Stuck in Port - The U.S. Senate is in no rush to vote on ratification of the Law of the Sea Convention
By James Podgers
ABA Journal
February 2008
After a quarter-century of frustration, advocates for U.S. ratification of the U.N. Convention on the Law of the Sea are hoping their ship is finally about to come in.
It’s not there yet, however, and proponents are wary of experiencing déjà vu all over again.
The Senate Foreign Relations Committee caused an initial wave of excitement when it voted 17-4 in late October to report the convention to the full Senate. Since then, the matter has stalled. There is just enough opposition to doubt whether the necessary two-thirds Senate majority (67 votes) can be mustered for ratification. The scenario is similar to 2004, when the Foreign Relations Committee favorably reported the convention, but it was not brought to a vote.
WIDESPREAD SUPPORT
Supporters of the convention say there is now momentum for ratification that wasn’t there before.
“It will go through; we will win it, but it’s a tough fight,” says John Norton Moore, director of the Center for Oceans Law and Policy at the University of Virginia School of Law in Charlottesville. He serves as a counselor to the ABA Standing Committee on Law and National Security.
The treaty has a growing list of advocates. Those supporters include the U.S. Joint Chiefs of Staff, the Coast Guard, the State Department, the shipping and fishing industries, the petroleum industry and many environmental groups.
The treaty also has widespread bipartisan support in the Senate—six of the 10 Republicans on the Foreign Relations Committee joined their Democratic colleagues in voting to report it to the full Senate.
And in May, President Bush issued his first public call for ratification.
Joining the 154 nations (and European Union) that have become parties to the treaty since it was finalized in 1982 “will serve the national security interests of the United States, including the maritime mobility of our armed forces nationwide,” said Bush. “It will secure U.S. sovereign rights over extensive marine areas, including the valuable national resources they contain.”
[THE FACT THAT 154 NATIONS HAVE RATIFIED THE CONVENTION DOESN'T MEAN MUCH IF THE RULE OF LAW DOES NOT PREVAIL IN MOST OF THEM.]
[THE AMERICAN PEOPLE ALREADY UNDERSTAND THAT THE UNITED STATES CONSTITUTION & ITS ACCOMPANYING BILL OF RIGHTS ARE UNIQUE INSTRUMENTS THAT HAVE ENDURED THE TEST OF TIME. THERE IS NO OLDER FUNCTIONING CONSTITUTION IN THE WORLD TODAY. NO OTHER COUNTRY, EVEN IN THE WEST, HAS SUCH A DOCUMENT, DEVELOPED DURING THE UNIQUE ENLIGHTENMENT PERIOD SPANNING THE 17-18TH CENTURIES. THE U.S. CONSTITUTION ESTABLISHED THE BASIS FOR A TRI-CAMERAL SYSTEM OF CHECKS AND BALANCES ('SEPARATION OF POWERS') THAT ALSO ENTAILS FEDERAL-STATE BALANCING AS WELL - FEDERALISM - ALL TO PROVIDE 'GOVERNMENT OF THE PEOPLE, BY THE PEOPLE AND FOR THE PEOPLE'. THIS WAS CLEARLY REFLECTED IN THE CONSTITUTION'S ACCOMPANYING BILL OF RIGHTS WHICH RECOGNIZED & PROTECTED 'NATURAL RIGHTS', INCLUDING THE RIGHT TO THE PROTECTION OF EXCLUSIVE PRIVATE PROPERTY, WHICH THE DECLARATION OF INDEPENDENCE ALSO WAS INTENDED TO ACHIEVE - TO ENABLE AMERICAN CITIZENS TO REALIZE LIFE, LIBERTY & THE PURSUIT OF HAPPINESS. THE U.S. REPRESENTATIVE FORM OF DEMOCRACY REMAINS UNIQUE IN THE WORLD AND IS ACTUALIZED THROUGH THE BILL OF RIGHTS, WHICH RECOGNIZES THE INDIVIDUAL UNIT OF SOCIETY(THE 'INDIVIDU
AL GOOD') AS SANCROSANT. AN IMPORTANT RECOGNITION OF THE CONTRIBUTION OF INDIVIDUALS TO AMERICAN SOCIETY IS ALSO REFLECTED ON THE OBVERSE SIDE OF THE GREAT SEAL OF THE UNITED STATES, WITH THE WORDS 'E. PLURIBUS UNUM' - OUT OF MANY, ONE. THE REVERSE SIDE BEARING THE WORDS 'NOVUS ORDO SECLORUM' DOES NOT MEAN, AS CLAIMED BY THE GLOBALISTS, 'A NEW WORLD ORDER'. IT MEANS, INSTEAD 'A NEW ORDER OF THE AGES', WHICH INTIMATES THE PRIMACY OF INDIVIDUAL GOOD OVER SOCIETAL GOOD, AS DETERMINED BY THE PEOPLE THROUGH THEIR REPRESENTATIVES, RATHER THAN BY GOVERMENT OR THE RULER - RULE of LAW, NOT RULE by MEN, WHETHER THEY BE GOVERNMENT OFFICERS OR ACADEMIC EXPERTS. (See, e.g., Origin and Meaning of the Mottoes on the Great Seal, Myth and Misinformation about the Great Seal's at: http://www.greatseal.com/mythamerica/index.html; http://www.greatseal.com/mottoes/seclorumvirgil.html("The motto Novus Ordo Seclorum was coined by Charles Thomson in June 1782. He adapted it from a line in Virgil's Eclogue IV, a pastoral poem that expresses the longing for a new era of peace and happiness which was written by the famed Roman writer in the first century B.C.")).]
[SCHOLARS HAVE REFERRED TO THIS NOTION AS 'METHODOLOGICAL INDIVIDUALISM'. See: Svetozar (Steve) Pejovich, Private Property – A Prerequisite for Classical Capitalism, Prepared for the Conference on The Roots of Capitalism, (Oct. 16-18, 2005) at p. 3, at: http://www.easibulgaria.org/docs/Pejovic.doc . "The cornerstones of the private-property, free-market economy are classical liberalism and methodological individualism. Classical liberalism is about individual liberty, openness to new ideas, and tolerance of all views. Methodological individualism means that the unit of analysis is the individual. Governments, think tanks, universities and other organizations do not make decisions; only individuals can.Individuals conceive ideas, invest time and effort in formulating them, and persuade others to accept them. Professor Alan Macfarlan has traced the origin of individualism in the West to 13th century England. He defined it as “the view that society is constituted of autonomous, equal units, namely separate individuals and that such individuals are more important, ultimately, than any larger constituent group. It is reflected in the concept of individual property, in the political and legal liberty of the individual, in the idea of the individual’s direct communication with God.")]
AS A GENERAL RULE, THEN, (EXCEPT IN INSTANCES WHERE THE COURTS, LEGISLATING FROM THE BENCH, HAVE ENGAGED IN SOCIAL ENGINEERING TO ATTENUATE PRIVATE PROPERTY RIGHTS FOR THE PERCEIVED 'PUBLIC GOOD', THROUGH USE OF EMINENT DOMAIN OR REGULATORY 'TAKINGS'), RESPECT FOR EXCLUSIVE PRIVATE PROPERTY & OTHER INDIVIDUAL RIGHTS SERVES
AS A MAJOR POINT OF DEPARTURE FROM OTHER NATIONS. IN MANY NATIONS THROUGHOUT THE WORLD, THE POLITY (THE 'PUBLIC GOOD'), NOT THE INDIVIDUAL, IS RECOGNIZED AS THE MOST IMPORTANT UNIT IN SOCIETY, INCLUDING IN WESTERN EUROPE. IN OTHER WORDS, IN AMERICA, IT IS UNIVERSALLY UNDERSTOOD THAT 'THE PEOPLE' IMBUE GOVERNMENT WITH LEGITIMACY - SINCE THE U.S. CONSTITUTION PRECEDED THE FORMATION OF GOVERNMENT, GOVERNMENT CANNOT REMAIN IN POWER WITHOUT THE APPROVAL/'LICENSE TO OPERATE' OF THE AMERICAN PEOPLE. RULE OF LAW IS THE NORM, NOT RULE BY LAW - RULE OF MEN. SINCE IN EUROPE, GOVERNMENT (THE 'STATE') PRECEDED THE DRAFTING OF CONSTITUTIONS, THE PEOPLES' RIGHTS ARE SUBJECT TO GOVERNMENT OVERRIDE - i.e. THEY ARE ATTENUATED. JUST AS EASILY AS GOVERNMENT GRANTS PEOPLE THEIR RIGHTS, THEY CAN TAKETH THEM AWAY.][TRANS-ATLANTIC DIFFERENCES IN THE RESPECT FOR & RECOGNITION OF THE INDIVIDUAL AND EXCLUSIVE PRIVATE PROPERTY RIGHTS HAS BEEN CHARACTERIZED BY ONE SCHOLAR AS SYMPTOMATIC OF THE LONG-STANDING DIFFERENCES BETWEEN 'ANGLO-AMERICAN CAPITALISM' & 'CONTINENTAL CAPITALISM' THAT HAVE LONG BEEN HIDDEN BY THE PREVIOUS 'COLD WAR'. HE ALSO BELIEVES THAT MOST GLOBALISTS, ON BOTH SIDES OF THE ATLANTIC, WISH TO IGNORE THEM. HIS RESEARCH REVEALS THAT THERE ARE SIGNIFICANT DISTINCTIONS BETWEEN ANGLO-AMERICAN & CONTINENTAL CAPITALISM THAT MUST BE UNDERSTOOD BEFORE GLOBAL HARMONIZATION CAN TAKE PLACE:]
["German law protects property rights only to the extent that they serve 'human dignity' and the German welfare state. Property rights in Italy are also attenuated; the Italian Constitution allows protection of private property insofar as it serves a social function. Thus, property rights in Germany and Italy neither protect the subjective preferences of their owners nor block legislative and regulatory redistributive measures. The attenuation of private property rights enables the government to interfere with the right of individuals to seek the best use for the goods they own...The contrast between their version of capitalism (hereafter: continental capitalism) and Anglo-American capitalism is striking. Reflecting its skepticism about rulers’ foresight and goodwill, classical capitalism considers any outcome to be fair and just as long as it emerges from the process of voluntary interactions under the umbrella of negative rights. In contrast, continental capitalism believes in rulers’ foresight and goodwill. It means that continental capitalism does not view the government as a predator requiring the rule of law to tame it. On the contrary, it wants the government to be an active factor in running the economy.
Continental capitalism is then more concerned with the desired outcome of economic activities than with the process of voluntary interactions leading to unanticipated results. Terms such as public interest, social justice and other grand-sounding names are used to justify the desired outcome of economic activities. Whatever term is used to explicate the desired outcome, it is a façade hiding subjective preferences of the political-scientific elite."
See: Svetozar (Steve) Pejovich, Private Property – A Prerequisite for Classical Capitalism”, Prepared for the Conference on The Roots of Capitalism, (Oct. 16-18, 2005) at p. 3, at: http://www.easibulgaria.org/docs/Pejovic.doc ; Svetozar (Steve) Pejovich, Capitalism and the Rule of Law: The Case for Common Law, Prepared for discussion at Workshop in Philosophy, Politics and Economics at George Mason University (Oct. 9, 2007) at pp. 4-5, at: http://economics.gmu.edu/pboettke/Boettke/workshop/fall07/Pejovich.pdf .]
[IF UNCLOS REFLECTS A GLOBAL EFFORT TO HARMONIZE ENVIRONMENTAL LAWS SO THEY REFLECT A GRAND COMPROMISE THAT ALL NATIONS CAN LIVE WITH, THE U.S. IS LIKELY TO LOSE OUT. THIS WILL INEVITABLY INVOLVE A LOSS OF INDIVIDUAL RIGHTS GUARANTEED BY THE U.S. CONSTITUTION & BILL OF RIGHTS, NAMELY PROPERTY RIGHTS, DUE PROCESS RIGHTS & AMERICAN INDIVIDUALISM. THIS IS EVIDENTLY CLEAR GIVEN THE UNCLOS' EMPHASIS OF THE 'COMMON HERITAGE OF MANKIND' DOCTRINE THAT REFLECTS THE EUROPEAN SOCIAL MODEL OF COMMUNALISM. CONGRESS SHOULD HOLD OPEN, PUBLIC & TRANSPARENT HEARINGS TO INVESTIGATE AND EXPLAIN THE TREATY'S ENVIRONMENTAL PROVISIONS & THEIR IMPACT ON PRIVATE PROPERTY RIGHTS SHOULD THE U.S. RATIFY IT. BY DOING SO, THE AMERICAN PEOPLE WOULD BE PROVIDED WITH THE OPPORTUNITY TO DECIDE FOR THEMSELVES & THEN COMMUNICATE THAT DECISION TO THEIR ELECTED REPRESENTATIVES.]
Ratifying the treaty also will promote environmental interests and “will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted,” said the president.
The ABA has supported U.S. accession to the Law of the Sea Convention since 1994, when it went into effect after the 60th U.N. member state ratified it. The convention creates a structure to allow member states to address issues relating to navigation, territorial and resource rights, and environmental protection on the seas that cover some two-thirds of the world’s surface.
“It is difficult to conceive of any reason why the United States should not be a party to, and take a leading role in, advancing the rule of law as it applies to the seas,” said ABA President William H. Neukom of Seattle in a written statement (PDF) submitted to the Senate Foreign Relations Committee in September.
[THIS IS A GOOD QUESTION. BUT, IF THE U.S. CONSTITUTIONAL SYSTEM IS UNIQUE AMONG NATIONS, AND MOST OTHER NATIONS DO NOT ASPIRE TO RECOGNIZE AND PROTECT THE RIGHTS GUARANTEED BY THE U.S. CONSTITUTION &, BY EXTENSION, THE RULE OF LAW, EITHER ON LAND OR AT SEA, THEN WHO & HOW WILL THE U.S. LEAD? LEADING NATIONS AGAINST COMMUNISM AND THE FORMER SOVIET UNION WAS ONE THING, BUT LEADING NATIONS AGAINST TERRORISM HAS PROVEN TO BE ANOTHER. HOW THEN TO LEAD THEM IN A RISK-BASED SCIENCE, ECONOMIC COST-BENEFIT & RULE OF LAW-BASED MANNER? HOW LONG WILL IT TAKE? WHAT MUST THE U.S. GIVE UP IN TERMS OF SOVEREIGNTY? HOW MUCH OF OUR INDIVIDUALLY GUARANTEED CONSTITUTIONAL RIGHTS MUST WE SURRENDER IN THE PROCESS?
REMEMBER, THE AMERICAN PEOPLE MUST KNOW WHAT THEY ARE GETTING INTO WHEN A TREATY IS TO BE RATIFIED, JUST AS WHEN THEIR PROPERTY IS TO BE TAKEN AWAY.]
“It will serve our interests for as long as we are bordered by two great oceans. Looking to the future, ratification would also do much to re-establish our credibility as a negotiating partner and leader, as we have always been, in furthering the rule of law in the world.”
ARCTIC COMES INTO PLAY
And then there’s the arctic. the changing climate near the North Pole —widely interpreted to be a result of global warming—has raised speculation among scientists, energy companies and governments that the region could be a feasible source of oil, gas and minerals.
Experts say the Law of the Sea Convention will be crucial to allocating rights to those resources, especially among the nations that potentially could claim sovereignty over some regions of the Arctic: Russia, Canada, Norway, Denmark (which controls Greenland) and the United States. (A separate international agreement governs Antarctica.)
The convention provides a framework for discussing access to resources in the Arctic, says David D. Caron, a co-director of the Law of the Sea Institute at the University of California at Berkeley. But, he notes, “it becomes more complicated if we don’t participate. Our voice is diminished by not being part of the treaty, even though we’ll still be heard if we yell louder.”
[WELL, THERE IS CERTAINLY NO CONSENSUS ABOUT THIS - DIFFERENCES OF OPINION STILL ABOUND. See: How Can Americans Get Beyond Debate Over Causation If UNCLOS Would Subject U.S.Arctic Oil Fields & Tankers to the Precautionary Principle??, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/can-americans-get-beyond-debate-over.html ; Former UN Legal Affairs Official Bent Out of Shape by 'Arctic Meltdown': Proclaims the Multilateral UNCLOS Norms & Regulations - PRECAUTION - Govern, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/former-un-legal-affairs-official-bent.html .]
The irony is that the United States still stands outside the convention—it’s the last major industrial or maritime nation to put off ratification— after playing such a vital role in the six-year drafting process that began in 1974, says Moore.
“This is one of the clearest and strongest victories for the United States in the history of multilateral negotiations,” he says. “The United States did very well on the merits.”
[NEITHER FORMER PRESIDENT RONALD REAGAN, NOR HIS CHIEF UNCLOS NEGOTIATOR, JAMES MALONE, THOUGHT SO, & FOR GOOD REASON.]
NAUTICAL EXCLUSIVITY
Among the provisions that favor U.S. interests, say Moore and other convention proponents, is the recognition of a 12-nautical-mile boundary of territorial waters for coastal nations as well as resource management rights within a 200-nautical-mile exclusive economic zone. (A nautical mile is equivalent to 1.15 statute miles.)
As a party to the convention, the United States would have the largest EEZ of any nation in the world, according to briefing materials prepared by the ABA Governmental Affairs Office.
[ AS FAR AS SOVEREIGN BOUNDARIES GO, THE UNCLOS GRANTS THE UNITED STATES NOTHING THAT IT DID NOT ALREADY HAVE SOVEREIGN CONTROL OVER - THE TERRITORIAL SEA, THE COASTAL SEA, THE CONTIGUOUS ZONE, THE EXCLUSIVE ECONOMIC ZONE, THE CONTINENTAL SHELF - WHICH THREE FORMER PRESIDENTS OF THE UNITED STATES UNILATERALLY DECLARED AS SOVEREIGN U.S. TERRITORY. THE UNCLOS MERELY CODIFIED IN A TREATY ALL NOTIONS OF SOVEREIGN OCEANS BORDERS THAT CUSTOMARY INTERNATIONAL LAW HAD HISTORICALLY RECOGNIZED. THUS, HISTORICAL PRECEDENT REFLECTS THAT U.S. SOVEREIGN BORDERS ARE SECURE. WHAT UNCLOS PROVIDES FOR THAT IS NEW HERE, IS THE EXTENSION OF THE CONTINENTAL SHELF. HOWEVER, IF HISTORICAL PRECEDENT IS RELIED ON, THE U.S. CAN UNILATERALLY DECLARE AN EXTENSION ONCE IT HAS ACCUMULATED IRONCLAD GEOLOGICAL EVIDENCE SUPPORTING ITS CLAIM. See: U.S. Can Declare Extension of Sovereign Boundaries Independent of the UNCLOS, Precedents Show, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/us-can-declare-extension-of-sovereign.html .]
The convention also grants coastal nations sovereign rights over natural resources in the continental shelf extending from their shores and further grants rights to conduct deep seabed mining in designated areas of the ocean floor (although none is under way at this time).
[THE CONVENTION DOES CANNOT GRANT THE U.S. RIGHTS TO DO THAT WHICH IT ALREADY HAD THE RIGHT TO DO ACCORDING TO CUSTOMARY INTERNATIONAL LAW.]
A catch for the United States, however, is that a member state must make its claim to continental shelf areas to a special commission within a decade after ratifying the convention. Because it hasn’t ratified the convention, the United States can’t file a claim with the commission, which will issue recommendations on which claims to the continental shelf should be recognized.
Those deadlines could be particularly important because the Commission on the Limits of the Continental Shelf is likely to be the body that determines whether claims by various nations to development rights over regions of the Arctic have merit.
[IN OTHER WORDS, PROPONENTS OF THE UNCLOS ARE SATISFIED WITH PROVIDING A U.N. INTERGOVERNMENTAL INSTITUTION LACKING POLITICAL ACCOUNTABILITY WITH THE JURISDICTION TO DETERMINE U.S. SOVEREIGN BORDERS, SOMETHING THAT IS HISTORICALLY UNPRECEDENTED.]
When Russian scientists dropped a titanium version of their national flag on the ocean floor under the North Pole, the gesture was symbolic, Caron says. More significant, he says, is the claim Russia filed with the commission that the Lomonosov Ridge, which reaches deep into the Arctic, is an extension of its continental shelf. Meanwhile, Denmark has suggested that the ridge actually is connected to Greenland. Experts say any solution will likely involve direct talks between claimant nations.
From a national security standpoint, the Law of the Sea Convention is important because it calls for coastal states to recognize the right of “innocent passage” through their waters by both naval vessels and commercial ships. It grants ship and aircraft passage through straits used for international navigation, many of them in strategically sensitive areas.
[UNFORTUNATELY, WHILE THE TREATY CALLS FOR 'INNOCENT PASSAGE', MANY COASTAL STATES, SUCH AS AUSTRALIA, CANADA AND THE MEMBER STATES OF THE EUROPEAN UNION DO NOT RECOGNIZE 'INNOCENT PASSAGE' IF THEY CAN DREAM UP AN ENVIRONMENTAL REASON NOT TO. IN OTHER WORDS, THE QUAINT NOTION OF 'INNOCENT PASSAGE' IS CIRCUMSCRIBED BY UNCLOS' 45+ ENVIRONMENTAL ARTICLES, ANNEXES, REGULATIONS & PROTOCOLS. See: UNCLOS Ratification Would Provide a 'Shield of U.S. Sovereignty' Against EU & Environmentalist-Inspired 'Lawfare'??, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/unclos-ratification-would-provide.html .]
Taken together, these provisions represent “an astounding expansion of U.S. sovereignty,” says Moore.
Opponents of the convention don’t see it that way. Instead, they maintain that the convention would deprive the United States of sovereign rights. In particular, their concerns focus on the potential powers of three bodies created by the convention to consider disputes over the use of the oceans.
In addition to the Commission on the Limits of the Continental Shelf, the International Seabed Authority was created to oversee mining and other commercial activities on the ocean floor. The International Tribunal for the Law of the Sea was created to adjudicate disputes submitted to it that arise out of interpretation and application of treaty provisions.
A common complaint of convention opponents is that these bodies would amount to a “nautical U.N.” empowered to limit U.S. rights on and under the seas.
But convention supporters say those bodies do not in most cases have ultimate decision or enforcement powers, but rather were created to give nations a framework to seek resolutions to disputes. They note that the convention also provides for other dispute resolution mechanisms, including arbitration, which the U.S. government has indicated it favors.
[WHILE IT IS TRUE THAT THE UNCLOS PROVIDES FOR A MENU OF DISPUTE SETTLEMENT OPTIONS, INCLUDING RESORT TO THE INT'L TRIBUNAL ON THE LAW OF THE SEA (ITLOS), THE INT'L COURT OF JUSTICE (ICJ) & ARBITRATION, U.S. VICTORY IN THESE FORUMS IS NOT ASSURED, GIVEN THAT THE U.S. WOULD HAVE ONLY ONE SEAT ON ANY ONE OF THESE TRIBUNALS, AND THERE ARE MANY NATIONS WITH INTERESTS HOSTILE TO THE U.S. AS CONCERNS ENFORCEMENT POWERS, WHY SHOULD THE U.S. JOIN A TREATY IF IT DOES NOT INTEND TO FOLLOW ITS RULES??]
[IN THIS REGARD, READERS SHOULD CONSIDER HOW ONCE THE U.S. RATIFIES THE UNCLOS, IT IS BOUND TO, FOR ALL INTENSIVE PURPOSES: UNCLOS PARTIES, PURSUANT TO UNCLOS ARTICLES 186-187 and ANNEX VI, HAVE NO CHOICE BUT TO SUBMIT TO THE COMPULSORY JURISDICTION OF THE ITLOS SEABED DISPUTES CHAMBER FOR ANY DISPUTE ARISING BETWEEN THEM IN THE 'AREA', WHICH IS UNIQUE AMONG INTERNATIONAL ENVIRONMENTAL AGREEMENTS, BECAUSE ONLY UNDER THE UNCLOS & ITS MIGRATORY FISH STOCKS PROTOCOL, IS DISPUTE SETTLEMENT COMPULSORY and BINDING. UNCLOS PARTIES ARE ALSO EXPRESSLY REQUIRED BY ARTICLE 39 OF ANNEX VI OF THE UNCLOS TO ENSURE THAT THEIR DOMESTIC COURTS ENFORCE THE DECISIONS OF THE SEABED DISPUTES CHAMBER "IN THE SAME MANNER AS JUDGMENTS OR ORDERS OF THE HIGHEST COURT OF THE STATE PARTY IN WHOSE TERRITORY THE INFRINGEMENT IS SOUGHT" - THIS MEANS THE U.S. SUPREME COURT. ARE AMERICAN CITIZENS READY TO INSTRUCT THE U.S. SUPREME COURT TO GIVE UP ITS FEDERAL JURISDICTION TO DECIDE CASES IMPLICATING THE U.S. CONSTITUTION TO AN
UNCLOS TRIBUNAL??? WOULD UNCLOS TREATY LAW TRUMP THE U.S. CONSTITUTION & BILL OF RIGHTS?? ARE THERE NOT CONSTITUTIONAL LIMITS ON THE FEDERAL TREATY-MAKING POWER?]
[See: Gregory Rose and Lal Kurukulasuriya, Comparative Analysis of Compliance Mechanisms Under Selected Multilateral Environmental Agreements, United Nations Environment Programme (Dec. 2005) at pp. 12, 28 and 95, at: http://www.unep.org/Law/PDF/comp_analysis_compliance_mechanisms.pdf .]
[See: Lawrence Kogan, Brazil's IP Opportunism Threatens U.S. Private Property Rights, 38 U. MIAMI INTER-AM. L. REV. 1, at 114-115 (2006) at:
http://www.itssd.org/Publications/IAL105-II(frompublisher)%5B2%5D.pdf . (While treaties and federal statutes constitute the “supreme law of the United States,” and are effectively equal to one another in status, they are both inferior to the U.S. Constitution and the Bill of Rights. The U.S. Supreme Court recognized this hierarchy almost fifty years ago, in the case of Reid v. Covert 345 U.S. 1, 16-17 (1957) . Thus, according to the Court, it is arguable that the President cannot execute and that Congress can neither ratify nor enact legislation implementing a treaty with another nation that effectively violates any of the Constitutional protections afforded U.S. citizens.509 Furthermore, “the records of the Virginia Ratifying Convention contain specific discussions of the scope of the treaty power. These discussions confirm that the Framers did in fact envision [constitutional] limitations on the treaty power” (citing Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L.REV. 390, 413 (1998)).]
Moreover, convention proponents suggest that the U.N. comparisons reveal the ideological basis for much of the opposition. “This is a serious isolationist attack on reasoned U.S. foreign policy,” Moore says.
[NO, MR. MOORE. WHAT PEOPLE OBJECT TO IS THE FACT THAT YOU AND OTHER PROPONENTS OF THE TREATY WILL NOT SHARE ALL THAT THERE IS TO KNOW ABOUT THIS MOST COMPLEX, EXTENSIVE & SIGNIFICANT OF INTERNATIONAL TREATIES, THE ENVIRONMENTAL PROVISIONS OF WHICH WILL IMPACT ALL SECTORS OF THE U.S. ECONOMY, ESPECIALLY IF U.S. ENVIRONMENTAL LAWS ARE AMENDED OR OTHERWISE IMPLEMENTED DIFFERENTLY IN A WAY THAT DIRECTLY OR INDIRECTLY ADOPTS EUROPE'S PRECAUTIONARY PRINCIPLE WITHIN THE U.S. - ON LAND & AS WELL AS AT SEA. WHAT PEOPLE OBJECT TO IS THE LACK OF PROPONENTS' RESPECT FOR THE U.S. CONSTITUTION, WHICH SENATORS TAKE AN OATH TO SUPPORT AND UPHOLD AS CUSTODIANS & REPRESENTATIVES OF THE AMERICAN PEOPLE.
“The Senators and Representatives before mentioned...shall be bound by Oath or Affirmation, to support the Constitution.”
Art. VI.3, the Constitution of the United States of America
“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Senate and House of Representatives Oath of Office
THE AMERICAN PEOPLE ARE ENTITLED TO 'DUE PROCESS OF LAW' WHICH ENTAILS HAVING THE CONGRESS CONVENE OPEN, PUBLIC & TRANSPARENT HEARINGS ABOUT THE UNCLOS & THE ECONOMIC IMPACTS OF ITS 45 + ENVIRONMENTAL ARTICLES, ANNEXES, REGULATIONS & PROTOCOLS.]
LIMITING FUTURE CHOICES
One of the greatest risks for the United States in not ratifying the Law of the Sea Convention is that it will be left out of the process for deciding issues in the future that relate to navigation, commercial use and environmental policies for the oceans, says Margaret Lynch Tomlinson of Washington, D.C., who chairs the Law of the Sea Committee in the ABA Section of International Law.
Recasting customary law of the sea into the framework of an international treaty “was a huge step forward,” says Tomlinson, but now the United States must recognize that the law created by the convention “is not a static thing. Obviously, in the future there will be more changes. The United States needs to be involved in those discussions or they’ll get out of our control.”
[THIS IS PRECISELY THE POINT. THE LAWS OF FREEDOM OF NAVIGATION & INNOCENT PASSAGE EXISTED PRIOR TO THE CONVENTION AS CUSTOMARY INTERNATIONAL LAW. IF THEY WERE RECAST AS MS. TOMLINSON STATES, THEN IT IS THAT THEY ARE NOW CIRCUMSCRIBED BY UNCLOS' 45+ ENVIRONMENTAL ARTICLES, ANNEXES, REGULATIONS & PROTOCOLS WHICH SET FORTH INTERNATIONAL ENVIRONMENTAL STANDARDS THAT ARE DYNAMIC - i.e., THE CONTINUE TO EVOLVE ALONG WITH INT'L ENVIRONMENTAL LAW AS PRACTICED BY NATION STATES THAT ARE PARTIES TO OVER 300 INT'L ENVIRONMENTAL AGREEMENTS, MOST OF WHICH ARE OVERSEEN BY THE U.N. ENVIRONMENT PROGRAM. THE U.S. IS ALSO NOT A PARTY TO MANY OF THESE TREATIES, BECAUSE EACH OF THEM INCORPORATES EUROPE'S PRECAUTIONARY PRINCIPLE, THE APPLICATION OF WHICH AN UNCLOS TRIBUNAL WOULD NEED TO CONSIDER IN THE EVENT IT IS INVOKED AS A PROVISIONAL MEASURE BY A PARTY INITIATING AN ENVIRONMENTAL DISPUTE. WHY WOULD THE U.S. WANT TO BE PART OF SUCH AN ENTERPRISE?]
The question is how effectively the United States will exert its influence, Tomlinson says. “We’ll always defend our national security interests,” she says, “but there’s a difference between leadership and just asserting yourself in a military way.”
[THERE IS MORE TO IT THAN THAT. LEADERSHIP OFTEN INVOLVES DEFENSE OF IMPORTANT PRINCIPLES, REJECTION OF BAD IDEAS AND THE COURAGE TO FORGE A DIFFERENT PATH BY ONESELF IF NECESSARY. ONE CAN JUST AS EASILY ASSERT ONESELF ECONOMICALLY, SCIENTIFICALLY & TECHNOLOGICALLY IN ORDER TO DEFEND NATIONAL SECURITY INTERESTS. THE PRECAUTIONARY PRINCIPLE WOULD PREVENT THE U.S. FROM DOING THIS. IT HAS ALREADY SERIOUSLY HARMED EUROPE ECONOMICALLY & TECHNOLOGICALLY. THAT'S WHY EUROPE IS TRYING TO INCORPORATE IT INTO AS MANY INT'L TREATIES AS IS POSSIBLE THAT OTHER COUNTRIES RATIFY, SO THAT OTHER COUNTRIES ARE ALSO BOUND BY THE PRECAUTIONARY PRINCIPLE, ONE OF EUROPE'S MOST PROFOUND MISTAKES.]
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