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
Showing posts with label international seabed authority. Show all posts
Showing posts with label international seabed authority. Show all posts
Friday, May 9, 2008
Saturday, January 19, 2008
Throw out LOST
http://www.washingtontimes.com/article/20071221/EDITORIAL/692629717/1013
Washington Times
December 21, 2007
By George Allen –
We must protect United States sovereignty. We must not blissfully give control of 2/3 of the earth's surface to an unelected, unaccountable, unrepresentative, burdensome, taxing, regulating and adjudicating global bureaucracy. I am referencing the negotiations of the United Nations Convention on the Law of the Sea or the Law of the Sea Treaty (LOST). President Ronald Reagan rejected the efforts to create an international authority that would ultimately control the world's sea beds.
LOST is back. Twenty-five years later, LOST is demanding our attention again. The Senate Foreign Relations Committee recently approved a revised version of the treaty and recommended it to the full Senate for ratification. With the support of the Bush administration, this treaty was recently passed through the Committee without adequate hearing from opponents. Opponents are now being heard, and Mr. Reagan's reasons for objecting to LOST are still very much at issue.
In rejecting LOST, Mr. Reagan saw the underlying dangers of the United States ceding its own authority and interests as a maritime power to an unaccountable international organization. Like its godfather, the United Nations, it would be controlled by countries which may have no maritime power and are often opposed to American interests. In 1994, the Clinton administration led efforts to revive LOST by making changes to the most objectionable parts of the treaty, and President Clinton signed it. But the 1994 amendments did not resolve many of the problems cited by Reagan and, in fact, there is a serious legal question as to whether the amendments actually altered the original treaty.
LOST creates an international regulatory structure that bears many of the hallmarks of a nascent global government, including the power to tax, regulate business interests and the environment, and exercise judicial authority.
Taxation.The International Seabed Authority (ISA) created by LOST has the authority to grant or deny permits for deep seabed mining, after exacting fees just to apply for permits and to collect part of the profits of such mining for redistribution to developing countries and "national liberation movements."
Economic Regulation. One of the ISA's stated purposes is to "protect land-based mineral producers in the third world from adverse economic effects of seabed production." Given the ISA's authority to grant or deny permits and to redistribute profits, this sounds an awful lot like the kind of cartel-style price-fixing and central planning that have proved disastrous in other economic sectors.
Technology Transfer. LOST requires all state parties to the treaty to "cooperate in promoting the transfer of technology and scientific knowledge" regarding deep sea mining. This mandate has already been used by China to obtain sonar technology from American companies in the 1990s when the Clinton administration said that the United States should abide by the technology-transfer requirements of LOST, even though the Senate had not ratified it.
Judicial Authority. We have already seen the extension of environmental regulation playing out in the judicial branch created by LOST, the International Tribunal for the Law of the Sea. Ireland has brought a case there seeking to halt opening of a nuclear fuel reprocessing plant on land in Great Britain on the claim that it would raise water temperatures in Irish waters and pose a hazard to marine life. One can easily imagine the plethora of lawsuits that could be brought by states and international groups seeking economic advantage or to stymie U.S. interests.
An overarching danger of LOST is the precedent it would create: the concession of authority for governmental functions to an international organization over which the United States has little or no control. It would also give credence to an outmoded and failed redistributionist economic scheme where the people of those nations who innovate and invest are forced to relinquish revenue and technology to nations standing on the sidelines. To ratify this treaty would diminish the sovereignty of the United States and would enhance the authority of a remote, unaccountable supranational government over the seas and seabed.
The original purpose of LOST was to codify the laws of navigation and freedom of the seas. If it had stuck to its goals, instead of trying to break new ground in global governance and wealth redistribution, LOST would have been ratified years ago. U.S. maritime interests are currently functioning under the customs of international law and should continue to do so until we are ready to lead an effort to throw out LOST and start over. As Ronald Reagan said, "We have the means at our disposal to protect our oceans interests and we shall protect those interests if a comprehensive treaty eludes us."
Former Sen. George Allen, who also served as Virginia's governor, is the Reagan Ranch presidential scholar for Young America's Foundation.
Washington Times
December 21, 2007
By George Allen –
We must protect United States sovereignty. We must not blissfully give control of 2/3 of the earth's surface to an unelected, unaccountable, unrepresentative, burdensome, taxing, regulating and adjudicating global bureaucracy. I am referencing the negotiations of the United Nations Convention on the Law of the Sea or the Law of the Sea Treaty (LOST). President Ronald Reagan rejected the efforts to create an international authority that would ultimately control the world's sea beds.
LOST is back. Twenty-five years later, LOST is demanding our attention again. The Senate Foreign Relations Committee recently approved a revised version of the treaty and recommended it to the full Senate for ratification. With the support of the Bush administration, this treaty was recently passed through the Committee without adequate hearing from opponents. Opponents are now being heard, and Mr. Reagan's reasons for objecting to LOST are still very much at issue.
In rejecting LOST, Mr. Reagan saw the underlying dangers of the United States ceding its own authority and interests as a maritime power to an unaccountable international organization. Like its godfather, the United Nations, it would be controlled by countries which may have no maritime power and are often opposed to American interests. In 1994, the Clinton administration led efforts to revive LOST by making changes to the most objectionable parts of the treaty, and President Clinton signed it. But the 1994 amendments did not resolve many of the problems cited by Reagan and, in fact, there is a serious legal question as to whether the amendments actually altered the original treaty.
LOST creates an international regulatory structure that bears many of the hallmarks of a nascent global government, including the power to tax, regulate business interests and the environment, and exercise judicial authority.
Taxation.The International Seabed Authority (ISA) created by LOST has the authority to grant or deny permits for deep seabed mining, after exacting fees just to apply for permits and to collect part of the profits of such mining for redistribution to developing countries and "national liberation movements."
Economic Regulation. One of the ISA's stated purposes is to "protect land-based mineral producers in the third world from adverse economic effects of seabed production." Given the ISA's authority to grant or deny permits and to redistribute profits, this sounds an awful lot like the kind of cartel-style price-fixing and central planning that have proved disastrous in other economic sectors.
Technology Transfer. LOST requires all state parties to the treaty to "cooperate in promoting the transfer of technology and scientific knowledge" regarding deep sea mining. This mandate has already been used by China to obtain sonar technology from American companies in the 1990s when the Clinton administration said that the United States should abide by the technology-transfer requirements of LOST, even though the Senate had not ratified it.
Judicial Authority. We have already seen the extension of environmental regulation playing out in the judicial branch created by LOST, the International Tribunal for the Law of the Sea. Ireland has brought a case there seeking to halt opening of a nuclear fuel reprocessing plant on land in Great Britain on the claim that it would raise water temperatures in Irish waters and pose a hazard to marine life. One can easily imagine the plethora of lawsuits that could be brought by states and international groups seeking economic advantage or to stymie U.S. interests.
An overarching danger of LOST is the precedent it would create: the concession of authority for governmental functions to an international organization over which the United States has little or no control. It would also give credence to an outmoded and failed redistributionist economic scheme where the people of those nations who innovate and invest are forced to relinquish revenue and technology to nations standing on the sidelines. To ratify this treaty would diminish the sovereignty of the United States and would enhance the authority of a remote, unaccountable supranational government over the seas and seabed.
The original purpose of LOST was to codify the laws of navigation and freedom of the seas. If it had stuck to its goals, instead of trying to break new ground in global governance and wealth redistribution, LOST would have been ratified years ago. U.S. maritime interests are currently functioning under the customs of international law and should continue to do so until we are ready to lead an effort to throw out LOST and start over. As Ronald Reagan said, "We have the means at our disposal to protect our oceans interests and we shall protect those interests if a comprehensive treaty eludes us."
Former Sen. George Allen, who also served as Virginia's governor, is the Reagan Ranch presidential scholar for Young America's Foundation.
Former Official Ignorant of UNCLOS’ Relationship to Evolving International Environmental Law
Unfortunately, Mr. Adelman’s recent commentary in the Washington Times (below) reflects either his lack of knowledge of OR his refusal to admit UNCLOS’ connection with the United Nations General Secretariat, the UN Environment Programme (UNEP), and the UN’s ambitious plan for UNEP reform. Pursuant to such plan, the UN/UNEP would utilize the UNCLOS’ ‘common heritage of mankind’ and environment centric-‘sustainable development’ –based legal framework to impose and enforce strict Precautionary Principle-premised regulations and to levy toll charges (user fees & behavior modification taxes) on ALL economic activity that passes through the great oceans and adjacent atmosphere highways to finance UN environmental governance reforms. That kind of nightmare will make any concern about the imposition of access charges upon U.S. companies for the right to engage in deep-seabed mining in ‘the Area’ only a bad dream.
Sea law turbulence
http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20071212/COMMENTARY/112120011/1012
December 12, 2007
By Ken Adelman -
The tranquil-sounding Law of the Sea (LOS) treaty somehow prompts lots of waves. The first storm arose 25 years ago, when President Reagan had the U.S. virtually stand alone against it.
The issue is back. It's still controversial, as Senate Republican leaders oppose ratification. Conservative stalwarts Ed Meese and Bill Clark feel its approval would betray the Reagan legacy.
The LOS accord, just sent out of committee, stands before the Senate for a vote this month. The Senate should ratify it — partly on the merits, but also to reinforce Reagan's biggest legacy, that standing alone on principle can pay off. If you stand right on the merits, eventually others come around.
In 1982, Reagan turned the tide on the LOS effort, under way by some 150 countries over the previous 10 years. During a few National Security Council meetings — which I attended as deputy to U.S. Ambassador to the United Nations Jeane Kirkpatrick's — Reagan called the deep-sea mining provisions global socialism. [IT STILL IS, MORE THAN 25 YEARS LATER]**
He subsequently appointed a presidential envoy for LOS, Don Rumsfeld, who asked me along on his global mission. It took us 33,000 miles into seven countries on what my wife dubbed "scuttle diplomacy."
Before taking off, we met in the Oval Office where the president's passion and points became clear. Don Rumsfeld did a superb job presenting them to German Chancellor Helmut Kohl, French President Francois Mitterrand, and leaders in the Netherlands, Belgium, Italy and Japan.
After Prime Minister Margaret Thatcher read her bureaucracy's recondite points favoring LOS, Mr. Rumsfeld lifted the discussion to Reaganesque heights: "Madam Prime Minister, do you really want to support international socialism? To build up the international bureaucracy? To have it run a cartel? To enforce a mandatory transfer of technology? Do you really want all that in our future?"
It was quite a scene — Mr. Rumsfeld smartly presenting Reagan. This convinced the Iron Lady that, no, she did not. Hence, Britain and other key nations joined in opposing LOS.
During sundry meetings before our trip, Reagan related how he considered the deep-sea mining provisions a wedge into international socialism. He deemed the new LOS institution — with the quaint Orwellian name of The Authority, yet without any U.S. veto power — as a precursor to world federalism. Reagan despised its mandatory technology transfer and its autonomous funding of so-called liberation movements.
This litany became Mr. Rumsfeld's script to world leaders, since it was Reagan's script to us.
Don't just take my word for it. In his Jan. 29, 1982, document on LOS, Reagan listed these very issues in six bullets. He explicitly pledged that, if the LOS negotiators "find ways to fulfill these key objectives, my administration will support ratification."
Subsequent administrations have found ways. The first Bush administration began fixing Reagan's biggest bugaboo, the deep seabed mining provisions, which the Clinton team deftly completed. This Bush administration devised critical understandings to clarify and protect U.S. national interests.
[NO PROOF OF THIS HAS YET BEEN ADDUCED]**
The LOS convention has already been joined by 154 nations. Companies from members Canada, Australia and Germany have licenses for deep-sea mining while U.S. companies wait and support ratification here.
Reagan's "key objectives" have been met, as free market principles now apply to deep-sea mining. Private firms can mine the minerals, with the legal assurances they need for large-scale, long-term investments. American firms would have their claims protected. [NOT TRUE]**
Gone is any mandatory technology transfer. Gone is any bulk-up of multilateral institutions. Gone is key decisionmaking without U.S. participation. With ratification comes a permanent U.S. seat on the decisionmaking body, with veto power on all key issues.
[NOT TRUE]**
Again, don't just take my word for it. Because Reagan's fixes were made, both his secretaries of state — Alexander M. Haig Jr. and George P. Shultz — switched from opposing to backing LOS ratification. As has Reagan's Chief of Staff and President H.W. Bush's Secretary of State James Baker. Likewise for this President Bush's two secretaries of state, Colin Powell and Condoleezza Rice.
Over LOS' turbulent history, its deficiencies have drowned out its upsides. They are real, and fairly impressive.
The Joint Chiefs of Staff strongly supports LOS to assure us the greatest ocean and air navigation rights. LOS reinforces our Navy's legal right to steam through critical choke points around the globe.
U.S. mining firms strongly support LOS for assuring our legal rights to explore and exploit resources at least 200 nautical miles offshore. Off Alaska, where resources seem most abundant, it ensures our rights over the seabeds up to 600 miles. Our rights over this "extended continental shelf," estimated to hold more than $1 trillion in resources, are among the largest of any country. And environmental groups consider LOS beneficial to healthy oceans.
Even Reagan was sometimes accused of betraying Reaganism. At the 1988 Moscow summit, he was asked about his new coziness with Mikhail Gorbachev, leader of the "evil empire." Reagan said he hadn't changed — it had. Likewise his objections to the LOS treaty haven't changed — it has. The treaty has been fixed, right along the lines he sought.
[THIS IS NOT TRUE; WHILE THE TREATY HAS REMAINED STATIONARY IN TIME, THE NUMBER OF OTHER TREATIES THAT RELATE TO AND IMPACT THE INTERPRETATION OF THE UNCLOS, HAS RAPIDLY AND SUBSTANTIALLY GROWN]**
Ronald Reagan could take "yes" for an answer, smiling when he got to do so. We should be like him in that, too.
Ken Adelman is a former U.S. ambassador to the United Nations and arms control director under President Ronald Reagan. [TITLES ALONE ARE NOT CONVINCING]**
Sea law turbulence
http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20071212/COMMENTARY/112120011/1012
December 12, 2007
By Ken Adelman -
The tranquil-sounding Law of the Sea (LOS) treaty somehow prompts lots of waves. The first storm arose 25 years ago, when President Reagan had the U.S. virtually stand alone against it.
The issue is back. It's still controversial, as Senate Republican leaders oppose ratification. Conservative stalwarts Ed Meese and Bill Clark feel its approval would betray the Reagan legacy.
The LOS accord, just sent out of committee, stands before the Senate for a vote this month. The Senate should ratify it — partly on the merits, but also to reinforce Reagan's biggest legacy, that standing alone on principle can pay off. If you stand right on the merits, eventually others come around.
In 1982, Reagan turned the tide on the LOS effort, under way by some 150 countries over the previous 10 years. During a few National Security Council meetings — which I attended as deputy to U.S. Ambassador to the United Nations Jeane Kirkpatrick's — Reagan called the deep-sea mining provisions global socialism. [IT STILL IS, MORE THAN 25 YEARS LATER]**
He subsequently appointed a presidential envoy for LOS, Don Rumsfeld, who asked me along on his global mission. It took us 33,000 miles into seven countries on what my wife dubbed "scuttle diplomacy."
Before taking off, we met in the Oval Office where the president's passion and points became clear. Don Rumsfeld did a superb job presenting them to German Chancellor Helmut Kohl, French President Francois Mitterrand, and leaders in the Netherlands, Belgium, Italy and Japan.
After Prime Minister Margaret Thatcher read her bureaucracy's recondite points favoring LOS, Mr. Rumsfeld lifted the discussion to Reaganesque heights: "Madam Prime Minister, do you really want to support international socialism? To build up the international bureaucracy? To have it run a cartel? To enforce a mandatory transfer of technology? Do you really want all that in our future?"
It was quite a scene — Mr. Rumsfeld smartly presenting Reagan. This convinced the Iron Lady that, no, she did not. Hence, Britain and other key nations joined in opposing LOS.
During sundry meetings before our trip, Reagan related how he considered the deep-sea mining provisions a wedge into international socialism. He deemed the new LOS institution — with the quaint Orwellian name of The Authority, yet without any U.S. veto power — as a precursor to world federalism. Reagan despised its mandatory technology transfer and its autonomous funding of so-called liberation movements.
This litany became Mr. Rumsfeld's script to world leaders, since it was Reagan's script to us.
Don't just take my word for it. In his Jan. 29, 1982, document on LOS, Reagan listed these very issues in six bullets. He explicitly pledged that, if the LOS negotiators "find ways to fulfill these key objectives, my administration will support ratification."
Subsequent administrations have found ways. The first Bush administration began fixing Reagan's biggest bugaboo, the deep seabed mining provisions, which the Clinton team deftly completed. This Bush administration devised critical understandings to clarify and protect U.S. national interests.
[NO PROOF OF THIS HAS YET BEEN ADDUCED]**
The LOS convention has already been joined by 154 nations. Companies from members Canada, Australia and Germany have licenses for deep-sea mining while U.S. companies wait and support ratification here.
Reagan's "key objectives" have been met, as free market principles now apply to deep-sea mining. Private firms can mine the minerals, with the legal assurances they need for large-scale, long-term investments. American firms would have their claims protected. [NOT TRUE]**
Gone is any mandatory technology transfer. Gone is any bulk-up of multilateral institutions. Gone is key decisionmaking without U.S. participation. With ratification comes a permanent U.S. seat on the decisionmaking body, with veto power on all key issues.
[NOT TRUE]**
Again, don't just take my word for it. Because Reagan's fixes were made, both his secretaries of state — Alexander M. Haig Jr. and George P. Shultz — switched from opposing to backing LOS ratification. As has Reagan's Chief of Staff and President H.W. Bush's Secretary of State James Baker. Likewise for this President Bush's two secretaries of state, Colin Powell and Condoleezza Rice.
Over LOS' turbulent history, its deficiencies have drowned out its upsides. They are real, and fairly impressive.
The Joint Chiefs of Staff strongly supports LOS to assure us the greatest ocean and air navigation rights. LOS reinforces our Navy's legal right to steam through critical choke points around the globe.
U.S. mining firms strongly support LOS for assuring our legal rights to explore and exploit resources at least 200 nautical miles offshore. Off Alaska, where resources seem most abundant, it ensures our rights over the seabeds up to 600 miles. Our rights over this "extended continental shelf," estimated to hold more than $1 trillion in resources, are among the largest of any country. And environmental groups consider LOS beneficial to healthy oceans.
Even Reagan was sometimes accused of betraying Reaganism. At the 1988 Moscow summit, he was asked about his new coziness with Mikhail Gorbachev, leader of the "evil empire." Reagan said he hadn't changed — it had. Likewise his objections to the LOS treaty haven't changed — it has. The treaty has been fixed, right along the lines he sought.
[THIS IS NOT TRUE; WHILE THE TREATY HAS REMAINED STATIONARY IN TIME, THE NUMBER OF OTHER TREATIES THAT RELATE TO AND IMPACT THE INTERPRETATION OF THE UNCLOS, HAS RAPIDLY AND SUBSTANTIALLY GROWN]**
Ronald Reagan could take "yes" for an answer, smiling when he got to do so. We should be like him in that, too.
Ken Adelman is a former U.S. ambassador to the United Nations and arms control director under President Ronald Reagan. [TITLES ALONE ARE NOT CONVINCING]**
Deep-Six the Law of the Sea
http://online.wsj.com/article/SB119550952169298366.html
WALL STREET JOURNAL
November 20, 2007
COMMENTARY
By THOMAS A. BOWDEN
November 20, 2007; Page A18
The Law of the Sea Treaty, which awaits a ratification vote in the U.S. Senate, declares most of the earth's vast ocean floor to be "the common heritage of mankind" and places it under United Nations ownership "for the benefit of mankind as a whole."
This treaty has been bobbing in the legislative ocean for the past 25 years. After President Ronald Reagan refused to sign it in 1982, repeated attempts at ratification have failed. Last month, however, the Senate Foreign Relations Committee voted 17-4 to send it to the full Senate, where a two-thirds majority is required to ratify.
What's at stake are trillions of tons of vital minerals such as manganese, nickel, copper, zinc, gold and silver -- enough to supply current needs for thousands of years -- spread over vast seabeds constituting 41% of the planet's area. Senate ratification would signify U.S. agreement that the International Seabed Authority, a U.N. agency based in Jamaica, should own these resources in perpetuity.
Why should we agree to this?
Like any other hard-to-reach resources, these undersea minerals are completely valueless where they now rest. What is it that makes such resources actually valuable? It is the thinking and action of inventors, engineers, explorers and entrepreneurs who devote their mental energy to the task of finding and retrieving them. These undersea pioneers don't just find wealth, they create wealth -- by bringing a portion of nature's bounty under human control.
Despite the treaty's allusion to seabeds as the "common heritage of mankind," mankind as a whole has done exactly nothing to create value in the deep ocean, which is a remote wilderness, virtually unexploited. Under the proposed treaty, however, the ocean mining companies -- whose science, exploration, technology, and entrepreneurship are being counted on to gather otherwise inaccessible riches -- are treated as mere servants of a world collective.
In practice, under the treaty's explicitly socialist approach, mining companies operate as mere licensees who must render hefty application fees as well as continuing payments (read: taxes) and obtain prior approval at every stage of work, under regulations that emerge sluggishly from multinational committees.
Licensees must also enrich a U.N.-operated competitor called, spookily enough, "The Enterprise." For every square mile of ocean bottom a licensee explores, half must be relinquished to The Enterprise, free of charge -- and the Enterprise gets to pick the better half.
Licensees must also make available, on so-called reasonable commercial terms, their technology and know-how, and even train this giant competitor's personnel. At the end of the day, profits from The Enterprise, along with taxes from licensees, are distributed to U.N. member-nations such as Cuba, Uganda and Venezuela, who contribute nothing to the productive process.
[THIS PRINCIPLE HAS SINCE BEEN INCORPORATED INTO THE UNITED NATIONS DOCTRINE OF MALTHUSIAN 'NEGATIVE' SUSTAINABLE DEVELOPMENT, AS DEFINED BY THE 1987 GRO HARLEM BRUNDTLAND REPORT]**
The treaty simply assumes as a self-evident truth that wealth sharing is the moral duty of the haves toward the have-nots, and that the world's needy nations have a moral claim on the wealth created by undersea miners. But we should pause to challenge both that moral assumption and its legal implications.
Morally, undersea mining operations are entitled to own outright those portions of the ocean floor they exploit, by virtue of the productive effort they expend. Producers in general are morally entitled to live and work for their own sake, keeping the wealth they create without any moral debt to those who didn't create it. Because nature requires us to be productive in order to live, the businessman's pursuit of profit is properly regarded as a virtue, not a vice indebting him to a hungry planet.
Legally, this viewpoint is embodied in the American ideals of life, liberty and the pursuit of happiness, secured by private property rights. A historical example of the proper principle in action is the Homestead Act of 1862. Farmers acquired property rights, i.e., private deeds, to 270 million acres of fertile Midwest prairie land by the productive act of farming it, parcel by parcel.
Suppose, instead, that the U.S. government had issued only licenses, not deeds, for the acreage those farmers carved out of wild prairie land. Then suppose the government had transferred half that hard-won acreage to "The Farm," a giant government-owned competitor whose field hands the farmers would be expected to equip and train. Of course, such a travesty would have been unthinkable in the relatively capitalistic 19th century.
Governments today have legitimate options regarding how to deal with undersea explorers' need to establish property rights in the deep ocean. But it would be totally improper for America to declare eternal hostility to private property in the ocean floor by ratifying a treaty dedicated on principle to denying such rights.
Mr. Bowden, a former attorney and law school instructor, is an analyst focusing on legal issues at the Ayn Rand Institute.
WALL STREET JOURNAL
November 20, 2007
COMMENTARY
By THOMAS A. BOWDEN
November 20, 2007; Page A18
The Law of the Sea Treaty, which awaits a ratification vote in the U.S. Senate, declares most of the earth's vast ocean floor to be "the common heritage of mankind" and places it under United Nations ownership "for the benefit of mankind as a whole."
This treaty has been bobbing in the legislative ocean for the past 25 years. After President Ronald Reagan refused to sign it in 1982, repeated attempts at ratification have failed. Last month, however, the Senate Foreign Relations Committee voted 17-4 to send it to the full Senate, where a two-thirds majority is required to ratify.
What's at stake are trillions of tons of vital minerals such as manganese, nickel, copper, zinc, gold and silver -- enough to supply current needs for thousands of years -- spread over vast seabeds constituting 41% of the planet's area. Senate ratification would signify U.S. agreement that the International Seabed Authority, a U.N. agency based in Jamaica, should own these resources in perpetuity.
Why should we agree to this?
Like any other hard-to-reach resources, these undersea minerals are completely valueless where they now rest. What is it that makes such resources actually valuable? It is the thinking and action of inventors, engineers, explorers and entrepreneurs who devote their mental energy to the task of finding and retrieving them. These undersea pioneers don't just find wealth, they create wealth -- by bringing a portion of nature's bounty under human control.
Despite the treaty's allusion to seabeds as the "common heritage of mankind," mankind as a whole has done exactly nothing to create value in the deep ocean, which is a remote wilderness, virtually unexploited. Under the proposed treaty, however, the ocean mining companies -- whose science, exploration, technology, and entrepreneurship are being counted on to gather otherwise inaccessible riches -- are treated as mere servants of a world collective.
In practice, under the treaty's explicitly socialist approach, mining companies operate as mere licensees who must render hefty application fees as well as continuing payments (read: taxes) and obtain prior approval at every stage of work, under regulations that emerge sluggishly from multinational committees.
Licensees must also enrich a U.N.-operated competitor called, spookily enough, "The Enterprise." For every square mile of ocean bottom a licensee explores, half must be relinquished to The Enterprise, free of charge -- and the Enterprise gets to pick the better half.
Licensees must also make available, on so-called reasonable commercial terms, their technology and know-how, and even train this giant competitor's personnel. At the end of the day, profits from The Enterprise, along with taxes from licensees, are distributed to U.N. member-nations such as Cuba, Uganda and Venezuela, who contribute nothing to the productive process.
[THIS PRINCIPLE HAS SINCE BEEN INCORPORATED INTO THE UNITED NATIONS DOCTRINE OF MALTHUSIAN 'NEGATIVE' SUSTAINABLE DEVELOPMENT, AS DEFINED BY THE 1987 GRO HARLEM BRUNDTLAND REPORT]**
The treaty simply assumes as a self-evident truth that wealth sharing is the moral duty of the haves toward the have-nots, and that the world's needy nations have a moral claim on the wealth created by undersea miners. But we should pause to challenge both that moral assumption and its legal implications.
Morally, undersea mining operations are entitled to own outright those portions of the ocean floor they exploit, by virtue of the productive effort they expend. Producers in general are morally entitled to live and work for their own sake, keeping the wealth they create without any moral debt to those who didn't create it. Because nature requires us to be productive in order to live, the businessman's pursuit of profit is properly regarded as a virtue, not a vice indebting him to a hungry planet.
Legally, this viewpoint is embodied in the American ideals of life, liberty and the pursuit of happiness, secured by private property rights. A historical example of the proper principle in action is the Homestead Act of 1862. Farmers acquired property rights, i.e., private deeds, to 270 million acres of fertile Midwest prairie land by the productive act of farming it, parcel by parcel.
Suppose, instead, that the U.S. government had issued only licenses, not deeds, for the acreage those farmers carved out of wild prairie land. Then suppose the government had transferred half that hard-won acreage to "The Farm," a giant government-owned competitor whose field hands the farmers would be expected to equip and train. Of course, such a travesty would have been unthinkable in the relatively capitalistic 19th century.
Governments today have legitimate options regarding how to deal with undersea explorers' need to establish property rights in the deep ocean. But it would be totally improper for America to declare eternal hostility to private property in the ocean floor by ratifying a treaty dedicated on principle to denying such rights.
Mr. Bowden, a former attorney and law school instructor, is an analyst focusing on legal issues at the Ayn Rand Institute.
Friday, January 18, 2008
Law Of The Sea Treaty Manages To Stay Afloat
http://www.tylerpaper.com/article/20071115/OPINION01/711140349/-1/RSS01
Editorials
Article published Nov 15, 2007
The mythical Flying Dutchman, a ghost ship doomed to forever roam the seas, was an ill omen for sailors.
Like that ship, the Law of the Sea Treaty continues to haunt policymakers, explains Doug Bandow of the Competitive Enterprise Institute.
"Bad treaties never die," Bandow says. "Such is the lesson of the Law of the Sea Treaty, or LOST. Now being pushed by the Bush administration and Senate Foreign Relations Committee Chairman Joseph Biden (D-Del.), the treaty would turn over all of the world's unclaimed natural resources to a second United Nations."
The treaty has been around for three decades.
"President Ronald Reagan refused to sign the LOST in 1982, after which no major nation, even the Soviet Union, bound itself to the treaty," Bandow says. "The agreement sank beneath the waves, leaving no trace."
But Presidents George H.W. Bush and Bill Clinton tried to revive the treaty.
"(Clinton's) Secretary of State Madeleine Albright won a few small concessions and proclaimed victory," Bandow recounts. "The United States signed, setting off an international stampede. Although opposition in the Republican Senate prevented ratification, more than enough other countries assented, bringing LOST into effect. Now the LOST is before the Senate."
And it has the support of President George W. Bush.
"In broad sweep, LOST covers three subjects," Bandow explains. "The first area includes exclusive economic zones, fishing, marine research, ocean pollution, and oil exploration. These provisions, though generally non-controversial, are not without adverse effect. For instance, energy companies will owe the International Seabed Authority royalties up to 12 percent on any oil produced from the Outer Continental Shelf beyond 200 miles. This may be the first global tax imposed on Americans without congressional approval."
And activists here and in other countries could misuse portions of the treaty, Bandow warns.
"William C.G. Burns of the Monterey Institute of International Studies calls LOST 'a promising instrument through which such [legal] action might be taken, given its broad definition of pollution to the marine environment and the dispute resolution mechanisms contained within its provision.' A flood of international lawsuits under LOST could undermine U.S. prosperity and sovereignty," Bandow says.
Some argue that the United States must be a party to the treaty if it hopes to dispute Russia's recent claim to the North Pole.
"However, the agreement respects the rights of nonmembers, while other interested parties, most notably Canada and Denmark, can resist Russia's claims within LOST," Bandow says.
And LOST's affirmation of navigational freedom is a poor substitute for the current system, based on customary international law.
"Paper guarantees would provide little aid in any crisis," Bandow says. "Agreements with countries that control critical waterways, backed by a strong navy, offer the best protection of U.S. rights."
But the most contentious part of the treaty is seabed mining.
"Maybe ocean mining will never be viable, so turning vast resources over to yet another inefficient, politicized, and corrupt international organization won't matter," Bandow says. "But such a byzantine regulatory structure is likely to discourage entrepreneurship in related fields, especially the development of technology, software, and other products with multiple ocean uses. Further, applying such a principle to other unowned resources, such as outer space, would discourage private innovation in that field."
Simply put, the treaty is bad policy, both now and in the future.
"The LOST is not without benefits, but most can be enjoyed without ratifying the treaty," Bandow says. "Unfortunately, the costs of joining are too high. Surely we should have learned by now that (collectivist) economics will always fail. Enshrining collectivism as international law through creation of a mini-me United Nations would be as foolish as it would be costly."
Editorials
Article published Nov 15, 2007
The mythical Flying Dutchman, a ghost ship doomed to forever roam the seas, was an ill omen for sailors.
Like that ship, the Law of the Sea Treaty continues to haunt policymakers, explains Doug Bandow of the Competitive Enterprise Institute.
"Bad treaties never die," Bandow says. "Such is the lesson of the Law of the Sea Treaty, or LOST. Now being pushed by the Bush administration and Senate Foreign Relations Committee Chairman Joseph Biden (D-Del.), the treaty would turn over all of the world's unclaimed natural resources to a second United Nations."
The treaty has been around for three decades.
"President Ronald Reagan refused to sign the LOST in 1982, after which no major nation, even the Soviet Union, bound itself to the treaty," Bandow says. "The agreement sank beneath the waves, leaving no trace."
But Presidents George H.W. Bush and Bill Clinton tried to revive the treaty.
"(Clinton's) Secretary of State Madeleine Albright won a few small concessions and proclaimed victory," Bandow recounts. "The United States signed, setting off an international stampede. Although opposition in the Republican Senate prevented ratification, more than enough other countries assented, bringing LOST into effect. Now the LOST is before the Senate."
And it has the support of President George W. Bush.
"In broad sweep, LOST covers three subjects," Bandow explains. "The first area includes exclusive economic zones, fishing, marine research, ocean pollution, and oil exploration. These provisions, though generally non-controversial, are not without adverse effect. For instance, energy companies will owe the International Seabed Authority royalties up to 12 percent on any oil produced from the Outer Continental Shelf beyond 200 miles. This may be the first global tax imposed on Americans without congressional approval."
And activists here and in other countries could misuse portions of the treaty, Bandow warns.
"William C.G. Burns of the Monterey Institute of International Studies calls LOST 'a promising instrument through which such [legal] action might be taken, given its broad definition of pollution to the marine environment and the dispute resolution mechanisms contained within its provision.' A flood of international lawsuits under LOST could undermine U.S. prosperity and sovereignty," Bandow says.
Some argue that the United States must be a party to the treaty if it hopes to dispute Russia's recent claim to the North Pole.
"However, the agreement respects the rights of nonmembers, while other interested parties, most notably Canada and Denmark, can resist Russia's claims within LOST," Bandow says.
And LOST's affirmation of navigational freedom is a poor substitute for the current system, based on customary international law.
"Paper guarantees would provide little aid in any crisis," Bandow says. "Agreements with countries that control critical waterways, backed by a strong navy, offer the best protection of U.S. rights."
But the most contentious part of the treaty is seabed mining.
"Maybe ocean mining will never be viable, so turning vast resources over to yet another inefficient, politicized, and corrupt international organization won't matter," Bandow says. "But such a byzantine regulatory structure is likely to discourage entrepreneurship in related fields, especially the development of technology, software, and other products with multiple ocean uses. Further, applying such a principle to other unowned resources, such as outer space, would discourage private innovation in that field."
Simply put, the treaty is bad policy, both now and in the future.
"The LOST is not without benefits, but most can be enjoyed without ratifying the treaty," Bandow says. "Unfortunately, the costs of joining are too high. Surely we should have learned by now that (collectivist) economics will always fail. Enshrining collectivism as international law through creation of a mini-me United Nations would be as foolish as it would be costly."
Sea treaty sparks rivalries
http://www.washingtontimes.com/article/20071112/FOREIGN/111120068/1003
Washington Times
Article published Nov 12, 2007
November 12, 2007
By David R. Sands -
Can the Law of the Sea restrain the race to the Pole?
An old-fashioned, flag-planting, claim-staking fight for the Arctic has broken out just as the Senate prepares for a difficult ratification vote on the U.N. Convention on the Law of the Sea treaty.
The North Pole knockdown, featuring the U.S., Russia and three other Arctic states, adds fresh fuel to the heated debate over a treaty that has languished in Congress for more than a decade.
"We are an Arctic nation because of Alaska," said Alaskan Sen. Lisa Murkowski, who broke from fellow conservative Republicans to back the Law of the Sea treaty last month at a Senate Foreign Relations Committee hearing.
"It's incredibly important to us to be sitting at the table with the Russians and others when the decisions about the Arctic are being made," she said.
Some 155 nations have ratified the treaty since it was signed in 1982. President Reagan refused to sign the pact, objecting to provisions for the international regulation of deep-sea mining. President Clinton sent an amended version of the treaty to the Senate in 1994, but it repeatedly has failed to win approval, most recently in 2004.
Opponents of the U.N.-backed accord vow to defeat the treaty yet again this year, despite strong backing from President Bush, all the U.S. military services, the American Bar Association and leading business and environmental lobbies.
By last week, every major candidate for the Republican presidential nomination had come out against the treaty, with their views heavily influenced by a varied group of conservative legal scholars, defense analysts, talk-show hosts, sovereignty advocates and anti-U.N. activists.
"The United States can little afford to have its sovereignty directly challenged by this treaty, and we must activate the conservative grass-roots base to rise up in defense of our country and our sovereignty," conservative activist Paul M. Weyrich said.
Cliff Kincaid, an anti-U.N. activist and president of America's Survival Inc., said the U.S. does not need the Law of the Sea treaty to press its claims to the Arctic and its mineral and energy riches.
"Nobody bothers to point out that [U.S. Admiral Richard] Byrd flew over the North Pole for the United States 80 years ago," he said.
Russian subs
The Law of the Sea treaty, designed to set the rules of the road for the world's oceans, ironically may have spurred the Arctic sweepstakes.
When two Russian deep-water submersibles planted a corrosion-resistant titanium Russian flag on the seabed beneath the North Pole on Aug. 2, they were not violating the treaty, but trying to strengthen Russia's claim under it.
A key provision of the treaty gives coastal states exclusive rights to maritime resources within 230 miles of their shoreline. But signatories can nearly double their territorial claim if they can prove to a Law of the Sea tribunal that their underwater continental shelf extends beyond the coast.
Many countries, including Russia, face a 2009 deadline to submit a final scientific claim for the extent of their continental shelves — and thus for their right to exclusive privileges further into the ocean. U.S. treaty supporters like Mrs. Murkowski say the U.S. will be cut out of the boundary wars if it does not ratify the treaty soon.
But the 2009 deadline also has sparked just the kind of the disorderly rush to put down markers that the treaty's drafters had once hoped to head off.
Moscow had submitted a claim in 2001 to a Law of the Sea panel, asserting ownership of some 463,000 square miles of Arctic seabed based on the extent of its still largely unmapped northern shelf. Russia was told it needed more scientific evidence to support its claim.
Pavel Baev, a researcher at the Oslo-based International Peace Research Institute, said Russian President Vladimir Putin was quick to exploit the North Pole submarine venture in August for his own political purposes, restoring Russian national pride and aggressively asserting Russian interests on the global stage.
"The perception in Russia now is that there's a real geopolitical competition going on in [the Arctic]," Mr. Baev said. "You need to move fast to advance your claim because it's every nation for itself."
Whatever the motivation in Russia, the flag-planting sparked an immediate reaction in other states with Arctic claims — the U.S., Canada, Norway and Denmark.
"You can't go around the world these days dropping flags somewhere," Canadian Foreign Affairs Minister Peter Mackay said. "This isn't the 14th or 15th century."
Canada has been among the most aggressive nations in asserting its Arctic territorial claims and is in a sharp debate with the U.S. over Ottawa's claim that it controls the Northwest Passage waterway. The fabled sea route, futilely sought five centuries ago by European explorers, has become a live issue once again as accelerated melting of the Arctic ice caps could soon make the strait navigable for significant portions of the year.
The U.S. State Department also belittled the Russian sub mission, and even nations not directly involved in the North Pole sweepstakes expressed alarm.
"The North Pole is not a law-free zone," German Foreign Minister Frank-Walter Steinmeier said in August. "There are international accords, which must be respected by all nations who have interests there."
Denmark, which bases its Arctic claim on its control of Greenland, dispatched a team of some 45 researchers just weeks after the Russian mission to map the seabed north of Greenland. Canadian Prime Minister Stephen Harper announced that Ottawa will spend more than $7 billion to build up to eight new ships capable of patrolling the Arctic Ocean.
U.S. officials recently began the third American seabed-mapping expedition in the Arctic since 2003 — all to boost U.S. territorial claims if and when the U.S. ratifies the Law of the Sea treaty.
Boon or boondoggle?
Expert opinion is divided on the mineral and energy wealth to be tapped in the Arctic.
Breathless projections that the region could hold a quarter of the world's energy reserves have been tempered in recent days.
An extensive 2006 study by consulting firms Wood Mackenzie and Fugro Robertson concluded that Arctic energy reserves are "significantly less that previous estimates had suggested" and were not likely to pose a serious challenge to the Organization of the Petroleum Exporting Countries.
"This assessment basically calls into question the long-considered view that the Arctic represents one of the last great oil and gas frontiers and a strategic energy-supply cache for the United States," study author Andrew Latham wrote.
It may turn out that the sea routes opened up by melting Arctic ice may prove the bigger long-term economic boon. The Northwest Passage could reshape the world's maritime trade, cutting, for example, the voyage from Tokyo to New York from 11,300 miles to 8,700 miles.
Mr. Baev said Russia may have sacrificed its long-term interests for short-term gain with the flag-planting mission. It may, he said, spur the U.S. to finally ratify the Law of the Sea treaty and unite the four other Arctic claimants against Moscow.
The "main risk" for Moscow, he said, is not confrontation with the U.S. "but that the four Arctic states, plus possibly the United Kingdom ... would join forces against Russia."
Senate sea battle
How the Arctic land grab will affect the coming Senate debate on the Law of the Sea treaty is an open question, but both supporters and opponents of the pact say it will provide a crucial test of U.S. attitudes toward the United Nations and ambitious multilateral agreements on trade, the environment and law.
Conceived as a global pact to establish maritime-navigation practices, the treaty evolved into a far more ambitious program to codify and enforce rules on the high seas.
The lengthy treaty outlines not only coastal sovereignty rights, but navigation practices for commercial and military vessels, environmental protections and exploitation guidelines for mining, fishing, energy exploration and other businesses that tap the wealth of the world's oceans.
Treaty supporters, including such conservative legal experts as University of Virginia law professor John Norton Moore, argue the U.S. was the big winner in the Law of the Sea negotiations.
The U.S. will have a vast exclusive economic zone because of its extensive coastline. U.S. firms will readily exploit the oceans' mineral and energy wealth with clear property rights in place. U.S. military vessels can carry on their global duties while exempt from the treaty's commercial restrictions.
Treaty opponents counter with one big idea — a deep distrust of the United Nations — and a host of objections to specific provisions that they say will hamstring the U.S. military and subject U.S. corporations to an unfriendly, unelected global bureaucracy.
If the treaty drafters had stuck to the original, modest mandate on navigation, "this treaty would have sailed through," according to Heritage Foundation analyst Baker Spring.
Washington Times
Article published Nov 12, 2007
November 12, 2007
By David R. Sands -
Can the Law of the Sea restrain the race to the Pole?
An old-fashioned, flag-planting, claim-staking fight for the Arctic has broken out just as the Senate prepares for a difficult ratification vote on the U.N. Convention on the Law of the Sea treaty.
The North Pole knockdown, featuring the U.S., Russia and three other Arctic states, adds fresh fuel to the heated debate over a treaty that has languished in Congress for more than a decade.
"We are an Arctic nation because of Alaska," said Alaskan Sen. Lisa Murkowski, who broke from fellow conservative Republicans to back the Law of the Sea treaty last month at a Senate Foreign Relations Committee hearing.
"It's incredibly important to us to be sitting at the table with the Russians and others when the decisions about the Arctic are being made," she said.
Some 155 nations have ratified the treaty since it was signed in 1982. President Reagan refused to sign the pact, objecting to provisions for the international regulation of deep-sea mining. President Clinton sent an amended version of the treaty to the Senate in 1994, but it repeatedly has failed to win approval, most recently in 2004.
Opponents of the U.N.-backed accord vow to defeat the treaty yet again this year, despite strong backing from President Bush, all the U.S. military services, the American Bar Association and leading business and environmental lobbies.
By last week, every major candidate for the Republican presidential nomination had come out against the treaty, with their views heavily influenced by a varied group of conservative legal scholars, defense analysts, talk-show hosts, sovereignty advocates and anti-U.N. activists.
"The United States can little afford to have its sovereignty directly challenged by this treaty, and we must activate the conservative grass-roots base to rise up in defense of our country and our sovereignty," conservative activist Paul M. Weyrich said.
Cliff Kincaid, an anti-U.N. activist and president of America's Survival Inc., said the U.S. does not need the Law of the Sea treaty to press its claims to the Arctic and its mineral and energy riches.
"Nobody bothers to point out that [U.S. Admiral Richard] Byrd flew over the North Pole for the United States 80 years ago," he said.
Russian subs
The Law of the Sea treaty, designed to set the rules of the road for the world's oceans, ironically may have spurred the Arctic sweepstakes.
When two Russian deep-water submersibles planted a corrosion-resistant titanium Russian flag on the seabed beneath the North Pole on Aug. 2, they were not violating the treaty, but trying to strengthen Russia's claim under it.
A key provision of the treaty gives coastal states exclusive rights to maritime resources within 230 miles of their shoreline. But signatories can nearly double their territorial claim if they can prove to a Law of the Sea tribunal that their underwater continental shelf extends beyond the coast.
Many countries, including Russia, face a 2009 deadline to submit a final scientific claim for the extent of their continental shelves — and thus for their right to exclusive privileges further into the ocean. U.S. treaty supporters like Mrs. Murkowski say the U.S. will be cut out of the boundary wars if it does not ratify the treaty soon.
But the 2009 deadline also has sparked just the kind of the disorderly rush to put down markers that the treaty's drafters had once hoped to head off.
Moscow had submitted a claim in 2001 to a Law of the Sea panel, asserting ownership of some 463,000 square miles of Arctic seabed based on the extent of its still largely unmapped northern shelf. Russia was told it needed more scientific evidence to support its claim.
Pavel Baev, a researcher at the Oslo-based International Peace Research Institute, said Russian President Vladimir Putin was quick to exploit the North Pole submarine venture in August for his own political purposes, restoring Russian national pride and aggressively asserting Russian interests on the global stage.
"The perception in Russia now is that there's a real geopolitical competition going on in [the Arctic]," Mr. Baev said. "You need to move fast to advance your claim because it's every nation for itself."
Whatever the motivation in Russia, the flag-planting sparked an immediate reaction in other states with Arctic claims — the U.S., Canada, Norway and Denmark.
"You can't go around the world these days dropping flags somewhere," Canadian Foreign Affairs Minister Peter Mackay said. "This isn't the 14th or 15th century."
Canada has been among the most aggressive nations in asserting its Arctic territorial claims and is in a sharp debate with the U.S. over Ottawa's claim that it controls the Northwest Passage waterway. The fabled sea route, futilely sought five centuries ago by European explorers, has become a live issue once again as accelerated melting of the Arctic ice caps could soon make the strait navigable for significant portions of the year.
The U.S. State Department also belittled the Russian sub mission, and even nations not directly involved in the North Pole sweepstakes expressed alarm.
"The North Pole is not a law-free zone," German Foreign Minister Frank-Walter Steinmeier said in August. "There are international accords, which must be respected by all nations who have interests there."
Denmark, which bases its Arctic claim on its control of Greenland, dispatched a team of some 45 researchers just weeks after the Russian mission to map the seabed north of Greenland. Canadian Prime Minister Stephen Harper announced that Ottawa will spend more than $7 billion to build up to eight new ships capable of patrolling the Arctic Ocean.
U.S. officials recently began the third American seabed-mapping expedition in the Arctic since 2003 — all to boost U.S. territorial claims if and when the U.S. ratifies the Law of the Sea treaty.
Boon or boondoggle?
Expert opinion is divided on the mineral and energy wealth to be tapped in the Arctic.
Breathless projections that the region could hold a quarter of the world's energy reserves have been tempered in recent days.
An extensive 2006 study by consulting firms Wood Mackenzie and Fugro Robertson concluded that Arctic energy reserves are "significantly less that previous estimates had suggested" and were not likely to pose a serious challenge to the Organization of the Petroleum Exporting Countries.
"This assessment basically calls into question the long-considered view that the Arctic represents one of the last great oil and gas frontiers and a strategic energy-supply cache for the United States," study author Andrew Latham wrote.
It may turn out that the sea routes opened up by melting Arctic ice may prove the bigger long-term economic boon. The Northwest Passage could reshape the world's maritime trade, cutting, for example, the voyage from Tokyo to New York from 11,300 miles to 8,700 miles.
Mr. Baev said Russia may have sacrificed its long-term interests for short-term gain with the flag-planting mission. It may, he said, spur the U.S. to finally ratify the Law of the Sea treaty and unite the four other Arctic claimants against Moscow.
The "main risk" for Moscow, he said, is not confrontation with the U.S. "but that the four Arctic states, plus possibly the United Kingdom ... would join forces against Russia."
Senate sea battle
How the Arctic land grab will affect the coming Senate debate on the Law of the Sea treaty is an open question, but both supporters and opponents of the pact say it will provide a crucial test of U.S. attitudes toward the United Nations and ambitious multilateral agreements on trade, the environment and law.
Conceived as a global pact to establish maritime-navigation practices, the treaty evolved into a far more ambitious program to codify and enforce rules on the high seas.
The lengthy treaty outlines not only coastal sovereignty rights, but navigation practices for commercial and military vessels, environmental protections and exploitation guidelines for mining, fishing, energy exploration and other businesses that tap the wealth of the world's oceans.
Treaty supporters, including such conservative legal experts as University of Virginia law professor John Norton Moore, argue the U.S. was the big winner in the Law of the Sea negotiations.
The U.S. will have a vast exclusive economic zone because of its extensive coastline. U.S. firms will readily exploit the oceans' mineral and energy wealth with clear property rights in place. U.S. military vessels can carry on their global duties while exempt from the treaty's commercial restrictions.
Treaty opponents counter with one big idea — a deep distrust of the United Nations — and a host of objections to specific provisions that they say will hamstring the U.S. military and subject U.S. corporations to an unfriendly, unelected global bureaucracy.
If the treaty drafters had stuck to the original, modest mandate on navigation, "this treaty would have sailed through," according to Heritage Foundation analyst Baker Spring.
Scuttle LOST
http://www.pittsburghlive.com/x/pittsburghtrib/opinion/archive/s_536618.html
Pittsburgh Tribune Review
Wednesday, November 7, 2007
Any day now, the full U.S. Senate could approve the Law of the Sea Treaty, better known as LOST. But should the required two-thirds majority adopt this abomination, lost will be a large chunk of U.S. sovereignty and wealth.
The treaty, reported out of the Senate Foreign Relations Committee last week and supported by President Bush, is rife with contradictions that render it a nightmare for America but a gold mine for the United Nations bureaucracy that designed it.
Worse, many in the Bush administration, pressed in congressional hearings, were poorly versed in the treaty's nuts and bolts and abysmally ignorant of its ramifications.
A treaty sold as the kumbaya of better seabed management, more liberal navigational rights and streamlined dispute resolution truly is a godsend for the one-worlder aficionados. Largely drafted by an avowed Marxist, there are world taxes, restrictions on land-based activities in the U.S. and rules that actually make it more difficult for this country to defend itself against attack.
Even worse, a treaty that further empowers a U.N. that regularly abuses its power can be amended without the approval of the signatories.
LOST is a blank check that places this nation in jeopardy. And approval by the full Senate would be nothing less than an abdication of the senators' oaths of office. The Law of the Sea Treaty must be scuttled.
Pittsburgh Tribune Review
Wednesday, November 7, 2007
Any day now, the full U.S. Senate could approve the Law of the Sea Treaty, better known as LOST. But should the required two-thirds majority adopt this abomination, lost will be a large chunk of U.S. sovereignty and wealth.
The treaty, reported out of the Senate Foreign Relations Committee last week and supported by President Bush, is rife with contradictions that render it a nightmare for America but a gold mine for the United Nations bureaucracy that designed it.
Worse, many in the Bush administration, pressed in congressional hearings, were poorly versed in the treaty's nuts and bolts and abysmally ignorant of its ramifications.
A treaty sold as the kumbaya of better seabed management, more liberal navigational rights and streamlined dispute resolution truly is a godsend for the one-worlder aficionados. Largely drafted by an avowed Marxist, there are world taxes, restrictions on land-based activities in the U.S. and rules that actually make it more difficult for this country to defend itself against attack.
Even worse, a treaty that further empowers a U.N. that regularly abuses its power can be amended without the approval of the signatories.
LOST is a blank check that places this nation in jeopardy. And approval by the full Senate would be nothing less than an abdication of the senators' oaths of office. The Law of the Sea Treaty must be scuttled.
A Sinkable Treaty: Why America doesn't need the Law of the Sea
http://www.opinionjournal.com/weekend/hottopic/?id=110010820
WALL STREET JOURNAL
Saturday, November 3, 2007 12:01 a.m.
The Senate Foreign Relations Committee voted 17-4 Wednesday to approve the
Law of the Sea Treaty, meaning it's now up to 34 Senate Republicans to send
this giant octopus of a document back where it belongs. To wit, the bottom
of the ocean.
The U.S. last disposed of the United Nations Convention on the Law of the
Sea--LOST to its critics--when Ronald Reagan was President. This May,
however, the Bush Administration reversed course and declared that the
Gipper's objections had been fixed by a 1994 amendment. We've since had a
debate on these pages over that point, with former Secretaries of State
George Shultz and James Baker in favor, while Ed Meese and William Clark,
Reagan's Attorney General and National Security Adviser, remain opposed.
The best arguments for the treaty come from the U.S. Navy, which likes how
it creates a legal framework for navigational rights. The oil and gas
industry approves of provisions that create an "exclusive economic zone" for
the U.S. out to 200 miles. There's also the potential for development (with
clear legal title) of resources in the deep seabed, which would be managed
by the International Seabed Authority on which the U.S. would be guaranteed
a seat. And, in fact, the 1994 amendment did get rid of some of LOST's most
obnoxious provisions, such as mandatory technology transfers and other
redistributionist nostrums.
Then again, the Navy has been getting along fine by using the "customary
law" that has guaranteed freedom of the seas for three centuries. Treaty
proponents have taken to arguing that, unless we ratify, Russia will lay
claim to oil rights over the Arctic seabed. But Russia's expansive Arctic
claims, possibly including the sea floor under the North Pole, are
themselves a product of the treaty. We also hear that the U.S. must have its
proverbial "seat at the table" in negotiations over such claims. But the
nations with a direct geographic Arctic claim ought to be able to cut a deal
without giving Cuba or Zimbabwe a seat. America's historic experience with
similar multinational bodies (e.g., the U.N. Human Rights Commission) hardly
justifies confidence that having a seat will enhance our influence, rather
than constrain it.
The larger problem is the treaty's sheer size, with no fewer than 320
articles and nine annexes. These cover everything from "Criminal
jurisdiction on board a foreign ship" (Article 27) to "Anadromous stocks"
and "Catadromous Species" (Articles 65 and 66) to the "Jurisdiction of the
Seabed Disputes Chamber" (Article 187). Much of this is anodyne, but perhaps
the Senators should read the fine print before voting. They might be
surprised by what they find.
Consider the treaty's potential effects on military activities. The
Administration says these are excluded from the treaty and, further, that
the U.S. gets to decide what constitutes such activity. But then how to
explain Article 20, which states that "In the territorial sea, submarines
and other underwater vehicles are required to navigate on the surface and to
show their flag." How will this affect the ability of U.S. submarines to
gather intelligence in coastal waters or deploy special forces on hostile
shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter
had been built precisely for that purpose.
The Navy might also ask how its powerful sonars--which some
environmentalists say harm marine life--could run afoul of Article 196. This
states that countries "shall take all measures necessary to prevent, reduce
and control pollution of the marine environment resulting from the use of
technologies under their jurisdiction or control."
Or take concerns that the treaty's requirements on pollution are a back-door mechanism for forcing U.S. compliance with the Kyoto Treaty and other global environmental pacts. Confronted with the argument, an Administration spokesman told the Senate that the treaty did not exercise jurisdiction over land-based pollution. Replied Republican Senator David Vitter: "If it is . .. not covered by the treaty, why is there a section entitled, 'Pollution
from Land-Based Sources'?" A good question, considering that Article 213 notes that countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution. Note our emphasis.
Critics are also right to be concerned about the powers of direct taxation
the treaty confers on the International Seabed Authority. The details of
this innovation are buried in Article 13 of the treaty's third annex, and contain a mix of "production charges" and annual million-dollar "administrative" fees. Such measures are all but unprecedented for an international organization and have a potential for corruption, especially
when the taxes can run as high as 70% of net proceeds.
Some 154 countries have joined the Law of the Sea Treaty, with the U.S. one of the few holdouts. Critics are being labeled isolationists, or worse. But the U.S. has been abiding voluntarily with the terms of the treaty since 1983, with no ill effect. Twenty-some years ago a former President objected to handing sovereignty over two-thirds of the Earth's surface to another unaccountable international body. Ronald Reagan sank the treaty then; now it's up to 34 Senators to show similar courage.
Copyright © 2007 Dow Jones & Company, Inc. All Rights Reserved.
WALL STREET JOURNAL
Saturday, November 3, 2007 12:01 a.m.
The Senate Foreign Relations Committee voted 17-4 Wednesday to approve the
Law of the Sea Treaty, meaning it's now up to 34 Senate Republicans to send
this giant octopus of a document back where it belongs. To wit, the bottom
of the ocean.
The U.S. last disposed of the United Nations Convention on the Law of the
Sea--LOST to its critics--when Ronald Reagan was President. This May,
however, the Bush Administration reversed course and declared that the
Gipper's objections had been fixed by a 1994 amendment. We've since had a
debate on these pages over that point, with former Secretaries of State
George Shultz and James Baker in favor, while Ed Meese and William Clark,
Reagan's Attorney General and National Security Adviser, remain opposed.
The best arguments for the treaty come from the U.S. Navy, which likes how
it creates a legal framework for navigational rights. The oil and gas
industry approves of provisions that create an "exclusive economic zone" for
the U.S. out to 200 miles. There's also the potential for development (with
clear legal title) of resources in the deep seabed, which would be managed
by the International Seabed Authority on which the U.S. would be guaranteed
a seat. And, in fact, the 1994 amendment did get rid of some of LOST's most
obnoxious provisions, such as mandatory technology transfers and other
redistributionist nostrums.
Then again, the Navy has been getting along fine by using the "customary
law" that has guaranteed freedom of the seas for three centuries. Treaty
proponents have taken to arguing that, unless we ratify, Russia will lay
claim to oil rights over the Arctic seabed. But Russia's expansive Arctic
claims, possibly including the sea floor under the North Pole, are
themselves a product of the treaty. We also hear that the U.S. must have its
proverbial "seat at the table" in negotiations over such claims. But the
nations with a direct geographic Arctic claim ought to be able to cut a deal
without giving Cuba or Zimbabwe a seat. America's historic experience with
similar multinational bodies (e.g., the U.N. Human Rights Commission) hardly
justifies confidence that having a seat will enhance our influence, rather
than constrain it.
The larger problem is the treaty's sheer size, with no fewer than 320
articles and nine annexes. These cover everything from "Criminal
jurisdiction on board a foreign ship" (Article 27) to "Anadromous stocks"
and "Catadromous Species" (Articles 65 and 66) to the "Jurisdiction of the
Seabed Disputes Chamber" (Article 187). Much of this is anodyne, but perhaps
the Senators should read the fine print before voting. They might be
surprised by what they find.
Consider the treaty's potential effects on military activities. The
Administration says these are excluded from the treaty and, further, that
the U.S. gets to decide what constitutes such activity. But then how to
explain Article 20, which states that "In the territorial sea, submarines
and other underwater vehicles are required to navigate on the surface and to
show their flag." How will this affect the ability of U.S. submarines to
gather intelligence in coastal waters or deploy special forces on hostile
shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter
had been built precisely for that purpose.
The Navy might also ask how its powerful sonars--which some
environmentalists say harm marine life--could run afoul of Article 196. This
states that countries "shall take all measures necessary to prevent, reduce
and control pollution of the marine environment resulting from the use of
technologies under their jurisdiction or control."
Or take concerns that the treaty's requirements on pollution are a back-door mechanism for forcing U.S. compliance with the Kyoto Treaty and other global environmental pacts. Confronted with the argument, an Administration spokesman told the Senate that the treaty did not exercise jurisdiction over land-based pollution. Replied Republican Senator David Vitter: "If it is . .. not covered by the treaty, why is there a section entitled, 'Pollution
from Land-Based Sources'?" A good question, considering that Article 213 notes that countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution. Note our emphasis.
Critics are also right to be concerned about the powers of direct taxation
the treaty confers on the International Seabed Authority. The details of
this innovation are buried in Article 13 of the treaty's third annex, and contain a mix of "production charges" and annual million-dollar "administrative" fees. Such measures are all but unprecedented for an international organization and have a potential for corruption, especially
when the taxes can run as high as 70% of net proceeds.
Some 154 countries have joined the Law of the Sea Treaty, with the U.S. one of the few holdouts. Critics are being labeled isolationists, or worse. But the U.S. has been abiding voluntarily with the terms of the treaty since 1983, with no ill effect. Twenty-some years ago a former President objected to handing sovereignty over two-thirds of the Earth's surface to another unaccountable international body. Ronald Reagan sank the treaty then; now it's up to 34 Senators to show similar courage.
Copyright © 2007 Dow Jones & Company, Inc. All Rights Reserved.
Senate Panel Approves Law of the Sea Treaty
CQ TODAY – FOREIGN POLICY
Oct. 31, 2007 – 1:29 p.m.
Senate Panel Approves Law of the Sea Treaty
By Colby Itkowitz, CQ Staff
A Senate panel voted Wednesday to ratify a 1982 U.N. treaty, giving the United States a say in international laws governing the use of the world’s oceans.
The Foreign Relations Committee voted 17-4 to ratify the U.N. Convention on the Law of the Sea.
“Do we join a treaty that establishes a framework to advance the rule of law on the oceans?” Chairman Joseph R. Biden, Jr., D-Del., asked. “Or do we remain on the outside, to the detriment of our national interests?”
The Bush administration strongly supports Senate passage of the treaty. Biden said the president told him it was one of his foremost foreign policy priorities.
The treaty also has the backing of the U.S. military, intelligence agencies and business and environmental groups.
But a handful of conservative lawmakers maintain, as they have since 1982, that the treaty compromises U.S. sovereignty.
David Vitter, R-La., proposed, but then withdrew, a motion to hold the vote until at least one more hearing on the treaty was held. He said the committee has not heard from enough witnesses who oppose the treaty to “point out their concerns.”
Norm Coleman, who voted against the treaty, said he is concerned that it impedes national security.
“Are we in a war today? Does that have implication here?” Coleman, R-Minn., said. “Do others recognize it?”
He said he was troubled that the treaty would “allow international tribunals to impose judgements on actions taken by the U.S. Navy.”
But in a statement in May, President Bush said, “Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide.”
The treaty establishes a legal framework for the use of the world’s oceans and its resources, and allows members to extend territorial jurisdiction 12 miles from their shores and control resources — including fish stocks or oil and gas — up to 200 miles offshore. The inclusion of Alaska’s coast and the U.S. islands in the Pacific Ocean would greatly increase U.S. jurisdiction over fishing waters and resources under the Arctic.
The treaty was first opened for signatures in 1982, but President Reagan did not support it. President Clinton negotiated changes to address many U.S. concerns about the pact in 1994, but was unable to convince senators to ratify it. [THESE CHANGES NEVER MATERIALIZED IN FACT]***
In 2004, the Foreign Relations Committee unanimously approved the treaty, but Republicans, who then controlled the Senate, never brought it up on the floor.
Some Republicans, including John Cornyn, R-Texas, said they would lobby members to defeat the treaty when it reaches the floor.
Source: CQ Today
Round-the-clock coverage of news from Capitol Hill.
© 2007 Congressional Quarterly Inc. All Rights Reserved.
Oct. 31, 2007 – 1:29 p.m.
Senate Panel Approves Law of the Sea Treaty
By Colby Itkowitz, CQ Staff
A Senate panel voted Wednesday to ratify a 1982 U.N. treaty, giving the United States a say in international laws governing the use of the world’s oceans.
The Foreign Relations Committee voted 17-4 to ratify the U.N. Convention on the Law of the Sea.
“Do we join a treaty that establishes a framework to advance the rule of law on the oceans?” Chairman Joseph R. Biden, Jr., D-Del., asked. “Or do we remain on the outside, to the detriment of our national interests?”
The Bush administration strongly supports Senate passage of the treaty. Biden said the president told him it was one of his foremost foreign policy priorities.
The treaty also has the backing of the U.S. military, intelligence agencies and business and environmental groups.
But a handful of conservative lawmakers maintain, as they have since 1982, that the treaty compromises U.S. sovereignty.
David Vitter, R-La., proposed, but then withdrew, a motion to hold the vote until at least one more hearing on the treaty was held. He said the committee has not heard from enough witnesses who oppose the treaty to “point out their concerns.”
Norm Coleman, who voted against the treaty, said he is concerned that it impedes national security.
“Are we in a war today? Does that have implication here?” Coleman, R-Minn., said. “Do others recognize it?”
He said he was troubled that the treaty would “allow international tribunals to impose judgements on actions taken by the U.S. Navy.”
But in a statement in May, President Bush said, “Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide.”
The treaty establishes a legal framework for the use of the world’s oceans and its resources, and allows members to extend territorial jurisdiction 12 miles from their shores and control resources — including fish stocks or oil and gas — up to 200 miles offshore. The inclusion of Alaska’s coast and the U.S. islands in the Pacific Ocean would greatly increase U.S. jurisdiction over fishing waters and resources under the Arctic.
The treaty was first opened for signatures in 1982, but President Reagan did not support it. President Clinton negotiated changes to address many U.S. concerns about the pact in 1994, but was unable to convince senators to ratify it. [THESE CHANGES NEVER MATERIALIZED IN FACT]***
In 2004, the Foreign Relations Committee unanimously approved the treaty, but Republicans, who then controlled the Senate, never brought it up on the floor.
Some Republicans, including John Cornyn, R-Texas, said they would lobby members to defeat the treaty when it reaches the floor.
Source: CQ Today
Round-the-clock coverage of news from Capitol Hill.
© 2007 Congressional Quarterly Inc. All Rights Reserved.
Thursday, January 17, 2008
The Halloween Treaty: Law of the Seas
www.nysun.com/pf.php?id=65559&v=9417383911
BY HAROLD FURCHTGOTT-ROTHOctober 31, 2007
URL: http://www.nysun.com/article/65559
Today, the Senate will consider a Halloween treat, the United Nations Convention on the Law of the Sea. More than 150 nations have joined the convention, which was signed by President Clinton in 1994, although the Senate has yet to ratify it. Although President Bush and his administration urge ratification, the Senate would do well to reflect before accepting treats — or treaties — from the United Nations.
Of course, parts of the Law of the Sea Treaty, appropriately titled LOST, make sense. LOST grants governance rights of "exclusive economic zones" within 200 nautical miles of shore. With sovereignty over islands throughout the Pacific, America would have strong claims on large swaths of oceans. Indeed, we would have the largest oceanic claims in the world. Thus it is not entirely surprising that the State Department and the Department of the Navy are ardent supporters of LOST.
Clearer boundaries could help American oil and mineral companies explore and develop mineral resources within the 200-mile zone. America's fishing industry could have clearer exclusivity rights. To see a map of these economic zones, visit test.isa.org.jm/client/html/viewer.html.
At first blush, the treaty seems too good to be true, but there is a catch: the United Nations. The world body, under the treaty, has expansive powers to regulate international waters.
The United Nations has more than a dozen alphabet soup-designated agencies. Some do good deeds; others do not. A great many have served little more purpose than a soapbox for anti-American speeches. LOST already empowers yet another one of these U.N. agencies, this one called the International Seabed Authority, based in Kingston, Jamaica. If the Senate ratifies the treaty, the ISA could become one of the most potent organizations in the world, with the power that eluded the Spanish, the British, and the American navies over the centuries — unquestioned authority over international waters. LOST gives the ISA total jurisdiction over all the international oceans and everything in them, from mineral rights to fishing rights to environmental protection.
Moreover, the ISA's power would not necessarily be limited to international waters. Under LOST, American sovereignty over our exclusive economic zone may be illusory. Article 2(3) says: "... sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law."
Who would resolve disputes between individual governments such as ours and the ISA over sovereignty? The answer is obvious. The ISA not only has regulatory authority over a large surface area of the globe, but it has the power to raise money — lots of it. The ISA can obtain revenue through fees and royalties on the revenues of companies seeking access to oil, gas, and minerals in international waters. The tax structure begins at 1% in the sixth year of production with a 1% of production increase yearly up to 7%.
Today, U.N. agencies are largely funded through fees paid by member states; they have no legal authority to tax corporations. Although LOST refers to fees and never mentions taxing corporations, the ultimate result is that the ISA would tax corporations. Where the ISA goes today, other U.N. agencies are almost certain to follow tomorrow.
The ISA has the authority not merely to tax and to regulate corporate activities in international waters, but to compete with them as well. The ISA can itself develop mineral and other rights in international waters in competition with private companies.
Through bilateral and multilateral negotiations, nations have reached understandings on environmental concerns of mutual interest. To date, the United Nations has had little direct effect on requiring environmental regulations of member states. That may change with LOST. Part of the power of the ISA is environmental regulation. Whether its power is limited to activities in international waters remains to be seen. As long as there have been boats, people have engaged in commercial activities on the sea. Nations great and small have sought to cross oceans and even to manage and control them. But not even the most audacious state has claimed sovereignty over all oceans, for such sovereignty would be antithetical to the commercial and private interests of individuals around the world. Yet now some seek to hoist the U.N. flag over that which no nation would dare to claim.
A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He is organizing a seminar series at the Hudson Institute. He can be reached at hfr@furchtgott-roth.com.
BY HAROLD FURCHTGOTT-ROTHOctober 31, 2007
URL: http://www.nysun.com/article/65559
Today, the Senate will consider a Halloween treat, the United Nations Convention on the Law of the Sea. More than 150 nations have joined the convention, which was signed by President Clinton in 1994, although the Senate has yet to ratify it. Although President Bush and his administration urge ratification, the Senate would do well to reflect before accepting treats — or treaties — from the United Nations.
Of course, parts of the Law of the Sea Treaty, appropriately titled LOST, make sense. LOST grants governance rights of "exclusive economic zones" within 200 nautical miles of shore. With sovereignty over islands throughout the Pacific, America would have strong claims on large swaths of oceans. Indeed, we would have the largest oceanic claims in the world. Thus it is not entirely surprising that the State Department and the Department of the Navy are ardent supporters of LOST.
Clearer boundaries could help American oil and mineral companies explore and develop mineral resources within the 200-mile zone. America's fishing industry could have clearer exclusivity rights. To see a map of these economic zones, visit test.isa.org.jm/client/html/viewer.html.
At first blush, the treaty seems too good to be true, but there is a catch: the United Nations. The world body, under the treaty, has expansive powers to regulate international waters.
The United Nations has more than a dozen alphabet soup-designated agencies. Some do good deeds; others do not. A great many have served little more purpose than a soapbox for anti-American speeches. LOST already empowers yet another one of these U.N. agencies, this one called the International Seabed Authority, based in Kingston, Jamaica. If the Senate ratifies the treaty, the ISA could become one of the most potent organizations in the world, with the power that eluded the Spanish, the British, and the American navies over the centuries — unquestioned authority over international waters. LOST gives the ISA total jurisdiction over all the international oceans and everything in them, from mineral rights to fishing rights to environmental protection.
Moreover, the ISA's power would not necessarily be limited to international waters. Under LOST, American sovereignty over our exclusive economic zone may be illusory. Article 2(3) says: "... sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law."
Who would resolve disputes between individual governments such as ours and the ISA over sovereignty? The answer is obvious. The ISA not only has regulatory authority over a large surface area of the globe, but it has the power to raise money — lots of it. The ISA can obtain revenue through fees and royalties on the revenues of companies seeking access to oil, gas, and minerals in international waters. The tax structure begins at 1% in the sixth year of production with a 1% of production increase yearly up to 7%.
Today, U.N. agencies are largely funded through fees paid by member states; they have no legal authority to tax corporations. Although LOST refers to fees and never mentions taxing corporations, the ultimate result is that the ISA would tax corporations. Where the ISA goes today, other U.N. agencies are almost certain to follow tomorrow.
The ISA has the authority not merely to tax and to regulate corporate activities in international waters, but to compete with them as well. The ISA can itself develop mineral and other rights in international waters in competition with private companies.
Through bilateral and multilateral negotiations, nations have reached understandings on environmental concerns of mutual interest. To date, the United Nations has had little direct effect on requiring environmental regulations of member states. That may change with LOST. Part of the power of the ISA is environmental regulation. Whether its power is limited to activities in international waters remains to be seen. As long as there have been boats, people have engaged in commercial activities on the sea. Nations great and small have sought to cross oceans and even to manage and control them. But not even the most audacious state has claimed sovereignty over all oceans, for such sovereignty would be antithetical to the commercial and private interests of individuals around the world. Yet now some seek to hoist the U.N. flag over that which no nation would dare to claim.
A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He is organizing a seminar series at the Hudson Institute. He can be reached at hfr@furchtgott-roth.com.
Euro-greens Nervous About the LOST's Changing Tide
Republican Rightwingers Find an Iraq-on-sea
http://www.guardian.co.uk/international/story/0,,2199082,00.html
The UN law of the Sea is supported by everyone from environmentalists to George Bush - just not fulminating unilateralists in the Senate
Elana Schor in Washington
Thursday October 25, 2007
Guardian Unlimited
Conservative senators and critics of the United Nations are attempting once again to stop the US joining an international treaty on access to the world's waters, despite support for it from the military and George Bush.
The UN's Convention of the Law of the Sea, already ratified by more than 150 countries, sets up a system to manage navigation and explore the oceans.
Environmental groups endorse the treaty's protection of global fish stocks, the US navy endorses its assurance of free movement and the oil industry's trade group endorses its promise of a level playing field for companies staking claim to drill in the Arctic.
--------------------------------------------------------------------------------
But Republican antagonists in the Senate, several of whom have derailed the treaty twice in the past, discount even the Bush administration's backing. They yesterday blocked a preliminary ratification vote, and in doing so declared it an auspicious date for foes of international institutions.
"There is no better time to celebrate the 62nd birthday of the United Nations than to say we don't want it," said Jim Inhofe, the Oklahoma Republican senator who leads an annual effort to withhold US funds from the UN.
The treaty runs more than 200 pages, giving forces on both sides of the debate ample opportunity to divine its potential consequences. At its core, however, the clash recalls the ideological battles over invading Iraq, pitting America-first lawmakers against those who decry the consequences of "cowboy diplomacy".
Scott Paul, deputy director of government relations at the grassroots group Citizens for Global Solutions, noted the treaty's broad support among Democrats and pressed moderate Republicans to speak up.
"The fact we've been unable to ratify a treaty that's so strongly in our interests is, frankly, an indictment of our foreign policy," Mr Paul said.
Citing polls that show widespread support in the US for working with allied nations in the aftermath of Iraq, he added: "At times that will entail some measure of sacrifice. If we can't do it on the law of the sea treaty, which entails no sacrifice, how are we going to do it at any other time?"
The Senate foreign relations committee now is poised to approve the treaty next week, after which two-thirds of the full chamber must vote in favor to ensure ratification. Mr Bush has dispatched John Negroponte, the hawkish deputy secretary of state, and senior navy officials to help lobby Republicans.
That may not be enough to overcome the Republicans' famous mistrust of the UN. Trent Lott of Mississippi, the Republicans' second in command in the Senate, said he has studied seafaring treaties since law school. His advice to the military: "Have a strong and robust navy ... so you're not going to have somebody tell you where you can't go."
Republicans on the foreign relations panel, who suspect chair Joseph Biden and ranking member Richard Lugar of stacking hearings on the treaty with more advocates than critics, have begun scheduling their own private briefings on the law of the sea.
"We've reached out to a number of groups," said Bob Corker, freshman Republican from Tennessee. He declined to name the briefers, acknowledging that he had spoken so far only to opponents.
Outside the Capitol, the roster of foes looking to sink the treaty reads like a who's who of the Reagan era: Frank Gaffney, the former Richard Perle aide who now fronts the Center for Security Policy; Phyllis Schlafly of the Eagle Forum; Edwin Meese III, the Reagan attorney general embroiled in the Iran-Contra scandal; and Oliver North, the Marine officer indicted in that affair.
Indeed, critics of the 202-page treaty deride its tone as reminiscent of the Cold War. When Mr Lott referred to Russia's membership in the pact, Jeff Sessions of Alabama "corrected" him by noting that "the Soviet Union" had signed on.
Later Mr Sessions likened the treaty - which conservatives have dubbed LOST - to the tale of Gulliver and the Lilliputians, with the US in the starring role.
"You've got the giant, and they tie [him] down with this string, then this string. [He] is not able to move," Mr Sessions said.
Progressive commentators, such as Steve Clemons and Matt Stoller, have drawn attention to the treaty as a worthy cause.
Andrew Rice, the Democratic state senator aiming to unseat Mr Inhofe next year, chastised the Oklahoman for standing in the way of military priorities by blocking the treaty.
Treaty opponent Steven Groves of the conservative Heritage Foundation, where Mr Meese is a senior member, dismissed the contention that trusting the military's strategy - Republican rhetoric of the recent Iraq hearings with General David Petraeus - would oblige Republicans to back the treaty.
"Any senator who says, 'we'll support any policy position taken by any branch of the US military and not give it any second thought or critical study' is not the type of senator I would trust," Mr. Groves said.
When the treaty will come to a vote remains to be seen. Pending claims to the Arctic and Antarctic seabed planned by the UK, Australia, Russia and other signatories to the compact have added to its momentum, but Mr Lott and three other Republican leaders vowed that a final vote would not take place.
"I'm not going to get in a twit about what the Swiss or Belgians may think about us," Mr Lott said.
The treaty would come to the floor with procedural privileges that prevent a filibuster, leaving conservatives little choice but to broadcast their warnings as loudly as possible. In 2004, then-majority leader Bill Frist refused to bring the treaty for a vote, but new Democratic majority leader Harry Reid is unlikely to do the same.
In the meantime, the law of the sea has picked up steam as the conservative base evaluates Republican presidential candidates. Mike Huckabee, former governor of Arkansas, and former Tennessee senator Fred Thompson have pointedly broken with Mr. Bush on the treaty. "At a time when customary international law in this area has proven sufficient, I believe the efforts of treaty proponents would be better spent reforming the United Nations," Mr. Thompson said yesterday.
John McCain, the Arizona senator and decorated navy pilot, declined to answer a question about the treaty.
http://www.guardian.co.uk/international/story/0,,2199082,00.html
The UN law of the Sea is supported by everyone from environmentalists to George Bush - just not fulminating unilateralists in the Senate
Elana Schor in Washington
Thursday October 25, 2007
Guardian Unlimited
Conservative senators and critics of the United Nations are attempting once again to stop the US joining an international treaty on access to the world's waters, despite support for it from the military and George Bush.
The UN's Convention of the Law of the Sea, already ratified by more than 150 countries, sets up a system to manage navigation and explore the oceans.
Environmental groups endorse the treaty's protection of global fish stocks, the US navy endorses its assurance of free movement and the oil industry's trade group endorses its promise of a level playing field for companies staking claim to drill in the Arctic.
--------------------------------------------------------------------------------
But Republican antagonists in the Senate, several of whom have derailed the treaty twice in the past, discount even the Bush administration's backing. They yesterday blocked a preliminary ratification vote, and in doing so declared it an auspicious date for foes of international institutions.
"There is no better time to celebrate the 62nd birthday of the United Nations than to say we don't want it," said Jim Inhofe, the Oklahoma Republican senator who leads an annual effort to withhold US funds from the UN.
The treaty runs more than 200 pages, giving forces on both sides of the debate ample opportunity to divine its potential consequences. At its core, however, the clash recalls the ideological battles over invading Iraq, pitting America-first lawmakers against those who decry the consequences of "cowboy diplomacy".
Scott Paul, deputy director of government relations at the grassroots group Citizens for Global Solutions, noted the treaty's broad support among Democrats and pressed moderate Republicans to speak up.
"The fact we've been unable to ratify a treaty that's so strongly in our interests is, frankly, an indictment of our foreign policy," Mr Paul said.
Citing polls that show widespread support in the US for working with allied nations in the aftermath of Iraq, he added: "At times that will entail some measure of sacrifice. If we can't do it on the law of the sea treaty, which entails no sacrifice, how are we going to do it at any other time?"
The Senate foreign relations committee now is poised to approve the treaty next week, after which two-thirds of the full chamber must vote in favor to ensure ratification. Mr Bush has dispatched John Negroponte, the hawkish deputy secretary of state, and senior navy officials to help lobby Republicans.
That may not be enough to overcome the Republicans' famous mistrust of the UN. Trent Lott of Mississippi, the Republicans' second in command in the Senate, said he has studied seafaring treaties since law school. His advice to the military: "Have a strong and robust navy ... so you're not going to have somebody tell you where you can't go."
Republicans on the foreign relations panel, who suspect chair Joseph Biden and ranking member Richard Lugar of stacking hearings on the treaty with more advocates than critics, have begun scheduling their own private briefings on the law of the sea.
"We've reached out to a number of groups," said Bob Corker, freshman Republican from Tennessee. He declined to name the briefers, acknowledging that he had spoken so far only to opponents.
Outside the Capitol, the roster of foes looking to sink the treaty reads like a who's who of the Reagan era: Frank Gaffney, the former Richard Perle aide who now fronts the Center for Security Policy; Phyllis Schlafly of the Eagle Forum; Edwin Meese III, the Reagan attorney general embroiled in the Iran-Contra scandal; and Oliver North, the Marine officer indicted in that affair.
Indeed, critics of the 202-page treaty deride its tone as reminiscent of the Cold War. When Mr Lott referred to Russia's membership in the pact, Jeff Sessions of Alabama "corrected" him by noting that "the Soviet Union" had signed on.
Later Mr Sessions likened the treaty - which conservatives have dubbed LOST - to the tale of Gulliver and the Lilliputians, with the US in the starring role.
"You've got the giant, and they tie [him] down with this string, then this string. [He] is not able to move," Mr Sessions said.
Progressive commentators, such as Steve Clemons and Matt Stoller, have drawn attention to the treaty as a worthy cause.
Andrew Rice, the Democratic state senator aiming to unseat Mr Inhofe next year, chastised the Oklahoman for standing in the way of military priorities by blocking the treaty.
Treaty opponent Steven Groves of the conservative Heritage Foundation, where Mr Meese is a senior member, dismissed the contention that trusting the military's strategy - Republican rhetoric of the recent Iraq hearings with General David Petraeus - would oblige Republicans to back the treaty.
"Any senator who says, 'we'll support any policy position taken by any branch of the US military and not give it any second thought or critical study' is not the type of senator I would trust," Mr. Groves said.
When the treaty will come to a vote remains to be seen. Pending claims to the Arctic and Antarctic seabed planned by the UK, Australia, Russia and other signatories to the compact have added to its momentum, but Mr Lott and three other Republican leaders vowed that a final vote would not take place.
"I'm not going to get in a twit about what the Swiss or Belgians may think about us," Mr Lott said.
The treaty would come to the floor with procedural privileges that prevent a filibuster, leaving conservatives little choice but to broadcast their warnings as loudly as possible. In 2004, then-majority leader Bill Frist refused to bring the treaty for a vote, but new Democratic majority leader Harry Reid is unlikely to do the same.
In the meantime, the law of the sea has picked up steam as the conservative base evaluates Republican presidential candidates. Mike Huckabee, former governor of Arkansas, and former Tennessee senator Fred Thompson have pointedly broken with Mr. Bush on the treaty. "At a time when customary international law in this area has proven sufficient, I believe the efforts of treaty proponents would be better spent reforming the United Nations," Mr. Thompson said yesterday.
John McCain, the Arizona senator and decorated navy pilot, declined to answer a question about the treaty.
Law of Sea Treaty draws GOP focus
http://www.washingtontimes.com/article/20071026/NATION/110260097/1002
By Stephen Dinan
October 26, 2007
The Law of the Sea convention, a relic of the 1970s, could become the next fight of this year's Republican presidential campaign, with some of the candidates trying to push it to the front of the debate.
Mike Huckabee, the former Arkansas governor who is emerging as a top-tier challenger, has called it "one of the defining issues of our time" and used this weekend's Values Voter Summit in Washington to blast the treaty as a threat to U.S. freedom.
"Let's stop the Law of Sea Treaty," Mr. Huckabee said, drawing an ovation from religious conservatives as he listed it and judges who abide by international law as prominent dangers to U.S. sovereignty.
He has been joined by former Sen. Fred Thompson of Tennessee and former Massachusetts Gov. Mitt Romney, both of whom this week announced their own fears about the convention, underscoring a wariness among Republican voters about international organizations and anything that expands the reach of the United Nations.
"Governor Romney has concerns with the Law of the Sea Treaty," said Mr. Romney's spokesman, Kevin Madden. "He believes giving unaccountable international institutions more power is a serious problem."
Mr. Thompson went even further, saying he opposes the convention because it "threatens U.S. sovereignty and gives a U.N.-affiliated organization far too much authority over U.S. interests in international waters."
The convention creates rules governing ocean navigation, conservation and seabed mining. Its official name is the U.N. Convention on the Law of the Sea though opponents call it the Law of the Sea Treaty because they like the acronym LOST.
It was negotiated between 1973 and 1982, stalled when President Reagan raised concerns in 1982, was revived through new negotiations under President George H.W. Bush and was sent to the Senate by President Clinton. The current White House has also called for ratification, arguing the convention would help preserve navigational freedom for the Navy, among other benefits.
But opponents worry the tribunal created to judge disputes would trample on U.S. rights and say the convention's new governing body would have taxing authority because it could take a percentage of revenue from oil, gas or other commercial exploration outside of territorial waters.
The issue is becoming a litmus test for Republicans.
The party's top leadership in the Senate announced Wednesday — which was United Nations Day, the anniversary of the international body's founding — they will try to defeat it if Democrats bring it to the floor.
Sen. Jeff Sessions said the treaty could become an issue in the Republican primary because it's the sort of thing Republican voters care about.
"I think it's pretty clear. I think this will be a strong issue," the Alabama Republican said.
But the treaty does have support of some of the most senior Republicans in the Senate, such as Sen. Richard G. Lugar, top Republican on the Senate Foreign Relations Committee.
The convention was scheduled for a vote in that committee this week, but that was put off until next week.
Democrats would like to bring the measure to the floor this year, but it's not clear whether the schedule will allow that. Ratification would require a two-thirds vote by the full Senate.
If it does come to the floor, it could put Sen. John McCain, who is also running for the Republican presidential nomination, in a difficult position.
Mr. McCain has been one of the treaty's key backers, sending a letter in 1998 along with Sen. Olympia J. Snowe and then-Sens. John Chafee and Frank Murkowski urging ratification. He was also set to testify on behalf of the treaty before a Senate committee in 2003, though he had to cancel because of scheduling.
The issue may be too hot to handle for others.
White House hopeful Rudolph W. Giuliani's campaign didn't return repeated messages left Wednesday and yesterday seeking information on his position.
By Stephen Dinan
October 26, 2007
The Law of the Sea convention, a relic of the 1970s, could become the next fight of this year's Republican presidential campaign, with some of the candidates trying to push it to the front of the debate.
Mike Huckabee, the former Arkansas governor who is emerging as a top-tier challenger, has called it "one of the defining issues of our time" and used this weekend's Values Voter Summit in Washington to blast the treaty as a threat to U.S. freedom.
"Let's stop the Law of Sea Treaty," Mr. Huckabee said, drawing an ovation from religious conservatives as he listed it and judges who abide by international law as prominent dangers to U.S. sovereignty.
He has been joined by former Sen. Fred Thompson of Tennessee and former Massachusetts Gov. Mitt Romney, both of whom this week announced their own fears about the convention, underscoring a wariness among Republican voters about international organizations and anything that expands the reach of the United Nations.
"Governor Romney has concerns with the Law of the Sea Treaty," said Mr. Romney's spokesman, Kevin Madden. "He believes giving unaccountable international institutions more power is a serious problem."
Mr. Thompson went even further, saying he opposes the convention because it "threatens U.S. sovereignty and gives a U.N.-affiliated organization far too much authority over U.S. interests in international waters."
The convention creates rules governing ocean navigation, conservation and seabed mining. Its official name is the U.N. Convention on the Law of the Sea though opponents call it the Law of the Sea Treaty because they like the acronym LOST.
It was negotiated between 1973 and 1982, stalled when President Reagan raised concerns in 1982, was revived through new negotiations under President George H.W. Bush and was sent to the Senate by President Clinton. The current White House has also called for ratification, arguing the convention would help preserve navigational freedom for the Navy, among other benefits.
But opponents worry the tribunal created to judge disputes would trample on U.S. rights and say the convention's new governing body would have taxing authority because it could take a percentage of revenue from oil, gas or other commercial exploration outside of territorial waters.
The issue is becoming a litmus test for Republicans.
The party's top leadership in the Senate announced Wednesday — which was United Nations Day, the anniversary of the international body's founding — they will try to defeat it if Democrats bring it to the floor.
Sen. Jeff Sessions said the treaty could become an issue in the Republican primary because it's the sort of thing Republican voters care about.
"I think it's pretty clear. I think this will be a strong issue," the Alabama Republican said.
But the treaty does have support of some of the most senior Republicans in the Senate, such as Sen. Richard G. Lugar, top Republican on the Senate Foreign Relations Committee.
The convention was scheduled for a vote in that committee this week, but that was put off until next week.
Democrats would like to bring the measure to the floor this year, but it's not clear whether the schedule will allow that. Ratification would require a two-thirds vote by the full Senate.
If it does come to the floor, it could put Sen. John McCain, who is also running for the Republican presidential nomination, in a difficult position.
Mr. McCain has been one of the treaty's key backers, sending a letter in 1998 along with Sen. Olympia J. Snowe and then-Sens. John Chafee and Frank Murkowski urging ratification. He was also set to testify on behalf of the treaty before a Senate committee in 2003, though he had to cancel because of scheduling.
The issue may be too hot to handle for others.
White House hopeful Rudolph W. Giuliani's campaign didn't return repeated messages left Wednesday and yesterday seeking information on his position.
Top Senate Republican Opposes Law of the Sea
Copyright 2007 Environment and Energy Publishing, LLC
E&E News PM
October 24, 2007 Wednesday
Lauren Morello, E&ENews PM reporter
The Senate's top Republican has come out against the U.N. Convention to the Law of the Sea.
“I will oppose ratification of the Law of the Sea Convention due to my refusal to subjugate the rights and interests of the United States to the jurisdiction of the International Tribunal for the Law of the Sea or a group of international arbitrators," said Minority Leader Mitch McConnell (Ky.) in a statement today.
McConnell "recently came to a decision" to oppose the treaty, an aide said today.
The minority leader's views came to light today at a press conference organized by six conservative Republicans who oppose the Law of the Sea.
"Mitch McConnell just told me on the way up here to mention his opposition as well," said Sen. Jon Kyl (R-Ariz.).
Since the Law of the Sea resurfaced in the Senate this fall, with a pair of hearings in the Foreign Relations Committee and a pledge by Majority Leader Harry Reid (D-Nev.) to grant the treaty a floor vote, McConnell has not made any public statements of his position on the treaty.
Law of the Sea, which took effect in 1994, governs how countries manage their exclusive economic zones, sets rules for navigating international waters, and addresses species protection and other environmental issues. The United States is the only major industrialized nation that has failed to ratify the agreement.
The treaty, which stalled shy of a Senate floor vote in 2004, has resurfaced in recent months with support of President Bush, Reid, military leaders, mining interests, the oil and gas industry and environmental groups.
But at today's press conference, a core group of conservative Republicans said they believe treaty supporters lack the 67 votes needed for the Senate to ratify the Law of the Sea.
"This treaty will not be adopted," Kyl said. "There are not the votes to pass it. They only thing that will happen is it will take up a lot of time" on the Senate floor, he said.
Opposition to the treaty centers on concerns that it would impinge on U.S. sovereignty.
"We have seen with our involvement in the United Nations, the World Court, the WTO -- many times countries involved with these bodies don't vote in our interest or even in the world's interest," said Sen. Jim DeMint (R-S.C.). Navigation rights at issue
Another lawmaker who opposes the treaty, Sen. Trent Lott (R-Miss.), said he believes the Law of the Sea "would undermine U.S. military operations ... and impair navigational rights."
Lott's comments contradict statements made earlier this month by top Pentagon and State Department officials, including Deputy Defense Secretary Gordon England, who told the Senate Foreign Relations Committee the Law of the Sea would provide U.S. troops "global mobility ... with no permission slips."
"We owe our soldiers, sailors, marines and Coast Guard treaty-based rights," England added during recent Senate testimony.
Others who have endorsed the treaty include the Joint Chiefs of Staff, all living former chiefs of Naval operations, four former secretaries of state, the heads of the American Petroleum Institute and the Natural Resources Defense Council, and the governors of seven coastal states.
But despite the broad base of support in the administration and off Capitol Hill, Lott said he believes the treaty is a lost cause in the Senate.
"I called the White House and told them not to waste any chits on this," Lott said.
Meanwhile, the Foreign Relations Committee abandoned plans to mark up the Law of the Sea this afternoon.
Committee Chairman Joe Biden (D-Del.) scrapped a planned vote today at the request of Sen. David Vitter (R-La.).
"Sen. Vitter asked that it be held over until the next business meeting, and it is our practice to honor those requests," Biden spokesperson Danielle Borrin said.
The treaty could come to a vote in committee as early as next week, Borrin said.
Biden said last week that he is confident he has the support to move the treaty out of committee.
"It is my expectation that by the end of this month, we finally will have the votes to report out the Convention on the Law of the Sea," Biden said during an Internet question-and-answer session on washingtonpost.com.
E&E News PM
October 24, 2007 Wednesday
Lauren Morello, E&ENews PM reporter
The Senate's top Republican has come out against the U.N. Convention to the Law of the Sea.
“I will oppose ratification of the Law of the Sea Convention due to my refusal to subjugate the rights and interests of the United States to the jurisdiction of the International Tribunal for the Law of the Sea or a group of international arbitrators," said Minority Leader Mitch McConnell (Ky.) in a statement today.
McConnell "recently came to a decision" to oppose the treaty, an aide said today.
The minority leader's views came to light today at a press conference organized by six conservative Republicans who oppose the Law of the Sea.
"Mitch McConnell just told me on the way up here to mention his opposition as well," said Sen. Jon Kyl (R-Ariz.).
Since the Law of the Sea resurfaced in the Senate this fall, with a pair of hearings in the Foreign Relations Committee and a pledge by Majority Leader Harry Reid (D-Nev.) to grant the treaty a floor vote, McConnell has not made any public statements of his position on the treaty.
Law of the Sea, which took effect in 1994, governs how countries manage their exclusive economic zones, sets rules for navigating international waters, and addresses species protection and other environmental issues. The United States is the only major industrialized nation that has failed to ratify the agreement.
The treaty, which stalled shy of a Senate floor vote in 2004, has resurfaced in recent months with support of President Bush, Reid, military leaders, mining interests, the oil and gas industry and environmental groups.
But at today's press conference, a core group of conservative Republicans said they believe treaty supporters lack the 67 votes needed for the Senate to ratify the Law of the Sea.
"This treaty will not be adopted," Kyl said. "There are not the votes to pass it. They only thing that will happen is it will take up a lot of time" on the Senate floor, he said.
Opposition to the treaty centers on concerns that it would impinge on U.S. sovereignty.
"We have seen with our involvement in the United Nations, the World Court, the WTO -- many times countries involved with these bodies don't vote in our interest or even in the world's interest," said Sen. Jim DeMint (R-S.C.). Navigation rights at issue
Another lawmaker who opposes the treaty, Sen. Trent Lott (R-Miss.), said he believes the Law of the Sea "would undermine U.S. military operations ... and impair navigational rights."
Lott's comments contradict statements made earlier this month by top Pentagon and State Department officials, including Deputy Defense Secretary Gordon England, who told the Senate Foreign Relations Committee the Law of the Sea would provide U.S. troops "global mobility ... with no permission slips."
"We owe our soldiers, sailors, marines and Coast Guard treaty-based rights," England added during recent Senate testimony.
Others who have endorsed the treaty include the Joint Chiefs of Staff, all living former chiefs of Naval operations, four former secretaries of state, the heads of the American Petroleum Institute and the Natural Resources Defense Council, and the governors of seven coastal states.
But despite the broad base of support in the administration and off Capitol Hill, Lott said he believes the treaty is a lost cause in the Senate.
"I called the White House and told them not to waste any chits on this," Lott said.
Meanwhile, the Foreign Relations Committee abandoned plans to mark up the Law of the Sea this afternoon.
Committee Chairman Joe Biden (D-Del.) scrapped a planned vote today at the request of Sen. David Vitter (R-La.).
"Sen. Vitter asked that it be held over until the next business meeting, and it is our practice to honor those requests," Biden spokesperson Danielle Borrin said.
The treaty could come to a vote in committee as early as next week, Borrin said.
Biden said last week that he is confident he has the support to move the treaty out of committee.
"It is my expectation that by the end of this month, we finally will have the votes to report out the Convention on the Law of the Sea," Biden said during an Internet question-and-answer session on washingtonpost.com.
Permission Slip for the Sea
By Oliver NorthFriday
October 12, 2007
http://www.townhall.com/columnists/OliverNorth/2007/10/12/permission_slip_for_the_sea
WASHINGTON -- In his 2004 State of the Union Address, President Bush said, "America will never seek a permission slip to defend the security of our country." Members of both parties and both houses of Congress applauded. But if the Senate votes to ratify the United Nations Convention on the Law of the Sea -- known as the Law of the Sea Treaty -- or its appropriate acronym -- LOST -- he and his successors are going to need lots of permission slips.
In 1982, Ronald Reagan, concerned about the treaty's implications for our sovereignty and national security, formally rejected LOST because it did "not satisfy the objectives sought by the United States." In 1994, William Jefferson Clinton, eager to appease One World Government advocates in his own party and at the United Nations, negotiated a parallel "agreement" that purported to address Mr. Reagan's concerns -- and urged ratification. Since then, LOST has gathered dust in the bowels of the U.S. Senate Foreign Relations Committee. All that may be about to change. The deeply flawed, Soviet-era agreement giving unelected, unaccountable international bureaucrats control over 71 percent of the Earth's surface is now on a fast track to ratification.
Advocates for LOST -- among them Senate Foreign Relations Committee Chairman Joe Biden, D-Del. -- claim that the Clinton-negotiated parallel "agreement" eliminates concerns about empowering international organizations to collect heavy fees or interfere with the U.S. military or intelligence collection. Yet a careful reading of LOST's 202 pages -- and the so-called agreement -- proves that's not true.
The U.N. Convention on the Law of the Sea already has created a Byzantine array of international organizations to administer the provisions of LOST. Everything from compliance with global environmental agreements, to the collection of "user fees" from private companies, to disputes about military operations above, on or under international waters are subject to mandatory dispute resolution by one or more of these international bodies.
According to the U.N., the purpose of LOST is to preserve international waters for peaceful purposes. But Articles 19 and 20 of the treaty would proscribe the U.S. Navy from training with weapons, collecting intelligence or interfering with enemy communications in the territorial waters of other countries without their expressed permission. Military aircraft are prohibited specifically from taking off and landing in these waters, and severe limitations would be imposed on loading and unloading "any commodity, currency or person" including military equipment. Submarines are required to travel on the surface and "show their flag in territorial waters." Article 30 states that warships not complying with the laws of a coastal nation can be forced to leave. Disputes about these issues would be adjudicated by international lawyers. Right.
LOST's proponents discount these concerns by claiming the U.S. simply will exempt military activities from the treaty's compulsory dispute resolution requirements. However, the "opt out" clause in Article 298 fails to define such operations. In our own Congress, intelligence functions are not considered to be military activities, so it is far from certain that the U.N. would accept the U.S. position that intelligence operations over, on or under the seas are indeed military activities. If there is a dispute as to what is or isn't a military activity, LOST requires the matter to be resolved by international arbitration.
In 2003, Navy Adm. Michael Mullen, now the chairman of the Joint Chiefs of Staff, told the Senate Foreign Relations Committee that rulings from these arbitration panels "could have an impact on operational planning and activities, and our security." Last week, in response to questions from Sen. David Vitter, R-La., during a committee hearing, professor Bernard Oxman, a witness supporting LOST, admitted that if the parties to a dispute can't agree on the arbitration panel, the U.N. secretary-general will chose the arbitrators. Lawyers in Pyongyang, Havana and Tehran: Call Turtle Bay.
LOST also opens the door to a long-sought U.N. goal: the redistribution of wealth by taxing Americans. The International Seabed Authority, a bloated, multinational bureaucracy headquartered in Jamaica, has the mandate to distribute revenues and "other economic benefits" on the basis of "equitable sharing criteria, taking into account the interests and needs of developing states." In addition to acting as a global IRS, the ISA also decides which companies from which nations will develop mineral resources on the seabed.
In urging ratification, former President Bill Clinton described LOST as "a far-reaching environmental accord" that would "harmonize" U.S. laws to "prevent, reduce and control pollution" in the "best practical means." But Article 213 requires nations to adopt "laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources." Thus, LOST could become a means of enforcing another agreement we never ratified: the Kyoto Protocol on global warming. Al Gore, call your office.
Before casting a vote to ratify LOST, all 100 senators should read Article 314 of this onerous treaty and Article II, Section 2 of the U.S. Constitution. The U.N.-crafted document specifies that amendments to the treaty can be adopted -- and therefore enforced -- without the consent of any signatory. Yet our Constitution requires that two-thirds of our Senate concur in any treaty. Do 67 members of this Senate now want to surrender that authority to foreign governments?
Oliver North is the founder and honorary chairman of Freedom Alliance and author of The Assassins.Oliver North is the host of War Stories on the Fox News Channel and the founder and honorary chairman of Freedom Alliance.
October 12, 2007
http://www.townhall.com/columnists/OliverNorth/2007/10/12/permission_slip_for_the_sea
WASHINGTON -- In his 2004 State of the Union Address, President Bush said, "America will never seek a permission slip to defend the security of our country." Members of both parties and both houses of Congress applauded. But if the Senate votes to ratify the United Nations Convention on the Law of the Sea -- known as the Law of the Sea Treaty -- or its appropriate acronym -- LOST -- he and his successors are going to need lots of permission slips.
In 1982, Ronald Reagan, concerned about the treaty's implications for our sovereignty and national security, formally rejected LOST because it did "not satisfy the objectives sought by the United States." In 1994, William Jefferson Clinton, eager to appease One World Government advocates in his own party and at the United Nations, negotiated a parallel "agreement" that purported to address Mr. Reagan's concerns -- and urged ratification. Since then, LOST has gathered dust in the bowels of the U.S. Senate Foreign Relations Committee. All that may be about to change. The deeply flawed, Soviet-era agreement giving unelected, unaccountable international bureaucrats control over 71 percent of the Earth's surface is now on a fast track to ratification.
Advocates for LOST -- among them Senate Foreign Relations Committee Chairman Joe Biden, D-Del. -- claim that the Clinton-negotiated parallel "agreement" eliminates concerns about empowering international organizations to collect heavy fees or interfere with the U.S. military or intelligence collection. Yet a careful reading of LOST's 202 pages -- and the so-called agreement -- proves that's not true.
The U.N. Convention on the Law of the Sea already has created a Byzantine array of international organizations to administer the provisions of LOST. Everything from compliance with global environmental agreements, to the collection of "user fees" from private companies, to disputes about military operations above, on or under international waters are subject to mandatory dispute resolution by one or more of these international bodies.
According to the U.N., the purpose of LOST is to preserve international waters for peaceful purposes. But Articles 19 and 20 of the treaty would proscribe the U.S. Navy from training with weapons, collecting intelligence or interfering with enemy communications in the territorial waters of other countries without their expressed permission. Military aircraft are prohibited specifically from taking off and landing in these waters, and severe limitations would be imposed on loading and unloading "any commodity, currency or person" including military equipment. Submarines are required to travel on the surface and "show their flag in territorial waters." Article 30 states that warships not complying with the laws of a coastal nation can be forced to leave. Disputes about these issues would be adjudicated by international lawyers. Right.
LOST's proponents discount these concerns by claiming the U.S. simply will exempt military activities from the treaty's compulsory dispute resolution requirements. However, the "opt out" clause in Article 298 fails to define such operations. In our own Congress, intelligence functions are not considered to be military activities, so it is far from certain that the U.N. would accept the U.S. position that intelligence operations over, on or under the seas are indeed military activities. If there is a dispute as to what is or isn't a military activity, LOST requires the matter to be resolved by international arbitration.
In 2003, Navy Adm. Michael Mullen, now the chairman of the Joint Chiefs of Staff, told the Senate Foreign Relations Committee that rulings from these arbitration panels "could have an impact on operational planning and activities, and our security." Last week, in response to questions from Sen. David Vitter, R-La., during a committee hearing, professor Bernard Oxman, a witness supporting LOST, admitted that if the parties to a dispute can't agree on the arbitration panel, the U.N. secretary-general will chose the arbitrators. Lawyers in Pyongyang, Havana and Tehran: Call Turtle Bay.
LOST also opens the door to a long-sought U.N. goal: the redistribution of wealth by taxing Americans. The International Seabed Authority, a bloated, multinational bureaucracy headquartered in Jamaica, has the mandate to distribute revenues and "other economic benefits" on the basis of "equitable sharing criteria, taking into account the interests and needs of developing states." In addition to acting as a global IRS, the ISA also decides which companies from which nations will develop mineral resources on the seabed.
In urging ratification, former President Bill Clinton described LOST as "a far-reaching environmental accord" that would "harmonize" U.S. laws to "prevent, reduce and control pollution" in the "best practical means." But Article 213 requires nations to adopt "laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources." Thus, LOST could become a means of enforcing another agreement we never ratified: the Kyoto Protocol on global warming. Al Gore, call your office.
Before casting a vote to ratify LOST, all 100 senators should read Article 314 of this onerous treaty and Article II, Section 2 of the U.S. Constitution. The U.N.-crafted document specifies that amendments to the treaty can be adopted -- and therefore enforced -- without the consent of any signatory. Yet our Constitution requires that two-thirds of our Senate concur in any treaty. Do 67 members of this Senate now want to surrender that authority to foreign governments?
Oliver North is the founder and honorary chairman of Freedom Alliance and author of The Assassins.Oliver North is the host of War Stories on the Fox News Channel and the founder and honorary chairman of Freedom Alliance.
Senate Refuses Debate on Controversial Treaty
By: Ken Timmerman
Newsmax
Wednesday, September 26, 2007
The Bush administration is headed for another collision with its conservative base that bears all the hallmarks of the immigration debacle, where legislation that would have granted amnesty to illegal aliens bitterly divided the Republican party and ultimately went down in flames this past June.
This time the subject is a controversial international treaty that few Americans have ever heard of until now.
Officially known as the United Nations Convention on the Law of the Sea, opponents are referring to it more simply as the Law of the Sea Treaty, or LOST.
What’s got them most riled up is the fact that neither the Bush White House, nor the Treaty’s supporters in the United States Senate, appear willing to have a forthright, honest, and full debate.
“They’re trying to ram this thing through in the dead of night,” said former Reagan administration Pentagon official Frank Gaffney, who now heads the conservative Center for Security Policy.
On Thursday, the Senate Foreign Relationship Committee, which is chaired by Sen. Joe Biden of Delaware, will hold its first hearing on the controversial Treaty. A bevy of senior Bush administration officials will all testify in favor of the Treaty. But not a single voice in opposition will be heard.
“Biden brushed us off with a form letter,” says Cliff Kincaid, an anti-United Nations activist who has teamed together with Gaffney and other conservatives into an ad hoc coalition to oppose the treaty. Thursday’s hearing “is just a stunt by Biden to get mileage for his presidential campaign,” he told reporters in Washington on Wednesday. “And the Bush administration is being dragged along for the show.”
Negotiations that led to the UN Treaty began in the 1970s, but even Carter administration officials expressed reservations when a “coalition of bad guys led by North Korea hijacked the Treaty” in 1977, said former Pentagon aide and LOST specialist, Peter Leitner.
President Reagan rejected LOST in 1982, and identified a large number of objections that opponents of the treaty say have never been resolved.
Reagan opposed LOST on principle, Gaffney and others insist. And proposed amendments to the Treaty negotiated by President Bill Clinton in 1994 were meaningless, because the Treaty itself stipulated that no amendments could be made for another ten years, they argue.
“This is the largest treaty ever negotiated by man,” Leitner said on Wednesday. “It erodes national sovereignty more thoroughly than any other treaty ever conceived. Congress has not done its due diligence.”
Leitner, Gaffney, Kincaid and their coalition partners are asking the U.S. Senate to hold a series of hearings to examine the multiple aspects of this monumental treaty and its implications for U.S. business and U.S. national sovereignty. They have created a website chock-full of information on the Treaty and the gigantic new United Nations bureaucracy it has created, at www.rejectLOST.org.
“When you ratify this Treaty you are in fact ratifying a whole suite of treaties,” said international legal expert Lawrence Kogan.
Various provisions of the Treaty will regulate how U.S. businesses can mine the seabed for minerals. Others will require American companies to transfer strategic technologies to Third World countries, some of them declared enemies of the United States.
The Treaty will also impose a “globo-tax” to finance what the critics called “a second United Nations,” complete with committees, councils, a sprawling bureaucracy, and a mandatory arbitration process that will punish American corporations, and infringe on private property rights.
“No matter what happens, we’re going to lose,” said Cliff Kincaid, an investigative reporter turned activist who has published several reports on LOST. With just one vote within the mandatory Treaty organizations, the United States will simply be outvoted by whatever coalition decides to oppose us, he and other opponents of the Treaty argue.
Gaffney warned that Europe and the Third World were planning to use the Treaty as “lawfare” against the United States.
“Lawfare” involves using international treaties and regulations as a form of “assymetrical warfare,” he said, to restrict the passage of U.S. warships in times of international crisis and otherwise defeat U.S. efforts to defend our national interests without using military force.
Gaffney and the anti-LOST coalition are asking Senate Minority leader Mitch McConnell (R, KY), to allow the various committees with jurisdiction over the Treaty to hold oversight hearings.
They argue that the Treaty will affect how the U.S. Navy can navigate the high seas,
so it should be heard by the Armed Services committee. Because it involves taxation issues, the Appropriations and Banking committees should have a say.
Because it will regulate international commerce, the Commerce, Science and Transportation committee should hear from U.S. businesses and other interested parties.
And because the Treaty will also impose new environmental restrictions on U.S. inland waterways that flow into the sea, the Environment and Public Works committee should also examine it, they argue.
“Senator Mitch McConnell could sink this Treaty if he chose,” said Cliff Kincaid.“And we are calling on him to do so,” Frank Gaffney added.
Gaffney related a recent meeting with a member of Parliament from a European country, who decried the rise of the European Union and the subsequent erosion of national sovereignty of member states.
“He told me, ‘This is how my country lost its sovereignty,’” Gaffney said. “’Our national parliaments become rubber stamps.’”
“That’s what we are trying to avoid here,” Gaffney added.
A Treaty of this magnitude “could benefit from a couple of months of scrutiny, instead of being rammed down our throats by the elites who claim they know best,” Gaffney said.
Senator Biden has promised one further hearing sometime in October during which Gaffney and one other critic of the Treaty will be allowed to speak.
Newsmax
Wednesday, September 26, 2007
The Bush administration is headed for another collision with its conservative base that bears all the hallmarks of the immigration debacle, where legislation that would have granted amnesty to illegal aliens bitterly divided the Republican party and ultimately went down in flames this past June.
This time the subject is a controversial international treaty that few Americans have ever heard of until now.
Officially known as the United Nations Convention on the Law of the Sea, opponents are referring to it more simply as the Law of the Sea Treaty, or LOST.
What’s got them most riled up is the fact that neither the Bush White House, nor the Treaty’s supporters in the United States Senate, appear willing to have a forthright, honest, and full debate.
“They’re trying to ram this thing through in the dead of night,” said former Reagan administration Pentagon official Frank Gaffney, who now heads the conservative Center for Security Policy.
On Thursday, the Senate Foreign Relationship Committee, which is chaired by Sen. Joe Biden of Delaware, will hold its first hearing on the controversial Treaty. A bevy of senior Bush administration officials will all testify in favor of the Treaty. But not a single voice in opposition will be heard.
“Biden brushed us off with a form letter,” says Cliff Kincaid, an anti-United Nations activist who has teamed together with Gaffney and other conservatives into an ad hoc coalition to oppose the treaty. Thursday’s hearing “is just a stunt by Biden to get mileage for his presidential campaign,” he told reporters in Washington on Wednesday. “And the Bush administration is being dragged along for the show.”
Negotiations that led to the UN Treaty began in the 1970s, but even Carter administration officials expressed reservations when a “coalition of bad guys led by North Korea hijacked the Treaty” in 1977, said former Pentagon aide and LOST specialist, Peter Leitner.
President Reagan rejected LOST in 1982, and identified a large number of objections that opponents of the treaty say have never been resolved.
Reagan opposed LOST on principle, Gaffney and others insist. And proposed amendments to the Treaty negotiated by President Bill Clinton in 1994 were meaningless, because the Treaty itself stipulated that no amendments could be made for another ten years, they argue.
“This is the largest treaty ever negotiated by man,” Leitner said on Wednesday. “It erodes national sovereignty more thoroughly than any other treaty ever conceived. Congress has not done its due diligence.”
Leitner, Gaffney, Kincaid and their coalition partners are asking the U.S. Senate to hold a series of hearings to examine the multiple aspects of this monumental treaty and its implications for U.S. business and U.S. national sovereignty. They have created a website chock-full of information on the Treaty and the gigantic new United Nations bureaucracy it has created, at www.rejectLOST.org.
“When you ratify this Treaty you are in fact ratifying a whole suite of treaties,” said international legal expert Lawrence Kogan.
Various provisions of the Treaty will regulate how U.S. businesses can mine the seabed for minerals. Others will require American companies to transfer strategic technologies to Third World countries, some of them declared enemies of the United States.
The Treaty will also impose a “globo-tax” to finance what the critics called “a second United Nations,” complete with committees, councils, a sprawling bureaucracy, and a mandatory arbitration process that will punish American corporations, and infringe on private property rights.
“No matter what happens, we’re going to lose,” said Cliff Kincaid, an investigative reporter turned activist who has published several reports on LOST. With just one vote within the mandatory Treaty organizations, the United States will simply be outvoted by whatever coalition decides to oppose us, he and other opponents of the Treaty argue.
Gaffney warned that Europe and the Third World were planning to use the Treaty as “lawfare” against the United States.
“Lawfare” involves using international treaties and regulations as a form of “assymetrical warfare,” he said, to restrict the passage of U.S. warships in times of international crisis and otherwise defeat U.S. efforts to defend our national interests without using military force.
Gaffney and the anti-LOST coalition are asking Senate Minority leader Mitch McConnell (R, KY), to allow the various committees with jurisdiction over the Treaty to hold oversight hearings.
They argue that the Treaty will affect how the U.S. Navy can navigate the high seas,
so it should be heard by the Armed Services committee. Because it involves taxation issues, the Appropriations and Banking committees should have a say.
Because it will regulate international commerce, the Commerce, Science and Transportation committee should hear from U.S. businesses and other interested parties.
And because the Treaty will also impose new environmental restrictions on U.S. inland waterways that flow into the sea, the Environment and Public Works committee should also examine it, they argue.
“Senator Mitch McConnell could sink this Treaty if he chose,” said Cliff Kincaid.“And we are calling on him to do so,” Frank Gaffney added.
Gaffney related a recent meeting with a member of Parliament from a European country, who decried the rise of the European Union and the subsequent erosion of national sovereignty of member states.
“He told me, ‘This is how my country lost its sovereignty,’” Gaffney said. “’Our national parliaments become rubber stamps.’”
“That’s what we are trying to avoid here,” Gaffney added.
A Treaty of this magnitude “could benefit from a couple of months of scrutiny, instead of being rammed down our throats by the elites who claim they know best,” Gaffney said.
Senator Biden has promised one further hearing sometime in October during which Gaffney and one other critic of the Treaty will be allowed to speak.
Another U.N. Power Grab What would Reagan do? On the Law of the Sea Treaty, We Know the Answer
BY WILLIAM P. CLARK AND EDWIN MEESE
Wall Street Journal
on Monday, October 8, 2007
http://www.opinionjournal.com/editorial/feature.html
It is an impressive testament to the abiding affection and political influence of former President Ronald Reagan that the fate of a controversial treaty now before the U.S. Senate may ultimately turn on a single question: What would Reagan do?
As we had the privilege of working closely with President Reagan in connection with the foreign policy, national security and domestic implications of the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST), there is no question about how our 40th president felt about this accord. He so strongly opposed it that he formally refused to sign the treaty. He even sent Donald Rumsfeld as a personal emissary to our key allies around the world to explain his opposition and encourage them to follow suit. All of them did so at the time.
Proponents of LOST, however, have lately taken--on these pages and elsewhere--to portray President Reagan's concerns as relatively circumscribed. They contend that those objections were subsequently and satisfactorily addressed in a multilateral accord known as the Agreement of 1994. To the extent that such assertions may induce senators who would otherwise oppose the Law of the Sea Treaty to vote for it, perhaps within a matter of weeks and after only the most cursory of reviews, we feel compelled to set the record straight.
Ronald Reagan actually opposed LOST even before he came to office. He was troubled by a treaty that had, in the course of its protracted negotiations, mutated beyond recognition from an effort to codify certain navigation rights strongly supported by our Navy into a dramatic step toward world government. This supranational agenda was most closely identified with, but not limited to, the Treaty's Part XI, which created a variety of executive, legislative and judicial mechanisms to control the resources of the world's oceans.
In a radio address titled "Ocean Mining" on Oct. 10, 1978, Mr. Reagan applauded the idea that "no nat[ional] interest of ours could justify handing sovereign control of two-thirds of the earth's surface over to the Third World." He added, "No one has ruled out the idea of a [Law of the Sea] treaty--one which makes sense--but after long years of fruitless negotiating, it became apparent that the underdeveloped nations who now control the General Assembly were looking for a free ride at our expense--again.
"The so-called seabed mining provisions were simply one manifestation of the problems Ronald Reagan had with LOST. That was made clear by an entry in his diary dated June 29, 1982, after months of efforts to negotiate extensive changes in the draft treaty text came to naught. On that evening, President Reagan wrote: "Decided in [National Security Council] meeting--will not sign 'Law of the Sea' treaty even without seabed mining provisions."
The man selected by President Reagan to undertake those renegotiations was the remarkable James Malone. In 1984, Ambassador Malone explained why the Law of the Sea Treaty was unacceptable: "The Treaty's provisions were intentionally designed to promote a new world order--a form of global collectivism known as the New International Economic Order (NIEO)--that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion. The Treaty's provisions are predicated on a distorted interpretation of the noble concept of the Earth's vast oceans as the 'common heritage of mankind.'"
Interestingly, Ambassador Malone declared in 1995, "This remains the case today." That statement is particularly relevant insofar as LOST's supporters, including some of our colleagues from the Reagan administration, insist that the 1994 Agreement "fixed" the previously unacceptable Part XI provisions. As James Malone explained to a conference on the Law of the Sea Treaty before his untimely death more than a decade ago:
"All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."
He added, "The regime's structural arrangements place central planning ahead of free market interests in determining influence over world resources; and yet, the collapse of socialist central planning throughout the world makes this a step in the wrong direction."
In a comment that is, if anything, even more true at present, Ambassador Malone observed that: "Today, not only are the seabed mining provisions inadequately corrected, and the collectivist ideologies of a now repudiated system of global central planning still imbedded in the treaty, new and potentially serious concerns have arisen."
Currently, these include: the increasingly brazen hostility of the United Nations and other multilateral institutions to the United States and its interests; the organization's ambition to impose international taxes, which would allow it to become still less transparent and accountable to member nations; the determination of European and other environmentalists to impose the "precautionary principle" (a Luddite, "better safe than sorry" approach that requires proof no harm can come from any initiative before it can be undertaken); the increasing practice of U.S. courts to allow "universal jurisprudence" to trump American constitutional rights and laws; and the use of "lawfare" (multilateral treaties, tribunal rulings and convention declarations) by adversaries of the U.S. military as asymmetric weapons to curtail or impede American power and operations.
Such developments only serve to reinforce the concerns President Reagan rightly had about the central, and abiding, defect of the Law of the Sea Treaty: its effort to promote global government at the expense of sovereign nation states--and most especially the United States. One of the prime movers behind LOST, the late Elisabeth Mann Borgese of the World Federalist Association (which now calls itself Citizens for Global Solutions), captured what is at stake when she cited an ancient aphorism: "He who rules the sea, rules the land." A U.N. publication lauding her work noted that Borgese saw LOST as a "possible test-bed for ideas she had developed concerning a common global constitution."
While we would not presume to speak for President Reagan, his own words and those of the man who worked most closely with him and us on Law of the Sea matters, Jim Malone, make one thing clear: Even if the 1994 Agreement actually amended LOST (and there are multiple reasons why it did not actually alter so much as a single word of the treaty), Ronald Reagan's belief in the U.S. as an exceptional "shining city on a hill" and his enmity towards threats to our sovereignty in general, and global governance schemes in particular, were such that he would likely encourage the Senate to do today what he did in 1982: Reject LOST.
Judge Clark and Mr. Meese served in several capacities in President Reagan's administration including, respectively, as national security adviser and attorney general.
Wall Street Journal
on Monday, October 8, 2007
http://www.opinionjournal.com/editorial/feature.html
It is an impressive testament to the abiding affection and political influence of former President Ronald Reagan that the fate of a controversial treaty now before the U.S. Senate may ultimately turn on a single question: What would Reagan do?
As we had the privilege of working closely with President Reagan in connection with the foreign policy, national security and domestic implications of the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST), there is no question about how our 40th president felt about this accord. He so strongly opposed it that he formally refused to sign the treaty. He even sent Donald Rumsfeld as a personal emissary to our key allies around the world to explain his opposition and encourage them to follow suit. All of them did so at the time.
Proponents of LOST, however, have lately taken--on these pages and elsewhere--to portray President Reagan's concerns as relatively circumscribed. They contend that those objections were subsequently and satisfactorily addressed in a multilateral accord known as the Agreement of 1994. To the extent that such assertions may induce senators who would otherwise oppose the Law of the Sea Treaty to vote for it, perhaps within a matter of weeks and after only the most cursory of reviews, we feel compelled to set the record straight.
Ronald Reagan actually opposed LOST even before he came to office. He was troubled by a treaty that had, in the course of its protracted negotiations, mutated beyond recognition from an effort to codify certain navigation rights strongly supported by our Navy into a dramatic step toward world government. This supranational agenda was most closely identified with, but not limited to, the Treaty's Part XI, which created a variety of executive, legislative and judicial mechanisms to control the resources of the world's oceans.
In a radio address titled "Ocean Mining" on Oct. 10, 1978, Mr. Reagan applauded the idea that "no nat[ional] interest of ours could justify handing sovereign control of two-thirds of the earth's surface over to the Third World." He added, "No one has ruled out the idea of a [Law of the Sea] treaty--one which makes sense--but after long years of fruitless negotiating, it became apparent that the underdeveloped nations who now control the General Assembly were looking for a free ride at our expense--again.
"The so-called seabed mining provisions were simply one manifestation of the problems Ronald Reagan had with LOST. That was made clear by an entry in his diary dated June 29, 1982, after months of efforts to negotiate extensive changes in the draft treaty text came to naught. On that evening, President Reagan wrote: "Decided in [National Security Council] meeting--will not sign 'Law of the Sea' treaty even without seabed mining provisions."
The man selected by President Reagan to undertake those renegotiations was the remarkable James Malone. In 1984, Ambassador Malone explained why the Law of the Sea Treaty was unacceptable: "The Treaty's provisions were intentionally designed to promote a new world order--a form of global collectivism known as the New International Economic Order (NIEO)--that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion. The Treaty's provisions are predicated on a distorted interpretation of the noble concept of the Earth's vast oceans as the 'common heritage of mankind.'"
Interestingly, Ambassador Malone declared in 1995, "This remains the case today." That statement is particularly relevant insofar as LOST's supporters, including some of our colleagues from the Reagan administration, insist that the 1994 Agreement "fixed" the previously unacceptable Part XI provisions. As James Malone explained to a conference on the Law of the Sea Treaty before his untimely death more than a decade ago:
"All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."
He added, "The regime's structural arrangements place central planning ahead of free market interests in determining influence over world resources; and yet, the collapse of socialist central planning throughout the world makes this a step in the wrong direction."
In a comment that is, if anything, even more true at present, Ambassador Malone observed that: "Today, not only are the seabed mining provisions inadequately corrected, and the collectivist ideologies of a now repudiated system of global central planning still imbedded in the treaty, new and potentially serious concerns have arisen."
Currently, these include: the increasingly brazen hostility of the United Nations and other multilateral institutions to the United States and its interests; the organization's ambition to impose international taxes, which would allow it to become still less transparent and accountable to member nations; the determination of European and other environmentalists to impose the "precautionary principle" (a Luddite, "better safe than sorry" approach that requires proof no harm can come from any initiative before it can be undertaken); the increasing practice of U.S. courts to allow "universal jurisprudence" to trump American constitutional rights and laws; and the use of "lawfare" (multilateral treaties, tribunal rulings and convention declarations) by adversaries of the U.S. military as asymmetric weapons to curtail or impede American power and operations.
Such developments only serve to reinforce the concerns President Reagan rightly had about the central, and abiding, defect of the Law of the Sea Treaty: its effort to promote global government at the expense of sovereign nation states--and most especially the United States. One of the prime movers behind LOST, the late Elisabeth Mann Borgese of the World Federalist Association (which now calls itself Citizens for Global Solutions), captured what is at stake when she cited an ancient aphorism: "He who rules the sea, rules the land." A U.N. publication lauding her work noted that Borgese saw LOST as a "possible test-bed for ideas she had developed concerning a common global constitution."
While we would not presume to speak for President Reagan, his own words and those of the man who worked most closely with him and us on Law of the Sea matters, Jim Malone, make one thing clear: Even if the 1994 Agreement actually amended LOST (and there are multiple reasons why it did not actually alter so much as a single word of the treaty), Ronald Reagan's belief in the U.S. as an exceptional "shining city on a hill" and his enmity towards threats to our sovereignty in general, and global governance schemes in particular, were such that he would likely encourage the Senate to do today what he did in 1982: Reject LOST.
Judge Clark and Mr. Meese served in several capacities in President Reagan's administration including, respectively, as national security adviser and attorney general.
Myths and Realities Concerning UN Law of the Sea Treaty: LOST Does Incorporate Europe's contra-WTO Precautionary Principle! (c)
By Lawrence A. Kogan, Esq.
October 6, 2007
Myth #1: The Regulatory Functions of the International Seabed Authority[1] Are Limited to Mining Activities
In his March 23, 2004 testimony before the Environment and Public Works Committee of the U.S. Senate, University of Miami School of Law Professor, Bernard Oxman stated that “...a great deal of the negotiation of the Law of the Sea Convention revolved around accommodating the interests and views of the United States regarding...the limitation of the regulatory functions of the Seabed Authority to mining activities... [2] (emphasis added).
In addition, in his September 27, 2007 testimony before the U.S. Senate Foreign Relations Committee, Deputy U.S. Secretary of State John Negroponte stated that, “[T]he ISA only addresses deep seabed mining. Thus, its role is limited to mining activities in areas of the ocean floor beyond national jurisdiction. It has no other role and no general authority over the uses of the oceans”.[3]
Reality#1: The International Seabed Authority Possesses Vast Powers to Regulate the Marine Environment in Addition to Mining Activities
What Professor Oxman and Mr. Negroponte neglected to mention in their testimonies, however, was how LOST Article 145 specifically states that it is job of the International Seabed Authority (ISBA) to develop rules, regulations and procedures to protect the marine environment in and around the Area,[4] something many experts and non-experts know nothing about. Mr. Oxman also failed to discuss how the ISBA is vested with even broader authority that permits it to regulate the marine environment along the coastlines of sovereign states, including the U.S., in order to fulfill its duty to prevent environmental harm to the Area!
“...[T]he Authority shall adopt appropriate rules, regulations and procedures for inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment...(b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment” (emphasis added). [5]
This, of course, has something to do with the way the ISBA Secretariat is organized.
“The Secretariat is organized into four main functional areas: Office of the Secretary-General; Office of Administration and Management; Office of Legal Affairs; and Office of Resources and Environmental Monitoring” (emphasis added). [6]
But, more importantly, Professor Oxman chose not to discuss during his recent testimony how the ISBA’s mandate to regulate the marine environment in and around the Area fundamentally flows from the ‘common heritage of mankind’ (CHM) doctrine.
CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. Since 1994 (when former President Clinton submitted to the US Senate amendments to LOST Part XI dealing with the ISBA, that allegedly addressed former President Reagan’s serious objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.
As the Council of the ISBA and the Secretary-General have aptly noted, the ISBA serves “the important[t] [role] of preserving the resources of the deep seabed as the common heritage of mankind”[7], even via the assessment of fees on companies seeking to prospect in the Area. “As trustees of the common heritage of mankind... under the Convention, the Authority [has been] allowed to raise or vary fees...the Authority’s concern was [always] to ensure that fees established, while being fair to contractors, brought reasonable benefit to mankind.”[8]
This would explain, at least partially, why the ISBA is authorized and likely to create ‘marine protected areas’ within which certain activities are to be precluded from taking place. Alternatively, consistent with the CHM doctrine, it is also quite possible that a marine protected area designation might enable the ISBA to extract socialist-style ‘rents’ from would-be prospectors.
Whatever the reason, it should be kept in mind that the expansive scope of the ISBA’s organizational mandate is also very well recognized by the environmental community. According to the World Conservation Union,
“The International Seabed Authority (ISA) has adopted a mining code relating to the exploration for polymetallic nodules and is currently developing rules to regulate mining for polymetallic sulphides and cobalt crusts that occur mainly at hydrothermal vents and seamounts. However, the ISA’s mandate regarding the resources of the deep seabed extends well beyond mineral exploitation, and the Authority is being encouraged to more fully exercise its powers and responsibilities with regard to living resources of the seabed and to ensure that marine ecosystems are properly protected and considered in all ISA licensing decisions and activities” (emphasis added).[9]
And the task of helping the ISBA to implement this obligation falls upon the ISBA’s Legal and Technical Commission (LTC).[10] [11]
The ISBA’s role as regulatory steward of the marine environment in and around the ‘Area’ has also been confirmed by the Authority’s Secretary-General.
“Whilst the Authority’s role is primarily concerned with prospecting, exploration and exploitation of mineral resources, it also has a broader role concerning the protection and preservation of the marine environment (including its biodiversity) and the promotion of marine scientific research in the international seabed area as stated in articles 143 and 145 of the 1982 Convention on the Law of the Sea. In order to protect and preserve the environment, the Authority has created a series of regulations and guidelines for contractors (i.e. those who are licensed by the Authority to undertake prospecting and exploration of the deep seabed and its resources). The regulations on prospecting and exploration for polymetallic nodules were adopted in 2000... Amongst other requirements, the regulations ensure that a contractor shall ‘take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area’. [12]
Indeed, the ISBA and the LTC have been rather active since 1997.[13] They have already completed final environmental regulations and guidelines governing the activities relating to polymetallic nodules [14] and only recently submitted to the ISBA Assembly for consideration draft regulations and guidelines to encompass polymetallic ferromanganese sulphides and cobalt-rich crusts.[15]
yth #2: The US Can Block All ISBA Council Regulations It Doesn’t Like
In his September 27, 2007 testimony before the US Senate Foreign Relations Committee, Professor Oxman stated that, “In particular, the adoption of mining regulations requires consensus on the 36-member [International Seabed Authority] Council. Once the United States takes its guaranteed seat on the Council our blocking power will permit us to ensure that the Seabed Authority remains within its mandate and that the content of any regulations is satisfactory” (emphasis added).[16]
Reality #2:
According to Annex, Section 3 of the Agreement Relating to the Implementation of Part XI of the UN Law of the Sea Convention, it is only “a general rule [that] decision-making in the organs of the Authority [, including the Council,] should be by consensus”.[17]
“If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Assembly on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance shall be taken by a two-thirds majority of members present and voting” [18]
“If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Council on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance, except where the Convention provides for decisions by consensus in the Council, shall be taken by a two-thirds majority of members present and voting, provided that such decisions are not opposed by a majority in any one of the chambers [19]referred to in paragraph 9.” [20]
“Decisions by voting in the Legal and Technical Commission shall be by a majority of members present and voting.” [21]
Given the conflicting interests of LOST parties, however, it will likely be difficult to achieve near unanimous consensus on many procedural and substantive issues. For this reason, the 1994 Agreement, in a manner similar to the 1982 UNCLOS, provides for different types of complex majority and supermajority voting formulations, depending on the matter and ISBA organ involved, as noted above. Consequently, it is NOT assured that the U.S. ‘blocking power’ can keep the ISBA within its treaty mandate.
Myth #3: The UN Law of the Sea Treaty Does Not Incorporate the Precautionary Principle
In a terse ad hominem response to a Commentary entitled, “LOST and found” appearing within the August 8, 2007 issue of the Washington Times,[22] Washington DC Attorney Robert J. McManus made the following statement: “Mr. Kogan opposes U.S. accession to this treaty, but he omits any and all description of its substance, preferring to deal in false generalities about ‘the precautionary principle’. (of all things) and out-of-context statements...I simply challenge Mr. Kogan to provide a single scrap of textual support in the treaty for his statement[].”[23]
Reality#3: The Precautionary Principle Is Incorporated Expressly, By Reference and In Spirit in the UN Law of the Sea Treaty
A. There is Overwhelming Proof That the ISBA Regulations are Based on the
Precautionary Principle
At least one specialist from the ISBA’s Office of Legal Affairs, in addition to the ISA Secretary-General himself, has detailed how the obligation of the ISBA to protect the marine environment goes beyond mere prevention. According to this specialist, fulfillment of the duty of care imposed by the LOST upon the ISBA, any contractors operating in the ‘Area’, and perhaps even coastal state governments, requires not only the taking of preventive steps against known or knowable harms to the marine environment, but also the exercise of precaution in advance to ensure that activities in or around the Area or those otherwise directly or indirectly affecting the Area do not pose any unknown and/or uncertain potential future hazards to the marine environment. In other words, the ISBA is obliged, as a matter of international environmental law, to employ precaution.[24]
“Firstly, the Authority is under a duty to establish and keep under review environmental rules, regulations, and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. Secondly, the Authority and sponsoring States are required to apply a precautionary approach as reflected in Principle 15 of the Rio Declaration, to activities in the Area. The Legal and Technical Commission is to make recommendations to the Council on the implementation of this requirement. Thirdly, the regulations impose a duty on each contractor to take necessary measures to prevent reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). [25]
ince the LOST obliges the ISA to employ precaution, it is therefore not surprising, as the Secretary-General notes, that both the recently crafted final and draft ISBA environmental regulations “are [also] based on a precautionary approach as contained in Principle 15 of the Rio Declaration” (emphasis added).[26] If this were the extent of the environmental obligation imposed by the LOST, it would be difficult to argue against it. The precautionary approach as defined in the Rio Declaration contains an economic cost-benefit analysis (balancing) requirement within it – i.e., that whatever measures are finally settled upon to prevent the harm from occurring in the first place must be “cost-effective” and proportionate to the harm being prevented.
However, the clearly expressed meaning of terms contained within laws, regulations and treaties can be deceiving to the naked eye, especially if the interpreters of the words are European governments which believe in the power of ‘nuance’.[27] The story here begins with the drafting of the first of two ISBA regulations. During the fifth delegation of the ISBA in August 1999, several delegations proposed to include within ISBA Regulation 1 (‘Definitions’) a definition of the Precautionary Principle. It was to be based on the language contained within Principle 15 of the Rio Declaration, as noted previously. Subsequently, informal consultations were held with the Government of the Netherlands which had become dissatisfied with the then current language of draft Regulation 32 (‘Emergency Orders’).[28] Those consultations ultimately gave rise to a submission by the Netherlands of a proposal to amend draft Regulation 32 to provide for the application of the Precautionary Principle in managing the activities of the Area.[29] The main clause of the proposal read as follows:
“In the conduct of activities in the Area, the precautionary principle shall be applied to protect and preserve the marine environment, by virtue of which cost-effective preventive measures are to be taken when there are reasonable grounds for concern that these activities may cause serious harm to the marine environment, even where there is lack of full scientific certainty” (emphasis added).[30]
The ISBA Council thereafter reviewed the August 1999 proposal during its sixth session meeting in March 2000. At that time it became apparent that the European and developing country LOST parties and non-Party observers then present (including presumably members of US industry and the US Government), had strongly disagreed not only about the need to incorporate the concept of precaution at all within the scope of the LOST, but also about which version of precaution would prevail. First, opponents were concerned that if any form of precaution were embedded within the ISBA regulations, and such regulations served a vital role in implementing each Party’s LOST obligations, then the LOST itself would be deemed to incorporate precaution. Second, opponents were concerned that even if ISBA regulations expressly required State Parties to adopt a ‘precautionary approach’, such language, as applied, would not necessarily be limited to the Rio Declaration meaning, with its express economic cost-benefit limitation. In other words, the record indicates that a conscious effort had been made by certain European LOST parties, to go beyond the proposed Rio Declaration language and interpret the meaning of precaution as reflecting, implicitly (i.e., ‘in spirit’) the much broader European Precautionary Principle, which does NOT require economic cost-benefit balancing.
As the academic and professional literature reveals and the record reproduced below corroborates, the distinction between these two concepts is far from insignificant.[31] The following is an excerpt of the ISBA Council’s summary of this debate:
Most of today's debate cent[ered] on a proposal by the Netherlands, concerning precautionary measures to be taken to prevent environmental degradation. The proposal (ISBA/5/C/L.8), resulting from informal consultations last August, is based on principle 15 of the Rio Declaration on Environment and Development, adopted in Rio de Janeiro in 1992 by the United Nations Conference on Environment and Development...Divergent positions were expressed today on whether to incorporate the Netherlands text. One speaker put forward the view that the 1982 United Nations Convention on the Law of the Sea, in article 145, amply covered all issues concerning protection of the environment, so that there was no need to invoke the precautionary principle in the draft code. She felt that contractors, who had to make large capital outlays, would be deterred from investment if there was a divergence of approach between the regulations and the underlying Convention and the 1994 Agreement relating to the implementation of Part XI (seabed provisions) of the Convention. That speaker cited scientific research indicating that prospecting and exploration on the seabed, including such activities as basket sampling, had no harmful effects on the marine environment. Some delegations supported that view and maintained that the precautionary principle was vague and could be interpreted in many ways, and thus was not suitable in a legal document. It was unnecessary, they thought, to import this ‘new concept’ into the regulations when neither the Convention nor the 1994 Agreement made reference to it. They felt that ‘reasonable grounds for concern’ could be very broadly interpreted and could place stumbling blocks in the way of investors. However, most speakers this afternoon supported the Netherlands proposal. One remarked that the precautionary principle was not a new concept and had been a full- fledged principle of international law for a number of years.
Another called for a reference to be made in the regulation to principle 15 of the Rio Declaration. It was also argued that, since exploration activities were deemed to have little impact on the environment, contractors should have no reservations about applying the principle. One member observed that several countries involved in deep-seabed exploration were already taking measures to protect the environment. Thus, the problem might be one of wording rather than substance, and could be resolved by the Legal and Technical Commission. Another speaker suggested that suitable wording might be found in part XII of the Convention, which deals with protection and preservation of the marine environment. He referred specifically to articles 204 (monitoring of the risks or effects of pollution), 205 (publication of reports) and 206 (assessment of potential effects of activities). Another suggestion was to consider the term ‘necessary measures’. In response to the assertion by some members that the precautionary principle was not in keeping with the Convention and the Agreement, one speaker remarked that knowledge about the environment and how to protect it had advanced significantly since the signing of the Convention nearly two decades ago. Moreover, the Agreement, which had come into effect only in 1994, did not reflect any lessening of concern about protection of the marine environment. Others observed that, while the Convention might not contain the exact words "precautionary principle", they were implied in its spirit... Turning to the Netherlands proposal...Secretary-General Satya N. Nandan...suggested that the Council consider the term ‘precautionary approach’ as a way of reaching a compromise while sticking as closely as possible to the Convention and avoiding inconsistencies. He recommended ‘marrying’ the substance of articles 204, 205 and 206 of the Convention with the “precautionary approach”, and suggested that delegates hold small group meetings to iron out differences” (emphasis added). [32]
The final text of ISBA Regulation 31 (as opposed to Regulation 32) ultimately adopted, which covers polymetallic nodules, reads as follows:
“Protection and preservation of the marine environment 1. The Authority shall, in accordance with the Convention and the Agreement, establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. 2. In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration, to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph. 3. Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). [33]
Furthermore, consistent with LOST Article 162(2)(w), ISBA Regulation 32 of that document vests the ISBA with the powers of a supranational quasi-sovereign, by permitting the ISBA Council to employ ‘emergency’/ precautionary/ provisional/ measures on a temporary basis for the purpose of halting activities in the Area” before “serious harm” to the marine environment results.[34]
Similar, if not identical ‘precautionary approach’ and ‘emergency orders’ language can also be found in Articles 33(2)[35] and 35(2)[36] respectively of two more recent Draft ISBA Regulations concerning cobalt-rich ferromanganese crusts and polymetallic sulphides. There is, however, one notable exception. In the case of Article 35(2) of each of these Draft ISBA Regulations, a new basis for taking precautionary action - “to prevent, contain and minimize the threat of serious or irreversible [non-serious?] damage to the marine environment”- was added.[37]
What is most problematic about both of these ISBA regulation documents is that the compromised language used (‘precautionary approach’) does not resolve the fundamental underlying philosophical / legal debate that continues to rage between the EU and the US, concerning how best to regulate potential risks versus hazards to human health or the environment. In fact, it is arguable that the European member states that are parties to the LOST have it definitely in mind to interpret and apply the concept ‘precautionary approach’ as expressed in these ISBA regulations, purely on their own terms – i.e., as if it were the Precautionary Principle - domestically, regionally and internationally, even if it is in total disregard of the express language contained within a number UN and WTO treaties. In fact, they believe they have legal license to do just that:
“Although the Regulations do not go as far as some delegations would have liked, it is suggested that what is contained in Part V of the Regulations is in fact a very significant advance upon Article 145 of the Convention and provides a firm basis for the elaboration of a comprehensive code of environmental regulation” (emphasis added). [38]
This thinking is clearly evidenced in a more recent report prepared by ISBA’s Secretary-General. It provides an account of the Authority’s work “over the past 12 months...a review of the 2005-2007 programme of work and a presentation of the proposed programme of work for 2008-2010.” [39] In particular, one section discussing how the ISBA should go about managing nodule mining and the design of ‘marine protected areas’[40] expressly refers to the Precautionary Principle.
Any recommendations made to the International Seabed Authority at this point must be considered preliminary and used with the precautionary principle (i.e., our understanding of biodiversity levels, species ranges and gene flow in the Clarion-Clipperton zone is still so limited that we must err on the side of overprotection of the environment). It is clear that novel taxa, and evolutionary novelty, occur in the abyss so we cannot assume that protection of only the ocean margins will preserve abyssal biodiversity” (emphasis added). [41]
According to the World Conservation Union, the environmental community’s goal is to utilize the LOST to employ the ‘modern’ Precautionary Principle globally to preserve the earth’s biodiversity for future generations consistent with the United Nations doctrine of sustainable development.[42] And, this requires the development and promotion of
“a global framework or approach, building on the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), the UN Fish Stocks Agreement, CMS and other relevant agreements, to facilitate the creation of a global representative system of high seas MPA networks consistent with international law, to ensure its effective management and enforcement, and coordinate and harmonize applicable international agreements, mechanisms and authorities in accordance with modern principles of precautionary, ecosystem-based and integrated management and sound governance as defined in the UN principles; including through: Requesting those countries which have yet to sign or ratify UNCLOS, and other relevant international agreements (e.g. Kyoto Protocol,[43] Convention on Biological Diversity,[44] UN Fish Stocks Agreement)[45] to immediately ratify and implement these agreements” (emphasis added). [46]
As noted above, once the US ratifies the LOST, it, like all other LOST parties, would be required to employ Europe’s Precautionary Principle[47] to protect the marine environment and “all currents and frontal systems known to support marine life and contain critical habitat” located within US sovereign territory.[48] Environmentalists and their academic colleagues have long sought to employ, tighten and enforce their web of global environmental regulations against industry in order to protect the world’s ‘endangered’ animal species. This includes ALL migratory birds and fish listed within the Convention on International Trade in Endangered Species (CITES),[49] the Convention on Migratory Species (CMS) and related Agreements, which themselves incorporate the Precautionary Principle.[50]
One of the most interesting aspects of the LOST that has not yet been addressed by the Senate Foreign Relations Committee in this round of ‘public’ hearings concerns how each of these treaties could be invoked by another LOST Party, or even by the International Seabed Authority itself, [51] through LOST’s binding dispute settlement mechanism to compel the US government to reinterpret its own federal environmental laws consistent with Europe’s Precautionary Principle.
[1] “The International Seabed Authority is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. The Authority is the organization through which States Parties to the Convention shall, in accordance with the regime for the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (the Area) established in Part XI and the Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. The Authority, which has its headquarters in Kingston, Jamaica” (emphasis added). See International Seabed Authority website at: http://www.isa.org.jm/en/about .
[2] See Testimony of Bernard Oxman, Professor of Law, University of Miami School of Law, at the Senate Hearings Before the Committee on Environment and Public Works, United States Senate, 108th Congress, 2nd Sess., S.Hrg. 108-498 (March 23, 2004) at pp. 164-165.
[3] See WRITTEN TESTIMONY OF JOHN D. NEGROPONTE, DEPUTY SECRETARY U.S. DEPARTMENT OF STATE BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE ON SEPTEMBER 27th, 2007, ACCESSION TO THE 1982 LAW OF THE SEA CONVENTION AND RATIFICATION OF THE 1994 AGREEMENT AMENDING PART XI OF THE LAW OF THE SEA CONVENTION [Senate Treaty Document 103-39]
at p. 15, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
[4] “The 1982 United Nations Convention on the Law of the Sea (“the Convention”) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (“the Agreement”), require the International Seabed Authority to develop the rules, regulations and procedures relating to prospecting, exploration and exploitation in the Area... An important element of the draft Mining Code is the protection of the marine environment from activities relating to exploration” (emphasis added). See “Recommendations from the Workshop to Develop Guidelines for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, Report of the Secretary-General, International Seabed Authority Legal and Technical Commission, ISBA/5/LTC/1 (June 21, 1999), at: http://teaching.law.cornell.edu/faculty/drwcasebook/docs/RegIntlSeabedAuth.pdf .
[5] See LOST Article 145(a) and (b).
[6] See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, ISBA/7/A/2 (May 18, 2001) at p. 3, at: http://www.isa.org.jm/files/documents/EN/7Sess/Ass/ISBA_7A_2.pdf .
[7] See “ISA Council Begins Substantive Work on Draft Regulations On Sulphides”, International Seabed Authority Press Release SB/13/5 (July 10, 2007) at: http://www.isa.org.jm/files/documents/EN/Press/Press2007/SB-13-5.pdf .
[8] Id., at p. 3.
[9] See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, Executive Summary (Sept. 2003) at Toolbox 1 at p. 13, at: http://www.iucn.org/THEMES/MARINE/pdf/10-Year_HSMPA_Strategy_SummaryVersion.pdf .
[10] “The Legal and Technical Commission (LTC) is an organ of the Council of the International Seabed Authority... The Commission is entrusted with various functions relating to activities in the deep seabed area including the review of applications for plans of work, supervision of exploration or mining activities, assessment of the environmental impact of such activities and provide advice to the International Seabed Authority’s Assembly and Council on all matters relating to exploration and exploitation of non-living marine resources (such as polymetallic [manganese] nodules, polymetallic sulphides and cobalt crusts). The Commission has since its inception developed the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and is in the process of finalizing the Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-Rich Ferromanganese Crusts in the Area.” See “International Seabed Authority, Legal Technical Commission” at: http://www.isa.org.jm/en/about/members/legal .
[11] “In considering the draft guidelines, the Legal and Technical Commission is acting in pursuance of article 165, paragraph 2(e), of the 1982 United Nations Convention on the Law of the Sea, which requires the Commission to make recommendations to the Council on the protection of the marine environment, taking into account the views of recognized experts in that field.” See “Recommendations from the Workshop to Develop Guidelines for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, supra, at par II.2, at p.2.
[12] See “Benthic Biodiversity and the Work of the International Seabed Authority”, STATEMENT BY AMBASSADOR SATYA N. NANDAN, SECRETARY-GENERAL OF THE INTERNATIONAL SEABED AUTHORITY TO THE 5TH MEETING OF THE UNITED NATIONS INFORMAL CONSULTATIVE PROCESS ON THE LAW OF THE SEA (June 7-11, 2004) at p. 1, citing Regulation 31(3). “Benthic refers to the bottom of an ocean, estuary or lake.” See “Benthic Flux”, Toxic Substances Hydrology Program US Geological Survey at: http://toxics.usgs.gov/definitions/benthic_flux.html . Benthos is defined as “The Collection of organisms on or in sea or lake bottoms” and as “The bottom of a sea or lake”. See Answer.com at: http://www.answers.com/topic/benthos.
[13] “The Legal and Technical Commission commenced work on the draft regulations for prospecting and exploration for polymetallic nodules in March 1997, and completed its work in March 1998, when the draft regulations proposed by the Commission were submitted to the Council.” See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, supra at p. 4, citing ISBA/4/C/4/Rev.1. See also Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, The Journal, Vol. 10, Abstract 2 (Dec. 18, 2001) at p. 12, at: http://www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-2.pdf .
[14] See “Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area”, International Seabed Authority Assembly ISBA/6/A/18 (July 20, 2000).
[15] See “Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area”, International Seabed Authority Legal and Technical Commission ISBA/13/LTC/WP.1 (May 9, 2007).
[16] STATEMENT OF PROFESSOR BERNARD H. OXMAN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS October 4, 2007 at p. 7, at: http://www.senate.gov/~foreign/testimony/2007/OxmanTestimony071004.pdf
[17] See Annex, Section 3 “Decision Making - Agreement Relating to the Implementation of Part XI of the Convention”, United Nations Convention on the Law of the Sea, adopted on July 28, 1994 (Senate Treaty Doc. 103-39) at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm .
[18] Id., at Section 3.3.
[19] Id., at Section 3.9.
[20] Id., at Section 3.5
[21] Id., at Section. 3.13.
[22] See Lawrence Kogan, “LOST and found”, Washington Times Commentary (Aug. 8, 2007) at: http://washingtontimes.com/apps/pbcs.dll/article?AID=/20070808/COMMENTARY/108080001&template=printart .
[23] See Robert McManus, “LOST at Sea”, Washington Times Letter to the Editor (Aug. 9, 2007) at: http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070810/EDITORIAL/108100010/-1/RSS_EDITORIAL&template=nextpage .
[24] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 21.
[25] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 21, citing LOST Article 165(2)(e),(f) and (h); Annex III, Article 17(1)(b)(vii) and Article 17(2)(f), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf ; Section 1(5)(g) of the “1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea”, at: http://www.un.org/depts/los/convention_agreements/texts/unclos/closindxAgree.htm ; International Seabed Regulation 1(5) (providing for supplemental rules, regulations and procedures “in particular on the protection and preservation of the marine environment”).
[26] See “Benthic Biodiversity and the Work of the International Seabed Authority”, STATEMENT BY AMBASSADOR SATYA N. NANDAN, SECRETARY-GENERAL OF THE INTERNATIONAL SEABED AUTHORITY TO THE 5TH MEETING OF THE UNITED NATIONS INFORMAL CONSULTATIVE PROCESS ON THE LAW OF THE SEA (June 7-11, 2004), supra at p. 1. “Principle 15 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”, “REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, A/CONF.151/26 (Vol. I) (June 3-14, 1992) at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm .
[27] See Lawrence A. Kogan, “Europe’s Warnings on Climate Change Belie More Nuanced Concerns”, Institute for Trade, Standards and Sustainable Development (June 2006) at: http://www.itssd.org/White%20Papers/Europe_sWarningsonClimateChangeBelieMoreNuancedConcerns.pdf .
[28] The language of then draft Regulation 32 was as follows: “As currently drafted, regulation 32, composed of six paragraphs, obliges the Authority to ‘establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities’ in the international seabed area. Each seabed contractor would be required to ‘take precautionary measures to anticipate, prevent or minimize adverse impacts on the marine environment arising from its activities in the area as far as reasonably possible using the best available technology’” (emphasis added). See “SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE”, International Seabed Authority Press Release SEA/1660 (22 March 2000) at: http://www.un.org/news/Press/docs/2000/20000322.sea1660.doc.html .
[29] See International Organizations and the Law of the Sea – Documentary Yearbook 2000, Barbara Kwiatkowska and The Netherlands Institute for the Law of the Sea (Eds.) Vol. 16 (Martinus Nijhoff Publ. 2000©) at p. 404, at: http://books.google.com/books?id=lzBlfgyCmxEC&pg=PA404&lpg=PA404&dq=%22isba+5+c+l+8%22+netherlands&source=web&ots=Q_PVOQMeWa&sig=vbVFOrvAo_5fjVuQOAz-wlhpHUA .
[30] See “SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE”, International Seabed Authority Press Release, supra.
[31] See Lawrence A. Kogan, World Trade Organization Biotech Decision Clarifies Central Role of Science in Evaluating Health and Environmental Risks for Regulation Purposes, 2 Global Trade and Customs Journal 3 (March 2007), available at: http://www.itssd.org/Publications/GTCJ_04-offprints_Kogan%5b2%5d.pdf ; Lawrence A. Kogan, Backgrounder WTO Addresses Precautionary Principle (Washington, DC: Washington Legal Foundation, 8 December 2006), available at: http://www.itssd.org/Publications/wto-biotech-foods-dec0806.pdf ; Lawrence A. Kogan, The Precautionary Principle and WTO Law: Divergent Views Towards the Role of Science in Assessing and Managing Risk, 5.1 Seton Hall J. Dipl., (Winter/Spring 2004), available at: http://diplomacy.shu.edu/journal/KOGAN%20-%20Precautionary%20Principle%20&%20WTO%20Law.pdf . See also Lawrence Kogan, Comments Submitted to the International Economic Law and Policy Blog (Dec. 6, 2006) at: http://worldtradelaw.typepad.com/ielpblog/2006/12/unappealing_bio.html (discussing the distinctions made between the concepts ‘precautionary approach’ and ‘precautionary principle’ within the WTO Panel Decision in European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/DS291/R, WT/DS292/R and WT/DS293/R, final report issued 29 September 2006, available at http://www.wto.org/english/news_e/news06_e/291r_e.htm.
[32] Id.
[33] See ISBA Regulation 31, “Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area”, International Seabed Authority Assembly ISBA/6/A/18, supra.
[34] Id., at ISBA Regulation 33.
[35] “Protection and preservation of the marine environment 1. The Authority shall, in accordance with the Convention and the Agreement, establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. 2. In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration,2 to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph. 3. Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). See ISBA Draft Article 33, “Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area”, International Seabed Authority, Legal and Technical Commission ISBA/13/LTC/WP.1, supra. See also Draft Article 33, “Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area”, International Seabed Council ISBA/13/C/WP.1 (March 29, 2007).
[36] “Regulation 35 Emergency orders 1. When the Secretary-General has been notified by a contractor or otherwise becomes aware of an incident resulting from or caused by a contractor’s activities in the Area that poses a threat of serious harm to the marine environment, the Secretary-General shall cause a general notification of the incident to be issued, shall notify in writing the contractor and the sponsoring State or States, and shall report immediately to the Legal and Technical Commission and to the Council. A copy of the report shall be circulated to all members of the Authority, to competent international organizations and to concerned subregional, regional and global organizations and bodies. The Secretary-General shall monitor developments with respect to all such incidents and shall report on them as appropriate to the Commission and to the Council. 2. Pending any action by the Council, the Secretary-General shall take such immediate measures of a temporary nature as are practical and reasonable in the circumstances to prevent, contain and minimize the threat of serious or irreversible damage to the marine environment. Such temporary measures shall remain in effect for no longer than 90 days, or until the Council decides what measures, if any, to take pursuant to paragraph 5 of this regulation, whichever is the earlier.” Id., at ISBA Draft Regulation 35, supra. See also Draft Article 33, “Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area”, supra.
[37] Id.
[38] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 22.
[39] See “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, ISBA/13/A/2 (May 29, 2007).
[40] A marine protected area (MPA) is “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment”1. Such protection can range from areas managed mainly for science or wilderness values to areas managed mainly for the sustainable use of natural ecosystems and resources (as reflected in the six IUCN Protected Area Management Categories).” See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, Executive Summary, supra at p.6.
[41] See “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, supra at par. 74, at p. 19.
[42] “Core components and key strategic steps - ENDORSE AND PROMOTE the World Summit on Sustainable Development
(WSSD) Joint Plan of Implementation together with the goal of establishing a global system of effectively managed, representative networks of marine protected areas by 2012 that includes within its scope the world’s oceans and seas beyond national jurisdiction...” See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, supra at p. 7.
[43] The U.S. is currently under pressure from the European Union to ratify the Kyoto Protocol.
[44] The United Nations Convention on Biological Diversity is currently before the U.S. Senate Foreign Relations Committee for ratification.
[45] The U.S. has already signed and ratified the UNFSA.
[46] Id., at p. 8
[47] Id.
[48] “1.3 Identification of Important Sites and Criteria for Establishing and Managing Marine and Coastal Protected Areas CBD Operational Objective 3.1 is designed to facilitate research and monitoring activities related to the value and the effects of marine and coastal protected areas on sustainable use of marine and coastal living resources... CBD Operational Objective 3.2 will develop criteria to establish and manage marine and coastal protected areas. The CBD Secretariat is collaborating with relevant organisations in implementing operational objectives 3.1 and 3.2... Protected areas are key tools with which to conserve and sustainably use migratory species whether in general, or those listed on CMS Appendices and are generally addressed in the section on protected areas (Section 11.0). The CMS COP at its fifth meeting decided that in conjunction with Range States, Parties should develop a network of critical sites as protected areas throughout the migration routes of Appendix I species (CMS COP, Res. 5.4). The Wadden Sea Seals Agreement also recognises the importance of creating a network of protected areas in the seals’ migration areas and the importance of an adequate number of reserves. ASCOBANS encourages its Parties to work with others to develop criteria to define marine protected areas for small cetaceans (ASCOBANS MOP1, Res. 2)” (italicized emphasis added). See “Convention on the Conservation of Migratory Species of Wild Animals – Cooperation With Other Bodies CBD/CMS Joint Work Programme (2002-2005)”, 7th Meeting of the Conference of the Parties UNEP/CMS/Inf.7.13, at p. 5, at: http://www.cbd.int/doc/agreements/agmt-cms-2002-09-18-jwp-web-en.pdf .
[49] See Lawrence A. Kogan, The Precautionary Principle and WTO Law: Divergent Views Towards the Role of Science in Assessing and Managing Risk, supra, at p. 94, and accompanying footnotes (It has...been argued by certain governments, primarily the EU and its member states, that the precautionary principle is enshrined within The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES regulates the protection of over 30,000 plant and animal species depending on their biological status and the impact that international trade may have upon them”) (emphasis added).
[50] “10.0 Impact Assessment and Minimising Adverse Impacts None of the CMS Instruments specifically refer to environmental impact assessment, although all CMS Instruments require their Parties to address the threats posed by certain activities, and three instruments (ACCOBAMS, Cranes and Great Bustard) mention the assessment of threatening activities. Notwithstanding this, potential individual and cumulative impacts on migratory species should be considered in environmental impact assessment procedures addressing impacts to biodiversity. CBD COP V invited Parties, governments and other relevant organisations to inter alia organise expert meetings, workshops and seminars, as well as training, educational and public awareness programmes and exchange programmes (CBD COP Decision V/18). It also requested SBSTTA to further develop guidelines to incorporate biodiversity-related issues into legislation or processes on strategic environmental impact assessment. The application of the precautionary principle and the ecosystem approach in impact assessment will be addressed. The guidelines are drafted for further consideration by COP 6.” Id., at p. 13.
[51] “The Authority shall possess legal personality. It shall have the legal capacity: (a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to be a party in legal proceedings” (emphasis added). See “Article 3 ‘Legal Personality of the Authority’, PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE INTERNATIONAL SEABED AUTHORITY at: http://untreaty.un.org/English/notpubl/seabed2_eng.htm .
October 6, 2007
Myth #1: The Regulatory Functions of the International Seabed Authority[1] Are Limited to Mining Activities
In his March 23, 2004 testimony before the Environment and Public Works Committee of the U.S. Senate, University of Miami School of Law Professor, Bernard Oxman stated that “...a great deal of the negotiation of the Law of the Sea Convention revolved around accommodating the interests and views of the United States regarding...the limitation of the regulatory functions of the Seabed Authority to mining activities... [2] (emphasis added).
In addition, in his September 27, 2007 testimony before the U.S. Senate Foreign Relations Committee, Deputy U.S. Secretary of State John Negroponte stated that, “[T]he ISA only addresses deep seabed mining. Thus, its role is limited to mining activities in areas of the ocean floor beyond national jurisdiction. It has no other role and no general authority over the uses of the oceans”.[3]
Reality#1: The International Seabed Authority Possesses Vast Powers to Regulate the Marine Environment in Addition to Mining Activities
What Professor Oxman and Mr. Negroponte neglected to mention in their testimonies, however, was how LOST Article 145 specifically states that it is job of the International Seabed Authority (ISBA) to develop rules, regulations and procedures to protect the marine environment in and around the Area,[4] something many experts and non-experts know nothing about. Mr. Oxman also failed to discuss how the ISBA is vested with even broader authority that permits it to regulate the marine environment along the coastlines of sovereign states, including the U.S., in order to fulfill its duty to prevent environmental harm to the Area!
“...[T]he Authority shall adopt appropriate rules, regulations and procedures for inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment...(b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment” (emphasis added). [5]
This, of course, has something to do with the way the ISBA Secretariat is organized.
“The Secretariat is organized into four main functional areas: Office of the Secretary-General; Office of Administration and Management; Office of Legal Affairs; and Office of Resources and Environmental Monitoring” (emphasis added). [6]
But, more importantly, Professor Oxman chose not to discuss during his recent testimony how the ISBA’s mandate to regulate the marine environment in and around the Area fundamentally flows from the ‘common heritage of mankind’ (CHM) doctrine.
CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. Since 1994 (when former President Clinton submitted to the US Senate amendments to LOST Part XI dealing with the ISBA, that allegedly addressed former President Reagan’s serious objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.
As the Council of the ISBA and the Secretary-General have aptly noted, the ISBA serves “the important[t] [role] of preserving the resources of the deep seabed as the common heritage of mankind”[7], even via the assessment of fees on companies seeking to prospect in the Area. “As trustees of the common heritage of mankind... under the Convention, the Authority [has been] allowed to raise or vary fees...the Authority’s concern was [always] to ensure that fees established, while being fair to contractors, brought reasonable benefit to mankind.”[8]
This would explain, at least partially, why the ISBA is authorized and likely to create ‘marine protected areas’ within which certain activities are to be precluded from taking place. Alternatively, consistent with the CHM doctrine, it is also quite possible that a marine protected area designation might enable the ISBA to extract socialist-style ‘rents’ from would-be prospectors.
Whatever the reason, it should be kept in mind that the expansive scope of the ISBA’s organizational mandate is also very well recognized by the environmental community. According to the World Conservation Union,
“The International Seabed Authority (ISA) has adopted a mining code relating to the exploration for polymetallic nodules and is currently developing rules to regulate mining for polymetallic sulphides and cobalt crusts that occur mainly at hydrothermal vents and seamounts. However, the ISA’s mandate regarding the resources of the deep seabed extends well beyond mineral exploitation, and the Authority is being encouraged to more fully exercise its powers and responsibilities with regard to living resources of the seabed and to ensure that marine ecosystems are properly protected and considered in all ISA licensing decisions and activities” (emphasis added).[9]
And the task of helping the ISBA to implement this obligation falls upon the ISBA’s Legal and Technical Commission (LTC).[10] [11]
The ISBA’s role as regulatory steward of the marine environment in and around the ‘Area’ has also been confirmed by the Authority’s Secretary-General.
“Whilst the Authority’s role is primarily concerned with prospecting, exploration and exploitation of mineral resources, it also has a broader role concerning the protection and preservation of the marine environment (including its biodiversity) and the promotion of marine scientific research in the international seabed area as stated in articles 143 and 145 of the 1982 Convention on the Law of the Sea. In order to protect and preserve the environment, the Authority has created a series of regulations and guidelines for contractors (i.e. those who are licensed by the Authority to undertake prospecting and exploration of the deep seabed and its resources). The regulations on prospecting and exploration for polymetallic nodules were adopted in 2000... Amongst other requirements, the regulations ensure that a contractor shall ‘take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area’. [12]
Indeed, the ISBA and the LTC have been rather active since 1997.[13] They have already completed final environmental regulations and guidelines governing the activities relating to polymetallic nodules [14] and only recently submitted to the ISBA Assembly for consideration draft regulations and guidelines to encompass polymetallic ferromanganese sulphides and cobalt-rich crusts.[15]
yth #2: The US Can Block All ISBA Council Regulations It Doesn’t Like
In his September 27, 2007 testimony before the US Senate Foreign Relations Committee, Professor Oxman stated that, “In particular, the adoption of mining regulations requires consensus on the 36-member [International Seabed Authority] Council. Once the United States takes its guaranteed seat on the Council our blocking power will permit us to ensure that the Seabed Authority remains within its mandate and that the content of any regulations is satisfactory” (emphasis added).[16]
Reality #2:
According to Annex, Section 3 of the Agreement Relating to the Implementation of Part XI of the UN Law of the Sea Convention, it is only “a general rule [that] decision-making in the organs of the Authority [, including the Council,] should be by consensus”.[17]
“If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Assembly on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance shall be taken by a two-thirds majority of members present and voting” [18]
“If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Council on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance, except where the Convention provides for decisions by consensus in the Council, shall be taken by a two-thirds majority of members present and voting, provided that such decisions are not opposed by a majority in any one of the chambers [19]referred to in paragraph 9.” [20]
“Decisions by voting in the Legal and Technical Commission shall be by a majority of members present and voting.” [21]
Given the conflicting interests of LOST parties, however, it will likely be difficult to achieve near unanimous consensus on many procedural and substantive issues. For this reason, the 1994 Agreement, in a manner similar to the 1982 UNCLOS, provides for different types of complex majority and supermajority voting formulations, depending on the matter and ISBA organ involved, as noted above. Consequently, it is NOT assured that the U.S. ‘blocking power’ can keep the ISBA within its treaty mandate.
Myth #3: The UN Law of the Sea Treaty Does Not Incorporate the Precautionary Principle
In a terse ad hominem response to a Commentary entitled, “LOST and found” appearing within the August 8, 2007 issue of the Washington Times,[22] Washington DC Attorney Robert J. McManus made the following statement: “Mr. Kogan opposes U.S. accession to this treaty, but he omits any and all description of its substance, preferring to deal in false generalities about ‘the precautionary principle’. (of all things) and out-of-context statements...I simply challenge Mr. Kogan to provide a single scrap of textual support in the treaty for his statement[].”[23]
Reality#3: The Precautionary Principle Is Incorporated Expressly, By Reference and In Spirit in the UN Law of the Sea Treaty
A. There is Overwhelming Proof That the ISBA Regulations are Based on the
Precautionary Principle
At least one specialist from the ISBA’s Office of Legal Affairs, in addition to the ISA Secretary-General himself, has detailed how the obligation of the ISBA to protect the marine environment goes beyond mere prevention. According to this specialist, fulfillment of the duty of care imposed by the LOST upon the ISBA, any contractors operating in the ‘Area’, and perhaps even coastal state governments, requires not only the taking of preventive steps against known or knowable harms to the marine environment, but also the exercise of precaution in advance to ensure that activities in or around the Area or those otherwise directly or indirectly affecting the Area do not pose any unknown and/or uncertain potential future hazards to the marine environment. In other words, the ISBA is obliged, as a matter of international environmental law, to employ precaution.[24]
“Firstly, the Authority is under a duty to establish and keep under review environmental rules, regulations, and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. Secondly, the Authority and sponsoring States are required to apply a precautionary approach as reflected in Principle 15 of the Rio Declaration, to activities in the Area. The Legal and Technical Commission is to make recommendations to the Council on the implementation of this requirement. Thirdly, the regulations impose a duty on each contractor to take necessary measures to prevent reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). [25]
ince the LOST obliges the ISA to employ precaution, it is therefore not surprising, as the Secretary-General notes, that both the recently crafted final and draft ISBA environmental regulations “are [also] based on a precautionary approach as contained in Principle 15 of the Rio Declaration” (emphasis added).[26] If this were the extent of the environmental obligation imposed by the LOST, it would be difficult to argue against it. The precautionary approach as defined in the Rio Declaration contains an economic cost-benefit analysis (balancing) requirement within it – i.e., that whatever measures are finally settled upon to prevent the harm from occurring in the first place must be “cost-effective” and proportionate to the harm being prevented.
However, the clearly expressed meaning of terms contained within laws, regulations and treaties can be deceiving to the naked eye, especially if the interpreters of the words are European governments which believe in the power of ‘nuance’.[27] The story here begins with the drafting of the first of two ISBA regulations. During the fifth delegation of the ISBA in August 1999, several delegations proposed to include within ISBA Regulation 1 (‘Definitions’) a definition of the Precautionary Principle. It was to be based on the language contained within Principle 15 of the Rio Declaration, as noted previously. Subsequently, informal consultations were held with the Government of the Netherlands which had become dissatisfied with the then current language of draft Regulation 32 (‘Emergency Orders’).[28] Those consultations ultimately gave rise to a submission by the Netherlands of a proposal to amend draft Regulation 32 to provide for the application of the Precautionary Principle in managing the activities of the Area.[29] The main clause of the proposal read as follows:
“In the conduct of activities in the Area, the precautionary principle shall be applied to protect and preserve the marine environment, by virtue of which cost-effective preventive measures are to be taken when there are reasonable grounds for concern that these activities may cause serious harm to the marine environment, even where there is lack of full scientific certainty” (emphasis added).[30]
The ISBA Council thereafter reviewed the August 1999 proposal during its sixth session meeting in March 2000. At that time it became apparent that the European and developing country LOST parties and non-Party observers then present (including presumably members of US industry and the US Government), had strongly disagreed not only about the need to incorporate the concept of precaution at all within the scope of the LOST, but also about which version of precaution would prevail. First, opponents were concerned that if any form of precaution were embedded within the ISBA regulations, and such regulations served a vital role in implementing each Party’s LOST obligations, then the LOST itself would be deemed to incorporate precaution. Second, opponents were concerned that even if ISBA regulations expressly required State Parties to adopt a ‘precautionary approach’, such language, as applied, would not necessarily be limited to the Rio Declaration meaning, with its express economic cost-benefit limitation. In other words, the record indicates that a conscious effort had been made by certain European LOST parties, to go beyond the proposed Rio Declaration language and interpret the meaning of precaution as reflecting, implicitly (i.e., ‘in spirit’) the much broader European Precautionary Principle, which does NOT require economic cost-benefit balancing.
As the academic and professional literature reveals and the record reproduced below corroborates, the distinction between these two concepts is far from insignificant.[31] The following is an excerpt of the ISBA Council’s summary of this debate:
Most of today's debate cent[ered] on a proposal by the Netherlands, concerning precautionary measures to be taken to prevent environmental degradation. The proposal (ISBA/5/C/L.8), resulting from informal consultations last August, is based on principle 15 of the Rio Declaration on Environment and Development, adopted in Rio de Janeiro in 1992 by the United Nations Conference on Environment and Development...Divergent positions were expressed today on whether to incorporate the Netherlands text. One speaker put forward the view that the 1982 United Nations Convention on the Law of the Sea, in article 145, amply covered all issues concerning protection of the environment, so that there was no need to invoke the precautionary principle in the draft code. She felt that contractors, who had to make large capital outlays, would be deterred from investment if there was a divergence of approach between the regulations and the underlying Convention and the 1994 Agreement relating to the implementation of Part XI (seabed provisions) of the Convention. That speaker cited scientific research indicating that prospecting and exploration on the seabed, including such activities as basket sampling, had no harmful effects on the marine environment. Some delegations supported that view and maintained that the precautionary principle was vague and could be interpreted in many ways, and thus was not suitable in a legal document. It was unnecessary, they thought, to import this ‘new concept’ into the regulations when neither the Convention nor the 1994 Agreement made reference to it. They felt that ‘reasonable grounds for concern’ could be very broadly interpreted and could place stumbling blocks in the way of investors. However, most speakers this afternoon supported the Netherlands proposal. One remarked that the precautionary principle was not a new concept and had been a full- fledged principle of international law for a number of years.
Another called for a reference to be made in the regulation to principle 15 of the Rio Declaration. It was also argued that, since exploration activities were deemed to have little impact on the environment, contractors should have no reservations about applying the principle. One member observed that several countries involved in deep-seabed exploration were already taking measures to protect the environment. Thus, the problem might be one of wording rather than substance, and could be resolved by the Legal and Technical Commission. Another speaker suggested that suitable wording might be found in part XII of the Convention, which deals with protection and preservation of the marine environment. He referred specifically to articles 204 (monitoring of the risks or effects of pollution), 205 (publication of reports) and 206 (assessment of potential effects of activities). Another suggestion was to consider the term ‘necessary measures’. In response to the assertion by some members that the precautionary principle was not in keeping with the Convention and the Agreement, one speaker remarked that knowledge about the environment and how to protect it had advanced significantly since the signing of the Convention nearly two decades ago. Moreover, the Agreement, which had come into effect only in 1994, did not reflect any lessening of concern about protection of the marine environment. Others observed that, while the Convention might not contain the exact words "precautionary principle", they were implied in its spirit... Turning to the Netherlands proposal...Secretary-General Satya N. Nandan...suggested that the Council consider the term ‘precautionary approach’ as a way of reaching a compromise while sticking as closely as possible to the Convention and avoiding inconsistencies. He recommended ‘marrying’ the substance of articles 204, 205 and 206 of the Convention with the “precautionary approach”, and suggested that delegates hold small group meetings to iron out differences” (emphasis added). [32]
The final text of ISBA Regulation 31 (as opposed to Regulation 32) ultimately adopted, which covers polymetallic nodules, reads as follows:
“Protection and preservation of the marine environment 1. The Authority shall, in accordance with the Convention and the Agreement, establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. 2. In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration, to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph. 3. Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). [33]
Furthermore, consistent with LOST Article 162(2)(w), ISBA Regulation 32 of that document vests the ISBA with the powers of a supranational quasi-sovereign, by permitting the ISBA Council to employ ‘emergency’/ precautionary/ provisional/ measures on a temporary basis for the purpose of halting activities in the Area” before “serious harm” to the marine environment results.[34]
Similar, if not identical ‘precautionary approach’ and ‘emergency orders’ language can also be found in Articles 33(2)[35] and 35(2)[36] respectively of two more recent Draft ISBA Regulations concerning cobalt-rich ferromanganese crusts and polymetallic sulphides. There is, however, one notable exception. In the case of Article 35(2) of each of these Draft ISBA Regulations, a new basis for taking precautionary action - “to prevent, contain and minimize the threat of serious or irreversible [non-serious?] damage to the marine environment”- was added.[37]
What is most problematic about both of these ISBA regulation documents is that the compromised language used (‘precautionary approach’) does not resolve the fundamental underlying philosophical / legal debate that continues to rage between the EU and the US, concerning how best to regulate potential risks versus hazards to human health or the environment. In fact, it is arguable that the European member states that are parties to the LOST have it definitely in mind to interpret and apply the concept ‘precautionary approach’ as expressed in these ISBA regulations, purely on their own terms – i.e., as if it were the Precautionary Principle - domestically, regionally and internationally, even if it is in total disregard of the express language contained within a number UN and WTO treaties. In fact, they believe they have legal license to do just that:
“Although the Regulations do not go as far as some delegations would have liked, it is suggested that what is contained in Part V of the Regulations is in fact a very significant advance upon Article 145 of the Convention and provides a firm basis for the elaboration of a comprehensive code of environmental regulation” (emphasis added). [38]
This thinking is clearly evidenced in a more recent report prepared by ISBA’s Secretary-General. It provides an account of the Authority’s work “over the past 12 months...a review of the 2005-2007 programme of work and a presentation of the proposed programme of work for 2008-2010.” [39] In particular, one section discussing how the ISBA should go about managing nodule mining and the design of ‘marine protected areas’[40] expressly refers to the Precautionary Principle.
Any recommendations made to the International Seabed Authority at this point must be considered preliminary and used with the precautionary principle (i.e., our understanding of biodiversity levels, species ranges and gene flow in the Clarion-Clipperton zone is still so limited that we must err on the side of overprotection of the environment). It is clear that novel taxa, and evolutionary novelty, occur in the abyss so we cannot assume that protection of only the ocean margins will preserve abyssal biodiversity” (emphasis added). [41]
According to the World Conservation Union, the environmental community’s goal is to utilize the LOST to employ the ‘modern’ Precautionary Principle globally to preserve the earth’s biodiversity for future generations consistent with the United Nations doctrine of sustainable development.[42] And, this requires the development and promotion of
“a global framework or approach, building on the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), the UN Fish Stocks Agreement, CMS and other relevant agreements, to facilitate the creation of a global representative system of high seas MPA networks consistent with international law, to ensure its effective management and enforcement, and coordinate and harmonize applicable international agreements, mechanisms and authorities in accordance with modern principles of precautionary, ecosystem-based and integrated management and sound governance as defined in the UN principles; including through: Requesting those countries which have yet to sign or ratify UNCLOS, and other relevant international agreements (e.g. Kyoto Protocol,[43] Convention on Biological Diversity,[44] UN Fish Stocks Agreement)[45] to immediately ratify and implement these agreements” (emphasis added). [46]
As noted above, once the US ratifies the LOST, it, like all other LOST parties, would be required to employ Europe’s Precautionary Principle[47] to protect the marine environment and “all currents and frontal systems known to support marine life and contain critical habitat” located within US sovereign territory.[48] Environmentalists and their academic colleagues have long sought to employ, tighten and enforce their web of global environmental regulations against industry in order to protect the world’s ‘endangered’ animal species. This includes ALL migratory birds and fish listed within the Convention on International Trade in Endangered Species (CITES),[49] the Convention on Migratory Species (CMS) and related Agreements, which themselves incorporate the Precautionary Principle.[50]
One of the most interesting aspects of the LOST that has not yet been addressed by the Senate Foreign Relations Committee in this round of ‘public’ hearings concerns how each of these treaties could be invoked by another LOST Party, or even by the International Seabed Authority itself, [51] through LOST’s binding dispute settlement mechanism to compel the US government to reinterpret its own federal environmental laws consistent with Europe’s Precautionary Principle.
[1] “The International Seabed Authority is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. The Authority is the organization through which States Parties to the Convention shall, in accordance with the regime for the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (the Area) established in Part XI and the Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. The Authority, which has its headquarters in Kingston, Jamaica” (emphasis added). See International Seabed Authority website at: http://www.isa.org.jm/en/about .
[2] See Testimony of Bernard Oxman, Professor of Law, University of Miami School of Law, at the Senate Hearings Before the Committee on Environment and Public Works, United States Senate, 108th Congress, 2nd Sess., S.Hrg. 108-498 (March 23, 2004) at pp. 164-165.
[3] See WRITTEN TESTIMONY OF JOHN D. NEGROPONTE, DEPUTY SECRETARY U.S. DEPARTMENT OF STATE BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE ON SEPTEMBER 27th, 2007, ACCESSION TO THE 1982 LAW OF THE SEA CONVENTION AND RATIFICATION OF THE 1994 AGREEMENT AMENDING PART XI OF THE LAW OF THE SEA CONVENTION [Senate Treaty Document 103-39]
at p. 15, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
[4] “The 1982 United Nations Convention on the Law of the Sea (“the Convention”) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (“the Agreement”), require the International Seabed Authority to develop the rules, regulations and procedures relating to prospecting, exploration and exploitation in the Area... An important element of the draft Mining Code is the protection of the marine environment from activities relating to exploration” (emphasis added). See “Recommendations from the Workshop to Develop Guidelines for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, Report of the Secretary-General, International Seabed Authority Legal and Technical Commission, ISBA/5/LTC/1 (June 21, 1999), at: http://teaching.law.cornell.edu/faculty/drwcasebook/docs/RegIntlSeabedAuth.pdf .
[5] See LOST Article 145(a) and (b).
[6] See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, ISBA/7/A/2 (May 18, 2001) at p. 3, at: http://www.isa.org.jm/files/documents/EN/7Sess/Ass/ISBA_7A_2.pdf .
[7] See “ISA Council Begins Substantive Work on Draft Regulations On Sulphides”, International Seabed Authority Press Release SB/13/5 (July 10, 2007) at: http://www.isa.org.jm/files/documents/EN/Press/Press2007/SB-13-5.pdf .
[8] Id., at p. 3.
[9] See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, Executive Summary (Sept. 2003) at Toolbox 1 at p. 13, at: http://www.iucn.org/THEMES/MARINE/pdf/10-Year_HSMPA_Strategy_SummaryVersion.pdf .
[10] “The Legal and Technical Commission (LTC) is an organ of the Council of the International Seabed Authority... The Commission is entrusted with various functions relating to activities in the deep seabed area including the review of applications for plans of work, supervision of exploration or mining activities, assessment of the environmental impact of such activities and provide advice to the International Seabed Authority’s Assembly and Council on all matters relating to exploration and exploitation of non-living marine resources (such as polymetallic [manganese] nodules, polymetallic sulphides and cobalt crusts). The Commission has since its inception developed the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and is in the process of finalizing the Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-Rich Ferromanganese Crusts in the Area.” See “International Seabed Authority, Legal Technical Commission” at: http://www.isa.org.jm/en/about/members/legal .
[11] “In considering the draft guidelines, the Legal and Technical Commission is acting in pursuance of article 165, paragraph 2(e), of the 1982 United Nations Convention on the Law of the Sea, which requires the Commission to make recommendations to the Council on the protection of the marine environment, taking into account the views of recognized experts in that field.” See “Recommendations from the Workshop to Develop Guidelines for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, supra, at par II.2, at p.2.
[12] See “Benthic Biodiversity and the Work of the International Seabed Authority”, STATEMENT BY AMBASSADOR SATYA N. NANDAN, SECRETARY-GENERAL OF THE INTERNATIONAL SEABED AUTHORITY TO THE 5TH MEETING OF THE UNITED NATIONS INFORMAL CONSULTATIVE PROCESS ON THE LAW OF THE SEA (June 7-11, 2004) at p. 1, citing Regulation 31(3). “Benthic refers to the bottom of an ocean, estuary or lake.” See “Benthic Flux”, Toxic Substances Hydrology Program US Geological Survey at: http://toxics.usgs.gov/definitions/benthic_flux.html . Benthos is defined as “The Collection of organisms on or in sea or lake bottoms” and as “The bottom of a sea or lake”. See Answer.com at: http://www.answers.com/topic/benthos.
[13] “The Legal and Technical Commission commenced work on the draft regulations for prospecting and exploration for polymetallic nodules in March 1997, and completed its work in March 1998, when the draft regulations proposed by the Commission were submitted to the Council.” See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, supra at p. 4, citing ISBA/4/C/4/Rev.1. See also Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, The Journal, Vol. 10, Abstract 2 (Dec. 18, 2001) at p. 12, at: http://www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-2.pdf .
[14] See “Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area”, International Seabed Authority Assembly ISBA/6/A/18 (July 20, 2000).
[15] See “Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area”, International Seabed Authority Legal and Technical Commission ISBA/13/LTC/WP.1 (May 9, 2007).
[16] STATEMENT OF PROFESSOR BERNARD H. OXMAN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS October 4, 2007 at p. 7, at: http://www.senate.gov/~foreign/testimony/2007/OxmanTestimony071004.pdf
[17] See Annex, Section 3 “Decision Making - Agreement Relating to the Implementation of Part XI of the Convention”, United Nations Convention on the Law of the Sea, adopted on July 28, 1994 (Senate Treaty Doc. 103-39) at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm .
[18] Id., at Section 3.3.
[19] Id., at Section 3.9.
[20] Id., at Section 3.5
[21] Id., at Section. 3.13.
[22] See Lawrence Kogan, “LOST and found”, Washington Times Commentary (Aug. 8, 2007) at: http://washingtontimes.com/apps/pbcs.dll/article?AID=/20070808/COMMENTARY/108080001&template=printart .
[23] See Robert McManus, “LOST at Sea”, Washington Times Letter to the Editor (Aug. 9, 2007) at: http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070810/EDITORIAL/108100010/-1/RSS_EDITORIAL&template=nextpage .
[24] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 21.
[25] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 21, citing LOST Article 165(2)(e),(f) and (h); Annex III, Article 17(1)(b)(vii) and Article 17(2)(f), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf ; Section 1(5)(g) of the “1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea”, at: http://www.un.org/depts/los/convention_agreements/texts/unclos/closindxAgree.htm ; International Seabed Regulation 1(5) (providing for supplemental rules, regulations and procedures “in particular on the protection and preservation of the marine environment”).
[26] See “Benthic Biodiversity and the Work of the International Seabed Authority”, STATEMENT BY AMBASSADOR SATYA N. NANDAN, SECRETARY-GENERAL OF THE INTERNATIONAL SEABED AUTHORITY TO THE 5TH MEETING OF THE UNITED NATIONS INFORMAL CONSULTATIVE PROCESS ON THE LAW OF THE SEA (June 7-11, 2004), supra at p. 1. “Principle 15 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”, “REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, A/CONF.151/26 (Vol. I) (June 3-14, 1992) at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm .
[27] See Lawrence A. Kogan, “Europe’s Warnings on Climate Change Belie More Nuanced Concerns”, Institute for Trade, Standards and Sustainable Development (June 2006) at: http://www.itssd.org/White%20Papers/Europe_sWarningsonClimateChangeBelieMoreNuancedConcerns.pdf .
[28] The language of then draft Regulation 32 was as follows: “As currently drafted, regulation 32, composed of six paragraphs, obliges the Authority to ‘establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities’ in the international seabed area. Each seabed contractor would be required to ‘take precautionary measures to anticipate, prevent or minimize adverse impacts on the marine environment arising from its activities in the area as far as reasonably possible using the best available technology’” (emphasis added). See “SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE”, International Seabed Authority Press Release SEA/1660 (22 March 2000) at: http://www.un.org/news/Press/docs/2000/20000322.sea1660.doc.html .
[29] See International Organizations and the Law of the Sea – Documentary Yearbook 2000, Barbara Kwiatkowska and The Netherlands Institute for the Law of the Sea (Eds.) Vol. 16 (Martinus Nijhoff Publ. 2000©) at p. 404, at: http://books.google.com/books?id=lzBlfgyCmxEC&pg=PA404&lpg=PA404&dq=%22isba+5+c+l+8%22+netherlands&source=web&ots=Q_PVOQMeWa&sig=vbVFOrvAo_5fjVuQOAz-wlhpHUA .
[30] See “SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE”, International Seabed Authority Press Release, supra.
[31] See Lawrence A. Kogan, World Trade Organization Biotech Decision Clarifies Central Role of Science in Evaluating Health and Environmental Risks for Regulation Purposes, 2 Global Trade and Customs Journal 3 (March 2007), available at: http://www.itssd.org/Publications/GTCJ_04-offprints_Kogan%5b2%5d.pdf ; Lawrence A. Kogan, Backgrounder WTO Addresses Precautionary Principle (Washington, DC: Washington Legal Foundation, 8 December 2006), available at: http://www.itssd.org/Publications/wto-biotech-foods-dec0806.pdf ; Lawrence A. Kogan, The Precautionary Principle and WTO Law: Divergent Views Towards the Role of Science in Assessing and Managing Risk, 5.1 Seton Hall J. Dipl., (Winter/Spring 2004), available at: http://diplomacy.shu.edu/journal/KOGAN%20-%20Precautionary%20Principle%20&%20WTO%20Law.pdf . See also Lawrence Kogan, Comments Submitted to the International Economic Law and Policy Blog (Dec. 6, 2006) at: http://worldtradelaw.typepad.com/ielpblog/2006/12/unappealing_bio.html (discussing the distinctions made between the concepts ‘precautionary approach’ and ‘precautionary principle’ within the WTO Panel Decision in European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/DS291/R, WT/DS292/R and WT/DS293/R, final report issued 29 September 2006, available at http://www.wto.org/english/news_e/news06_e/291r_e.htm.
[32] Id.
[33] See ISBA Regulation 31, “Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area”, International Seabed Authority Assembly ISBA/6/A/18, supra.
[34] Id., at ISBA Regulation 33.
[35] “Protection and preservation of the marine environment 1. The Authority shall, in accordance with the Convention and the Agreement, establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. 2. In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration,2 to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph. 3. Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). See ISBA Draft Article 33, “Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area”, International Seabed Authority, Legal and Technical Commission ISBA/13/LTC/WP.1, supra. See also Draft Article 33, “Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area”, International Seabed Council ISBA/13/C/WP.1 (March 29, 2007).
[36] “Regulation 35 Emergency orders 1. When the Secretary-General has been notified by a contractor or otherwise becomes aware of an incident resulting from or caused by a contractor’s activities in the Area that poses a threat of serious harm to the marine environment, the Secretary-General shall cause a general notification of the incident to be issued, shall notify in writing the contractor and the sponsoring State or States, and shall report immediately to the Legal and Technical Commission and to the Council. A copy of the report shall be circulated to all members of the Authority, to competent international organizations and to concerned subregional, regional and global organizations and bodies. The Secretary-General shall monitor developments with respect to all such incidents and shall report on them as appropriate to the Commission and to the Council. 2. Pending any action by the Council, the Secretary-General shall take such immediate measures of a temporary nature as are practical and reasonable in the circumstances to prevent, contain and minimize the threat of serious or irreversible damage to the marine environment. Such temporary measures shall remain in effect for no longer than 90 days, or until the Council decides what measures, if any, to take pursuant to paragraph 5 of this regulation, whichever is the earlier.” Id., at ISBA Draft Regulation 35, supra. See also Draft Article 33, “Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area”, supra.
[37] Id.
[38] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 22.
[39] See “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, ISBA/13/A/2 (May 29, 2007).
[40] A marine protected area (MPA) is “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment”1. Such protection can range from areas managed mainly for science or wilderness values to areas managed mainly for the sustainable use of natural ecosystems and resources (as reflected in the six IUCN Protected Area Management Categories).” See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, Executive Summary, supra at p.6.
[41] See “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, supra at par. 74, at p. 19.
[42] “Core components and key strategic steps - ENDORSE AND PROMOTE the World Summit on Sustainable Development
(WSSD) Joint Plan of Implementation together with the goal of establishing a global system of effectively managed, representative networks of marine protected areas by 2012 that includes within its scope the world’s oceans and seas beyond national jurisdiction...” See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, supra at p. 7.
[43] The U.S. is currently under pressure from the European Union to ratify the Kyoto Protocol.
[44] The United Nations Convention on Biological Diversity is currently before the U.S. Senate Foreign Relations Committee for ratification.
[45] The U.S. has already signed and ratified the UNFSA.
[46] Id., at p. 8
[47] Id.
[48] “1.3 Identification of Important Sites and Criteria for Establishing and Managing Marine and Coastal Protected Areas CBD Operational Objective 3.1 is designed to facilitate research and monitoring activities related to the value and the effects of marine and coastal protected areas on sustainable use of marine and coastal living resources... CBD Operational Objective 3.2 will develop criteria to establish and manage marine and coastal protected areas. The CBD Secretariat is collaborating with relevant organisations in implementing operational objectives 3.1 and 3.2... Protected areas are key tools with which to conserve and sustainably use migratory species whether in general, or those listed on CMS Appendices and are generally addressed in the section on protected areas (Section 11.0). The CMS COP at its fifth meeting decided that in conjunction with Range States, Parties should develop a network of critical sites as protected areas throughout the migration routes of Appendix I species (CMS COP, Res. 5.4). The Wadden Sea Seals Agreement also recognises the importance of creating a network of protected areas in the seals’ migration areas and the importance of an adequate number of reserves. ASCOBANS encourages its Parties to work with others to develop criteria to define marine protected areas for small cetaceans (ASCOBANS MOP1, Res. 2)” (italicized emphasis added). See “Convention on the Conservation of Migratory Species of Wild Animals – Cooperation With Other Bodies CBD/CMS Joint Work Programme (2002-2005)”, 7th Meeting of the Conference of the Parties UNEP/CMS/Inf.7.13, at p. 5, at: http://www.cbd.int/doc/agreements/agmt-cms-2002-09-18-jwp-web-en.pdf .
[49] See Lawrence A. Kogan, The Precautionary Principle and WTO Law: Divergent Views Towards the Role of Science in Assessing and Managing Risk, supra, at p. 94, and accompanying footnotes (It has...been argued by certain governments, primarily the EU and its member states, that the precautionary principle is enshrined within The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES regulates the protection of over 30,000 plant and animal species depending on their biological status and the impact that international trade may have upon them”) (emphasis added).
[50] “10.0 Impact Assessment and Minimising Adverse Impacts None of the CMS Instruments specifically refer to environmental impact assessment, although all CMS Instruments require their Parties to address the threats posed by certain activities, and three instruments (ACCOBAMS, Cranes and Great Bustard) mention the assessment of threatening activities. Notwithstanding this, potential individual and cumulative impacts on migratory species should be considered in environmental impact assessment procedures addressing impacts to biodiversity. CBD COP V invited Parties, governments and other relevant organisations to inter alia organise expert meetings, workshops and seminars, as well as training, educational and public awareness programmes and exchange programmes (CBD COP Decision V/18). It also requested SBSTTA to further develop guidelines to incorporate biodiversity-related issues into legislation or processes on strategic environmental impact assessment. The application of the precautionary principle and the ecosystem approach in impact assessment will be addressed. The guidelines are drafted for further consideration by COP 6.” Id., at p. 13.
[51] “The Authority shall possess legal personality. It shall have the legal capacity: (a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to be a party in legal proceedings” (emphasis added). See “Article 3 ‘Legal Personality of the Authority’, PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE INTERNATIONAL SEABED AUTHORITY at: http://untreaty.un.org/English/notpubl/seabed2_eng.htm .
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