Friday, June 20, 2008

The LOST, a Trojan SeaHorse, is a 'Dynamic and Evolving Body of Law', Says UN, That Would Likely Overtake US Legal & Economic Sovereignty

The Public Policy LOST at Sea

By Doug Bandow

The American Spectator


Like a monster in a horror flick franchise, the Law of the Sea Treaty (LOST), an omnibus treaty originally blocked by President Ronald Reagan, is back! And despite what the doomsday document's delirious spokesmen say, it's about as scary as ever.

The convention is being pushed by a mix of activists, who support international law -- any international law -- and businesses, [$$] such as the International Association of Drilling Contractors, that see visions of profits dancing in their boardrooms. Treaty critics are being dismissed as ignorant fools or cynical liars.

LOST covers navigation, environment, seabed mining, and more. It offers a few benefits, but they have been widely exaggerated. Boosters are bragging that the treaty would strengthen navigation rights. But the difference would only be marginal, since the treaty simply codifies customary international law.

Most countries have an interest in maintaining free navigation. If a nation believes it to be in its interest -- and within its capability -- to interdict commercial or military shipping, it isn't likely to waste time parsing LOST articles before acting.

The Treaty's downsides remain. The seabed mining provisions were renegotiated in 1994, but the treaty was not "fixed." The convention, originally intended to promote large-scale income redistribution to Third World states, creates an International Seabed Authority (ISA) to regulate ocean mining and the Enterprise to mine for the ISA.The system is byzantine in its complexity and inefficiency.

THE RENEGOTIATED text only moderated LOST's infirmities. Now, the U.S. has been given a seat on the Council of the ISA, but it possesses no veto, unlike the UN Security Council.

The Council operates by "consensus," but under the Treaty this only means the ISA must strive to overcome disagreements before moving forward. Had "consensus" really meant consensus as commonly understood, the Treaty itself could never have been approved over U.S. objections.

Similarly, the agreement retains part of the original requirement for mandatory technology transfers. Article 144 directs that the Authority shall "promote and encourage the transfer to developing States of such technology and scientific knowledge."

Moreover, the Authority and States Parties "shall initiate and promote" programs "for the transfer of technology to the Enterprise and to developing states," including "facilitating the access of the Enterprise and of developing States to the relevant technology, under fair and reasonable terms and conditions." The revised text also adds new provisions that easily could be interpreted to require the same sort of technology transfers originally specified in the version that the U.S. rejected, such as the requirement that governments "ensure that contractors sponsored by them also cooperate fully with the Authority."

Equally bad, LOST could be treated as self-enforcing, that is, found to create obligations enforceable by U.S. courts. In Medellin v. Texas, the U.S. Supreme Court recently rejected a challenge to a criminal conviction for failure to fulfill the Vienna Convention on Consular Relations. The majority ruled that it does not constitute "directly enforceable federal law."

Treaty advocates make the same claim for LOST. However, Annex III, Article 21(2) states that LOST tribunal decisions "shall be enforceable in the territory of each State Party." And in Medillin Justice John Paul Stevens contrasted the Vienna Convention with LOST, which he opined did "incorporate international judgments into international law."

The issue isn't going to be settled until a suit is filed under LOST, if the U.S. is foolish enough to ratify the Treaty.

INDEED, SOME PROPONENTS are almost gleeful about the treaty's many opportunities for new litigation. William C.G. Burns, a professor at Monterey Institute of International Studies, denounced America's refusal to ratify the Kyoto Protocol on global warming.

Burns noted that "several States and peoples in recent years have begun to contemplate, or have taken active steps to initiate, actions against States or private actors" in a variety of international forums, including the LOST, which, he contends, "may prove to be one of the primary battlegrounds for climate change issues in the future."

He cites the Treaty's expansive definition of marine pollution, writing that "the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water" could "give rise to actions under the Convention's marine pollution provisions."

"While very few of the drafters of [the Treaty] may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future. At the very least, the spectre of litigation may help to deepen the commitment of States to confront the most pressing environmental issue of our generation," Burns wrote.

By being publicly honest, Professor Burns violated the earlier injunction from Bernard Oxman, a long-time LOST supporter at the University of Miami. Writing in the European Journal of international Law in 1996, Prof. Oxman warned that "global ratification [of LOST] is by no means assured."

Thus, Oxman explained, it was important for advocates not to unduly worry governments about the potential obligations they would be incurring: "this suggests restraint in speculating on the meaning of the convention or on possible differences between the Convention and customary law."

Indeed, he acknowledged that the Convention "is an easy target" because "[l]ike many complex bodies of written law, it is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting, not to mention a potpourri of provisions that any one of us, if asked, would happily delete or change."

But in Oxman's telling all that mattered was ratifying the Treaty. So it was "essential to measure what we say in terms of its effect on the goal." He explained that "[e]xperienced international lawyers know where many of the sensitive nerve endings of governments are."Where possible, they should try to avoid irritating them."ONE OBVIOUS "sensitive nerve ending" is LOST's purported control over land-based pollution. Article 207 of the Treaty directs: "States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources."

States also "shall take other measures as may be necessary to prevent, reduce and control such pollution."

Some LOST advocates simply deny the obvious. Deputy Secretary of State John Negroponte last year claimed that there was "no jurisdiction over marine pollution disputes involving land-based sources," directly contradicting the Treaty text.

Others claim that the provision is merely hortatory. Yet Lawrence Kogan, of the Institute for Trade, Standards, and Sustainable Development, wrote an extensive analysis for The ITSSD Journal, warning that several provisions created a potential cause of action and could "be used to commence litigation against the U.S." in various international forums.

Still, Treaty advocates contend that such actions would fail. They dismiss a suit by Ireland against Great Britain over domestic-source pollution because of Britain's supposed failure to raise the best defense.

Maybe they are right, but we won't know until their theory is tested. Moreover, argues Kogan, "whether or not an adverse ruling is secured, such other LOST party could help to shape/influence future U.S. governmental legislative and/or regulatory action."

More significantly, it is pretty clear that Treaty supporters are not being straight with the rest of us. The World Wildlife Federation and Don Kraus of Citizens for Global Solutions have told environmentalists that they should back LOST because it could help halt Russian pollution of the Arctic. How can the convention bind Russia but not America?

One Treaty proponent recently sent an email -- which ended up in my hands -- about the consequent difficulty of allaying "conservative fears" of LOST being "some kind of green Trojan Horse."

Supporters of the Convention have a clear agenda. Declared the UN's Division for Ocean Affairs and the Law of the Sea: LOST is not "a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced."

Where might that "dynamic and evolving body of law" end up? Facile assurances from Treaty proponents need to be verified and not trusted. The U.S. Senate has an obligation to answer that question before it ratifies this horror show of a treaty.


Doug Bandow is the Robert A. Taft Fellow at the American Conservative Defense Alliance and author of Foreign Follies: America's New Global Empire (Xulon Press). This article is adapted from a forthcoming study for the Institute for Policy Innovation.

Friday, June 6, 2008

UNCLOS is Once Again 'On the Move', Being Promoted By Alaska's Senators and President Bush; But the Reality About UNCLOS Continues to Evade Them

U.S. Alaska Senator Lisa Murkowski delivered the keynote speech opening the Arctic Transportation Conference convened by the U.S. Maritime Administration on June 5, 2008, at Washington, DC's St. Regis Hotel. Among the points emphasized, she highlighted the recent plurilateral 'Greenland Declaration of Cooperation' made by Canada, Denmark, Norway, Russia and the United States delegations - i.e., the 'Five Arctic Powers', which supports the UN Law of the Sea Convention as the definitive "framework for legal governance of the Arctic region".



In particular, Senator Murkowski, emphasized how "it is now more crucial than ever for the U.S. to ratify the UNCLOS...Some in the Senate say that UNCLOS ratification is not necessary and that the U.S. can choose which portions of it to follow. It is better to be a player at the table than to be on the outside. UNCLOS ratification would enhance the ability and credibility of the U.S. to influence the outcome. The U.S. cannot make a claim to an extended continental shelf and have it honored if it doesn't ratify the UNCLOS...A precautionary approach is called for in the Arctic...The U.S. must be a leader in the Arctic and climate change... Sustainable alternative energy is needed. Environmental protection leadership is needed...A congressional resolution [The resolution, S.J. Res.17] was recently passed [ indicates "May 21, 2008: This bill passed in the House of Representatives by voice vote. A record of each representative's position was not kept."] calling for the development of an international fisheries regime for the Arctic. The President will sign this resolution...[The President signed the resolution on June 3, 2008] The U.S. sits on the edge of a precipice...Some senators are hesitant to ratify the UNCLOS and cling to the old environment around which the treaty was negotiated...but the legal and real environment around the treaty early on has changed requiring UNCLOS ratification...We need to be seated at the table...Senators including myself will move to push the treaty through the Senate before the end of the will certain members of the administration...Every member of the Senate must be whipped..."

[See Congress Approves Stevens Resolution to Protect Arctic Fisheries (May 21, 2008), at: “As ocean temperatures change and fish habitats expand northward, we may see valuable fish stocks migrate north into the Arctic Ocean,” said Senator Stevens. 'This resolution directs the United States to pursue international agreements to stop any expansion of fishing in the Arctic Ocean until a science-based fishery management plan can be implemented. After the President signs this resolution, I will work with the State Department to bring this issue to the United Nations.'” ].

S.J. Res. 17:

One Hundred Tenth Congress
of the
United States of America

Begun and held at the City of Washington on Thursday, the third day of January, two thousand and eight

Joint Resolution
Directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean.

Whereas the decline of several commercially valuable fish stocks throughout the world's oceans highlights the need for fishing nations to conserve fish stocks and develop management systems that promote fisheries sustainability;

Whereas fish stocks are migratory throughout their habitats, and changing ocean conditions can restructure marine habitats and redistribute the species dependent on those habitats;

Whereas changing global climate regimes may increase ocean water temperature, creating suitable new habitats in areas previously too cold to support certain fish stocks, such as the Arctic Ocean;

Whereas habitat expansion and migration of fish stocks into the Arctic Ocean and the potential for vessel docking and navigation in the Arctic Ocean could create conditions favorable for establishing and expanding commercial fisheries in the future;

Whereas commercial fishing has occurred in several regions of the Arctic Ocean, including the Barents Sea, Kara Sea, Beaufort Sea, Chukchi Sea, and Greenland Sea, although fisheries scientists have only limited data on current and projected future fish stock abundance and distribution patterns throughout the Arctic Ocean;

Whereas remote indigenous communities in all nations that border the Arctic Ocean engage in limited, small scale subsistence fishing and must maintain access to and sustainability of this fishing in order to survive;

Whereas many of these communities depend on a variety of other marine life for social, cultural and subsistence purposes, including marine mammals and seabirds that may be adversely affected by climate change, and emerging fisheries in the Arctic should take into account the social, economic, cultural and subsistence needs of these small coastal communities;

Whereas managing for fisheries sustainability requires that all commercial fishing be conducted in accordance with science-based limits on harvest, timely and accurate reporting of catch data, equitable allocation and access systems, and effective monitoring and enforcement systems;

Whereas migratory fish stocks traverse international boundaries between the exclusive economic zones of fishing nations and the high seas, and ensuring sustainability of fisheries targeting these stocks requires management systems based on international coordination and cooperation;

Whereas international fishing treaties and agreements provide a framework for establishing rules to guide sustainable fishing activities among those nations that are parties to the agreement, and regional fisheries management organizations provide international fora for implementing these agreements and facilitating international cooperation and collaboration;

Whereas under its authorities in the Magnuson-Stevens Fishery Conservation and Management Act, the North Pacific Fishery Management Council has proposed that the United States close all Federal waters in the Chukchi and Beaufort Seas to commercial fishing until a fisheries management plan is fully developed;
Whereas future commercial fishing and fisheries management activities in the Arctic Ocean should be developed through a coordinated international framework, as provided by international treaties or regional fisheries management organizations, and this framework should be implemented before significant commercial fishing activity expands to the high seas:
Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That

(1) the United States should initiate international discussions and take necessary steps with other Arctic nations to negotiate an agreement or agreements for managing migratory, transboundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organization or organizations for the region;

(2) the agreement or agreements negotiated pursuant to paragraph (1) should conform to the requirements of the United Nations Fish Stocks Agreement and contain mechanisms, inter alia, for establishing catch and bycatch limits, harvest allocations, observers, monitoring, data collection and reporting, enforcement, and other elements necessary for sustaining future Arctic fish stocks;
(3) as international fisheries agreements are negotiated and implemented, the United States should consult with the North Pacific Regional Fishery Management Council and Alaska Native subsistence communities of the Arctic;
(4) until the agreement or agreements negotiated pursuant to paragraph (1) come into force and measures consistent with the United Nations Fish Stocks Agreement are in effect, the United States should support international efforts to halt the expansion of commercial fishing activities in the high seas of the Arctic Ocean.

Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
[See President Bush Signs H.R. 2356, H.R. 2517, H.R. 4008, S. 2829, and S.J.Res. 17 Into Law, at: . "S.J.Res. 17, which encourages the United States to initiate international discussions with other Arctic nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean"].