OF CUSTOMARY INTERNATIONAL LAW, CONSISTENT WITH THE UNCLOS, AND IT ISN'T YET A PARTY TO THE TREATY. WHY, THEN, RATIFY THE UNCLOS, IF THE U.S. & ALL UNCLOS PARTIES ALREADY RECOGNIZE THE U.S. EEZ???]

"American firms and businesses want legal certainty so they can compete with foreign companies for marine resources," said Spencer Boyer, director of international law and diplomacy at the Center for American Progress. Without the clearly defined authority established by the treaty, "there's confusion -- a lot of businesses don't want to take that risk."

[YES. ONCE THE U.S. RATIFIES THE UNCLOS, U.S. COMPANIES WILL BE CERTAIN THAT THEY WILL BECOME SUBJECT TO EUROPE'S RESTRICTIVE AND EXPENSIVE PRECAUTIONARY PRINCIPLE!!].

The American military is looking for another kind of certainty from LOST -- a guarantee of safe passage through all seaways, a right China sought to deny an unarmed Navy vessel Monday in its own Exclusive Economic Zone in the South China Sea.

"The Convention codifies navigation and overflight rights and high seas freedoms that are essential for the global mobility of our armed forces," the Joint Chiefs of Staff wrote in a June 2007 letter to Senate leadership.

[THE JOINT CHIEFS OF STAFF CONTINUE TO BELIEVE THAT THE UNCLOS IS A DOCUMENT ETCHED IN STONE THAT IS IMMUTABLE, i.e., THEY BELIEVE IT WILL NOT CHANGE TO ACCOMODATE EVOLVING INTERNATIONAL ENVIRONMENTAL LAW, WHICH CLEARLY REFLECTS THEIR MISUNDERSTANDING OF THE TREATY AND THE LONGSTANDING (HISTORICAL) INTENTIONS OF MANY UNCLOS PARTIES, THE GLOBAL ENVIRONMENTAL ACTIVIST COMMUNITY AND MANY ACADEMICIANS WHO WERE INVOLVED IN THE UNCLOS III CONFERENCE.]

LOST has even managed to unify environmental groups and deep-sea miners, who both see something to gain in the treaty.

[THAT IS BECAUSE DEEP SEA MINERS DON'T KNOW MUCH ABOUT THE ENVIRONMENTAL PROVISIONS, REGULATIONS, PROTOCOLS AND ANNEXES OF THE UNCLOS. IGNORANCE IS BLISS.]

"We gain sovereignty, we gain territory, we gain access to places that we have not had access to as easily," said Don Kraus, president of Citizens for Global Solutions, a group that advocates strengthening international institutions. "We don't stand to lose anything."

[UNFORTUNATELY, MR. KRAUS' STATEMENT IS NOT TRUE.]

But critics say clauses built into the treaty could directly harm American interests. They say it could force the U.S. to comply with unspecified environmental codes, and that the treaty gives environmental activists the legal standing to sue over river pollution and shut down industry, simply because rivers feed into the sea.

The treaty allows environmental groups to bring lawsuits to the Law of the Sea Tribunal in Germany, a panel of 21 U.N. judges who would have say over pollution levels in American rivers. Their rulings would have the force law in the U.S., according to a reading in a 2008 Supreme Court decision by Justice John Paul Stevens.

"You've got an unaccountable tribunal that will surely be stacked with jurists hostile to our interests," said Chris Horner, author of "Red Hot Lies," a book critical of environmentalists. "This would never pass muster if the Senate held an open, public debate about this."

Legal experts also warn that the treaty demands aid for landlocked countries that lack the access and technology to mine the deep seas -- and that it might not even benefit the U.S. at all.

"You have to pay royalties on the value of anything you extract (from the deep seabed), those royalties to be distributed as the new bureaucracy sees fit, primarily to landlocked countries and underdeveloped countries," said Steven Groves, a fellow at the conservative Heritage Foundation. American money would also go to fund the International Seabed Authority, which Groves warned "would have the potential to become the most massive U.N. bureaucracy on the planet."

"The whole theory of the treaty is that the world's oceans and everything below them are the common heritage of mankind," said Groves. "Very socialist."

Any nation that is party to the treaty can have a seat on the tribunal and seabed authority -- even ones that don't have access to the sea. The current vice president of the tribunal represents Austria, a landlocked nation that hasn't had a sea berth since the Austro-Hungarian Empire was dissolved in the First World War.

Some legal experts worry that without ratification, the U.S. will lose a seat at the table as maritime law continues to be codified and resources get divvied up. But opponents note that many of the benefits offered the U.S., such as navigation rights, are already international custom, and that the U.S. has effected the treaty without being party to it. President Reagan's initial opposition on the basis of seabed laws forced the rewriting of the original treaty in 1994, which led the U.S. to sign it, but not to ratify it.

Its complexity, however, still beguiles even experts, who say it is unlikely to be understood when brought to a vote in the Senate.

"The thing is about 150 pages long -- meaning there are exactly zero people in the Senate who have read it," said Groves.

-----------------------------------------------------------------------------------------------

http://www.gao.gov/about/workforce/orgchartdet.html

The U.S. Government Accountability Office

http://www.gao.gov/about

"The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the "congressional watchdog," GAO investigates how the federal government spends taxpayer dollars...Our Mission is to support the Congress in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government for the benefit of the American people."

The Government Accountability Office Organization Chart - Detailed

The United States Congress Office of Compliance is an independent federal agency within the legislative branch of the United States government. It was created to administer and enforce the Congressional Accountability Act of 1995.

US Congress Office of Compliance - The office is made up of a five-member, non-partisan Board of Directors appointed to five-year terms by the majority and minority leaders of both the United States House of Representatives and the United States Senate. The members of the Board of Directors come from across the United States, and are chosen for their expertise in employment and labor law.

The Congressional Accountability Act (CAA), enacted in 1995, was one of the first pieces of legislation passed by the 104th Congress. The CAA applies twelve civil rights, labor, and workplace safety and health laws to the U.S. Congress and its associated agencies, requiring them to follow many of the same employment and workplace safety laws applied to businesses and the Federal Government.

• Laws Applied to the Legislative Branch by the CAA

• The Age Discrimination in Employment Act of 1967

• The Federal Service Labor-Management Relations Statute

• Veterans’ employment and reemployment rights at Chapter 43 of Title 38 of the U.S. Code

• The Americans with Disabilities Act of 1990

• Title VII of the Civil Rights Act of 1964

• The Employee Polygraph Protection Act of 1988

• The Fair Labor Standards Act of 1938

• The Family and Medical Leave Act of 1993

• Occupational Safety and Health Act of 1970

• The Rehabilitation Act of 1973

• The Worker Adjustment and Retraining Notification Act of 1989

Indoor Air Quality: Air Pollutants

"Pollutants can be generated by outdoor or indoor sources, including building maintenance activities, pest control, housekeeping, renovation or remodeling, new furnishings or finishes, and building occupant activities. One important goal of an indoor air quality program is to minimize people's exposure to pollutants from these sources. Some of the key pollutant categories include biological contaminants, chemical pollutants, and particles." [See: Office of Compliance Fast Facts - "Indoor Air Quality:Air Pollutants" (April 2009) at: http://www.compliance.gov/forms-pubs/eresources/fastfacts_airpollutants.pdf ].

Workers’ Right to Know: What you should know about workplace chemicals

"If you are an employee in a workplace where hazardous chemicals are present, you must be able to describe the hazards of the chemical products[1] in the workplace and what measures are used to avoid those hazards. If your workplace has chemicals present...[t]he Occupational Safety and Health Administration (OSHA) Hazard Communication (HAZCOM) Standard, 29 CFR §1910.1200... HAZCOM requires your employer to train you (1) when you’re initially assigned and (2) whenever a new or different product, which presents a new hazard, is introduced into the workplace." [See : Office of Compliance Fast Facts - "Workers’ Right to Know:What you should know about workplace chemicals" (March 2009), at:
http://www.compliance.gov/forms-pubs/eresources/fastfacts_workplacechemicals.pdf].

US Navy Had a Whale of a Job Fending Off Green Lawfare in NRDC v. Winter Case

http://ro-a.redorbit.com/news/business/1667947/itssd_us_navy_had_a_whale_of_a_job_fending/index.html

ITSSD: U.S. Navy Had a Whale of a Job Fending Off Green Lawfare in NRDC v. Winter Case

Posted on: Wednesday, 8 April 2009, 10:17 CDT

PRINCETON, N.J., April 8 /PRNewswire-USNewswire/ -- In a newly released Washington Legal Foundation working paper, international lawyer Lawrence Kogan describes the U.S. Navy's challenge in convincing the U.S. Supreme Court to vacate a green injunction effectively preventing critical U.S. Naval sonar training exercises from taking place off the Southern California coast. The injunction had been issued on the grounds that the Navy's failure to prepare a full environmental impact statement could trigger possible but scientifically unverifiable discomfort to beaked whales.

"The green group and California State pleadings the Supreme Court reviewed in Winter provide a bird's eye view of continuing activist efforts to rewrite U.S. environmental regulatory law from the bench in pacifist Europe's socialist image," emphasizes Kogan. "Respondents and amici urged the Court to embrace up to three different applications of Europe's Precautionary Principle: the Ninth Circuit's presumption of irreparable environmental injury, its presumption in favor of issuing preliminary injunctions in environmental matters, and/or its presumption against issuing a military exemption in NEPA cases."

Despite this legal 'win', the Navy remains very concerned that Europe's Precautionary Principle is being used also by third nations (e.g. China) as a domestic and international environmental 'lawfare' tool to decrease U.S. military capabilities against "the world's [growing] inventory of quiet diesel-electric submarines."

According to one Navy Commander, "...[N]ongovernmental organizations...such as Greenpeace...[are working] in conjunction with certain coastal countries, including close U.S. allies, to unilaterally impose maritime and...environmental...rules that restrict international shipping, aircraft overflight of the seas [and the]...right of freedom of navigation,...and...[which thereby,] diminish national security." Similarly, a Navy JAG Corps Officer has concluded that, "the means are available for an adversary to engage in full-scale international and domestic lawfare by exploiting international forums and misusing domestic environmental protection laws to blunt our technological anti-submarine advantages, degrade our training, reduce our capabilities, restrict our operations, reveal our training methods and locations, limit future technological advances and undercut our national strategic objectives."

If, as these officers strongly suggest, the U.S. Navy has barely kept its head above water when defending against U.S.-based environmental lawsuits, how could it realistically expect to successfully handle the many additional foreign-based green lawsuits it would certainly face once America accedes to the UN Law of the Sea Convention?

The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. This article is accessible at:

http://www.itssd.org/Winter%20Decision%20--%200409KoganWPFinal.pdf.

CONTACT: ITSSD, +1-609-658-7417, info@itssd.org

SOURCE Institute for Trade, Standards, and Sustainable Development

Has the Obama Administration Intentionally Duped America Again Concerning Global Warming/Climate Change as a Pretense for UNCLOS Accession?

http://www.chinapost.com.tw/international/americas/2009/04/08/203408/U.S.-committed.htm

U.S. committed to backing Law of the Sea convention

China Post

Agence France Presse

April 8, 2009

WASHINGTON -- Secretary of State Hillary Clinton said Monday the United States was "committed" to ratifying a convention on world ocean use, as she called for more international cooperation to protect the North and South poles.

[IS THAT BECAUSE SECRETARY OF STATE CLINTON BELIEVES IN SURRENDERING U.S. SOVEREIGNTY FOR THE PURPOSE OF MAKING DIPLOMATIC KUMBAYA?? DOES MS. CLINTON BELIEVE THAT A EUROPEAN CONTINENTAL CIVIL LAW PREVENTIVE JUSTICE-BASED GLOBAL GOVERNANCE LEGAL FRAMEWORK

ANCHORED IN THE UNITED NATIONS IS THE BEST WAY TO GO? CAN MS. CLINTON CONFIRM THAT SUCH A FRAMEWORK WOULD NOT UNDERMINE THE U.S. COMMON LAW & FREE MARKET SYSTEMS, AND THE INDIVIDUAL RIGHTS & FREEDOMS GUARANTEED TO ALL AMERICANS BY THE U.S. CONSTITUTION AND ITS ACCOMPANYING BILL OF RIGHTS? IS THIS "CHANGE YOU CAN BELIEVE IN"?]

Her comments came at the first summit to tackle environmental and territorial issues affecting the Arctic and Antarctic. Some 60 countries and international organizations are meeting in Washington and Baltimore for the 11-day talks.

At the meeting, the United States and Norway said that the melting of glaciers was opening new navigation routes in the Arctic, thus creating economic opportunities -- including in transportation and energy -- for neighboring countries, but with that came new responsibility.

Clinton said Washington would work with other countries surrounding the region "to strengthen peace and security and support economic development and protect the environment." Those countries include Russia, Canada, Norway and Denmark.

"The changes under way in the Arctic will have long-term impacts on our economic future, our energy future and indeed again the future of our planet, so it is crucial that we work together," she added.

The diplomatic chief said she and President Barack Obama were committed to having the US Congress ratify the Law of the Sea Convention, a United Nations text on maritime rights drafted in 1982.

The United States signed the convention's text in 1994, after securing changes to certain provisions deemed against US interests. But Congress never ratified the treaty, despite a lobbying effort by former president George W. Bush in 2007.

[CONGRESS NEVER RATIFIED THE TREATY DURING 2007 BECAUSE IT LACKED THE VOTES. AND, THAT OCCURRED BECAUSE CONGRESS DID NOT FULFILL ITS CONSTITUTIONAL RESPONSIBILITY OF VETTING THE ENVIRONMENTAL COMPONENT OF THIS 200 + PAGE TREATY. THE CURRENT CONGRESSIONAL MAJORITY AND THE CURRENT ADMINISTRATION DO NOT APPEAR TO WANT TO SHARE WITH THE AMERICAN PUBLIC THEIR EXTENSIVE KNOWLEDGE ABOUT THIS DIMENSION OF THE UNCLOS. THE FAILURE OF CONGRESSIONAL OVERSIGHT COMMITTEES TO CONVENE PUBLIC HEARINGS ON SUCH SUBJECT MATTER, AND THE OBAMA ADMINISTRATION'S FAILURE TO CALL FOR SUCH HEARINGS, SUGGESTS THAT THE PRESIDENT'S CAMPAIGN MANTRA FOR A 'NEW BEGINNING IN WASHINGTON' - "TRANSPARENCY & OPEN and INCLUSIVE PUBLIC POLICY DEBATE" MAY LIKELY HAVE BEEN PURELY RHETORICAL.]

Global warming, she added, "raises the possibility of new energy exploration, which will, of course, have additional impacts on our environment."

Clinton was referring to huge unexplored reserves of some 90 billion barrels of oil and an even greater amount of natural gas in the Arctic, according to estimates by the US Geological Survey.

[MS. CLINTON AND HER STATE DEPARTMENT ARE MOST ASSUREDLY DRINKING FROM THE AL GORE-EUROPEAN UNION KOOL-AID FOUNTAIN!!]

[ARE NOT THE CURRENT PRESIDENT & SECRETARY OF STATE BEING A BIT DISINGENUOUS HERE? HASN'T THE SUPER-MAJORITY IN CONGRESS ALREADY STOPPED THE PROCESS OF OPENING OFFSHORE DRILLING IN THE NORTH AND MID-ATLANTIC REGIONS THAT OUR FORMER PRESIDENT HAD EFFECTIVELY FACILITATED VIA EXECUTIVE ORDER, & THE 110TH CONGRESS HAD EFFECTIVELY APPROVED BY ALLOWING THE LEGISLATIVE MORATORIA AGAINST OFFSHORE DRILLING TO EXPIRE?]

These resources constitute 13 percent of the world's untapped reserves of oil and 30 percent of reserves of natural gas.

Norwegian Foreign Minister Jonas Gahr Store noted that merchandise between the Japanese port of Yokohama and the Dutch port of Rotterdam would see a 40 percent reduction when merchant ships would be able to use the North-West Passage being opened north of Canada.

He called for bordering countries, which are members of the Arctic Council, to cooperate closely to avoid an escalation of conflict.

Russia recently announced it intended to militarize the Arctic in order to protect its interests there, while Canada seeks to control 200 nautical miles of Arctic waters.

Ottawa has been consistently reaffirming its sovereignty over the region, in particular the North-West Passage and its thousands of uninhabited islands. Due to melting ice, the passage could become an important future maritime route linking Asia to Europe.

But the United States and other countries say it is an international maritime route, and should thus remain open.

Participants also spoke about the A

ntarctic, which is protectedby a treaty signed in Washington 50 years ago.

"We have no time to lose in tackling this crisis" and take new measures to protect the region, said Clinton after having recalled the collapse over the weekend of an ice bridge that holds in place the Wilkins Ice Shelf, seen as an alarming sign of melting of the glaciers.

[AS WHITE HOUSE CHIEF OF STAFF RAHM EMANUEL PREVIOUSLY STATED FOR THE RECORD, "YOU NEVER WANT A SERIOUS CRISIS TO GO TO WASTE. AND WHAT I MEAN BY THAT IS AN OPPORTUNITY TO DO THINGS YOU THINK YOU COULD NOT DO BEFORE." See: Rahm Emanuel: Don't Waste a 'Serious Crisis', All The News That Fits (Nov. 2008) at:

http://allthenewsthatfits.wordpress.com/2008/11/21/rahm-emanuel-dont-waste-a-serious-crisis ].

She said that Obama had provided Congress with an annex to the treaty for ratification. The annex set the obligations of signatories in case of an environmental catastrophe in the South Pole region.

[DEAR PRESIDENT OBAMA & SECRETARY OF STATE CLINTON - WHY NOT ENGAGE IN SOME CONSTITUTIONALLY WARRANTED TRANSPARENCY & DUE PROCESS YOU ADVOCATE AS PART OF THE NEW SPIRIT OF 'CHANGE' IN WASHINGTON? AND, WHY HAVEN'T THE ADMINISTRATION & CONGRESS YET SHARED WITH THE AMERICAN PUBLIC INFORMATION ABOUT THE LIABILITY FOR ENVIRONMENTAL DAMAGES ANNEX VI OF THE MADRID ENVIRONMENTAL PROTOCOL OF THE ANTARCTIC TREATY TRANSMITTED TO THE CONGRESS DURING EASTER WEEK 2009??]

[See Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (April 2009), at:
http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf ]

The United States is also seeking to limit tourism in the region, including the docking of cruise ships, Clinton said.

Clinton was hosting the first joint session of the Antarctic Treaty Consultative Meeting (ATCM) and the Arctic Council, which the State Department called "the two most important bodies involved with diplomacy at the Poles."

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http://online.wsj.com/article/SB122721278056345271.html

In Crisis, Opportunity for Obama

By GERALD F. SEIB

Wall Street Journal

November 21, 2008

As the economic signs grow ever more grim, so do the problems facing the incoming Obama administration.

That's one way of looking at things. Here's another:

As the economic signs grow ever more grim, the opportunities for the Obama administration to drive through its agenda actually are getting better.

The thing about a crisis -- and crisis doesn't seem too strong a word for the economic mess right now -- is that it creates a sense of urgency. Actions that once appeared optional suddenly seem essential. Moves that might have been made at a leisurely pace are desired instantly.

Therein lies the opportunity for President-elect Barack Obama. His plans for an activist government agenda are in many ways being given a boost by this crisis atmosphere and the nearly universal call for the government to do something fast to stimulate the economy.

[ACTUALLY, THIS PROVIDES THE OBAMA ADMINISTRATION WITH THE OPPORTUNITY TO DISINGENUOUSLY ENGAGE IN WIDESPREAD POPULAR MISREPRESENTATIONS.]

This opportunity isn't lost on the

new president and his team. "You never want a serious crisis to go to waste," Rahm Emanuel, Mr. Obama's new chief of staff, told a Wall Street Journal conference of top corporate chief executives this week.

He elaborated: "Things that we had postponed for too long, that were long-term, are now immediate and must be dealt with. This crisis provides the opportunity for us to do things that you could not do before."

Listen

Rahm Emanuel addresses leaders at the Wall Street Journal CEO Council.

He ticked off some areas where he thought new doors were opening: energy, health, education, tax policy, regulatory reforms. The current atmosphere, he added, even makes bipartisanship easier: "The good news, I suppose, if you want to see a silver lining, is that the problems are big enough that they lend themselves to ideas from both parties for the solution."

Mr. Emanuel noted, correctly, that the U.S. largely squandered the opportunity the oil shocks of the 1970s presented to make serious, long-term changes in its energy habits -- a failure that has returned to haunt the nation today.

Conversely, history points to examples of leaders who have used crises to seize opportunities. Most obviously, President Franklin Roosevelt took advantage of economic trauma in the 1930s to drive through a new economic agenda, as did President Ronald Reagan with his tax cuts in 1981.

The lesson holds true in foreign policy as well. Only the 1973 Arab-Israeli war, and its shock to the Middle East status quo, made it possible for President Jimmy Carter to move in and negotiate the historic Camp David peace accords between Egypt and Israel.

And so it is for Team Obama now. The risk, of course, is today's opportunities will tempt the administration to overreach, lifting government spending so high that the deficit hangover at the other end of the cycle is intolerable, or injecting government so far into the marketplace that bipartisan support evaporates.

But for now, the call for government action is so universal that the playing field is wide open. With interest rates approaching zero, the Federal Reserve Board is nearly out of interest-rate ammunition to stimulate an economy sinking into recession; Fed policy makers likely are quietly praying for fiscal stimulus to start filling the void.

The chief executives gathered at the Journal conference this week called for the new administration to enact a fiscal-stimulus package of at least $300 billion -- perhaps double the amount of stimulus such a group likely would have called for just a few weeks ago.

That creates an opening through which Mr. Obama can drive a fair amount of his domestic agenda. Certainly the field is open for some immediate form of the president-elect's middle-class tax cut to become part of a stimulus package.

By the same token, the yearning for government spending on "infrastructure" to stimulate economic activity creates an opening for the new president to push the kind of green projects that fit his call for a transition to alternative energy sources, including new kinds of mass-transit systems. And the Obama call for government "investment" in alternative energies will be easier to turn into reality if it, too, can be cloaked as part of stimulus spending.

At the same time, as thousands of additional Americans lose jobs in the recession that lies ahead, they also will lose their employer-provided health insurance and swell the ranks of the nation's uninsured. That will add a bit of rocket fuel to the Obama call for universal health coverage. And certainly the broad dissatisfaction with the way financial markets were regulated will make it easier to rebuild regulatory structures.

The crisis also presents the Obama team with an opportunity that isn't so obvious: using economic distress to step back from the protectionist cliff Democrats edged toward during the election campaign.

A time of global economic distress isn't a good time to construct barriers to international trade. Conversely, it may be a good time to help both stressed American consumers and distressed developing-world economies by lowering tariffs on some goods made abroad. One test of the Obama administration's economic philosophy is whether it is as eager to take advantage of that opening as some of the others now before it.