ITSSD President Delivers Thought-Provoking Speech at National Defense University - What Do the UNCLOS Experts Have to Say Now??

As the result of the ITSSD's ongoing research concerning the environmental regulatory dimensions of the UN Law of the Sea Convention, ITSSD President Lawrence Kogan was invited to participate in a recently convened conference (May 13-14, 2008) at National Defense University's Center for Technology and National Security Policy.

Information about the conference entitled, Unfrozen Treasures- National Security, Climate Change and the Arctic Frontier, is accessible at: http://www.ndu.edu/CTNSP/NCW_course.htm .

Mr. Kogan served on a panel of esteemed national experts entitled, Laws of the Sea: Changing Air Land and Sea Routes (http://www.ndu.edu/CTNSP/NCW_course/Arctic%20Security%20Agenda%20Final.pdf ). These UNCLOS experts included Ambassador John Norton Moore, Director, National Security Law, Virginia School of Law, University of Virginia; Dr. Jeremy Rabkin, Professor of Law, George Mason University; and CAPT Patrick J. Neher, Director, International and Operational Law Office of the Judge Advocate General, Department of the Navy.

Mr. Kogan had previously served on a panel alongside CAPT Neher on October 17, 2007, at the Reserved Officers Association in Washington, DC. See: US Citizens Seeking Thorough Congressional Review of UNCLOS Win Debate Against US Navy, at: http://itssdjournalunclos-lost.blogspot.com/2008/01/us-citizens-seeking-thorough.html .

In addition to delivering an oral presentation at the NDU, Mr. Kogan also prepared a written powerpoint presentation that is now accessible on the NDU and ITSSD websites, at pp. 168-219, at: http://www.ndu.edu/CTNSP/NCW_course/Arctic%20Security%20Compilation.pdf ; and http://www.itssd.org/Programs/KOGANIII.ppt .

The National Defense University is the premier center for Joint Professional Military Education (JPME) and is under the direction of the Chairman, Joint Chiefs of Staff. The University’s main campus is on Fort McNair in Washington, D.C. The Joint Forces Staff College is located in Norfolk, VA. The National Defense University is accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools.

If The US Senate is in NO Rush to Ratify UNCLOS, Then Why Doesn't Congress Accord Americans 'Due Process' & Hold Open, Public UNCLOS Hearings?

http://www.abajournal.com/magazine/stuck_in_port


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 'INDIVIDUAL 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.]

Why Has the U.S. Senate Remained So Quiet About UNCLOS?? Wasn’t Its Ratification Supposed to be a Slam Dunk??

http://www.opiniojuris.org/posts/1200350661.shtml


All Quiet on UNCLOS


By Duncan Hollis


Opinio Juris


A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics


01.14.2008 at 5:44pm


Notwithstanding its recent efforts to avoid recess appointments with 12 second sessions, the Senate will return in full next Monday. For international lawyers, the big question is whether UNCLOS finally gets a vote for the Senate's advice and consent. As I noted here and here, the SFRC voted UNCLOS out of Committee last fall largely along party lines. But it's been all quiet since. Indeed, I've heard from a couple of sources that the window for Senate A&C to accession is closing, if not closed. What I don't know is why? Is it that the Democracts really don't have the two-thirds majority for A&C? Or, is the opposition less than a third of the Senate, but the Senate leadership doesn't want to have the UNCLOS fight given all the procedural roadblocks and counter-measures even a handful of heavily committed Senators can invoke to oppose the treaty or forestall a vote? I suppose the fact that the election cycle is in full swing may have some explanatory value as well. But, what do readers think (or know)?


If UNCLOS doesn't get a vote this Congress, it has to go back and start all over again at the SFRC, something I suspect UNCLOS supporters would be eager to avoid. In that respect, I wonder if the supporters have one last push in them, or if the best chance for U.S. accession in the last decade has already passed.


[THE ANSWER IS: ALL OF THE ABOVE. PERHAPS, NEXT TIME THE UNCLOS RATIFICATION PROCESS BEGINS THE ADMINISTRATION & CONGRESS WILL HOLD OPEN, PUBLIC & TRANSPARENT HEARINGS UNDER OATH??? HIGHLY DOUBTFUL!]



Peter Prows:


1.15.2008 6:23am


As world commodities prices continue to rise, perhaps there will also be a push (or maybe a pushback?) as well from US mining companies interested in dusting off Part XI and the 1994 Agreement for prospective seabed mining ventures.


[A LIKELY THOUGHT RUNNING ACROSS THE MINDS OF OIL & GAS EXECUTIVES. BUT, THEY'RE REALLY NOT INTERSTED IN DEALING WITH THE INT'L SEABED AUTHORITY. THEY WOULD RATHER PURSUE U.S. TERRITORIAL EXPANSION VIA THE MAKING OF SUBMISSIONS TO THE U.N. CONTINENTAL SHELF COMMISSION FOR PURPOSES OF EXPLOITING U.S. GOV'T -GRANTED DRILLING/EXTRACTION LICENSES. WHY DO YOU THINK THE BUSH ADMINISTRATION RESUBMITTED UNCLOS TO THE SFRC SHORTLY AFTER AN AMENDMENT TO THE LONDON DUMPING CONVENTION THAT EXEMPTED CARBON SEQUESTRATION IN THE DEEP SEABED FROM THE TREATY'S POLLUTION PROVISIONS WAS SECURED?? OBVIOUSLY, OIL & GAS INTERESTS WERE BEHIND THIS PUSH, & ARE ALSO BEHIND THE CURRENT PUSH AT THE 'ARCTIC'. See e.g.,: UNCLOS Alchemy, http://itssdjournalunclos-lost.blogspot.com/2008/01/unclos-alchemy.html].



Lawrence Kogan:


Dear Duncan,


Perhaps the Senate's silence surrounding UNCLOS has something to do with:


1)New data that has been provided about the universe of MEAs revolving around and relating to the environmental regulations within Part XII of the UNCLOS and the final and proposed environmental regulations of the International Seabed Authority;


2)The plans of some UNCLOS State Parties to 'import' norms from such other treaties to interpret UNCLOS norms in the event ITLOS or arbitral jurisdiction is invoked in a dispute with the US, should it ratify;


3)The plans to reform the UNEP and the now moribund UN Trusteeship, to strengthen the UNEP into an IEO, as suggested by France and Germany, and to improve the relationship between the UNEP secretariats and the UN General Secretariat overseeing the UNCLOS;


4)The plans to vest the International Seabed Authority with broader and more extensive scope to regulate the marine environment of the Res Communis (Global Commons), including below, on and above the seabed, the water columns, and the air above, with ISA jurisdiction in a dispute arguably reaching into US EEZs and coastal waters, inland waterways, and the continental US;


5)The plans to impose environmental taxes and user fees on US and other countries' commercial activities for the use of the Res Communis, as defined above, as explained by France and Germany;


6)The growing number of lawsuits commenced by US environmental extremist groups against the US Navy for operating sonar devices along US coastlines and the US EEZ, such that the Navy JAG has to employ a greater number of attorneys just to keep up with the caseload;


7)The European Union and its coastal EU Member States' growing environmental activism to claim more and more of the EU EEZ as off limits to commercial traffic, as 'Marine Protected Areas' and/or as 'Particularly Sensitive Sea Areas' (PSSA's);


8)Clear and convincing evidence that the UNCLOS, as it is now being practiced by the EU and its Member States, incorporates the wingspread version of the hazard-not-risk-based Precautionary Principle, directly, indirectly, and 'in spirit'.


Perhaps since evidence about all of these factors have been adduced, the US Senate leadership of the 110th Congress believes it doesn't have the requisite number of votes to ratify the treaty. Alternatively, they do not believe it wise to expend the political capital to debate the treaty on the floor of the Senate and risk exposing the documented evidence showing all of the above.


Don't you think this could be why???


Best Regards,

Lawrence

If US Environmentalists Employ Lawfare Against Our Navy What Do You Think the Precautionary Principle-Crazed European Union & its Greens Will Do??

http://article.nationalreview.com/?q=MjY3MTk1OGEwYjIwMzBiY2U1NmIwZWI4MmZmODE4Yzg=


Mugged by Legality?


By Frank J. Gaffney Jr.


National Review Online


January 22, 2008


It is one of the truisms of politics that a conservative is often enough a former liberal who has been “mugged by reality.” The line comes to mind in the wake of President Bush’s decision Thursday to allow the Navy to ignore a federal court order and continue training with powerful sonars off the West Coast of the United States. Case law and court decisions threatened to end this naval training, which is essential to U.S. national security.


Having seen how far American judges would go to undermine U.S. interests, the episode should be a wake-up call to the president to resist ratification of the Law of the Sea Treaty, which would subject U.S. maritime interests to international judges who care even less for American security.


For decades, the Navy’s Judge Advocate General Corps has been in a lather to get the United States into the Law of the Sea Treaty (LOST). Were it not for those lawyers’ idée fixe — namely, that U.S. adherence to LOST is essential to the execution of the military’s power-projection and mobility missions — it is unlikely that George W. Bush would have decided to seek the ratification of LOST. His administration — like Ronald Reagan’s did 23 years ago — would have refused to subject the United States to this controversial international accord.


LOST’s objectionable provisions include the following:


This accord, which its proponents call a “constitution of the oceans” — infringes unacceptably on American sovereignty.


The treaty imposes curbs on military operations inconsistent with routine U.S. practice and national-security requirements.


It empowers a U.N. agency with authority to exercise control over the world’s oceans, seabeds, and even the airspace above them.


This agency — the International Seabed Authority — will have what amounts to the power to impose taxes in the form of various levies and fees, an ominous precedent for any supranational body.


It will also be able to decide who will be allowed to develop the resources on and beneath the ocean floor and to require transfers of technology and proprietary data from developed nations’ companies to international bureaucrats and third-world states.


Particularly worrisome are numerous, sweeping provisions requiring “protection of the marine environment” that could give rise to obligations to impose stricter environmental requirements than those of the Clean Air Act or Clean Water Act.


Underlying all of these requirements is the Luddite “precautionary principle,” a European-derived legal tenet according to which a country must guarantee that a proposed action will not cause any environmental harm before it can proceed.


Worse yet, LOST requires that any disputes about the reach and implementation of these and other treaty provisions be submitted to mandatory international dispute-resolution bodies, the findings of which are binding, with no appeal.


The Navy (and its sister services) are already hobbled at the hands of environmental activists using domestic courts to interfere with military operations. The practice has proved to be such an effective asymmetric weapon that it has come to be known as “lawfare.”

A case in point is the 2007 civil suit brought against the Navy by the Natural Resources Defense Council. The NRDC — a leftist organization whose “green” agenda often serves as a cover for anti-military activism — sought an injunction against the sea service on the grounds that its use of high-power sonar constituted violations of federal environmental statutes.


The Ninth Circuit Court of Appeals recently ruled that the Navy’s plan for protecting marine mammals off the West Coast during sonar training was inadequate, and ordered the case back to U.S. District Court Judge Florence-Marie Cooper. Judge Cooper proceeded to ban sonar use within 12 nautical miles of the coast and mandated shutdown procedures when the Navy spotted marine mammals. All this in spite of the fact that the Navy already employs 29 procedures to lessen the impact of sonar on marine life.


So egregious would be the impact of these rulings that the Navy urged President Bush to declare it exempt from the laws that Judge Cooper had interpreted to prevent sonar training. In so doing, he declared the sonar training to be “in the paramount interest of the United States.” He added that, “This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security.”


Fortunately, the president currently enjoys the latitude to prevent the creation of what would amount to sonar-free sanctuaries in strategically sensitive areas (notably, off San Diego), perhaps to be exploited by the very quiet submarines now proliferating in Chinese and other hostile navies. He not only recognized that such threats demand that our sailors receive the most effective sonar training possible; he took steps to ensure that they received that training. Today, the president is able to assign higher priority to their safety — and the nation’s security — than to the alleged impact of sonar on sea-life.


The bad news is that, if Bush’s Navy-impelled call for the Senate to ratify the Law of the Sea Treaty is approved, neither he nor his successors would likely be able to exercise such a waiver. In that event, if environmentalists turn to the Treaty’s tribunals and/or arbitral panels to enforce provisions more restrictive than U.S. laws (a safe bet), the Greens would very likely prevail. Hard experience tells us that international jurists all too often exhibit indifference towards, if not outright hostility to, American equities and positions. Such judges will ignore Navy protestations that they cannot interfere, asserting that the activities in question are not


military ones exempted under the Treaty, but environmental predation explicitly prohibited by it.


Sadly, an increasing number of federal judges in this country believe they must submit to the dictates of international tribunals and, for that matter, organizations and conferences. Ironically, the Bush administration itself has filed a brief with the Supreme Court in connection with the now-pending Medellin v. Texas case to the effect that a ruling of the International Court of Justice trumps domestic law.


The current importuning of the Navy to protect its operations from environmental laws should serve as a powerful warning to the president: The national security interests of the United States will be on the line in the future, just as much as they are today. Then, as now, the Navy will be a prime target of those who seek to use “lawfare” to undermine or otherwise interfere with those interests.


By acting to prevent such an action at this juncture, Bush has unwittingly validated the warnings of LOST’s critics. For this reason, among many others, he should withdraw his support for the Law of the Sea Treaty — and give the Navy’s shortsighted, inconsistent, and misguided lawyers who have championed it the old heave-ho.


— Frank J. Gaffney is president of the Center for Security Policy in Washington.

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



http://www.dailymail.co.uk/pages/live/articles/news/worldnews.html?in_article_id=492804&in_page_id=1811


The Uninvited Guest: Chinese Sub Pops Up in Middle of U.S. Navy Exercise, Leaving Military Chiefs Red-Faced


By MATTHEW HICKLEY -






10th November 2007


Comments (6)


When the U.S. Navy deploys a battle fleet on exercises, it takes the security of its aircraft carriers very seriously indeed.


At least a dozen warships provide a physical guard while the technical wizardry of the world's only military superpower offers an invisible shield to detect and deter any intruders.


That is the theory. Or, rather, was the theory.




Uninvited guest: A Chinese Song Class submarine, like the one that sufaced by the U.S.S. Kitty Hawk


American military chiefs have been left dumbstruck by an undetected Chinese submarine popping up at the heart of a recent Pacific exercise and close to the vast U.S.S. Kitty Hawk - a 1,000ft supercarrier with 4,500 personnel on board.

By the time it surfaced the 160ft Song Class diesel-electric attack submarine is understood to have sailed within viable range for launching torpedoes or missiles at the carrier.

According to senior Nato officials the incident caused consternation in the U.S. Navy.
The Americans had no idea China's fast-growing submarine fleet had reached such a level of sophistication, or that it posed such a threat.


One Nato figure said the effect was "as big a shock as the Russians launching Sputnik" - a reference to the Soviet Union's first orbiting satellite in 1957 which marked the start of the space age.


The incident, which took place in the ocean between southern Japan and Taiwan, is a major embarrassment for the Pentagon.


The lone Chinese vessel slipped past at least a dozen other American warships which were supposed to protect the carrier from hostile aircraft or submarines.


And the rest of the costly defensive screen, which usually includes at least two U.S. submarines, was also apparently unable to detect it.


According to the Nato source, the encounter has forced a serious re-think of American and Nato naval strategy as commanders reconsider the level of threat from potentially hostile Chinese submarines.


It also led to tense diplomatic exchanges, with shaken American diplomats demanding to know why the submarine was "shadowing" the U.S. fleet while Beijing pleaded ignorance and dismissed the affair as coincidence.


Analysts believe Beijing was sending a message to America and the West demonstrating its rapidly-growing military capability to threaten foreign powers which try to interfere in its "backyard".


The People's Liberation Army Navy's submarine fleet includes at least two nuclear-missile launching vessels.


Its 13 Song Class submarines are extremely quiet and difficult to detect when running on electric motors.


Commodore Stephen Saunders, editor of Jane's Fighting Ships, and a former Royal Navy anti-submarine specialist, said the U.S. had paid relatively little attention to this form of warfare since the end of the Cold War.


He said: "It was certainly a wake-up call for the Americans.


"It would tie in with what we see the Chinese trying to do, which appears to be to deter the Americans from interfering or operating in their backyard, particularly in relation to Taiwan."


In January China carried a successful missile test, shooting down a satellite in orbit for the first time.

UNCLOS Ratification Would Provide a 'Shield of U.S. Sovereignty' Against EU & Environmentalist-Inspired 'Lawfare'??

http://www.washingtontimes.com/article/20070702/FOREIGN/107020031/1003

Compact called shield of sovereignty, security [??]


Washington Times


July 2, 2007


Bernard H. Oxman is a professor at the Miami University School of Law in Coral Gables, Fla., a vice president of the American Society of International Law and a member of the U.S. delegation from 1973 to 1982 that negotiated the Law of the Sea pact. He answered questions from reporter David R. Sands on the upcoming battle over the treaty.


Question: Does the Law of the Sea treaty raise legitimate concerns about sovereignty and overreaching by the United Nations?

Answer: No. The deep-seabed mining provisions have been fixed in a manner directly responsive to each of the concerns raised by President Reagan. The convention enhances the ability of the United States to protect its sovereignty in the same way it has done so since the birth of the republic, namely by maintaining and deploying its armed forces by sea to respond to any threat to our interests in any part of the world, long before that threat reaches our shores. It is the erosion of the global navigational rights and freedoms protected by the convention that would pose a grave threat to national security and national sovereignty.


[PROFESSOR OXMAN SEEMS TO ACKNOWLEDGE THAT THERE IS A GENUINE THREAT TO U.S. MILITARY FREEDOM OF NAVIGATION POSED BY WHAT IS NOW REFERRED TO AS 'LAWFARE' WHICH, PRESUMABLY, IS NOT PROTECTED BY THE UNCLOS.]


[“[L]AWFARE...A VARIANT OF WARFARE...IS A STRATEGY OF USING OR MISUSING LAW [(e.g., filing human rights or environmental lawsuits against the military to stop opposed activities) AS A SUBSTITUTE FOR TRADITIONAL MILITARY MEANS TO ACHIEVE MILITARY OBJECTIVES...[LlAWFARE IS OFTEN CONDUCTED DURING PEACETIME BY INTERNATIONAL GROUPS AND SERVICE ORGANIZATIONS. ITS DEFINITION AND THE LIMITS OF THE PHENOMENON ARE STILL VAGUE." See: Lawfare, the Latest in Asymmetries - Part One, Council on Foreign Relations (March 18, 2003) at: http://www.cfr.org/publication/5772/lawfare_the_latest_in_asymmetries.html ; Lawfare, the Latest in Asymmetries - Part Two, Council on Foreign Relations (May 22, 2003) at: http://www.cfr.org/publication/6191/lawfare_the_latest_in_asymmetries_part_two.html .]

[A RECENT U.S. NAVY DOCUMENT REFLECTS ONE ONE EXAMPLE OF 'LAWFARE'. IT STATES THAT, "THE DEPARTMENT OF DEFENSE HAS GIVEN THE NAVY A TWO-YEAR EXEMPTION FROM CERTAIN PROVISIONS OF THE MARINE MAMMAL PROTECTION ACT, A DECISION THAT WILL CAUSE MORE LAWFARE FROM ENVIRONMENTAL GROUPS" (emphasis added). See: Harold C. Hutchison, The War Against U.S. Submarines, STRATEGYPAGE.COM (Feb. 5, 2007) at: http://www.cus.navy.mil/paofiles/The_War_Against_US_Submarines.htm .]


[THERE ARE MANY OTHER EXAMPLES OF THIS KIND OF 'LAWFARE' BEING INITIATED BY U.S. ENVIRONMENTAL EXTREMIST GROUPS, FOREIGN GOVERNMENTS & INT'L ENVIRONMENTAL EXTREMIST GROUPS THEY FINANCIALLY SUPPORT]


[(See, e.g.,: EU Hides Behind 'Private' Standards in Effort to Secure Global Regulatory Control, PR Newswire in Smart Brief (Oct. 9, 2007) at: http://www.smartbrief.com/news/aaaa/industryPR-detail.jsp?id=B27CFDE2-53BA-453E-AC85-3A7A1595233D )].


[EVEN THE GOVERNMENTS OF AUSTRALIA & CANADA HAVE GOTTEN INTO or ARE PLANNING TO GET INTO THIS PRACTICE OF IMPAIRING THE U.S. NAVY'S INNOCENT PASSAGE IN INT'L STRAITS.]


[(See: Compulsory Pilotage in the Torres Strait, NEWSLETTER OF THE SEA POWER CENTRE AUSTRALIA - (APRIL 7, 2007) at: http://www.navy.gov.au/spc/semaphore/issue7_2007.html ("On 6 October 2006, Australia introduced compulsory pilotage for the Torres Strait and Great North East Channel...to protect sensitive marine habitats...This initiative was hotly debated at the International Maritime Organization (IMO) and has been formally protested by the United States and Singapore...").]


[See: Doug Struck, Dispute Over NW Passage Revived U.S. Asserts Free Use by All Ships - Canada Claims Jurisdiction, Washington Post (Nov. 6, 2006) at: http://www.washingtonpost.com/wp-dyn/content/article/2006/11/05/AR2006110500286.html ("The United States contends that the Northwest Passage, though owned by Canada, is an international strait with free passage for all, like other straits around the world...Canada counters that it has sole jurisdiction over the Northwest Passage and wants to enforce its own laws on ships in the Arctic waters.").]


[See: Duncan Hollis, Passing Gas through Passamaquoddy Bay, Opinio Juris (5/9/07) at: http://www.opiniojuris.org/posts/1178720996.shtml ("Canada threatens legal action against the U.S. to ensure that liquefied natural gas (LNG) tankers do not transit its waterways en route to deliver LNG to new storage terminals being built along Maine’s coastline abutting Passamaquoddy Bay. It bases its claim on environmental reasons – “the waters are narrow & difficult to navigate, raising the specter of significant environmental and property damage should an accident (or even a terrorist attack occur)” and competitive reasons – “new LNG terminals would obviously compete with its own supply of LNG to the [US] through the very same pipelines.”).]


[See: Passamaquoddy Bay LNG Terminal Controversy (Not So) Innocent Passage: International Law and the Passamaquoddy Bay LNG Terminal Controversy, A Panel Discussion Hosted by the University of New Brunswick and the Canadian Council for International Law (May 11, 2008) at: http://www.ccil-ccdi.ca/index.php?option=com_content&task=view&id=223&Itemid=77 ("The issues the panel anticipates canvassing include: The status under international law of the waters of the proposed shipping route through Head Harbour Passage and the Passamaquoddy Bay; The right of innocent passage of foreign ships; The extent to which environmental risks may affect the right of innocent passage; and The constraints that the rules of international environmental law place on a state proposing to locate a potential hazardous activity in close proximity to another state...The Passamaquoddy Bay LNG controversy also raises questions about the need for a more cooperative approach to the governance of shared marine resources within the Passamaquoddy Bay, and the Gulf of Maine. The potential for the proposed LNG terminals to impact marine biological resources, including protected species, and the potential economic impact on coastal communities suggest the need for regulatory coordination that accounts for eco-system wide impacts...[T]he workshop may also address the following issues: Ocean governance / shared resource management structures and institutions; International rules protecting marine biological resources, including the Convention on Biological Diversity; and The application of general principles of international environmental law, such as the duty to cooperate, ecosystem integrity, the precautionary principle and environmental assessment.")]


[See also: Lawrence A. Kogan, US Military Review of the Law of the Sea Treaty Lacking: Planning Outsourcing Risks Triggering Logistics Nightmare at: http://itssdjournalunclos-lost.blogspot.com/2008/01/us-military-review-of-law-of-sea-treaty.html. (U.S. Military's private contractors not eligible for UNCLOS Arts. 297 -298 tribunal jurisdiction exemption for 'military activities'; thus UNCLOS & European Union environmental norms and standards based on the EU Precautionary Principle may be employed to restrict or ban their activities on the high seas and national EEZs, and could potentially hamper development of U.S. Navy military technologies).]


[MORE INFORMATION ABOUT THE EXTENT OF THE 'LAWFARE' BEING PERPETUATED AGAINST THE U.S. NAVY IN U.S. COURTS & UNILATERALLY WILL BE REVEALED IN A FORTHCOMING ITSSD UNCLOS JOURNAL BLOG ENTRY.]


[THUS, GETTING BACK TO THE DISCUSSION ABOUT HOW UNCLOS RATIFICATION WOULD PROTECT U.S. 'SOVEREIGNTY', IT IS ALSO ARGUABLE THAT PROF. OXMAN IS APPLYING A NARROW DEFINITION TO NATIONAL 'SOVEREIGNTY' IN HIS RESPONSE TO THE FIRST QUESTION POSED BY W/T REPORTER DAVID SANDS. WHILE OXMAN OBLIQUELY REFERS TO MORE THAN THE 'TRADITIONAL' (WESTPHALIAN) CONCEPT OF 'TERRITORIAL SOVEREIGNTY', WHICH MAY EXTEND TO FOREIGN MILITARY BASES, MILITARY VESSELS OPERATING ON THE 'HIGH SEAS' AND FOREIGN EMBASSIES, PROF. OXMAN DOESN'T SEEM TO DISCUSS THE EVOLVING CONCEPT OF 'FUNCTIONAL' SOVEREIGNTY, INTRODUCED BY THE CLUB OF ROME 40 YEARS AGO. ACCORDING TO THAT CONCEPT, SOVEREIGNTY RELIES UPON THE FORCE OF EVOLVING INTERNATIONAL LAW THAT IS, IN MANY WAYS, INCOMPATIBLE WITH THE U.S. CONSTITUTIONAL & COMMON LAW SYSTEMS - (IT INCREASINGLY ENTAILS RULE by LAW, not RULE of LAW).]


[THUS, IN ORDER TO ADEQUATELY 'TEST' PROF. OXMAN'S THESIS, THAT U.S. RATIFICATION OF THE UNCLOS WOULD PROVIDE A 'SHIELD OF U.S. SOVEREIGNTY', READERS MUST FIRST CONSIDER THE CREEPING EFFECTS OF INTERNATIONAL LAW ON THE U.S. EXERCISE OF 'FUNCTIONAL' & 'TRADITIONAL' SOVEREIGNTY, BOTH INTERNATIONALLY & DOMESTICALLY. IN OTHER WORDS, WE ARE SPEAKING HERE ABOUT DE JURE as well as DE FACTO CONSTRAINTS ON U.S. FREEDOM OF NAVIGATION & INNOCENT PASSAGE.]


[ACCORDING TO THE CLUB OF ROME, "FUNCTIONAL SOVEREIGNTY... DISTINGUISHES JURISDICTION OVER SPECIFIC USES FROM SOVEREIGNTY OVER GEOGRAPHIC SPACE...THIS WOULD PERMIT THE INTERWEAVING OF NATIONAL JURISDICTION AND INTERNATIONAL COMPETENCIES WITHIN THE SAME TERRITORIAL SPACE AND OPEN THE POSSIBLITY OF APPLYING THE CONCEPT OF 'COMMON HERITAGE OF MANKIND' BOTH BEYOND and WITHIN THE LIMITS OF NATIONAL JURISDICTION." See: RIO (Reshaping the International Order) Jan Tinbergen, Coordinator, (E.P. Dutton, New York, 1976) at p. 172, discussed in: Brent Jessop, 'Functional' Sovereignty and the Common Heritage of Mankind - Reshaping the International Order Part 3 (April 21, 2008) at: http://www.knowledgedrivenrevolution.com/Articles/200804/20080421_RIO_3_Common.htm ].

[IN ITS REPORT, THE CLUB OF ROME EMPHASIZED WHY SUCH A CONCEPT WAS DEEMED NECESSARY, AND WHAT IT REALLY ENTAILS.


"GIVEN THE GROWING LIST OF PROBLEMS CONFRONTING MANKIND, EVERY EFFORT MUST BE MADE TO STIMULATE PROCESSES WHICH POINT IN DIRECTIONS WHICH CAN BE DEEMED DESIRABLE. THIS WOULD CERTAINLY APPLY, FOR EXAMPLE, TO THE TENDENCY TOWARDS THE INCREASINGIN CENTRALIZATION OF DECISION-MAKING INVOLVING ISSUES BEYOND NATIONAL FRONTIERS [WHICH] SHOULD BE VIEWED AS A LOGICAL CONTINUATION OF THE PROCESS OF 'CHANGE' AND A PRECONDITION FOR THE EFFECTIVE ASSERTION OF NATIONAL SOVEREIGNTY." Id. at p. 103. ]


[IF THIS WERE NOT DISTURBING ENOUGH, BECAUSE IT SOUNDS LIKE THE SLOGAN OFSENATOR BARACK OBAMA'S PRESIDENTIAL CAMPAIGN, READERS SHOULD REFLECT ON THE NEXT PASSAGE:


"ACCEPTANCE OF THESE ELEMENTS CALLS FOR A REINTERPRETATION OF THE CONCEPT OF NATIONAL SOVEREIGNTY. PARTICIPATION AND SOCIAL CONTROL SUGGEST A FUNCTIONAL RATHER THAN A TERRITORIAL INTERPRETATION OF SOVEREIGNTY, OR JURISDICTION OVER DETERMINED USES RATHER THAN GEOGRAPHICAL SPACE. CONCEPTUALLY, THIS INTERPRETATION WILL MAKE POSSIBLE THE PROGRESSIVE INTERNATIONALIZATION AND SOCIALIZATION OF ALL WORLD RESOURCES - MATERIAL AND NON-MATERIAL - BASED UPON THE 'COMMON HERITAGE OF MANKIND' PRINCIPLE." Id. at p. 82.]


[FURTHERMORE, THE CLUB OF ROME SUGGESTED
THE FOLLOWING COURSE OF ACTION, WHICH FRANCE & GERMANY ARE ACTUALLY NOW SPEAKING ABOUT:


"Effective planning and management calls for the fundamental restructuring of the United Nations so as to give it broad economic powers and a more decisive mandate for international economic decision-making... It is also hoped that major changes in the United Nations structure will be made over the next decade so that it is not only able to play a more forceful role in world political affairs but it is also able to become more of a World Development Authority in managing the socio-economic affairs of the international community. ... The most effective way of articulating the planning and management functions of this organization would be through a functional confederation of international organizations, based upon existing, restructured and, in some instances, new United Nations agencies - to be linked through an integrative machinery. This system and its machinery, if it is really to reflect interdependencies between nations and solidarity between peoples, should ultimately aim at the pooling and sharing of all resources, material and non-material, including means of production, with a view to ensuring effective planning and management of the world economy and of global resource use in a way which would meet the essential objectives of equity and efficiency...In the long term, and assuming progress towards the creation of an equitable international economic and social order leading to a pooling of material and non-material resources, mineral resources will need to be viewed as a common heritage of mankind. " Id. at pp. 185 and 188.


See also: UN Reform - Restructuring for Global Governance, Ecologic (July/August, 1997) at: http://www.sovereignty.net/p/gov/ggunreform.htm#9 ; A/RES/52/12 UNGA (Nov. 12, 1997), at: http://www.undg.org/archive_docs/1551-Renewing_the_UN__A_Res_52_12_-_Renewing_the_UN__A_Res_52.doc .]


[WESTPHALIAN NATIONAL SOVEREIGNTY, VIEWED IN TERMS OF TODAY'S GLOBALIZING WORLD IS IN A STATE OF FLUX. IT HAS BEEN DESCRIBED BY POLITICAL ECONOMISTS AS REFLECTING A GOVERNMENT'S ABILITY TO CONDUCT / PURSUE ITS 'INTERNAL AFFAIRS' WITHOUT BEING DEPENDENT ON THE ACTIONS OF EXTRATERRITORIAL AGENTS. "IN THE CONTEXT OF VOLUNTARY INTERNATIONAL AGREEMENTS...[WHERE] ONE STATE HAS INTERVENED IN THE INTERNAL AFFAIRS OF ANOTHER STATE...A VIOLATION OF SOVEREIGNTY...CAN [BE SAID TO HAVE]...OCCURRED...WHENEVER AN INTERNATIONAL AGREEMENT LEADS A GOVERNMENT TO MAKE COMMITMENTS THAT ALTER THE NORMAL OPERATION OF ITS DOMESTIC INSTITUTIONS WITHIN THE DOMAIN OF ITS INTERNAL AFFAIRS."]


[ACCORDING TO THESE SAME COMMENTATORS, "COMMITMENTS THAT RESULT FROM VOLUNTARY INTERNATIONAL AGREEMENTS DO NOT NECESSARILY VIOLATE WESTPHALIAN SOVEREIGNTY (AS WHEN THESE COMMITMENTS PERTAIN ONLY TO A GOVERNMENT'S EXTERNAL AFFAIRS[.]]


[...THERE ARE LIMITS TO THE APPROPRIATE POLICY MATTERS FOR INTERNATIONAL AGREEMENT, AND NEGOTIATED COMMITMENTS OVER POLICIES THAT CONCERN SUFFICIENTLY 'DOMESTIC' AFFAIRS (i.e., INTERNAL AFFAIRS) DO VIOLATE WESTPHALIAN SOVEREIGNTY[.]]


[...INTERNATIONAL COMMITMENTS THAT DISTORT THE NORMAL OPERATION OF DOMESTIC INSTITUTIONS TO A SUFFICIENT DEGREE ALSO VIOLATE WESTPHALIAN SOVEREIGNTY.]


[...[G]OVERNMENT'S SOVEREIGNTY IS VIOLATED...WHEN IT NEGOTIATES INTERNATIONAL COMMITMENTS THAT CONCERN ITS INTERNAL AFFAIRS. SUCH COMMITMENTS DIRECTLY VIOLATE A GOVERNMENT'S SOVEREIGNTY...[B]UT...DIRECT VIOLATIONS OF SOVEREIGNTY CAN ALSO IMPLY FURTHER INDIRECT VIOLATIONS OF THE GOVERNMENT'S SOVEREIGNTY AS WELL, UNDER WHICH GOVERNMENT DECISIONS THAT ARE NOT THE SUBJECT OF INTERNATIONAL NEGOTIATION ARE NEVERTHELESS DISTORTED AWAY FROM THE DECISIONS THAT WOULD NORMALLY HAVE BEEN MADE UNDER THE DOMESTIC INSTITUTIONAL ARRANGEMENTS OF THE COUNTRY." See: Kyle Bagwell and Robert W. Staiger, National Sovereignty in an Interdependent World, (Aug. 2004) at: http://www.stanford.edu/~rstaiger/sovereignty.122903.revisioncopy.082304.pdf ].


Q: Should conservatives support the treaty?


A: Absolutely. President Nixon launched the negotiations in the expectation that a globally ratified Law of the Sea Convention would best protect our permanent security interests in global mobility and our long-range economic interests in a stable and predictable regime for the movement of global trade and for the exploration and exploitation of ocean resources. President Reagan's embrace of the bulk of the convention confirms that the effort launched by President Nixon succeeded. President George H.W. Bush was right to launch the informal negotiations that led to the effective amendment of the deep-seabed mining regime in response to President Reagan's concerns. ... President George W. Bush is absolutely right to conclude that we must act now to become part of the process that consolidates our achievements in the convention and enhances our ability to shape its future from the inside.


Q: Would we be any worse off than we are now if the Senate does not ratify the treaty?


A: We would be much worse off. International law is of greatest use to us in the far reaches of the sea when it induces other countries to accept the legitimacy of our actions even when they disagree with our objectives or policies.


Unilateral pronouncements of the content of international law cannot achieve that objective. If we let the convention slip through our hands ... we would lose our last best chance to solidify the law of the sea around a basic text that protects our long-range security and economic interests, and to control the future evolution of the world's understanding of that text.


[PROF. OXMAN, CONSIDERING THE INFORMATION ABOVE, DO YOU STILL BELIEVE THAT UNILATERAL INTERPRETATIONS OF STRICT INTERNATIONAL ENVIRONMENTAL LAW PREMISED ON EUROPE'S PRECAUTIONARY PRINCIPLE, ENFORCED THROUGH 'LAWFARE', & SANCTIFIED BY U.S. & INT'L TRIBUNALS, CANNOT IMPINGE ON U.S. NATIONAL SOVEREIGNTY, WITH ITS EVOLVING DEFINITION??]


It would not be possible in the foreseeable future to negotiate a new, globally ratified convention on the law of the sea anywhere near as favorable to U.S. interests. And if we allow other countries to control the evolution and amendment of the existing convention without our input, our interests will be adversely affected whether we like it or not.


[WHY WOULD IT NOT BE POSSIBLE TO RENEGOTIATE A GLOBAL CONVENTION ON THE LAW OF THE SEA THAT DOES NOT ENTAIL THE 'COMMON HERITAGE OF MANKIND DOCTRINE' AND PROMOTE THE 'LAWFARE' TENDENCIES OF COMPETING NATION-STATES AGAINST U.S. SOVEREIGN INTERESTS? SHOULDN'T CONGRESS HOLD OPEN, PUBLIC & TRANSPARENT HEARINGS ON THIS VERY IMPORTANT QUESTION?? PRESIDENTIAL CANDIDATE JOHN McCAIN SEEMS TO THINK THIS IS POSSIBLE. See: McCain Recognizes The Dangers Posed By The UNCLOS and Calls For Its Renegotiation: Rabid Republicans Unappreciative at: http://itssdjournalunclos-lost.blogspot.com/2008/03/mccain-recognizes-dangers-posed-by.html ("On the proposed Law of the Seas Treaty that President Bush supports and that conservatives generally oppose, Mr. McCain split the difference, saying the treaty as proposed surrenders "way too much" of America's sovereignty, but it needs to be renegotiated because international law needs 'coherence' in this area."].

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

[PROF. OXMAN, ON THE ONE HAND, STRONGLY RECOMMENDS U.S. RATIFICATION OF THE UNCLOS IN ORDER TO STEM UNILATERAL DECLARATIONS OF INTERNATIONAL ENVIRONMENTAL LAW BY FOREIGN GOVERNMENTS THAT ARE HOSTILE TO U.S. INTERESTS. HE BELIEVES THAT THE UNCLOS & ICJ TRIBUNALS PROVIDE THE MECHANISMS WHICH WOULD ENABLE THE U.S. TO SUCCEED IN THIS ENDEAVOR. BUT, AT WHAT COST TO THE U.S.? ENDLESS LITIGATION & DIVERSION OF LIMITED RESOURCES BY THE U.S. NAVY & STATE DEPARTMENTS?]


[THE U.S. NAVY IS ALREADY OVERWHELMED, IN TERMS OF HUMAN RESOURCES, TO ADDRESS ALL OF THE LEGAL CHALLENGES LAUNCHED BY U.S.-BASED ENVIRONMENTAL EXTREMISTS IN U.S. FEDERAL COURTS TO STOP NAVAL DEPLOYMENT OF SONAR IN U.S. 'TERRITORIAL' & 'COASTAL' WATERS, and THE U.S. EEZ. WHAT IF, THE SAME STRICT INT'L ENVIRONMENTAL LEGAL NORMS & STANDARDS INTRODUCED INTO THESE LAWSUITS BY U.S. ENVIRONMENTALISTS ARE ALSO INTRODUCED BY FOREIGN GOV'TS (& DARE WE SAY AN INCOMING OBAMA or CLINTON ADMINISTRATION?) & INT'L ENVIRONMENTALISTS INTO UNCLOS TRIBUNALS or THE ICJ, IN A CONCERTED EFFORT TO 'CHANGE' BOTH THE INT'L & U.S. DOMESTIC REGULATORY PARADIGM TO REFLECT THE COSTLY & ONEROUS FEAR-BASED EUROPEAN PRECAUTIONARY PRINCIPLE? AFTER ALL, UNCLOS ARTICLES 194 (, 207 (land-based pollution sources), 208 (EEZ seabed pollution), 210 (land-based coastal, EEZ ocean pollution/ dumping) and 211 (EEZ vessel pollution) , 212 (EEZ & land-based atmospheric pollution) REFLECT THE GENERAL UNCLOS PRINCIPLE OF STRONGLY ENCOURAGING CONSISTENT /HARMONIZED ENVIRONMENTAL LAWS BASED ON INT'L ENVIRONMENTAL STANDARDS AMONG UNCLOS PARTIES.]


See: 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


("Emphasizing the universal and unified character of the Convention, and reaffirming that the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on Environment and Development in chapter 17 of Agenda 21,... Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole through an integrated, interdisciplinary and intersectoral approach, and reaffirming the need to improve cooperation and coordination at the national, regional and global levels, in accordance with the Convention... Expressing its serious concern over the current and projected adverse effects of anthropogenic and natural climate change on the marine environment and marine biodiversity,...Expressing its deep concern over the vulnerability of the environment and the fragile ecosystems of the polar regions, including the Arctic Ocean and the Arctic ice cap, particularly affected by the projected adverse effects of climate change,...5. Calls upon States to harmonize, as a matter of priority, their national legislation with the provisions of the Convention...to ensure also that any declarations or statements that they have made or make when signing, ratifying or acceding to the Convention do not purport to exclude or to modify the legal effect of the provisions of the Convention in their application to the State concerned and to withdraw any such declarations or statements;...31. Notes that States parties to an international agreement related to the purposes of the Convention may submit to, inter alia, the Tribunal or the International Court of Justice any dispute concerning the interpretation or application of that agreement...").


[A 2006 PAPER PREPARED BY PROF. OXMAN, DISCUSSES THE TENSION IN THE THE UNCLOS TREATY REGIME BETWEEN: a) THE U.N. & CLUB OF ROME 'GLOBAL COMMONS' NOTION OF 'COMMON HERITAGE OF MANKIND' ; AND b) THE 'TERRITORIAL IMPULSE' OF UNCLOS PARTIES. IN FACT, HE CONFIRMS THAT THE EUROPEAN UNION IS 'PUSHING THE ENVELOPE' IN THIS REGARD.]


[EXCERPTS OF PROF. OXMANS' PAPER HAVE BEEN REPRODUCED BELOW. THEY RAISE AN EXTREMELY IMPORTANT ISSUE. THERE IS A RESURGENT UNILATERAL PUSH BY EUROPE, AUSTRALIA AND OTHER COUNTRIES TO GRAB MORE 'TERRITORY' BEYOND THEIR EEZ (e.g., BEYOND THE 200 MILE LIMIT), BY SECURING 'PHYSICAL' POSSESSION OF UP TO 150 ADDITIONAL NAUTICAL MILES OF CONTINENTAL SHELF VIA U.N. CONTINENTAL SHELF COMMISSION VALIDATION OF THEIR GEOLOGIC EVIDENCE. IN ADDITION, THERE IS ALSO A RESURGENT UNILATERAL EFFORT BY EUROPE, AUSTRALIA & CANADA (&, IN SOME CASES, THE U.S.) TO CONVERT THEIR QUASI-SOVEREIGNTY OVER THEIR EEZs, INCLUSIVE OF OTHERWISE INT'L STRAITS, THRU IMPOSITION OF STRICT PRECAUTIONARY PRINCIPLE-BASED ENVIRONMENTAL RESTRICTIONS, DESIGNATION OF 'MARINE PROTECTED AREAS' AND ENFORCEMENT OF 'PARTICULARLY SENSITIVE SEA AREAS'. IF THIS IS TRUE, THEN WHY MUST THE U.S. RATIFY THE UNCLOS IN ORDER TO DO THE SAME THING - i.e., TO ACT UNILATERALLY TO ACHIEVE THE SAME RESULT OF SECURING BOTH A DE FACTO & DE JURE 'EXTENSION' OF U.S. TERRITORIAL SOVEREIGNTY?]


[READERS SHOULD NOTE THAT DURING 2000, FORMER PRESIDENT CLINTON ISSUED AN EXECUTIVE ORDER ON THE SUBJECT OF 'MARINE PROTECTED AREAS' (MPAs). THE E.O. DEFINES AN MPA AS:]


“Any area of the marine environment that has been reserved by federal, state, territorial, tribal, or local laws or regulations to provide lasting protection to part or all of the natural or cultural resources therein.” –Executive Order 13158 on Marine Protected Areas (May 2000)


"There are three general types of MPAs...'Cultural'...'Natural Heritage'...[and] 'Sustainable Production'..." See U.S. Marine Protected Areas - FACTSHEET, at: http://www.mpa.gov/pdf/helpful-resources/factsheets/cultural_historical_res1104.pdf .


[AMONG OTHER THINGS, THE INTERNATIONAL MARITIME ORGANIZATION (IMO) IS RESPONSIBLE FOR REVIEWING AND RULING ON UNCLOS PARTY NATIONAL GOVERNMENT APPLICATIONS FOR THE DESIGNATION OF 'PARTICULARLY SENSITIVE SEA AREAS' (PSSAs) and ENSURING THAT THE APPROPRIATE MEASURE IS ADOPTED. ACCORDING TO THE IMO,


"The IMO is the only international body responsible for designating areas as Particularly Sensitive Sea Areas and adopting associated protective measures."


"A PSSA is an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities. At the time of
designation of a PSSA, an associated protective measure, which meets the requirements of the appropriate legal instrument establishing such measure, must have been approved or adopted by IMO to prevent, reduce, or eliminate the threat or identified vulnerability."


See: Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, A 24/Res.982 (Feb. 6, 2006), at pars. 1.2 and 3.1, at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D14373/982.pdf .


[THE FOLLOWING ARE EXCERPTS FROM PROF. OXMAN'S ARTICLE. See: Bernard Oxman, The Territorial Temptation: A Siren Song at Sea, 100 Am. J. Int. L. 830 (Oct. 2006) at: http://www.asil.org/pdfs/Oxman_TerritorialTempt.pdf .]


"...[M]ore recent developments in international law often represent efforts to constrain
the territorial state and the temptation to expand its discretionary reach, substantive as well as geographic."


"...The mid-twentieth century was...a watershed for the international law of the sea..." (P. 831)


"...At the same time that the territorial temptation ran up against increasingly important legal constraints on land—often in response to the values of facilitation of trade, communication, and cooperation, which had traditionally informed the law of the sea—the obverse again occurred at sea." (pp. 831-832)


"...The territorial temptation thrust seaward with a speed and geographic scope that would be the envy of the most ambitious conquerors in human history. The effective start of this process—President Truman’s claim to the continental shelf in 194510—was so quickly accepted and emulated by other coastal states that the emergence of the regime of the continental shelf...has been cited as an example of instant customary law. The Truman Proclamation unleashed a quarter-century of territorial and quasi-territorial claims to the high seas..." (p. 832)


"...The response...following World War II to the systemic problems posed by the insistent demand by the territorial state for substantive discretion on land was to elaborate reciprocal international and regional instruments and mechanisms of restraint and cooperation through which each state could influence the acts and omissions of other states and, through the intermediation of those states, influence human behavior beyond its territorial reach." (pp. 832-833).


"To some extent the response to flag state discretion at sea has been the same as the response to the territorial state’s discretion on land—a system of international agreements and mechanisms to restrain the scope of discretion, especially with respect to navigation and communications..."


"...As for natural resources, the triumph of the territorial temptation with respect to almost all of the commercial fisheries and hydrocarbons in and beneath the sea resulted from a variety of factors. They include political and bureaucratic ambition, the lure of tax revenues and other economic rent, protection against competition, impatience, frustration with international organizations, and, yes, domino effects and a dash of xenophobia." (p. 834).


"... Even if investment in oil and gas development depends on a system of exclusive private rights to exploit a site that in turn requires a recognized public grantor, and also depends on the cooperation of a nearby state to fulfill a variety of practical needs, extension of coastal state jurisdiction is an obvious way, but not necessarily the only way, to accommodate those needs." (pp. 834-835)


"...The real challenge faced by the Third United Nations Conference on the Law of the Sea,
then, was to find ways to accommodate the territorial temptation in the context of an overall system that promised the degree of stability, predictability, and measured change one expects from law. The response to the territorial temptation was to define and circumscribe both its geographic and its substantive reach. To that extent it mirrors the modern response to the territorial temptation on land. The difference is that the limitations in the Law of the Sea Convention are much more extensive and at times more innovative."


"Sovereignty is limited to internal waters, archipelagic waters of an archipelagic state, and the territorial sea. The territorial sea has a precise maximum limit of 12 miles, measured from the normal baseline along the low-water mark or from straight baselines enclosing internal or archipelagic waters." (p. 835)


"Three zones of functional jurisdiction extend seaward from the outer limit of the territorial sea...the contiguous zone, whose maximum limit is 24 miles from the coastal baselines, and where the coastal state may prevent and punish infringement of its customs,fiscal, immigration, or sanitary laws in its territory or territorial sea; the exclusive economic zone (EEZ), whose maximum limit is 200 miles from the coastal baselines, and where the coastal state has sovereign rights over the exploration and exploitation of the natural resources of the waters and the seabed and subsoil,and certain other specific competences; the continental shelf, whose maximum limit is the outer edge of the continental margin or 200 miles from the coastal baselines if the continental margin does not extend up to that distance, and where the coastal state exercises sovereign rights over the exploration and exploitation of the natural resources of the seabed and subsoiland certain other specific competences."(p. 836).


“High seas” is not defined in geographic terms as such. The freedoms of the high seas preserved in the EEZ are[:] navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, while those beyond the EEZ are more extensive and open-ended." (pp. 836-837).


"...the regime of the high seas applies both seaward of the EEZ and, except with respect to living resources, within the EEZ to the extent not incompatible with other provisions regarding the zone. The basic question is whether this system is stable." (p. 837).


"The Commission on the Limits of the Continental Shelf is receiving an increasing number of submissions from broad-margin states that, if approved, will permit those states to establish the definitive limits of their respective continental shelves beyond 200 miles and, accordingly, the limits of the international seabed 'Area.'"


"...the influence of the territorial temptation is demonstrated by the Commission’s decision to permit coastal states with claims of sovereignty or sovereign rights in the immediate vicinity to comment on a submission, but its implicit disregard of the legal interests of all states in the integrity and limits of the international seabed area protected by the principle of the common heritage of mankind by ordering that the technical comments submitted by other states are not to be considered. This position casts an unnecessary cloud over the legitimacy of the carefully constructed system for permitting the coastal state to establish final and binding limits of the continental shelf beyond 200 miles. Its underlying infirmity soon became evident when Australia submitted limits for the continental shelf off that part of Antarctica claimed by Australia, and states from other regions complained that they did not recognize that claim.” (p. 838).


"A more difficult question is whether the substantive balance within the specified limits can be maintained against a persistent territorial temptation...In this respect, the real issue concerns the EEZ and the concomitant right of transit passage of straits connecting two parts of the EEZ. At heart, however, the issue remains the same as it has always been; territorializing the EEZ is simply another way of expanding the limits of the territorial sea." (p. 839).


"The EEZ embraces about a third of the marine environment. All of the important seas and gulfs of the world are composed entirely, or mainly, of waters within 200 miles of the coast of some state. The essence of the EEZ is its substantive balance. That balance is particularly vulnerable to the territorial temptation because the EEZ is already perceived in quasi-territorial terms."(p. 839).


"...what really separates the EEZ from the territorial sea..."


"...the EEZ embraces freedom of navigation, overflight, and communications, and is not in principle subject to comprehensive coastal state jurisdiction..."


"...the territorial sea...is subject to comprehensive coastal state jurisdiction and, outside of straits, includes only a very limited, and suspendable, right of innocent passage that is subject to both important qualifications and unilateral coastal state regulation." (p. 839).


[IT BEARS REPEATING THAT, AS NOTED ON P. 837, THAT THE UNCLOS ENVIRONMENTAL RULES FOR THE 'RES COMMUNIS'/ 'GLOBAL COMMONS' APPLY BOTH WITHIN COASTAL STATE EEZs and SEAWARD FROM COASTAL STATE EEZs.]


"One of the distinguishing features of the LOS Convention is the attention it devotes to environmental protection. It remains 'the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time'...Many of these provisions relate to, and qualify, freedom of navigation in the EEZ. A significant aspect of these provisions is that they are self-adjusting."


"The obligation of the flag state to apply to its ships 'generally accepted' standards, like the coastal state’s right to enforce generally accepted international standards regarding operational discharges in the EEZ, evolves with the standards." (p. 843).


"...the Convention permits the coastal state to seek approval from the International Maritime Organization to adopt and enforce additional standards regarding discharges or navigational practices in its EEZ...[T]he ability of the straits states to implement and enforce international pollution standards, and to secure IMO approval for the adoption and enforcement of specific safety and traffic regulations, appears to be providing a flexible mechanism that can adapt to new needs and be tailored to specific requirements in a particular strait." (pp. 843-844).


"...The LOS Convention contains no restriction on the right of a state to establish port entry requirements, including those regarding the construction, manning, equipment, or design of ships. Acting either alone, or in concert with other states, a state can therefore use port entry restrictions to control the construction, manning, equipment, or design of ships operating off its coast that are headed to or from its own ports or those of a state with similar entry requirements."


"The balance of a system rooted in port state and coastal state enforcement of evolving international standards, coupled with port state unilateral control of port entry requirements, need not be an impediment to the pursuit of new environmental objectives with respect to the EEZ."


"...that environmentalists in particular would embrace the territorial temptation is curious since their essential goal, especially with respect to the oceans, is to achieve global protection." (p. 844).


"That goal can best be realized through strong and effective international measures that states are obliged and empowered to enforce."


"...Even though yielding to the territorial temptation with respect to a particular environmental problem may promise some short-term or tactical benefit, doing so may augment the difficulties of achieving a desired level of international regulation of environmental problems in that area and elsewhere."


"There is ample evidence that states more readily accept international regulation of activities that relate exclusively or principally to areas that are not subject to territorial sovereignty than to areas that are." (p. 845).


[FOR EXAMPLE, UNCLOS PARTIES ARE MORE READILY WILLING TO ACCEPT THE IMPOSITION OF ENVIRONMENTAL & SAFETY OBLIGATIONS BY THE UNCLOS ON THE 'FLAG STATE' WHERE SHIPS ARE REGISTERED & BY THE IMO ON THE SHIPS THEMSELVES WHEN OPERATING ON THE 'HIGH SEAS' / IN THE 'GLOBAL COMMONS'. SUCH OBLIGATIONS ARE FAR MORE OPEN-ENDED, STRICT & EXTENSIVE THAN DOMESTIC LAND-BASED ENVIRONMENTAL REGULATIONS. SIMILARLY, UNCLOS PARTIES ARE WILLING TO ACCEPT THE JURISDICTION OF THE UNCLOS' ONLY INTERNATIONAL REGULATORY BODY - THE INT'L SEABED AUTHORITY.]


"...There is nothing on land approaching the open-ended legal obligations of the flag
state under the LOS Convention to ensure that its safety regulations “conform to
generally accepted international regulations, procedures and practices” and that its
pollution regulations “shall at least have the same effect as that of generally accepted
international rules and standards...”


"...The conventions and other instruments emerging from the work of the International
Maritime Organization regarding pollution from ships rank among the most extensive and effective in the field of international environmental law."


"The jurisdiction of the only international regulatory organization created by the LOS Convention, the International Seabed Authority, relates to the area 'beyond the limits of national jurisdiction.'” (p. 845)


"...Sophisticated environmentalists understand that...the resistance of the territorial state to the intrusion of international environmental regulation on its traditional range of discretion is an obstacle to progress..."


"...The environmental calculus is difficult. The serious literature makes clear that we have gone beyond the easy part of Manichaean norms, and must mediate between competing goods as best we can. To do so, we must confront the complex choices and enforcement challenges that attend almost every environmental decision."


"...for example, the transport of radioactive nuclear materials for reprocessing. Obviously, such an activity requires careful regulation: the LOS Convention and other treaties provide the substantive foundation for doing so, and both the IMO and the International Atomic Energy Agency offer competent venues. Also obviously, fear of an accident is likely to trigger negative reactions by coastal states." (p. 846).


"...political pressures are what make and change the law, both municipal and international."


"As the European Commission recently observed:


'In the wake of the Prestige accident in November 2002 there was an emotional wave
of solidarity throughout Europe, and the institutions and highest authorities of the European Union expressed their firm resolve that the policy of strengthening maritime safety pursued following the Erika accident in December 1999 should be continued and reinforced.'"


"...The European Commission’s Green Paper states:


'The legal system relating to oceans and seas based on UNCLOS needs to be developed
to face new challenges. The UNCLOS regime for EEZ and international straits makes it harder for coastal states to exercise jurisdiction over transiting ships, despite the fact that any pollution incident in these zones presents an imminent risk for them. This makes it difficult to comply with the general obligations (themselves set up by UNCLOS) of coastal states, to protect their marine environment against pollution.'" (p. 847).


"... A further type of challenge to the system of functional allocation of competence in the EEZ is found in the increasing pressure, especially from environmentalists, for 'spatial planning.'"


"... Quite apart from its provisions on pollution from ships and coastal state rights...the Law of the Sea Convention imposes significant environmental obligations on coastal states with respect to their own offshore activities. Many of these and other limitations on the territorial temptation in the LOS Convention were achievable because they were negotiated in the context of substantial disagreement over the nature and extent of coastal state jurisdiction itself. That is no longer the case." (p. 848).


[PROF. OXMAN NEXT PRESENTS AN EXAMPLE OF THE CONTINUING TENSION BETWEEN COASTAL STATE TERRITORIAL URGES & COASTAL STATE ACQUIESCENCE TO INT'L ENVIRONMENTAL REGULATION. EVEN THOUGH COASTAL STATES EMPLOYED REGULATIONS TO SQUEEZE OUT FOREIGN COMPETITION, THEIR IMPLEMENTATION OF FISH CONSERVATION MEASURES PURELY W/IN THEIR EEZs WAS LACKING. YET, COASTAL STATES WERE WILLING TO SUBMIT TO INT'L ENVIRONMENTAL REGULATIONS COVERING 'MIGRATORY' FISH STOCKS ONCE THEY CROSSED OUTSIDE OF THEIR EEZs.]


"...conservationists were largely content to accept the argument that coastal state control of fishing in the EEZ would yield desirable results. Some were skeptical but, in vivid contrast to the hard obligations achieved with respect to environmental and pollution matters in general, the coastal state conservation obligations they settled for in the EEZ are not easy to violate and are not subject to compulsory arbitration or adjudication." (p. 848).


"...The coastal states regarded their existing range of discretion in the EEZ, including their right to determine the total allowable catch and to take as much of it as their harvesting capacity would permit, as vested rights. To protect those rights, they focused on the acquisition of means to reduce competition from foreign high seas fishing. Fortunately, at least beyond 200 miles, a stronger model for an international conservation regime responded both to environmental values and to the allocational objectives of coastal fishing industries."
(p. 849).


[PROF. OXMAN CITES THE COUNTRY OF CANADA AS AN EARLY EXAMPLE OF WHERE ENVIRONMENTAL REGULATIONS WERE USED AS A MEANS TO CURTAIL FREEDOM OF NAVIGATION, and thus, EXTEND IN DE JURE FASHION THEIR NATIONAL SOVEREIGNTY.]


"The link between environmentalism and the territorial temptation remains real. It is worthconsidering its origin. Canada was the first to dramatize a conflict between environmental protection and freedom of navigation. Its 1970 claim to a 100-mile zone in which it asserted unilateral control over navigation, complemented by a reservation to its acceptance of the compulsory jurisdiction of the International Court of Justice, evoked considerable controversy. Much of that controversy was expected to subside with the settlement reached in the LOS Convention, including both its general provisions regarding pollution from ships and a special provision regarding ice-covered areas. But, as was foreseen at the time the claim was first made, the real object was sovereignty. Canada has since established baselines around its Arctic islands and taken the position that the waters thereby enclosed are sovereign historic waters." (p. 849).


"...the territorial temptation evidently continues to influence proposals to change the law of the sea."


"...The European Community and its member states seem on the verge of leading a new wave of territorialization against navigation itself in the name of environmental protection." (p. 850).








[A GOOD EXAMPLE OF A EUROPEAN POLICY DOCUMENT THAT CORROBORATES THIS CLAIM IS THE EU GREEN PAPER ON MARITIME POLICY. See: GREEN PAPER, Towards a future Maritime Policy for the Union: A European vision for the oceans and seas, Commission of the European Communities (June 7, 2006), COM(2006) 275 final, Volume II - ANNEX, at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0275Ben01.pdf . RELEVANT EXCERPTS FROM THIS DOCUMENT HAVE BEEN REPRODUCED BELOW. THEY REFLECT TWO PRIMARY RATIONALES FOR EXERCISING LEGAL 'FUNCTIONAL' SOVEREIGNTY OVER EU MEMBER STATE EEZs: ECONOMIC & CULTURAL/POLITICAL PREFERENCE. INDEED, REASONABLE PERSONS SHOULD BEGIN TO QUESTION WHETHER THE EUROPEAN UNION HAS IT IN MIND TO EMPLOY THE SAME PRECAUTIONARY PRINCIPLE-BASED ENVIRONMENTAL REGULATIONS IN EU MEMBER STATE EEZs THAT IT HAS ALREADY EMPLOYED AS DISGUISED NON-TARIFF TRADE BARRIERS ON LAND?? ENLIGHTENED ENVIRONMENTALISM or DISGUISED PROTECTIONISM??]


[PROTECTIONIST PRESSURES:]


“...[O]ver two thirds of the Union’s borders are coastal and that the maritime spaces under the jurisdiction of its Member States are larger than their terrestrial territory... As the EU seeks to revitalise its economy, it is important to recognise the economic potential of her maritime dimension. Between 3 and 5% of Europe’s Gross Domestic Product (GDP) is estimated to be generated by marine based industries and services, without including the value of raw materials, such as oil, gas or fish. The maritime regions account for over 40% of GDP.” (p.3)


"...Sustainable development is at the heart of the EU agenda. Its challenge is to ensure
mutual reinforcement of economic growth, social welfare and environmental protection. The EU now has the opportunity to apply sustainable development to the oceans." (p.4).


"In its strategic objectives for 2005-2009, the European Commission declared “the particular need for an all-embracing maritime policy aimed at developing a thriving maritime economy, in an environmentally sustainable manner. Such a policy should be supported by excellence in marine scientific research, technology and innovation”. (P. 5)


"...[We must maintain and improve the status of the resource upon which all maritime activities are based: the ocean itself. To do this, ecosystem-based management, built on scientific knowledge, is essential. The Commission has completed the groundwork for this by putting forward its Thematic Strategy for the Marine Environment." (pp. 5-6).


"...[T]wo characteristics of the marine environment need to be borne in mind. First, the global nature of the oceans. This leads to both complementarity and competition between nations. To regulate maritime activities in the interest of worldwide sustainable development necessitates developing universally applicable rules. Yet each part of the oceans and seas is different and may require its own morespecific rules and administration." (p. 6).


"... Shipping and ports are essential for international trade and commerce. 90% of the
EU’s external trade and over 40% of its internal trade is transported by sea." (p.6)


"... The oceans and seas also generate income through tourism. The direct turnover ofmarine tourism in Europe is estimated at € 72 billion in 2004."


"...Tourism generates business for the shipbuilding industry. The cruise industry in Europe has expanded strongly over the last years with an annual growth rate of more than 10%. Cruise ships are virtually all built in Europe. Cruise tourism contributes to the development of coastal areas and islands. The recreational boating industry experienced steady growth during the past years and forecasts point to a 5-6% annual growth within the EU." (p.7).


"...The EU is one of the world’s major world fishing powers and the biggest market for processed fish products. While the number of EU fishers has been declining over the years, some 526 000 are employed in the fisheries sector as a whole. Many jobs are generated in processing, packing, transportation and marketing as well as in shipyards, fishing gear manufacturing, chandlers and maintenance, not only in catching fish. These activities play a significant role in the economic and social fabric of fisheries areas."


"...The Food and Agricultural Organisation indicates that most of the new demand for fish consumption will have to be met by aquaculture. The challenge will be to manage this increase in a sustainable and environmentally friendly way. As competition for space can also be a major issue in some coastal zones, aquaculture could be moved further from the coast, requiring further research and development on offshore cage farming technology..." (p. 8).


"...The Importance of the Marine Environment for the Sustainable Use of our Marine Resources"


"A healthy marine environment is a sine qua non to realising the full potential of the oceans. For this reason, preservation of this resource base is the key to improving the EU’s competitiveness, long-term growth and employment. The deterioration of our marine environment reduces the potential of the oceans and seas to provide income and jobs. Economic activities that depend on the quality of the marine environment are particularly affected. The health of coastal and marine tourism, Europe’s biggest sea related industry, is at stake." (p. 10).


[ENLIGHTENED ENVIRONMENTALISM OR CULTURAL /POLITICAL PREFERENCE/ PROTECTIONISM? - THE CLIMATE CHANGE CARD]:


"...Oceans and seas play a key role in climate and weather patterns. Equally the oceans and seas are particularly sensitive to climate variations. Oceans act as climate regulators either directly by, e.g. transferring heat (an example of this is the Gulf Stream) or indirectly, through CO2 absorption. They can also be affected by human activities in coastal zones and coastal waters. The icecaps also play a crucial role in the global climate system."


"On average, climate warming of the Arctic region is two or three times more marked than elsewhere on the planet, with a 3° C increase over the past 50 years. Arctic pack ice has already shrunk by 15 to 20% over the past 30 years. If this is not addressed, arctic flora and fauna will suffer severe changes, as will the entire food chain from single-cell algae to fish and seals. There will be serious consequences for indigenous peoples. Climate change in the Arctic could become a major challenge for EU Maritime Policy." (p. 14).


"... Climate change also has important impacts on Europe. It could contribute to the slowing of the Gulf Stream, with all the effects this would have on the climate in Europe. According to the International Panel on Climate Change (IPCC), the global mean sea level is set to rise significantly during this century. Coastal development and ports will be increasingly vulnerable to storm surges. Tourism may also suffer. Increasing summer temperatures in the south of Europe may cause major changes in favoured tourist destinations. Mediterranean coastal zones are likely to face serious impacts from precipitation pattern changes." (p. 14).


"The consequences of climate change on oceans and seas, the environment at large and in turn our economic prosperity and social well-being are potentially farreaching and will carry significant costs. It is thus essential that Europe continue to play a leadership role on the world stage in tackling climate change. It needs to continue to consider appropriate measures aimed at reducing climate change, including in the maritime transport and energy sectors." (p. 15).


"...The Regulatory Framework" (p. 21).


"In sectors such as shipping, port infrastructure and offshore resource exploitation, including fisheries, where large investments are being made in innovative products designed to last for many years, a stable regulatory environment is important. This is particularly true for rules affecting the location of economic activity. This is another reason why a comprehensive system of spatial planning should be put into place as soon as possible for European coastal waters."
(p. 21).


"...The interdependence of the maritime sectors and policies may mean that legislation developed for the needs and objectives of one policy may have unintended and contradictory impacts on other maritime...


"...The enforcement of rules on the immense vastness of the world’s oceans must rely not solely on government activity but also on the acceptance of the rules by those to whom they apply... Self regulation, despite its limits, and Corporate Social Responsibility (CSR) may have important and complementary roles to play. The adoption of CSR strategies and the disclosure of performance in relation to announced goals represent an alternative to regulation." (p. 22).


"...An efficient regulatory system will also ensure that the economic signals given to the market reinforce its rules. As the European Association of Classification Societies (EurACS) stated “future success will depend both on incentives for quality performance and a certain degree of penalties for unsatisfactory performance.” (p. 22).


"...Targeted Port State inspections have proven to be a valuable tactic in eliminating substandard shipping from the world’s oceans and in raising the overall safety standards of the international shipping industry”. Mandatory insurance and a bonus-malus system as used in other transport modes should be implemented...Under the rules of UNCLOS, it is the country in which the ship is registered which is primarily responsible for their enforcement, the so-called flag state." (p. 22).