Should the Senate Ratify the U.N. Sea Treaty?
By Mark W. Hendrickson
River Cities' Reader
06 February 2008
There has been vigorous debate about whether the U.S. Senate should ratify the United Nations Convention on the Law of the Sea (UNCLOS, also known as the Law of the Sea Treaty, or LOST by its critics). The treaty has a wide-range of supporters in the United States. These reportedly include elements within the Pentagon who believe that UNCLOS would prevent foreign states from adopting arbitrary policies that interrupt normal naval operations. A primary objection of opponents is that UNCLOS would establish a dangerous precedent by authorizing the U.N.'s International Seabed Authority to collect taxes.
Would the provisions set forth in UNCLOS yield net gains for the United States? Opinions differ widely. It may be impossible to answer this question with certainty, and I won't even try. Instead, I think we should ask ourselves whether any treaty adopted by the U.N. is worth the paper on which it is printed.
[THESE ARE GOOD QUESTIONS THAT AMERICAN CITIZENS SHOULD ASK THEMSELVES and THEIR CONGRESSIONAL REPRESENTATIVES, before THE U.S. SENATE DECIDES TO RATIFY THE UNCLOS. THUS FAR, THE U.S. SENATE HAS ABDICATED ITS CONSTITUTIONAL ROLE IN VETTING THIS MOST SIGNIFICANT OF TREATIES. THE SENATE FOREIGN RELATIONS COMMITTEE REVIEW OF THIS TREATY WAS, AT MOST, A CURSORY REVIEW RELIANT MOSTLY UPON PRIOR YEARS' TESTIMONY THAT FAILED TO DELVE INTO MANY IMPORTANT ISSUES. AFTER ALL, ACCORDING TO UNIVERSITY OF MIAMI PROFESSOR OF LAW, BERNARD OXMAN, "[T]he LOS Convention...remains "the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time.” IF THAT IS THE CASE, WHAT LEGAL/REGULATORY OBLIGATIONS & ECONOMIC COSTS DOES/WILL THE UNCLOS PLACE ON THE UNITED STATES, ON LAND, IN TERRITORIAL WATERS, IN COASTAL WATERS, ON THE 'HIGH SEAS', TO PROTECT & PRESERVE THE MARINE ENVIRONMENT??? ISN'T THAT A VERY FAIR QUESTION TO ASK OUR CONGRESSIONAL REPRESENTATIVES TO WHICH AMERICANS DESERVE AN HONEST AND DETAILED RESPONSE?? IS THAT NOT OUR RIGHT UNDER OUR CONSTITUTIONAL FORM OF GOVERNMENT??]
Any treaty is only as good as the honor of those who adopt it. The record of the U.N. does not inspire confidence.
[THIS IS ANOTHER EXCELLENT POINT. BUSINESS PEOPLE WOULD AGREE THAT A TREATY IS SORT OF LIKE A CONTRACT. AND, A BUSINESS CONTRACT IS ONLY AS GOOD AS THE HONOR AND RECORD OF PERFORMANCE OF THE CONTRACT'S SIGNATORIES.]
• The U.N. voted to establish the state of Israel in Palestine. Almost ever since, the U.N. has adopted reams of discriminatory resolutions and sought to impose conditions that threaten Israel's very existence. This shows the U.N. to be fickle, even treacherous. Apparently, even most of the European states have no objection to Jews being annihilated as long as it doesn't happen within their own borders.
• The U.N. devised an "oil for food" program ostensibly to weaken the brutal regime of Saddam Hussein and to prevent innocent Iraqis from suffering. It later came to light that France, Germany, Russia, and others were only too happy to profit from illicit deals and bribes that propped up Saddam and strengthened his cruel, tyrannical rule. If even some of our supposed friends will cheat on a "humanitarian" agreement, what hope of compliance with treaties can we realistically expect?
[THIS IS ANOTHER GOOD QUESTION. WHY DO THE UNCLOS TREATY PROPONENTS FIND IT ANNOYING THAT SUCH QUESTIONS ARE BEING ASKED??? DO THEY NOT BELIEVE THAT THE ADMINISTRATION & THE CONGRESS ARE ACCOUNTABLE TO THE AMERICAN PEOPLE?? ARE THEY ABOVE THE LAW?]
• U.N. relief workers have been found to demand sexual favors from poor, defenseless individuals in order to receive the food and other desperately needed aid that had been donated to help those unfortunates.
Despite the specious record of the U.N., idealists who crave peace make common cause with realists who crave power to lobby for more and more authority to be vested in the U.N. Liberals who think that a business monopoly is a threat to the human race desire a political monopoly that they fantasize will be benevolent and just.
Liberals believe that if there were no more sovereign states, then there wouldn't be any more war. Well, there might not be "wars" in the traditional sense if a global government with an effective monopoly on force were ever created, but there would still be plenty of violence. Look, when the Soviet communists finally subdued internal armed resistance, there were no wars between the constituent republics, but the Soviet Union was still a very violent place. The state waged its own sort of war against all the subject peoples, with tens of millions executed or banished to Siberia as "enemies of the state." As destructive as war is (an estimated 45 million lives lost to war in the 20th Century), war is not nearly as deadly as governments that have fallen into the wrong hands (responsible for more than 120 million deaths in the 20th Century).
[WHY DO THESE PEOPLE OVERLOOK SUCH OBVIOUS FACTS?? ARE THEY NAIVE OR MERELY UTOPIANS?? OR BOTH??]
Do we really want to trust the U.N. - which not many years ago had such bloody, oppressive regimes as those of Cuba, Syria, Libya, and Sudan on its Human Rights Commission - to uphold the provisions of UNCLOS? The U.N. can't even abide by the most important agreement in its history: the 1948 Universal Declaration of Human Rights. Article 3 affirms, "Everyone has the right to life, liberty, and security of person"; Article 4, that nobody shall be held "in servitude"; Article 7, "All are equal before the law ... ." A list of undemocratic governments that have violated those rights and committed the most heinous atrocities against their own citizens, and yet have been accepted as equals in the halls of the U.N., would fill a long paragraph. What grounds do we have for trusting such characters to honorably uphold and abide by the terms of UNCLOS? This seems to be an egregious case of wishful thinking.
[THIS IS ANOTHER EXCELLENT QUESTION. HOW CAN THE U.N. BE AN HONEST BROKER WHEN IT ENTERTAINS SUCH MEMBERSHIP IN IMPORTANT FORUMS IN THE NAME OF 'DIPLOMACY', 'TOLERANCE' & 'UNDERSTANDING'??? WHY SHOULD THE U.S. & OTHER COUNTRIES BE HELD TO A DOUBLE STANDARD?? HOW CAN THE U.N. GENERAL SECRETARIAT THAT OVERSEES THE ADMINISTRATION OF THE UNCLOS, ALONG WITH THE U.N. ENVIROMENT PROGRAM (UNEP), BE HELD ACCOUNTABLE TO THE AMERICAN PEOPLE THROUGH THEIR U.S. REPRESENTATIVES??]
[THE OBVIOUS ANSWER IS THAT THEY CANNOT BECAUSE OF 'ABSOLUTE SOVEREIGN IMMUNITY' GRANTED TO THE UN AND ITS BODIES. SECTION 4, SUBSECTION G, ARTICLE 177 OF THE UNCLOS EXPRESSLY PROVIDES THE INTERNATIONAL SEABED AUTHORITY (ISBA) WITH ABSOLUTE IMMUNITY. UNCLOS ARTICLES 178, 179 & 180 SERVE TO PROTECT THE ISBA AND ITS PROPERTY ASSETS LOCATED WITHIN EACH UN MEMBER TERRITORY FROM LEGAL PROCESS, SEARCH AND SEIZURE AND "RESTRICTIONS, REGULATIONS AND CONTROLS AND MORATORIA OF ANY KIND". FURTHERMORE, PURSUANT TO UNCLOS ARTICLE 181, THE ISBA ARCHIVES, WHEREVER LOCATED, ARE GRANTED THE PRIVILEGE & IMMUNITY OF 'NONVIOLABILITY'. MOREOVER, UNCLOS ARTICLE 182(a) PROVIDES THAT STATE PARTY REPRESENTATIVES PERFORMING OFFICIAL FUNCTIONS ON BEHALF OF THEIR GOVERNMENTS IN CONNECTION WITH THEIR WORK IN THE ISBA ASSEMBLY, COUNCIL AND SUBSIDIARY ORGANS, AS WELL AS, THE ISBA EXECUTIVE AND ITS OFFICERS AND STAFF, ARE ALL IMMUNE FROM LEGAL PROCESS. SUCH PROTECTION FROM ACCOUNTABILITY IS CONSISTENT WITH THE BROAD AND ABSOLUTE IMMUNITY FROM PROSECUTION THAT HAS BEEN AFFORDED THE UNITED NATIONS AND ITS OFFICIALS, AS HAS BEEN RECOGNIZED BY U.S. COURTS. THE KEY U.N. SOVEREIGN IMMUNITY CASE REMAINS De Luca v. United Nations Organization Perez de Cuellar, Gomez, Duque, Annan, et. al. (1994).]
Why are we wasting time with such a futile exercise? Given the track record of many of the U.N.'s member states, one can only conclude that they would love to hamstring the United States, figuring that we might make concessions and try to abide by the treaty even while other signatories flout it? Who needs a treaty like that?
[THESE ARE QUESTIONS THAT ALL AMERICANS SHOULD BE ASKING OF THEIR CONGRESSIONAL REPRESENTATIVES. AND, THEIR REPRESENTATIVES SHOULD BE WILLING AND EAGER TO ANSWER THEM.]
Mark W. Hendrickson is a faculty member, economist, and contributing scholar with the Center for Vision & Values at Grove City College.
Comments (3) >>
...written by Arsen, February 06, 2008I really need something up to date that says Law of the Sea will pass that is from last week.
...written by Caitlyn L. Antrim, February 06, 2008
[CAITLYN ANTRIM IS EXECUTIVE DIRECTOR OF THE RULE OF LAW COMMITTEE FOR THE OCEANS, and FOUNDER AND DIRECTOR OF THE CENTER FOR LEADERSHIP IN GLOBAL DIPLOMACY].
It appears that you are mistaking title for substance. The "United Nations" in the title refers only to the fact that the Convention was negotiated at the UN. In fact the Convention is an agreement among states as to the rights of coastal states (to manage their territorial sea, their offshore fishing resources and the minerals of the continental shelf) and the rights of seafaring states (to free navigation on the high seas, including within the economic zone, passage through straits used for international navigation, and innocent passage through the territorial sea). The United Nations does not have a role here - rights and responsibilities belong to states. In some cases there are provisions for arbitration of disputes, but there are exceptions for military activities, boundary delimitation and actions under Security Council resolutions. Even then, disputes are tightly limited and the rules lean in our favor.
[WE BEG TO DIFFER. ACCORDING TO THE EXPERTS, THE UNCLOS OPERATES "UNDER THE UN GENERAL SECRETARIAT." See: Lawrence Ziring, Robert E. Riggs and Jack C. Plano, The United Nations – International Organization and World Politics Third Edition (Harcourt College Publishers © 2000) at. p. 57. COMMENTATORS, AS WELL, HAVE NOTED HOW THE UNCLOS SECRETARIAT IS ONLY ONE OF SEVERAL ORGANIZATIONS, "INCLUDING THE INTERNATIONAL MARITIME ORGANIZATION (IMO) AND UNEP...THAT DEAL WITH THE MARINE ENVIRONMENT. THE IMO MANAGES AGREEMENTS CONCERNING POLLUTION FROM SHIPS; UNEP MANAGES THE REGIONAL SEAS PROGRAM; AND THE UNCLOS SECRETARIAT HANDLES THE BROADER LEGAL FRAMEWORK.” See Frank Biermann and Steffan Bauer, A World Environmental Organization: Solution or Threat for Effective International Environmental Governance (© 2000 Ashgate Publ.) at p. 190. IN ADDITION, “The UN GENERAL SECRETARIAT [ALSO] SERVES AS THE SECRETARIAT FOR...THE AGREEMENT FOR THE IMPLEMENTATION OF THE PROVISIONS OF 'THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA of 10 DECEMBER 1982, RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGH MIGRATORY FISH STOCKS". See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Status of Multilateral Environmental Agreements UNEP/IGM/1/INF/3 (April 6, 2001) at par. 90.]
Only three cases provide for international bodies, and we intentionally decided to create new bodies rather then utilize the UN. One body is made up of geologists expert on reviewing limits to the continental shelf, another is an international tribunal that states may, but need not, choose to resolve disputes, and the third is the International Seabed Authority. The Authority as negotiated in 1982 was the reason for President Reagan's objections. It's powers and Authority, and the oversight role of the US, were renegotiated to our complete satisfaction in 1994. The US, once we join, will have a _permanent_ seat on the executive council and we will be able to veto any rule, regulation or amendment dealing with operations, budget or distribution of funds. In addition, the finances of the Authority are audited by commercial accounting companies. The entire staff of the authority is only 38 people, most of whom are clerks, administrative personnel, drivers and security personnel.
[THE POWERS OF THE INTERNATIONAL SEABED AUTHORITY HAVE GRADUALLY EXPANDED SINCE THE 1994 AGREEMENT WAS SIGNED, WHICH WAS NOT ANTICIPATED BY THE CLINTON ADMINISTRATION AT THE TIME IT NEGOTIATED THE 1994 AGREEMENT. See: Myths and Realities Concerning UN Law of the Sea Treaty: LOST Does Incorporate Europe's contra-WTO Precautionary Principle! (c), at: http://itssdjournalunclos-lost.blogspot.com/2008/01/myths-and-realities-concerning-un-law.html . OR WAS IT??]
[See also: U.N. General Assembly Resolution A/RES/62/215, Oceans and the Law of the Sea (March 14, 2008), at: http://daccessdds.un.org/doc/UNDOC/GEN/N07/476/67/PDF/N0747667.pdf?OpenElement (... The Area 33. Notes the progress of the discussions on issues relating to the regulations for prospecting and exploration for polymetallic sulphides and cobalt-rich ferromanganese crusts in the Area, and reiterates the importance of the ongoing elaboration by the Authority, pursuant to article 145 of the Convention, of rules, regulations and procedures to ensure the effective protection of the marine environment, the protection and conservation of the natural resources of the Area and the prevention of damage to its flora and fauna from harmful effects that may arise from activities in the Area;").
[WHILE THE FINANCES OF THE AUTHORITY (ISBA) MAY BE AUDITED, WHO IS AUDITING THE AUDITORS?? “[A] CONFIDENTIAL SOURCE IN THE UNITED NATIONS HAS COME FORWARD TO ALLEGE THAT THE INTERNATIONAL SEABED AUTHORITY (ISA) IS KNOWN FOR HAVING MANAGEMENT PROBLEMS AND THAT IT SUFFERS FROM A LACK OF ADMINISTRATIVE AND ETHICAL OVERSIGHT....Nithi Sam-Thambiah, WHO HAD BRIEFLY HELD THE POSITION OF CHIEF OF ADMINISTRATION AND MANAGEMENT AT THE ISA...WAS HIRED IN DECEMBER 2001. SIX MONTHS LATER HE SAYS HE WROTE A LETTER TO ISA SECRETARY-GENERAL Nandan REQUESTING A MEETING TO DISCUSS VARIOUS 'SENSITIVE' ISSUES, INCLUDING 'MISMANAGEMENT AND IRREGULARITIES' IN THE ORGANIZATION. ONE MONTH LATER, Sam-Thambia WAS FIRED..." See Cliff Kincaid, Scandal Rocks U.N. Sea Treaty Organization, Accuracy in Media (Oct. 16, 2007).]
If you don't like the UN, then you should give a new look at the LOS Convention because the convention not only avoids giving the UN power, it establishes an alternative body that incorporates features we would like to see added to the UN - particularly the permanent US seat, the introduction of chambered voting that enhances the influence of developed countries, and the requirement for consensus in financial decisions that gives the US a veto (but only if we join and attend so we can use it).
[SORRY TO SAY, NOT TOTALLY ACCURATE. See: Fact Sheet - U.S. Oceans Policy and the Law of the Sea Convention Released by the Bureau of Oceans and International Environmental and Scientific Affairs (May 28, 1998) at: http://www.state.gov/www/global/oes/oceans/fs_oceans_los.html , WHICH PROVIDES THAT WHILE A SEAT MAY BE GUARANTEED TO THE UNITED STATES ON THE COUNCIL OF THE ISBA AND ON THE COUNCIL'S FINANCE COMMITTEE, THE U.S. DOES NOT HAVE A GUARANTEED 'VETO' THAT CAN BE USED TO BLOCK DECISIONS THAT GO AGAINST U.S. INTERESTS. RATHER, ACCORDING TO THIS DOCUMENT, "THE EFFECT OF...A CHAMBERED VOTING ARRANGEMENT...[IN] THE COUNCIL OF THE INTERNATIONAL SEABED AUTHORITY...IS TO ALLOW THE UNITED STATES AND TWO OTHER INDUSTRIALIZED COUNTRIES ACTING IN CONCERT TO BLOCK A DECISION;" WHAT HAPPENS IF THE U.S. IS UNABLE TO SECURE THE AGREEMENT OF TWO OTHER DEVELOPED COUNTRIES TO 'ACT IN CONCERT' TO BLOCK A DECISION THAT IS HOSTILE TO U.S. INTERESTS?? IN OTHER WORDS, THE U.S. WILL NEED TO RELY ON DIPLOMACY AND HORSETRADING WITH OTHER DEVELOPED COUNTRIES TO SECURE A NEEDED VOTE AT THE RIGHT TIME; THEREFORE THERE IS NO GUARANTEE OF A VETO, CONTRARY TO WHAT HAS BEEN STATED! INDEED, AS FAR AS THE U.N. IS CONCERNED, IT IS ONLY IN THE SECURITY COUNCIL THAT THE U.S. WIELDS A GUARANTEED VETO. ("In accordance with the relevant provisions of the Charter of the United Nations [Chapter V, Article 27], decisions of the Security Council are made by an affirmative vote of nine members of the Council including the concurring votes of the five permanent members (China, France, Russian Federation, United Kingdom of Great Britain and Northern Ireland, United States of America). If a permanent member casts a negative vote, the draft resolution being voted on is not passed.) See: Security Council - Voting Information, Introduction, United Nations Documents: Research Guide at: http://www.un.org/Depts/dhl/resguide/scvote.htm].
The Convention is in place and running. As directed by President Reagan, we observe the convention as much as we can as a non-party already. As to the seabed provisions, the republican congresses failed to fund the US regime for seabed minerals that had been established in 1980. As a result, their is _no_ US seabed mining industry, even as Germany became the 8th consortia to be authorized by the Authority to have exclusive exploration rights for their minesite in the Pacific.
Attack the UN all you want. But you will find that the US negotiators of the LOS Convention anticipated your concern and avoided giving the UN any role in the Law of the Sea Convention.
[WHAT ABOUT THE INT'L TRIBUNAL ON THE LAW OF THE SEA?? THAT IS NOT A UN BODY?? WHAT ABOUT THE INT'L SEABED AUTHORITY?? THAT IS NOT A UN BODY?? ARE WE NOT CONTRADICTING OURSELVES HERE?? IF THAT IS THE CASE, THE AMERICAN PUBLIC MUST DEMAND THAT THE U.S. CONGRESS CONVENE OPEN & TRANSPARENT PUBLIC HEARINGS PURSUANT TO WHICH IT, AND THE ADMINISTRATION, CAN SHARE THEIR UNDERSTANDING OF THE UNCLOS & THE PLANNING THAT HAS GONE INTO THE U.S. RATIFICATION POSITION. WHAT DO THEY HAVE TO HIDE??]
...written by Robert McManus, February 07, 2008
This is truly an idiotic screed: For starters, the UN has NO substantive responsibilities under the LOS Convention. (It's called UNCLOS because the conference that negotiated it was convened pursuant to a UN General Assembly Resolution in the 1960s.) Mr. Hendrickson admits he "won't even try" to figure out whether the treaty yields net gains to the US. This is an abdication of intellectual rigor that staggers the imagination, coming as it does from a putative educator. Less lazy individuals have answered that question affirmatively, including the Chief of Naval Ops (and all living former CNOs), the Joint Chiefs, the secretary of state, the president, the American Petroleum Institute, the Senate Foreign Relations Committee (twice!), the Bush-appointed US Oceans Policy Commission (unanimously), and all living former chief counsels of the State Dept.
[WOW. THE UTTER CONTEMPT, INTOLERANCE AND RUDENESS SHOWN HERE FOR INQUIRING OR OPPOSING VIEWS IS ASTOUNDING. MR. MCMANUS SHOULD KNOW BETTER. HE IS AN ATTORNEY SUPPOSEDLY IN 'GOOD STANDING' IN WASHINGTON DC. See: http://www.kgrmlaw.com/index.php?page=44 . ALSO, MR. MCMANUS WAS ONCE A PUBLIC SERVANT. HE PREVIOUSLY SERVED AS A U.S. GOVERNMENT LAWYER FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) AND THE U.S. NATIONAL OCEANIC ATMOSPHERIC ADMINISTRATION (NOAA) See:
http://www.sourcewatch.org/index.php?title=Robert_J._McManus , WHICH IS WHY HE CLAIMS BELOW THAT HE IS THE AUTHORITY ON THE UNCLOS TREATY.]
Unlike Mr. Hendrickson, I am familiar with the ACTUAL PROVISIONS of the treaty, and would be happy to answer questions, with ACTUAL REFERENCES to the text. (I call this odd technique "scholarship.") For reasons I can't fathom, the far-right opponents of this treaty consider it some sort of saliva test, and deem its defeat sufficiently important to lie about its provisions in the press (or, as in Hendrickson's cae, to argue some irrelevant point about the UN).
[IT WOULD APPEAR THAT MR. MCMANUS OPPOSES AND IS ANNOYED BY QUESTIONS THAT ORDINARY AMERICANS HAVE ABOUT THE U.N. AND THE UNCLOS, THE UNCLOS' MANY QUESTIONABLE PROVISIONS, ESPECIALLY THEIR 45 + ENVIRONNMENTAL ARTICLES, REGULATIONS, ANNEXES AND PROTOCOLS, THE FORMER THINKING BEHIND THE U.S. NEGOTIATING POSITION, AND THE CURRENT U.S. GOVERNMENT & EXPERT UNDERSTANDING REGARDING THE EXTENT TO WHICH U.S. SOVEREIGNTY WOULD BE LOST AT THE HANDS OF UNCLOS ORGANIZATIONS SUCH AS THE ISBA & THE ITLOS, & REGARDING HOW TO COUNTER EFFORTS BY OTHER UNCLOS TREATY PARTIES, SUCH AS THE EUROPEAN UNION & ITS MEMBER STATES, WHICH ARE CURRENTLY EXPLOITING THE UNCLOS AT U.S. EXPENSE. IT ALSO APPEARS THAT MR. MCMANUS OPPOSES AND IS ANNOYED BY SUGGESTIONS THAT THE UNCLOS BE PUBLICLY & TRANSPARENTLY REVIEWED BY THE U.S. CONGRESS before THE U.S. SENATE RATIFIES IT. MR. MCMANUS: ARE YOU OPPOSED TO CONGRESS HONORING ITS CONSTITUTIONAL OBLIGATION TO THE AMERICAN PEOPLE TO PROVIDE THEM WITH 'DUE PROCESS'??? IF SO, WHY??]
[MR. MCMANUS HAS ACTED THIS WAY BEFORE. See: Robert McManus, LOST at sea, Letter to the Editor, Washington Times (Aug. 10, 2007) at: