http://arctic-council.org/article/2008/4/the_north_is_not_the_wild_west
Arctic Council - Norweigian Chairmanship 2006-2008
29 April, 2008
The North is not the wild West
There are clear rules governing the Arctic, and there should be no risk for the Arctic descending into armed conflict. The United Nations Convention on the Law the Sea is the comprehensive multilateral regime that applies in the Arctic, says Hans Corell, former undersecretary-general for legal affairs of the United Nations in The Globe and Mail, Canadas largest newspaper. Hans Corell comments an article by Scott Borgerson, titled Arctic Meltdown and mentioned earlier on this homepage.
Mr. Corell continues: "The article correctly points to the effects of global warming in the Arctic, to melting ice, to new shipping lanes, to new possibilities for extracting minerals and to increased access to fish and timber. Mr. Borgerson raises many questions that need to be addressed.
It is therefore disturbing, to say the least, to read his assertions that the Arctic region is not currently governed by any comprehensive multilateral norms and regulations. The reason for this, he says, is that the Arctic was never expected to become a navigable waterway or a site for large-scale commercial development.
At the same time, he suggests that certain Arctic powers (Canada, Russia, Denmark and Norway) are scrambling for territory and "racing to carve up the region." He even suggests that the region could "erupt in an armed mad dash for its resources." This description is not only misleading, it is an utterly irresponsible way of describing the situation.
The United Nations Convention on the Law the Sea is the comprehensive multilateral regime that applies in the Arctic. There is nothing to suggest otherwise.
As far as the rights of coastal states are concerned, the convention distinguishes between territorial sea, the exclusive economic zone and the continental shelf. Apart from the territorial sea, which extends 12 nautical miles from the baselines, the questions that arise in the Arctic are definitely not about territory over which states have sovereignty.
The point of departure when it comes to the exclusive economic zone and the continental shelf is that the rules that govern the high seas apply, in particular the principle of freedom of navigation. According to the convention, no state may validly purport to subject any part of the high seas to its sovereignty, and every state has the right to sail ships flying its flag on the high seas.
Of particular interest is the extent to which the coastal states in the Arctic can lay claims to the continental shelf beyond the 200-nautical-mile exclusive economic zone. This is a matter to be determined by the Commission on the Limits of the Continental Shelf in accordance with specific rules laid down in the convention.
The first application received by the commission was the one made by Russia in 2001. It was made in accordance with applicable rules; it is certainly not an "ambitious annexation," as Mr. Borgerson suggests. The commission did not approve the application as presented; the matter is still pending.
It might be tempting to refer, as Mr. Borgerson does, to the planting of the Russian flag on the sea floor near the Pole. But legally, this ceremony is completely irrelevant. Any suggestion to the contrary should be effectively rebutted, and this is precisely why it is so important to refer to and rigorously apply the Law of the Sea Convention, which forbids assertion of sovereignty over the high seas.
As chairman of my country's delegation in three maritime delimitation negotiations with neighbouring states, I know from experience that the convention is of tremendous assistance in finding solutions where, otherwise, tensions of a political nature might arise.
It is therefore surprising to note that the United States has still not ratified the convention. Mr. Borgerson suggests that Washington should lead the way toward a multilateral diplomatic solution in the Arctic.
I believe there are many who would agree that the best way for the U.S. to achieve this would be to ratify the Law of the Sea Convention and to unite with the more than 150 other states that have already done so, among them the other four Arctic coastal states, in respecting the rules laid down in the convention.
[MR. CORELL PROCLAIMS UNITED NATIONS 'SOLIDARITY' SHOULD BE THE ORDER OF THE DAY.]
It should also be mentioned that sea areas in the Arctic that will not constitute exclusive economic zones or continental shelf will belong to an area, the resources of which are referred to in the Convention as the "common heritage of mankind."
[THE COMMON HERITAGE OF MANKIND DOCTRINE IS THE COMMUNITARIAN, REDISTRIBUTIONOF WEALTH DOCTRINE OF THE GLOBAL COMMONS KNOWN OTHERWISE AS RES COMMUNIS, WHICH IMPOSES A LEGAL OBLIGATION OF ERGES OMNES ON EACH NATION NOT TO HARM THE ENVIRONMENT, AND TO CONSERVE LIVING & NONLIVING NATURAL RESOURCES SO THAT THEY MAY BE REDISTRIBUTED FOR THE BENEFIT OF MANKIND.]
There are clear provisions to the effect that no state shall claim or exercise sovereignty or sovereign rights over any part of this area or its resources.
The fact that the Law of the Sea Convention applies in the Arctic certainly does not mean that there is no need for further work at the international level. Indeed, there is, in particular for the protection of the environment in this extremely sensitive area.
The Convention already contains explicit rules that oblige states to protect and preserve the marine environment. According to these rules, states have the sovereign right to exploit their natural resources pursuant to their environmental policies. But this must always be done in accordance with their duty to protect and preserve the marine environment.
Here, there is a great need for states, both at the global and regional level, and in particular the Arctic states, to join hands with a view to elaborating such new rules and establishing such new measures and regimes that will be necessary because of the changing conditions in the Arctic.
[KUMBAYA!]
This applies in particular to measures designed to prevent, reduce and control pollution of the extremely sensitive marine environment in the region.
The convention contains express provisions on the need for such rules and regimes, including even special rules that apply to ice-covered areas.
So, contrary to what Mr. Borgerson asserts, there are clear rules that govern the Arctic. If these rules are respected by all states, including in particular by the United States, there should be no risk for the Arctic descending into armed conflict."
As undersecretary-general for legal affairs of the United Nations, 1994-2004, Hans Corell was responsible for supervising matters relating to the law of the sea, including the establishment of the International Seabed Authority, the International Tribunal for the Law of the Sea, and the Commission on the Limits of the Continental Shelf.
Showing posts with label navigation rights. Show all posts
Showing posts with label navigation rights. Show all posts
Monday, May 5, 2008
Sunday, January 27, 2008
Industry Brief: Law of the Sea Treaty Pros & Cons Debate
http://www.industrywatch.com/pages/iw2/Story.nsp?story_id=113725075&ID=iw&scategory=Aerospace%3AHardware&P=&F=&R=&VNC=hnall
Industry Brief: Law of the Sea Treaty
The Officer, January 18, 2008
By Brooks, Will
ROA's Defense Education Forum hosted a debate on the United Nations Law of the Sea Treaty Oct. 17 at the Minuteman Memorial Building in order to establish the major arguments both for and against this treaty.
The debate featured four panelists: two in favor of the treaty's ratification, CAPT Patrick Neher, USN, and J. Ashley Roach, of the U.S. State Department's Office of the Legal Adviser; two against the treaty, Frank Gaffneyjr., and Lawrence Kogan, President and CEO of the Institute for Trade, Standards, and Sustainable Development.
CAPT Neher and Mr. Gaffney continue their debate in the two essays on these pages.
The Senate Foreign Relations Committee voted 17-4 in favor of the treaty on Oct. 31, sending the treaty to the Senate floor. A treaty requires at least a two-thirds vote in the Senate to ratify it, a feat that may not be possible given growing Republican opposition toward this treaty. President George W. Bush supports the treaty.
Aye: Law of the Sea Convention will enhance our national security.
By CAPT Patrick Neher, USN
We are at war. The president, his war cabinet, the Joint Chiefs of Staff, and the commandant of the Coast Guard agree that joining the Law of the Sea Convention will enhance our national security.
The Convention codifies navigation rights and freedoms essential for the global mobility of our armed forces and the sustainment of our combat troops. Benefits include the following:
* 12 nautical-mile limit to territorial seas;
* innocent passage through territorial seas;
* archipelagic sea lanes passage through island nations such as Indonesia;
* ability to lay and maintain submarine cables for communication;
* warship right-of-approach and -visit;
* sovereign immunity of warships and public vessels;
* transit passage in international straits and their approaches;
* high seas freedoms in exclusive economic zones (EEZs).
The last two are the most important. Transit passage gives us freedom of movement above, on, and below the surface in critical chokepoints such as the Straits of Singapore and Malacca, Hormuz, Gibraltar, and the Bab el Mandeb. Exercising high seas freedoms in foreign EEZs includes conducting military activities.
Our non-party status is hurting us. It denies us a seat at the table when the 155 parties to the Convention interpret or try to amend those rights and freedoms; it denies us use of an important enforcement tool against coastal state encroachment (binding dispute resolution); it prevents us from gaining legal certainty for our extended continental shelf in the Arctic and elsewhere; and it denies U.S. companies access to deep seabed mining sites.
[IF THE U.S. IS AT WAR, WHY DOES IT NEED LEGAL CERTAINTY OVER ITS MILITARY ACTIONS THAT ARE SUPPOSED TO BE EXEMPT FROM LOST TRIBUNALS ANYWAY??]
Convention opponents are wrong. The Convention does not provide the United Nations control over 71 percent of the Earth's surface, nor will an international body levy taxes or regulate the Navy.
[THE NAVY OBVIOUSLY DOESN'T UNDERSTAND EVOLVING INTERNATIONAL ENVIRONMENTAL LAW WELL ENOUGH TO SEE THE EMERGING TAX AND REGULATIONS REGIME COMING FORTH FROM THE UNITED NATIONS]
A U.S. resolution of advice and consent will reject the International Court of Justice and the International Tribunal for the Law of the Sea and remove military activities from dispute resolution. The military activities exemption in the Convention is ironclad; it permits a nationand solely a nation-to completely reject all of the dispute resolution procedures for any matter it determines to be a military activity.
[THIS IS NOT TRUE AS A MATTER OF INTERNATIONAL LAW - EITHER THE INTERNATIONAL TRIBUNAL ON THE LAW OF THE SEA (ITLOS) OR ARBITRAL BODIES CAN UNILATERALLY DETERMINE, FOR JURISDICTIONAL AND SUBSTANTIVE LAW PURPOSES, WHAT TYPES OF ACTIVITIES QUALIFY AS 'MILITARY ACTIVITIES'. THUS THERE IS NO 'IRONCLAD' EXEMPTION] *******
President Ronald Reagan supported the Convention except for six specific objections to the deep seabed mining provisions, and those were fixed in 1994.
[THIS ALSO IS NOT TRUE - THE RECENTLY RELEASED REAGAN DIARIES AND THE PUBLISHED STATEMENTS OF FORMER U.S. AMBASSADOR JAMES MALONE CONTRADICT THESE CLAIMS]***
It is both the original Convention and the 1994 agreement that are before the Senate. We already are formally bound to and abide by innocent passage rules, including submarine passage in foreign territorial seas. The first sentence of Article 110 makes clear that the interdiction authorities it provides, which are substantial, are in addition to other interdiction authorities extant. The Proliferation Security Initiative requires compliance with international law, including the Convention, and almost all our partners are already parties to the Convention. Language reserving the ocean for peaceful purposes and prohibiting use or threat of force in a manner inconsistent with the UN Charter merely restates obligations we already have and fully supported.
ROA has a proud tradition of supporting a strong military policy for the United States, and therefore it should support the Law of the Sea Convention.
CAPT Neher is the director of the International and Operational Law Office of the Judge Advocate General in the Pentagon.
Nay: U.S. Navy will rue the day it urged Law of the Sea ratification.
By Frank J. Gaffney Jr.
As the debate over the ratification of the controversial UN. Law of the Sea Treaty (LOST) moves to the floor of the U.S. Senate, it appears that a principal-if not decisive-consideration will be the insistence by the Navy that it needs this accord to perform its missions. If past experience is any guide, however, the nation's sea services are likely to be victims of this treaty, not beneficiaries of it.
The Navy's enthusiasm for LOST arises from provisions that codify navigation rules of the road deemed essential for the mobility of our forces. If that were all the treaty did, such enthusiasm would be warranted.
Unfortunately, the Law of the Sea Treaty has a host of other provisions as well. Some will be harmful to U.S. sovereignty, representative government, and commercial interests. Even if the accord were an unalloyed blessing for the Navy, these costs to the country would net out far in excess of its putative benefits to the naval service.
For the following reasons, though, it is predictable that the Navy will also be a loser under LOST.
The treaty contains at least six provisions inconsistent with the Navy's standard operating procedures. These impose limits on uses of the oceans, submerged transit of and intelligence collection in territorial waters, interceptions on the high seas, and research and development. There are also sweeping environmental obligations that will affect both the Navy's own activities and those of commercial contractors vital to its equipping, maintenance, and logistics.
When-not if-disputes arise over U.S. conduct at odds with these commitments, we will be obliged to submit to binding, unappealable dispute resolution mechanisms. All four of these mechanisms will be rigged against us, with the deciding votes selected by parties generally unsympathetic to this country.
The Navy is counting on an exemption in the treaty for "military activities" to prevent it from being subjected to these stacked- deck arrangements. While that exemption exists, it is unlikely in practice to protect the Navy's equities.
First, such activities are undefined, allowing a LOST tribunal to determine whether, for example, the use of high-power sonar is a military action or environmental predation. second, Navy contractors enjoy no "military" exemption. Third, notions of "universal jurisprudence" can trump the preferences and even the laws of sovereign nations. At this writing, the U.S. Supreme Court is weighing whether to agree with the Bush Administration that a ruling by the World Court (one of LOST's four designated arbitral tribunals) should override Texas statutes in a criminal case. Navy equities will likely be subject to similar perils if LOST is ratified.
The bottom line is that the Navy has enough trouble at the moment with environmentalists and others using various legal instruments to impede or prevent its activities, a practice increasingly known as "Lawfare." The Navy will come to rue the day if, at its urging, the Senate agrees to the ratification of LOST and subjects this country to still more, and evermore onerous, forms of such warfare by judicial means.
Mr. Gaffney was assistant secretary of defense in the Defense Department of President Ronald Reagan. He is a recipient of the Alfred Thayer Mahan Award for literary achievement from the U.S. Navy League.
WILL BROOKS * DIRECTOR, ROA NAVAL SERVICES SECTION
Copyright Reserve Officers Association Jan 2008
(c) 2008 Officer, The. Provided by ProQuest Information and Learning. All rights Reserved.
Publication Date: Arrival Time: 2008-01-18
© 2008, YellowBrix, Inc.
Industry Brief: Law of the Sea Treaty
The Officer, January 18, 2008
By Brooks, Will
ROA's Defense Education Forum hosted a debate on the United Nations Law of the Sea Treaty Oct. 17 at the Minuteman Memorial Building in order to establish the major arguments both for and against this treaty.
The debate featured four panelists: two in favor of the treaty's ratification, CAPT Patrick Neher, USN, and J. Ashley Roach, of the U.S. State Department's Office of the Legal Adviser; two against the treaty, Frank Gaffneyjr., and Lawrence Kogan, President and CEO of the Institute for Trade, Standards, and Sustainable Development.
CAPT Neher and Mr. Gaffney continue their debate in the two essays on these pages.
The Senate Foreign Relations Committee voted 17-4 in favor of the treaty on Oct. 31, sending the treaty to the Senate floor. A treaty requires at least a two-thirds vote in the Senate to ratify it, a feat that may not be possible given growing Republican opposition toward this treaty. President George W. Bush supports the treaty.
Aye: Law of the Sea Convention will enhance our national security.
By CAPT Patrick Neher, USN
We are at war. The president, his war cabinet, the Joint Chiefs of Staff, and the commandant of the Coast Guard agree that joining the Law of the Sea Convention will enhance our national security.
The Convention codifies navigation rights and freedoms essential for the global mobility of our armed forces and the sustainment of our combat troops. Benefits include the following:
* 12 nautical-mile limit to territorial seas;
* innocent passage through territorial seas;
* archipelagic sea lanes passage through island nations such as Indonesia;
* ability to lay and maintain submarine cables for communication;
* warship right-of-approach and -visit;
* sovereign immunity of warships and public vessels;
* transit passage in international straits and their approaches;
* high seas freedoms in exclusive economic zones (EEZs).
The last two are the most important. Transit passage gives us freedom of movement above, on, and below the surface in critical chokepoints such as the Straits of Singapore and Malacca, Hormuz, Gibraltar, and the Bab el Mandeb. Exercising high seas freedoms in foreign EEZs includes conducting military activities.
Our non-party status is hurting us. It denies us a seat at the table when the 155 parties to the Convention interpret or try to amend those rights and freedoms; it denies us use of an important enforcement tool against coastal state encroachment (binding dispute resolution); it prevents us from gaining legal certainty for our extended continental shelf in the Arctic and elsewhere; and it denies U.S. companies access to deep seabed mining sites.
[IF THE U.S. IS AT WAR, WHY DOES IT NEED LEGAL CERTAINTY OVER ITS MILITARY ACTIONS THAT ARE SUPPOSED TO BE EXEMPT FROM LOST TRIBUNALS ANYWAY??]
Convention opponents are wrong. The Convention does not provide the United Nations control over 71 percent of the Earth's surface, nor will an international body levy taxes or regulate the Navy.
[THE NAVY OBVIOUSLY DOESN'T UNDERSTAND EVOLVING INTERNATIONAL ENVIRONMENTAL LAW WELL ENOUGH TO SEE THE EMERGING TAX AND REGULATIONS REGIME COMING FORTH FROM THE UNITED NATIONS]
A U.S. resolution of advice and consent will reject the International Court of Justice and the International Tribunal for the Law of the Sea and remove military activities from dispute resolution. The military activities exemption in the Convention is ironclad; it permits a nationand solely a nation-to completely reject all of the dispute resolution procedures for any matter it determines to be a military activity.
[THIS IS NOT TRUE AS A MATTER OF INTERNATIONAL LAW - EITHER THE INTERNATIONAL TRIBUNAL ON THE LAW OF THE SEA (ITLOS) OR ARBITRAL BODIES CAN UNILATERALLY DETERMINE, FOR JURISDICTIONAL AND SUBSTANTIVE LAW PURPOSES, WHAT TYPES OF ACTIVITIES QUALIFY AS 'MILITARY ACTIVITIES'. THUS THERE IS NO 'IRONCLAD' EXEMPTION] *******
President Ronald Reagan supported the Convention except for six specific objections to the deep seabed mining provisions, and those were fixed in 1994.
[THIS ALSO IS NOT TRUE - THE RECENTLY RELEASED REAGAN DIARIES AND THE PUBLISHED STATEMENTS OF FORMER U.S. AMBASSADOR JAMES MALONE CONTRADICT THESE CLAIMS]***
It is both the original Convention and the 1994 agreement that are before the Senate. We already are formally bound to and abide by innocent passage rules, including submarine passage in foreign territorial seas. The first sentence of Article 110 makes clear that the interdiction authorities it provides, which are substantial, are in addition to other interdiction authorities extant. The Proliferation Security Initiative requires compliance with international law, including the Convention, and almost all our partners are already parties to the Convention. Language reserving the ocean for peaceful purposes and prohibiting use or threat of force in a manner inconsistent with the UN Charter merely restates obligations we already have and fully supported.
ROA has a proud tradition of supporting a strong military policy for the United States, and therefore it should support the Law of the Sea Convention.
CAPT Neher is the director of the International and Operational Law Office of the Judge Advocate General in the Pentagon.
Nay: U.S. Navy will rue the day it urged Law of the Sea ratification.
By Frank J. Gaffney Jr.
As the debate over the ratification of the controversial UN. Law of the Sea Treaty (LOST) moves to the floor of the U.S. Senate, it appears that a principal-if not decisive-consideration will be the insistence by the Navy that it needs this accord to perform its missions. If past experience is any guide, however, the nation's sea services are likely to be victims of this treaty, not beneficiaries of it.
The Navy's enthusiasm for LOST arises from provisions that codify navigation rules of the road deemed essential for the mobility of our forces. If that were all the treaty did, such enthusiasm would be warranted.
Unfortunately, the Law of the Sea Treaty has a host of other provisions as well. Some will be harmful to U.S. sovereignty, representative government, and commercial interests. Even if the accord were an unalloyed blessing for the Navy, these costs to the country would net out far in excess of its putative benefits to the naval service.
For the following reasons, though, it is predictable that the Navy will also be a loser under LOST.
The treaty contains at least six provisions inconsistent with the Navy's standard operating procedures. These impose limits on uses of the oceans, submerged transit of and intelligence collection in territorial waters, interceptions on the high seas, and research and development. There are also sweeping environmental obligations that will affect both the Navy's own activities and those of commercial contractors vital to its equipping, maintenance, and logistics.
When-not if-disputes arise over U.S. conduct at odds with these commitments, we will be obliged to submit to binding, unappealable dispute resolution mechanisms. All four of these mechanisms will be rigged against us, with the deciding votes selected by parties generally unsympathetic to this country.
The Navy is counting on an exemption in the treaty for "military activities" to prevent it from being subjected to these stacked- deck arrangements. While that exemption exists, it is unlikely in practice to protect the Navy's equities.
First, such activities are undefined, allowing a LOST tribunal to determine whether, for example, the use of high-power sonar is a military action or environmental predation. second, Navy contractors enjoy no "military" exemption. Third, notions of "universal jurisprudence" can trump the preferences and even the laws of sovereign nations. At this writing, the U.S. Supreme Court is weighing whether to agree with the Bush Administration that a ruling by the World Court (one of LOST's four designated arbitral tribunals) should override Texas statutes in a criminal case. Navy equities will likely be subject to similar perils if LOST is ratified.
The bottom line is that the Navy has enough trouble at the moment with environmentalists and others using various legal instruments to impede or prevent its activities, a practice increasingly known as "Lawfare." The Navy will come to rue the day if, at its urging, the Senate agrees to the ratification of LOST and subjects this country to still more, and evermore onerous, forms of such warfare by judicial means.
Mr. Gaffney was assistant secretary of defense in the Defense Department of President Ronald Reagan. He is a recipient of the Alfred Thayer Mahan Award for literary achievement from the U.S. Navy League.
WILL BROOKS * DIRECTOR, ROA NAVAL SERVICES SECTION
Copyright Reserve Officers Association Jan 2008
(c) 2008 Officer, The. Provided by ProQuest Information and Learning. All rights Reserved.
Publication Date: Arrival Time: 2008-01-18
© 2008, YellowBrix, Inc.
Saturday, January 19, 2008
Pentagon: Sea Treaty in U.S. Interests
Military.com By Bryant Jordan December 11, 2007
http://www.military.com/NewsContent/0,13319,157953,00.html
The U.S. is not about to go to war with Canada over the possibility our northern neighbor will bar liquid natural gas tanker ships from passing through Canadian waters to New England -- a restriction that would impose a severe hardship on the region.
Nor is the administration going to invade Australia, even though our down-under ally demands the right to put an Aussie pilot aboard any ship -- including American -- passing through the Torres Straits running between the island continent and Papua New Guinea.
But with the U.S. facing these prospects the only way to resolve them is by the country signing onto the Law of the Sea Treaty, which 155 countries already have joined, according to Navy Capt. Patrick J. Neher, director of the Navy’s International and Operational Law Office of the Judge Advocate General.
"This is pretty serious stuff," Neher said during an interview with military bloggers Dec. 10. He said Australia is asserting a regulatory right over the waterway improperly, and threatens that any violator is subject to arrest and their ship held.
"Now we're not going to roll the 7th Fleet into Sydney Harbor to compel Australia to roll back their illegal [regulation]," he said. "But what we can do if we were party to the [treaty] is use the dispute resolution process ... and I'm confident we would win."
Same with Canada's plans to keep American LNG tankers from passing through Head Harbor Passage en route to Maine, said Coast Guard Capt. Charles D. Michel, chief of the Office of Maritime and International Law.
Diplomacy hasn't worked, he said, noting that the Canadian prime minister reportedly "blew off President Bush" when he weighed in to resolve the problem, and it's highly unlikely the U.S. will use military force against Canada.
That leaves dispute resolution, which is part of the Law of the Sea Treaty, he said.
According to a Navy story on the Law of the Sea Treaty, the agreement was negotiated between 1973 and 1982 in order to update the customary law of the sea that dates from the 1600s. The U.S. helped bring about the treaty but has never signed onto it because of concerns it would be giving up sovereignty or losing rights it has long held under the historical, customary law.
According to Neher, however, the U.S. stands to lose its role as a leader in determining sea law by not joining in the treaty.
"There is a fundamental disconnect [in] trying to lead an alliance of nations to maintain public order on the world's oceans when you're one of the handful of countries … that aren't parties to that convention," he said.
The Defense Department has come out squarely in favor of the U.S. joining the treaty, which Neher and Michel said guarantees right of passage through some of the most strategic areas. In June, the Joint Chiefs of Staff wrote to the Senate, urging it to support the treaty.
Sound Off...What do you think? Join the discussion.
Copyright 2007 Military.com. All rights reserved.
http://www.military.com/NewsContent/0,13319,157953,00.html
The U.S. is not about to go to war with Canada over the possibility our northern neighbor will bar liquid natural gas tanker ships from passing through Canadian waters to New England -- a restriction that would impose a severe hardship on the region.
Nor is the administration going to invade Australia, even though our down-under ally demands the right to put an Aussie pilot aboard any ship -- including American -- passing through the Torres Straits running between the island continent and Papua New Guinea.
But with the U.S. facing these prospects the only way to resolve them is by the country signing onto the Law of the Sea Treaty, which 155 countries already have joined, according to Navy Capt. Patrick J. Neher, director of the Navy’s International and Operational Law Office of the Judge Advocate General.
"This is pretty serious stuff," Neher said during an interview with military bloggers Dec. 10. He said Australia is asserting a regulatory right over the waterway improperly, and threatens that any violator is subject to arrest and their ship held.
"Now we're not going to roll the 7th Fleet into Sydney Harbor to compel Australia to roll back their illegal [regulation]," he said. "But what we can do if we were party to the [treaty] is use the dispute resolution process ... and I'm confident we would win."
Same with Canada's plans to keep American LNG tankers from passing through Head Harbor Passage en route to Maine, said Coast Guard Capt. Charles D. Michel, chief of the Office of Maritime and International Law.
Diplomacy hasn't worked, he said, noting that the Canadian prime minister reportedly "blew off President Bush" when he weighed in to resolve the problem, and it's highly unlikely the U.S. will use military force against Canada.
That leaves dispute resolution, which is part of the Law of the Sea Treaty, he said.
According to a Navy story on the Law of the Sea Treaty, the agreement was negotiated between 1973 and 1982 in order to update the customary law of the sea that dates from the 1600s. The U.S. helped bring about the treaty but has never signed onto it because of concerns it would be giving up sovereignty or losing rights it has long held under the historical, customary law.
According to Neher, however, the U.S. stands to lose its role as a leader in determining sea law by not joining in the treaty.
"There is a fundamental disconnect [in] trying to lead an alliance of nations to maintain public order on the world's oceans when you're one of the handful of countries … that aren't parties to that convention," he said.
The Defense Department has come out squarely in favor of the U.S. joining the treaty, which Neher and Michel said guarantees right of passage through some of the most strategic areas. In June, the Joint Chiefs of Staff wrote to the Senate, urging it to support the treaty.
Sound Off...What do you think? Join the discussion.
Copyright 2007 Military.com. All rights reserved.
Friday, January 18, 2008
UNCLOS Alchemy
UNCLOS Alchemy (c)
By Lawrence A. Kogan, Esq.*
U.S. State Department Legal Adviser John B. Bellinger III’s recent letter to the editor (“LOST will benefit U.S.” – Washington Times 10/31/07)[1] reflects but another example of the true battle in which we are all, in one way or another, now engaged - namely, the battle against ignorance, apathy and bad ideas.
The letter to the editor proclaims that US ratification of the United Nations Convention on the Law of the Sea (UNCLOS) will provide “enormous national security...advantages to the United States, including clear legal rights of navigation for our military through and over the world’s oceans”. Yet it fails to mention the severe economic, legal and security-related costs associated with subjugating the US military’s absolute customary international law right to freedom of navigation to environmental concerns. Much to the contrary, the US military’s right to freedom of navigation has been steadily eroding since the1990’s as the result of the Clinton-Gore administration’s ‘enlightened’ “military operations other than war” policy[2] and the ‘lawfare’ tactics employed by other UNCLOS parties [3] with the help of environmental extremist groups. The European Union and its member states, for example, have continued to convert their economic rights over their exclusive economic zones (EEZs) into legal sovereign claims by establishing environmental ‘Particularly Sensitive Sea Areas’ (PSSAs) all along European coastlines, a bad idea to which the president’s ill-informed advisers,[4] and apparently, some ignorant developing country governments,[5] have increasingly warmed. And, environmental extremist groups have continued to press for the creation of more and more public ocean trusts, consistent with the utopian ‘common heritage of mankind’ doctrine, within other coastal states’ EEZs, known as ‘Marine Protected Areas’ - at the expense of coastal state economic rights and flag states’ legal right to freedom of navigation. Consequently, US military and commercial vessels must now tread lightly when navigating through these environmental sanctuaries and may even be legally compelled to avoid them altogether, costing time, resources and perhaps US national security.[6] Environmentalists have also been working alongside liberal US federal judges to strictly reinterpret US environmental laws, consistent with Europe’s Precautionary Principle and UN Environment Program (UNEP) multilateral treaty law that the US has thus far refused to ratify, including those of UNCLOS, to preclude the US navy’s free deployment of sonar detection technology during essential routine military training exercises within US territorial waters and EEZs, all at the expense of our national security. This has occurred along both US coastlines and in the Hawaiian Islands and Puerto Rico despite the absence of scientific evidence demonstrating that the technologies used actually cause substantial harm to marine life.[7]
In addition, the letter to the editor declares that ratification of the UNCLOS is necessary to provide the US with “economic sovereign rights over enormous oil, gas and other resources” in light of the ‘gold rush’ claims now being staked by Russia and other countries...to Artic resources.” However, it neglects to mention how legal commentators agree that the contest between Russia, Norway, Denmark, Canada and the US over the Artic continental shelf areas essentially amounts to a legal border dispute among contiguous and/or adjacent states that need NOT be resolved through the redistributionist mechanisms of the UNCLOS.[8] Contrary to an August Financial Times article the battle for Artic oil[9] does NOT hinge on a UN panel. UNCLOS jurisdiction is necessary in this case only to preserve the legal authority of the otherwise unsustainable bureaucracies established by the treaty – the Commission on the Limits of the Continental Shelf, to ensure the legal existence of a global commons in the Artic – ‘the Area’ - , the living and nonliving resources of which could then be regulated and taxed by the International Seabed Authority and later reallocated and distributed among other UNCLOS parties.[10] In other words, the State Department should be candid with the American people, and not promote the false pretense that the US government needs to ratify the UNCLOS to peaceably resolve in America’s favor this apparent race over Artic resources. The US may pursue diplomatic negotiations with the Russian government or, if necessary, resort to a mutually agreed upon international legal forum to sort out competing claims, without the US ever ratifying the UNCLOS. Indeed, the Government of Peru recently chose to pursue this course of action in an effort to resolve its territorial sea dispute with neighboring Chile, noting along the way, its express lack of desire to sign and ratify the UNCLOS. In other words, Peru was determined NOT to subject its local and regional affairs to the scrutiny and oversight of the world body.[11]
Lastly, the letter to the editor states that the US would not be committed to implement Kyoto standards, presumably within US sovereign territory (land, air, internal and territorial waters), if it were to ratify the UNCLOS, even though practically ALL other UNCLOS parties are also parties to the underlying UN Framework Convention on Climate Change which the Kyoto Protocol is designed to implement. The letter makes this bold assertion, furthermore, although it is more likely than not that the requirements of the Kyoto Protocol will be construed by other UNCLOS parties as extending to the global commons, namely to the ‘Area’, consistent with UN Agenda 21, in order to protect the marine environment from the potential environmental hazards associated with oil, gas and mining exploitation. If the US government does not intend, in the future, either to ratify the Kyoto Protocol or to adopt federal Kyoto-style (-lite) greenhouse gas emissions cap and trade regulatory measures within the territorial US, and does not plan for US government and/or commercial vessels, platforms and/or other man-made structures (e.g., rigs) operating on the high seas to submit to international greenhouse gas emissions standards developed, administered and enforced by the International Maritime Organization,[12] expressly referred to as an ‘expert’ UNCLOS international standards body,[13] for purposes of implementing the UNCLOS obligation to protect and preserve the marine environment consistent with international law and standards, including the Kyoto Protocol, why then would the US oil and gas industries work so diligently, silently and unobtrusively to secure a special amendment to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London Protocol 1996) (IMO - LC-LP.1/Circ.11)?[14] Shouldn’t the U.S. Congress be afforded the opportunity to investigate whether the US oil and gas industry trade associations especially sought this amendment because it would allow their members to sequester (pump back into the seabed floor) the carbon dioxide and other greenhouse gases emitted during the process of oil and gas drilling and extraction, which would entitle them not only to escape liability for ‘pollution dumping’ under the prior terms of the convention’s protocol, but also to economically profit under forthcoming US greenhouse gas regulations from the resulting offset credits that such sequestration would generate? Isn’t public transparency and accountability, consistent with US constitutional due process, called for in this situation?
Here is a timeline / table which readers may find helpful in visualizing the following sequence of events from which they may then draw their own conclusions:
As noted, the London Protocol amendment went into force on February 10, 2007. On April 30, 2007, the White House issued a press release proclaiming the 2007 EU-US transatlantic summit a political ‘success’. On May 15, 2007, approximately two weeks later and 90 days following the entering into force of the London Protocol amendment, the White House announced President Bush’s desire to seek U.S. Senate ratification of the UNCLOS. On May 14th, 2007, one day before the issuance of the White House press release, an unsubstantiated but thought-provoking entry entitled, “Bush Will Push the Law of the Sea”, appeared on the internet-based Washington Note blog. It corroborated a recommendation contained within a recent April 2007 report issued by the Atlantic Council of the United States and co-authored by a former State Department legal adviser.
Reasonable persons may find, in light of all of the above information, that the US State Department had unwisely pursued greater short-term transatlantic economic and regulatory integration in the mistaken belief that it would restore America’s positive image abroad and improve US national security. State Department and other government officials have effectively testified in support of this objective. [20] [21] [22] Unfortunately, the facts also reveal that the price to be paid to secure Europe’s cooperation on promoting and expanding the President’s Proliferation Security Initiative. [23] will likely be far too high, especially if it entails the long-term surrender to Europe of America’s unique constitutional sovereignty over its own economic, legal and political affairs upon the ratification of the UNCLOS.[24]
The fundamental question then that all Americans should now ask themselves and their elected representatives is why have the various congressional committees possessing oversight jurisdiction thus far refused to hold open public hearings to consider whether the benefits are commensurate with the costs that US ratification of the UNCLOS is likely to generate. Arguably, if such hearings had already been commenced, the congress might now be, in the words of former Congressman Lee H. Hamilton, engaged in the throes of an “extensive debate [of the kind] written into the very structure of our congressional system.” [25] I believe that Mr. Hamilton is not only correct, but that he would also agree that, no matter the shape a serious and constructive debate over UNCLOS ratification ultimately assumes, the American people, in the end, will have greatly benefited from it - by both avoiding the onset of political apathy and by witnessing the conversion of truly bad or misconceived ideas into good and useful ones.
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[1] See John B. Bellinger, III, “LOST will benefit U.S.”, Washington Times Letter to the Editor (Oct. 31, 2007) at: http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20071031/EDITORIAL/110310008/1013/EDITORIAL&template=printart .
[2] See “Myths & Realities #2: U.S. Naval Freedom of Navigation and Avoidance of LOST Tribunal Jurisdiction Despite Europe’s Aggressive Use of the Precautionary Principle?”, ITSSD Journal on the Law of the Sea Treaty at: http://itssd.blogspot.com/2007/10/myth-realities-2-concerning-un-law-of_31.html .
[3] See Lawrence A. Kogan, “U.S. Military Review of the Law of the Sea Treaty Lacking”, ITSSD Journal (Oct. 4, 2007) at: http://itssd.blogspot.com/2007/10/us-military-review-of-law-of-sea-treaty_04.html .
[4] “...I have instructed the U.S. delegation to the International Maritime Organization (IMO) to submit a proposal for international measures that would enhance protection of the Papahānaumokuākea Marine National Monument, the area including the Northwestern Hawaiian Islands. Last June, I issued a proclamation establishing the Monument, a 1,200-mile stretch of coral islands, seamounts, banks, and shoals that are home to some 7,000 marine species. The United States will propose that the IMO designate the entire area as a Particularly Sensitive Sea Area (PSSA) –- similar to areas such as the Florida Keys, the Great Barrier Reef, and the Galapagos Archipelago –- which will alert mariners to exercise caution in the ecologically important, sensitive, and hazardous area they are entering. This proposal, like the Convention on the Law of the Sea, will help protect the maritime environment while preserving the navigational freedoms essential to the security and economy of every nation.” See “President's Statement on Advancing U.S. Interests in the World's Oceans” White House Press Release (May 15, 2007) at: http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html .
[5] See Sam Bateman,“UNCLOS and its Limitations as the Foundation for a Regional Maritime Security Regime” Institute of Defence and Strategic Studies, Nanying Technological University, Singapore (April 2006) at pp. 14-18, at: http://www.isn.ethz.ch/pubs/ph/details.cfm?lng=en&id=27159 .
[6] This subject matter will be addressed in a forthcoming entry of the ITSSD Journal’s Myths & Realities on the Law of the Sea Treaty series.
[7] Id.
[8] See, e.g., Julian Ku, “Peru Will Not Ratify Law of the Sea Treaty”, Opinio Juris (9/5/07) at: http://www.opiniojuris.org/archives/archive_2007_09_02-2007_09_08.shtml .
[9] See Michael Peel and Daniel Dombey, “Battle for Artic Oil Hinges on UN Panel”, Financial Times (Aug. 10, 2007) at: http://us.ft.com/ftgateway/superpage.ft?news_id=fto081020071404008525 .
[10] See Lawrence A. Kogan, “Myths & Realities Concerning the UN Law of the Sea Treaty: LOST Does Incorporate Europe’s Contra-WTO Precautionary Principle!”, ITSSD Journal (Oct. 6, 2007) at: http://itssd.blogspot.com/2007/10/myths-and-realities-concerning-un-law_06.html .
[11] See “Peru Will Not Sign U.N. Law of the Sea in Border Dispute with Chile”, LivinginPeru.com (Sept. 4, 2007) at: http://www.livinginperu.com/news-4632-politics-peru-will-not-sign-u-n-law-sea-border-dispute-with-chile .
[12] See Lawrence A. Kogan, “Myths & Realities #4 Concerning UN Law of the Sea Treaty: LOST, Land-Based Activities & Sources of Marine Pollution, and the Precautionary Principle” (Oct. 17, 2007) at fn#s 12 and 13, at: http://itssd.blogspot.com/2007/10/myths-realities-4-concerning-un-law-of_5097.html .
[13] See UNCLOS Annex VIII, “Special Arbitration”, Articles 1 and 2: “Article 1 - Subject to Part XV, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to...(2) protection and preservation of the marine environment... may submit the dispute to the special arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based. Article 2 - A list of experts shall be established and maintained in respect of each of the fields of...(2) protection and preservation of the marine environment... The lists of experts shall be drawn up and maintained, in the field of... in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization...” The Bush Administration, within its resolution of ratification to UNCLOS, has expressly stated that it has chosen to submit to jurisdiction under UNCLOS Annex VIII Special Arbitration for matters other than those deemed to constitute ‘military activities’.
[14] See “Notification of Entry into Force of the ‘CO2 Sequestration’ Amendments to Annex 1 to the London Protocol 1996”, 1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER (LONDON PROTOCOL 1996) LC-LP.1/Circ.11 (Feb. 16, 2007) at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D17756/11.pdf .
[15] Id., at p. 1.
[16] While reasonable persons could disagree about the meaning and veracity of this statement it does, nevertheless, suggest that the White House might have followed one of the key recommendations made by former Department of State Legal Adviser, William H. Taft IV contained within a recently released April 2007 report issued by the Atlantic Council. In the report entitled, Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law, Mr. Taft and his co-author recommended that, “The United States and Europe should make clear their commitment to working together to strengthen the international legal system through a public declaration... The United States and European Union should further demonstrate their commitment to this declaration through some additional actions. The United States should join at least one multilateral agreement that will enhance its reputation as a leader in the international legal field while also furthering U.S. interests. In particular, securing ratification of the UN Convention on Law of the Sea would reinforce the U.S. position as a leader not only in legal, but also environmental matters — topics on which the U.S. reputation has dropped considerably in recent years, especially in Europe” (emphasis added) See William H. Taft IV and Frances G. Burwell, “Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law”, The Atlantic Council of the United States Policy Paper (April 2007) at pp. 13-14, at: http://www.acus.org/docs/070417_Law%20_&%20_The_Lone_Superpower.pdf .
[17] See “EU/US Summit: April 30, 2007, White House, Washington, DC” European Union, Delegation of the European Commission to the USA at: http://www.eurunion.org/partner/summit/20070430sum.htm . See, e.g., “2007 EU-U.S. SUMMIT STATEMENT ENERGY SECURITY, EFFICIENCY, AND CLIMATE CHANGE” at: http://www.eurunion.org/partner/summit/Summit20070430/EnergSecur&ClimChnge.pdf ; “Joint Report on the Roadmap for US-EU Regulatory Cooperation” at: http://www.eurunion.org/partner/summit/Summit20070430/JtReptRoadmapUSEURegCoop042007.pdf .
[18] See Scott Paul “Big News: Bush Will Push Law of the Sea”, The Washington Note (May 14, 2007) at: http://www.thewashingtonnote.com/archives/002128.php . Despite its questionable nature, the entry seems to place Mr. Bellinger at a then-recent meeting with high-level European diplomats speaking about the UNCLOS. The curious entry was made by Mr. Scott Paul, Deputy Director of Government Relations at Citizens for Global Solutions, formerly known as the World Federalist Association See “About Scott Paul”, The Washington Note at: http://www.thewashingtonnote.com/about.php ; See “World Federalist Institute – About Us”, Citizens for Global Solutions website at: http://globalsolutions.org/wfi ; “The United States and the Law of the Sea: Time to Join”, In the Beltway – Citizens for Global Solutions at: http://globalsolutions.org/in_the_beltway/united_states_and_law_sea_time_join . According to Mr. Paul, “I recently heard a story about a meeting between [John] Bellinger and a group of high-level European diplomats that got me really fired up about UNCLOS. Bellinger promised the Europeans that the Bush Administration wanted to cooperate more closely and take a more multilateral approach in its foreign policy. The Europeans responded that so long as the US refuses to join the Law of the Sea – the most common-sense international agreement on the map – they will view these promises with a great deal of skepticism (for me, it’d take more than just UNCLOS to convince me of this supposed change of heart)” (emphasis added). See Scott Paul “Big News: Bush Will Push Law of the Sea”, The Washington Note, supra; “Big News: Bush Will Push the Law of the Sea” Securing America.com (May 14, 2007) at: http://securingamerica.com/ccn/node/12104#comment-210149 . .
[19] See “President's Statement on Advancing U.S. Interests in the World's Oceans” supra.
[20] See “Written Testimony of Deputy Secretary of Defense, Gordon England, Before the Senate Foreign Relations Committee – 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”, (Sept. 27, 2007) at pp. 3, 5-7, at: http://www.senate.gov/~foreign/testimony/2007/EnglandTestimony070927.pdf
[21] 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 pp. 2, 5-6, 18, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
[22] See Statement of Admiral Patrick M. Walsh, U.S. Navy Vice Chief of Naval Operations Before the Senate Committee on Foreign Relations Hearing on the Law of the Sea Convention (Sept. 27, 2007) at pp. 6-8, 10, at: http://www.senate.gov/~foreign/testimony/2007/WalshTestimony070927pdf .
[23] According to US State Department lawyer Susan Biniaz, “Several countries, including Indonesia and Malaysia, have refused to join the US-led PSI unless and until the US joins UNCLOS”. See Peter Buxbaum, “US Administration Pushes UNCLOS” ISN Security Watch (8/23/07) at: http://www.isn.ethz.ch/news/sw/details.cfm?id=18027 . “During his confirmation hearings for Chief of Naval Operations before the Senate Armed Services Committee on September 27, Admiral Roughead stated that he saw in the Pacific that some countries would avoid participating with us in the proliferation security initiative because we are not party to the Law of the Sea Convention.” See STATEMENT OF PROFESSOR BERNARD H. OXMAN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS (Oct. 4, 2007) at p.2, at: http://www.senate.gov/~foreign/testimony/2007/OxmanTestimony071004.pdf .
[24]Id. “Washington says that signing on to the UN Convention of the Law of the Sea will give the US more power in the war on terror, but some question at what expense...‘We want to get more countries involved,’ said Biniaz. ‘Joining UNCLOS will enable other countries to participate in PSI with the understanding we are following international law.’ Biniaz also noted that the US does not have a proxy fighting for its interests within UNCLOS or on the international tribunal” (emphasis added).*** Id.
[25] According to Mr. Hamilton, “Most people are uncomfortable with disagreement and debate. As individuals, this is fine; but as citizens, I would argue that we should not only get used to it, we should be pleased by it. It has been a constant in American politics, and let us hope it always will be. Extensive debate is written into the very structure of our congressional system. At every level, from subcommittees through committees to the floor of each chamber and then to the conference committees that bring members from each house of Congress together, there is the presumption of discussion, debate, disagreement and even argument. Our Founders understood the importance of conflict in the system, both as a way for all views to be represented, and as a process for building common ground among them. For the fundamental fact of our democracy is that Americans, despite all that unites us, nonetheless have much that divides us: different philosophies, different prospects in life, different backgrounds, different communities, different ways to define what is in our self-interest, what is in our community's interest, and what is in our nation’s best interest. It's true that these divisions can be exacerbated by special interests, the media and politicians all seeking to exploit them to their own ends, but that doesn't mean the initial differences don't exist. They do. And it is Congress' job to sort through them as it strives to find the majorities it needs to move forward on legislation. If there weren't conflict, Congress wouldn't be doing its job.” See Lee H. Hamilton, “Debate Good for the System”, The Washington Times Commentary (Oct. 31, 2007) at: http://www.washingtontimes.com/article/20071031/COMMENTARY/110310012/1028/election .
U.S. State Department Legal Adviser John B. Bellinger III’s recent letter to the editor (“LOST will benefit U.S.” – Washington Times 10/31/07)[1] reflects but another example of the true battle in which we are all, in one way or another, now engaged - namely, the battle against ignorance, apathy and bad ideas.
The letter to the editor proclaims that US ratification of the United Nations Convention on the Law of the Sea (UNCLOS) will provide “enormous national security...advantages to the United States, including clear legal rights of navigation for our military through and over the world’s oceans”. Yet it fails to mention the severe economic, legal and security-related costs associated with subjugating the US military’s absolute customary international law right to freedom of navigation to environmental concerns. Much to the contrary, the US military’s right to freedom of navigation has been steadily eroding since the1990’s as the result of the Clinton-Gore administration’s ‘enlightened’ “military operations other than war” policy[2] and the ‘lawfare’ tactics employed by other UNCLOS parties [3] with the help of environmental extremist groups. The European Union and its member states, for example, have continued to convert their economic rights over their exclusive economic zones (EEZs) into legal sovereign claims by establishing environmental ‘Particularly Sensitive Sea Areas’ (PSSAs) all along European coastlines, a bad idea to which the president’s ill-informed advisers,[4] and apparently, some ignorant developing country governments,[5] have increasingly warmed. And, environmental extremist groups have continued to press for the creation of more and more public ocean trusts, consistent with the utopian ‘common heritage of mankind’ doctrine, within other coastal states’ EEZs, known as ‘Marine Protected Areas’ - at the expense of coastal state economic rights and flag states’ legal right to freedom of navigation. Consequently, US military and commercial vessels must now tread lightly when navigating through these environmental sanctuaries and may even be legally compelled to avoid them altogether, costing time, resources and perhaps US national security.[6] Environmentalists have also been working alongside liberal US federal judges to strictly reinterpret US environmental laws, consistent with Europe’s Precautionary Principle and UN Environment Program (UNEP) multilateral treaty law that the US has thus far refused to ratify, including those of UNCLOS, to preclude the US navy’s free deployment of sonar detection technology during essential routine military training exercises within US territorial waters and EEZs, all at the expense of our national security. This has occurred along both US coastlines and in the Hawaiian Islands and Puerto Rico despite the absence of scientific evidence demonstrating that the technologies used actually cause substantial harm to marine life.[7]
In addition, the letter to the editor declares that ratification of the UNCLOS is necessary to provide the US with “economic sovereign rights over enormous oil, gas and other resources” in light of the ‘gold rush’ claims now being staked by Russia and other countries...to Artic resources.” However, it neglects to mention how legal commentators agree that the contest between Russia, Norway, Denmark, Canada and the US over the Artic continental shelf areas essentially amounts to a legal border dispute among contiguous and/or adjacent states that need NOT be resolved through the redistributionist mechanisms of the UNCLOS.[8] Contrary to an August Financial Times article the battle for Artic oil[9] does NOT hinge on a UN panel. UNCLOS jurisdiction is necessary in this case only to preserve the legal authority of the otherwise unsustainable bureaucracies established by the treaty – the Commission on the Limits of the Continental Shelf, to ensure the legal existence of a global commons in the Artic – ‘the Area’ - , the living and nonliving resources of which could then be regulated and taxed by the International Seabed Authority and later reallocated and distributed among other UNCLOS parties.[10] In other words, the State Department should be candid with the American people, and not promote the false pretense that the US government needs to ratify the UNCLOS to peaceably resolve in America’s favor this apparent race over Artic resources. The US may pursue diplomatic negotiations with the Russian government or, if necessary, resort to a mutually agreed upon international legal forum to sort out competing claims, without the US ever ratifying the UNCLOS. Indeed, the Government of Peru recently chose to pursue this course of action in an effort to resolve its territorial sea dispute with neighboring Chile, noting along the way, its express lack of desire to sign and ratify the UNCLOS. In other words, Peru was determined NOT to subject its local and regional affairs to the scrutiny and oversight of the world body.[11]
Lastly, the letter to the editor states that the US would not be committed to implement Kyoto standards, presumably within US sovereign territory (land, air, internal and territorial waters), if it were to ratify the UNCLOS, even though practically ALL other UNCLOS parties are also parties to the underlying UN Framework Convention on Climate Change which the Kyoto Protocol is designed to implement. The letter makes this bold assertion, furthermore, although it is more likely than not that the requirements of the Kyoto Protocol will be construed by other UNCLOS parties as extending to the global commons, namely to the ‘Area’, consistent with UN Agenda 21, in order to protect the marine environment from the potential environmental hazards associated with oil, gas and mining exploitation. If the US government does not intend, in the future, either to ratify the Kyoto Protocol or to adopt federal Kyoto-style (-lite) greenhouse gas emissions cap and trade regulatory measures within the territorial US, and does not plan for US government and/or commercial vessels, platforms and/or other man-made structures (e.g., rigs) operating on the high seas to submit to international greenhouse gas emissions standards developed, administered and enforced by the International Maritime Organization,[12] expressly referred to as an ‘expert’ UNCLOS international standards body,[13] for purposes of implementing the UNCLOS obligation to protect and preserve the marine environment consistent with international law and standards, including the Kyoto Protocol, why then would the US oil and gas industries work so diligently, silently and unobtrusively to secure a special amendment to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London Protocol 1996) (IMO - LC-LP.1/Circ.11)?[14] Shouldn’t the U.S. Congress be afforded the opportunity to investigate whether the US oil and gas industry trade associations especially sought this amendment because it would allow their members to sequester (pump back into the seabed floor) the carbon dioxide and other greenhouse gases emitted during the process of oil and gas drilling and extraction, which would entitle them not only to escape liability for ‘pollution dumping’ under the prior terms of the convention’s protocol, but also to economically profit under forthcoming US greenhouse gas regulations from the resulting offset credits that such sequestration would generate? Isn’t public transparency and accountability, consistent with US constitutional due process, called for in this situation?
Here is a timeline / table which readers may find helpful in visualizing the following sequence of events from which they may then draw their own conclusions:
As noted, the London Protocol amendment went into force on February 10, 2007. On April 30, 2007, the White House issued a press release proclaiming the 2007 EU-US transatlantic summit a political ‘success’. On May 15, 2007, approximately two weeks later and 90 days following the entering into force of the London Protocol amendment, the White House announced President Bush’s desire to seek U.S. Senate ratification of the UNCLOS. On May 14th, 2007, one day before the issuance of the White House press release, an unsubstantiated but thought-provoking entry entitled, “Bush Will Push the Law of the Sea”, appeared on the internet-based Washington Note blog. It corroborated a recommendation contained within a recent April 2007 report issued by the Atlantic Council of the United States and co-authored by a former State Department legal adviser.
Reasonable persons may find, in light of all of the above information, that the US State Department had unwisely pursued greater short-term transatlantic economic and regulatory integration in the mistaken belief that it would restore America’s positive image abroad and improve US national security. State Department and other government officials have effectively testified in support of this objective. [20] [21] [22] Unfortunately, the facts also reveal that the price to be paid to secure Europe’s cooperation on promoting and expanding the President’s Proliferation Security Initiative. [23] will likely be far too high, especially if it entails the long-term surrender to Europe of America’s unique constitutional sovereignty over its own economic, legal and political affairs upon the ratification of the UNCLOS.[24]
The fundamental question then that all Americans should now ask themselves and their elected representatives is why have the various congressional committees possessing oversight jurisdiction thus far refused to hold open public hearings to consider whether the benefits are commensurate with the costs that US ratification of the UNCLOS is likely to generate. Arguably, if such hearings had already been commenced, the congress might now be, in the words of former Congressman Lee H. Hamilton, engaged in the throes of an “extensive debate [of the kind] written into the very structure of our congressional system.” [25] I believe that Mr. Hamilton is not only correct, but that he would also agree that, no matter the shape a serious and constructive debate over UNCLOS ratification ultimately assumes, the American people, in the end, will have greatly benefited from it - by both avoiding the onset of political apathy and by witnessing the conversion of truly bad or misconceived ideas into good and useful ones.
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[1] See John B. Bellinger, III, “LOST will benefit U.S.”, Washington Times Letter to the Editor (Oct. 31, 2007) at: http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20071031/EDITORIAL/110310008/1013/EDITORIAL&template=printart .
[2] See “Myths & Realities #2: U.S. Naval Freedom of Navigation and Avoidance of LOST Tribunal Jurisdiction Despite Europe’s Aggressive Use of the Precautionary Principle?”, ITSSD Journal on the Law of the Sea Treaty at: http://itssd.blogspot.com/2007/10/myth-realities-2-concerning-un-law-of_31.html .
[3] See Lawrence A. Kogan, “U.S. Military Review of the Law of the Sea Treaty Lacking”, ITSSD Journal (Oct. 4, 2007) at: http://itssd.blogspot.com/2007/10/us-military-review-of-law-of-sea-treaty_04.html .
[4] “...I have instructed the U.S. delegation to the International Maritime Organization (IMO) to submit a proposal for international measures that would enhance protection of the Papahānaumokuākea Marine National Monument, the area including the Northwestern Hawaiian Islands. Last June, I issued a proclamation establishing the Monument, a 1,200-mile stretch of coral islands, seamounts, banks, and shoals that are home to some 7,000 marine species. The United States will propose that the IMO designate the entire area as a Particularly Sensitive Sea Area (PSSA) –- similar to areas such as the Florida Keys, the Great Barrier Reef, and the Galapagos Archipelago –- which will alert mariners to exercise caution in the ecologically important, sensitive, and hazardous area they are entering. This proposal, like the Convention on the Law of the Sea, will help protect the maritime environment while preserving the navigational freedoms essential to the security and economy of every nation.” See “President's Statement on Advancing U.S. Interests in the World's Oceans” White House Press Release (May 15, 2007) at: http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html .
[5] See Sam Bateman,“UNCLOS and its Limitations as the Foundation for a Regional Maritime Security Regime” Institute of Defence and Strategic Studies, Nanying Technological University, Singapore (April 2006) at pp. 14-18, at: http://www.isn.ethz.ch/pubs/ph/details.cfm?lng=en&id=27159 .
[6] This subject matter will be addressed in a forthcoming entry of the ITSSD Journal’s Myths & Realities on the Law of the Sea Treaty series.
[7] Id.
[8] See, e.g., Julian Ku, “Peru Will Not Ratify Law of the Sea Treaty”, Opinio Juris (9/5/07) at: http://www.opiniojuris.org/archives/archive_2007_09_02-2007_09_08.shtml .
[9] See Michael Peel and Daniel Dombey, “Battle for Artic Oil Hinges on UN Panel”, Financial Times (Aug. 10, 2007) at: http://us.ft.com/ftgateway/superpage.ft?news_id=fto081020071404008525 .
[10] See Lawrence A. Kogan, “Myths & Realities Concerning the UN Law of the Sea Treaty: LOST Does Incorporate Europe’s Contra-WTO Precautionary Principle!”, ITSSD Journal (Oct. 6, 2007) at: http://itssd.blogspot.com/2007/10/myths-and-realities-concerning-un-law_06.html .
[11] See “Peru Will Not Sign U.N. Law of the Sea in Border Dispute with Chile”, LivinginPeru.com (Sept. 4, 2007) at: http://www.livinginperu.com/news-4632-politics-peru-will-not-sign-u-n-law-sea-border-dispute-with-chile .
[12] See Lawrence A. Kogan, “Myths & Realities #4 Concerning UN Law of the Sea Treaty: LOST, Land-Based Activities & Sources of Marine Pollution, and the Precautionary Principle” (Oct. 17, 2007) at fn#s 12 and 13, at: http://itssd.blogspot.com/2007/10/myths-realities-4-concerning-un-law-of_5097.html .
[13] See UNCLOS Annex VIII, “Special Arbitration”, Articles 1 and 2: “Article 1 - Subject to Part XV, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to...(2) protection and preservation of the marine environment... may submit the dispute to the special arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based. Article 2 - A list of experts shall be established and maintained in respect of each of the fields of...(2) protection and preservation of the marine environment... The lists of experts shall be drawn up and maintained, in the field of... in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization...” The Bush Administration, within its resolution of ratification to UNCLOS, has expressly stated that it has chosen to submit to jurisdiction under UNCLOS Annex VIII Special Arbitration for matters other than those deemed to constitute ‘military activities’.
[14] See “Notification of Entry into Force of the ‘CO2 Sequestration’ Amendments to Annex 1 to the London Protocol 1996”, 1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER (LONDON PROTOCOL 1996) LC-LP.1/Circ.11 (Feb. 16, 2007) at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D17756/11.pdf .
[15] Id., at p. 1.
[16] While reasonable persons could disagree about the meaning and veracity of this statement it does, nevertheless, suggest that the White House might have followed one of the key recommendations made by former Department of State Legal Adviser, William H. Taft IV contained within a recently released April 2007 report issued by the Atlantic Council. In the report entitled, Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law, Mr. Taft and his co-author recommended that, “The United States and Europe should make clear their commitment to working together to strengthen the international legal system through a public declaration... The United States and European Union should further demonstrate their commitment to this declaration through some additional actions. The United States should join at least one multilateral agreement that will enhance its reputation as a leader in the international legal field while also furthering U.S. interests. In particular, securing ratification of the UN Convention on Law of the Sea would reinforce the U.S. position as a leader not only in legal, but also environmental matters — topics on which the U.S. reputation has dropped considerably in recent years, especially in Europe” (emphasis added) See William H. Taft IV and Frances G. Burwell, “Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law”, The Atlantic Council of the United States Policy Paper (April 2007) at pp. 13-14, at: http://www.acus.org/docs/070417_Law%20_&%20_The_Lone_Superpower.pdf .
[17] See “EU/US Summit: April 30, 2007, White House, Washington, DC” European Union, Delegation of the European Commission to the USA at: http://www.eurunion.org/partner/summit/20070430sum.htm . See, e.g., “2007 EU-U.S. SUMMIT STATEMENT ENERGY SECURITY, EFFICIENCY, AND CLIMATE CHANGE” at: http://www.eurunion.org/partner/summit/Summit20070430/EnergSecur&ClimChnge.pdf ; “Joint Report on the Roadmap for US-EU Regulatory Cooperation” at: http://www.eurunion.org/partner/summit/Summit20070430/JtReptRoadmapUSEURegCoop042007.pdf .
[18] See Scott Paul “Big News: Bush Will Push Law of the Sea”, The Washington Note (May 14, 2007) at: http://www.thewashingtonnote.com/archives/002128.php . Despite its questionable nature, the entry seems to place Mr. Bellinger at a then-recent meeting with high-level European diplomats speaking about the UNCLOS. The curious entry was made by Mr. Scott Paul, Deputy Director of Government Relations at Citizens for Global Solutions, formerly known as the World Federalist Association See “About Scott Paul”, The Washington Note at: http://www.thewashingtonnote.com/about.php ; See “World Federalist Institute – About Us”, Citizens for Global Solutions website at: http://globalsolutions.org/wfi ; “The United States and the Law of the Sea: Time to Join”, In the Beltway – Citizens for Global Solutions at: http://globalsolutions.org/in_the_beltway/united_states_and_law_sea_time_join . According to Mr. Paul, “I recently heard a story about a meeting between [John] Bellinger and a group of high-level European diplomats that got me really fired up about UNCLOS. Bellinger promised the Europeans that the Bush Administration wanted to cooperate more closely and take a more multilateral approach in its foreign policy. The Europeans responded that so long as the US refuses to join the Law of the Sea – the most common-sense international agreement on the map – they will view these promises with a great deal of skepticism (for me, it’d take more than just UNCLOS to convince me of this supposed change of heart)” (emphasis added). See Scott Paul “Big News: Bush Will Push Law of the Sea”, The Washington Note, supra; “Big News: Bush Will Push the Law of the Sea” Securing America.com (May 14, 2007) at: http://securingamerica.com/ccn/node/12104#comment-210149 . .
[19] See “President's Statement on Advancing U.S. Interests in the World's Oceans” supra.
[20] See “Written Testimony of Deputy Secretary of Defense, Gordon England, Before the Senate Foreign Relations Committee – 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”, (Sept. 27, 2007) at pp. 3, 5-7, at: http://www.senate.gov/~foreign/testimony/2007/EnglandTestimony070927.pdf
[21] 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 pp. 2, 5-6, 18, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
[22] See Statement of Admiral Patrick M. Walsh, U.S. Navy Vice Chief of Naval Operations Before the Senate Committee on Foreign Relations Hearing on the Law of the Sea Convention (Sept. 27, 2007) at pp. 6-8, 10, at: http://www.senate.gov/~foreign/testimony/2007/WalshTestimony070927pdf .
[23] According to US State Department lawyer Susan Biniaz, “Several countries, including Indonesia and Malaysia, have refused to join the US-led PSI unless and until the US joins UNCLOS”. See Peter Buxbaum, “US Administration Pushes UNCLOS” ISN Security Watch (8/23/07) at: http://www.isn.ethz.ch/news/sw/details.cfm?id=18027 . “During his confirmation hearings for Chief of Naval Operations before the Senate Armed Services Committee on September 27, Admiral Roughead stated that he saw in the Pacific that some countries would avoid participating with us in the proliferation security initiative because we are not party to the Law of the Sea Convention.” See STATEMENT OF PROFESSOR BERNARD H. OXMAN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS (Oct. 4, 2007) at p.2, at: http://www.senate.gov/~foreign/testimony/2007/OxmanTestimony071004.pdf .
[24]Id. “Washington says that signing on to the UN Convention of the Law of the Sea will give the US more power in the war on terror, but some question at what expense...‘We want to get more countries involved,’ said Biniaz. ‘Joining UNCLOS will enable other countries to participate in PSI with the understanding we are following international law.’ Biniaz also noted that the US does not have a proxy fighting for its interests within UNCLOS or on the international tribunal” (emphasis added).*** Id.
[25] According to Mr. Hamilton, “Most people are uncomfortable with disagreement and debate. As individuals, this is fine; but as citizens, I would argue that we should not only get used to it, we should be pleased by it. It has been a constant in American politics, and let us hope it always will be. Extensive debate is written into the very structure of our congressional system. At every level, from subcommittees through committees to the floor of each chamber and then to the conference committees that bring members from each house of Congress together, there is the presumption of discussion, debate, disagreement and even argument. Our Founders understood the importance of conflict in the system, both as a way for all views to be represented, and as a process for building common ground among them. For the fundamental fact of our democracy is that Americans, despite all that unites us, nonetheless have much that divides us: different philosophies, different prospects in life, different backgrounds, different communities, different ways to define what is in our self-interest, what is in our community's interest, and what is in our nation’s best interest. It's true that these divisions can be exacerbated by special interests, the media and politicians all seeking to exploit them to their own ends, but that doesn't mean the initial differences don't exist. They do. And it is Congress' job to sort through them as it strives to find the majorities it needs to move forward on legislation. If there weren't conflict, Congress wouldn't be doing its job.” See Lee H. Hamilton, “Debate Good for the System”, The Washington Times Commentary (Oct. 31, 2007) at: http://www.washingtontimes.com/article/20071031/COMMENTARY/110310012/1028/election .
Thursday, January 17, 2008
The Mysterious Case of the Law of the Sea
http://article.nationalreview.com/print/q=NmM4NGY5M2RhNDg5ZWRmODIyYWViM2U4YmI1Zjg1OGQ
National Review
An editorial
By The Editors
Law-enforcement agencies, in their efforts to solve crimes, look for “signature” patterns — a regular alias, an explosive used to crack safes, a particular method of breaking into homes — that point to the identity of the perpetrator. Maybe the FBI should look into the “Mysterious Case of the Law of the Sea,” which is an attempt to smuggle through the U.S. Senate a transfer of sovereignty from the U.S. to the United Nations — without even waking the senators up.
Who could propose such a daring crime? Consider the following clues: There have been two clear attempts in recent years to get the Law of the Sea — or as it is known to Interpol, “The United Nations Convention on the Law of the Sea” — ratified without holding proper hearings that include respected and respectable critics of UNCLOS. Remember anything else recently that was intended to be rushed through Congress without proper scrutiny? Was it perhaps the proposed “comprehensive” immigration reform? Exactly so.
Do “helpful” stories of no usual interest suddenly make headlines just before some controversial legislation is about to be discussed? You are perhaps thinking of those (unseasonal) reports that “crops were rotting” in the fields, which appeared shortly before Congress was due to discuss extending and expanding an agricultural-immigrant worker program. Such reports bear a curious resemblance, do they not, to recent stories that oil discovered under the North Pole makes it essential that the U.S. have the backing of UNCLOS in order to contest Russian claims north of the Arctic Circle?
And, finally, there is the modus operandi of barefaced lying: “No, officer, that’s not an amnesty there. Nothing like an amnesty, in fact. Take our word for it.” On this occasion, the claims made for UNCLOS are no more credible than those about amnesty, merely more numerous. For instance, Sen. Richard Lugar is on record as arguing that this issue really has nothing to do with the U.N., and that it’s just a historical accident of no significance that UNCLOS has “United Nations” in its title. Yet the treaty states plainly that it is “in accordance with the Purposes and Principles of the United Nations as set forth in the Charter.” And the staff in two UNCLOS agencies are already signed on to the U.N. pension scheme. Hmmm.
We could cite other examples. But enough has surely been written to demonstrate that the selling of UNCLOS is a white-collar crime that has the fingerprints of the Bush administration all over it. Yes, the White House has allies — the usual suspects in fact: the Democrats and some Republicans, the U.S. State Department, the NGOs of the Left, international civil servants, law professors seeking another treaty as pretext to read their own opinions into law, and above all what Hudson Institute scholar John Fonte has called “transnational progressives” (or, for short, Tranzis).
So why is the Bush administration strongly urging passage of UNCLOS?
The reason has little or nothing to do with the value of UNCLOS to the U.S. Its codification of existing maritime law, while modestly useful, grants the U.S. no rights it does not already possess under earlier and customary law. Those who argue, as U.S. Navy lawyers do, that it will help the Navy assert American rights over North Pole oil (always supposing such oil exists in large quantities) must explain (a) why UNCLOS would be certain to support the American case once we had accepted its authority by joining the treaty; (b) who would enforce a favorable UNCLOS ruling over Russian or other objections apart from — the U.S. Navy; and (c) if other powers would be required to help the U.S. enforce a favorable decision under (b), exactly why the U.S. Navy would not be similarly required by UNCLOS to enforce decisions favorable to third parties in other disputes of no concern to the U.S.
The short answer is that the U.S. gains nothing important under UNCLOS. What we lose is that we submit to UNCLOS authority on a range of maritime rights we currently enjoy by virtue of being a sovereign nation-state — and currently exercise in, for instance, the Proliferation Security Initiative. In addition, we will acquiesce to three new supra-national agencies (which are either part of the U.N. system or responsible to no one); to their regulation of U.S. corporations’ access to seabed mineral resources; and, in effect, to the first independent international taxing authority.
Why do this?
Well, it seems to be part of a pattern. That pattern includes also the astonishing decision of the Bush White House to seek the overriding of Texas law on the death penalty in deference to the World Court. What we are seeing is an outbreak of Tranzi-ism in the administration. Cowed by accusations of earlier “unilateralism,” the administration now bends over backwards to placate the “international community.” The permanent bureaucracy at the U.S. State Department has long been in the grip of this tendency. Since the departure of John Bolton, our diplomatic officialdom seems to have kept a pliant administration, including both president and secretary of state, under its sway. As a result we may soon be relying on a U.N. bureaucracy to maintain the freedom of the seas essential to our trade, commerce, and military alliances.
No doubt this policy is cheaper than a larger Navy — but it is no substitute
National Review
An editorial
By The Editors
Law-enforcement agencies, in their efforts to solve crimes, look for “signature” patterns — a regular alias, an explosive used to crack safes, a particular method of breaking into homes — that point to the identity of the perpetrator. Maybe the FBI should look into the “Mysterious Case of the Law of the Sea,” which is an attempt to smuggle through the U.S. Senate a transfer of sovereignty from the U.S. to the United Nations — without even waking the senators up.
Who could propose such a daring crime? Consider the following clues: There have been two clear attempts in recent years to get the Law of the Sea — or as it is known to Interpol, “The United Nations Convention on the Law of the Sea” — ratified without holding proper hearings that include respected and respectable critics of UNCLOS. Remember anything else recently that was intended to be rushed through Congress without proper scrutiny? Was it perhaps the proposed “comprehensive” immigration reform? Exactly so.
Do “helpful” stories of no usual interest suddenly make headlines just before some controversial legislation is about to be discussed? You are perhaps thinking of those (unseasonal) reports that “crops were rotting” in the fields, which appeared shortly before Congress was due to discuss extending and expanding an agricultural-immigrant worker program. Such reports bear a curious resemblance, do they not, to recent stories that oil discovered under the North Pole makes it essential that the U.S. have the backing of UNCLOS in order to contest Russian claims north of the Arctic Circle?
And, finally, there is the modus operandi of barefaced lying: “No, officer, that’s not an amnesty there. Nothing like an amnesty, in fact. Take our word for it.” On this occasion, the claims made for UNCLOS are no more credible than those about amnesty, merely more numerous. For instance, Sen. Richard Lugar is on record as arguing that this issue really has nothing to do with the U.N., and that it’s just a historical accident of no significance that UNCLOS has “United Nations” in its title. Yet the treaty states plainly that it is “in accordance with the Purposes and Principles of the United Nations as set forth in the Charter.” And the staff in two UNCLOS agencies are already signed on to the U.N. pension scheme. Hmmm.
We could cite other examples. But enough has surely been written to demonstrate that the selling of UNCLOS is a white-collar crime that has the fingerprints of the Bush administration all over it. Yes, the White House has allies — the usual suspects in fact: the Democrats and some Republicans, the U.S. State Department, the NGOs of the Left, international civil servants, law professors seeking another treaty as pretext to read their own opinions into law, and above all what Hudson Institute scholar John Fonte has called “transnational progressives” (or, for short, Tranzis).
So why is the Bush administration strongly urging passage of UNCLOS?
The reason has little or nothing to do with the value of UNCLOS to the U.S. Its codification of existing maritime law, while modestly useful, grants the U.S. no rights it does not already possess under earlier and customary law. Those who argue, as U.S. Navy lawyers do, that it will help the Navy assert American rights over North Pole oil (always supposing such oil exists in large quantities) must explain (a) why UNCLOS would be certain to support the American case once we had accepted its authority by joining the treaty; (b) who would enforce a favorable UNCLOS ruling over Russian or other objections apart from — the U.S. Navy; and (c) if other powers would be required to help the U.S. enforce a favorable decision under (b), exactly why the U.S. Navy would not be similarly required by UNCLOS to enforce decisions favorable to third parties in other disputes of no concern to the U.S.
The short answer is that the U.S. gains nothing important under UNCLOS. What we lose is that we submit to UNCLOS authority on a range of maritime rights we currently enjoy by virtue of being a sovereign nation-state — and currently exercise in, for instance, the Proliferation Security Initiative. In addition, we will acquiesce to three new supra-national agencies (which are either part of the U.N. system or responsible to no one); to their regulation of U.S. corporations’ access to seabed mineral resources; and, in effect, to the first independent international taxing authority.
Why do this?
Well, it seems to be part of a pattern. That pattern includes also the astonishing decision of the Bush White House to seek the overriding of Texas law on the death penalty in deference to the World Court. What we are seeing is an outbreak of Tranzi-ism in the administration. Cowed by accusations of earlier “unilateralism,” the administration now bends over backwards to placate the “international community.” The permanent bureaucracy at the U.S. State Department has long been in the grip of this tendency. Since the departure of John Bolton, our diplomatic officialdom seems to have kept a pliant administration, including both president and secretary of state, under its sway. As a result we may soon be relying on a U.N. bureaucracy to maintain the freedom of the seas essential to our trade, commerce, and military alliances.
No doubt this policy is cheaper than a larger Navy — but it is no substitute
Congress Should Drown Pesky Law Of The Sea
www.tylerpaper.com/article/20071024/OPINION01/710230346/-1/OPINION
TYLER PAPER.com, TYLER MORNING TELEGRAPH (TYLER, TX)
Editorials
Posted on Wednesday, October 24, 2007
United States ratification of the Law of the Sea Treaty was rejected years ago because of sovereignty concerns, but the issue failed to die and has been revived in Congress with disturbing momentum.
President Ronald Reagan vetoed the measure in 1982 because it would have hurt American sovereignty. President Bill Clinton brought the issue back in the 1990s without success, but the treaty has been hanging around through the years.
With a Democratic majority in Congress the treaty is back and surprisingly, and mistakenly in the view of many observers, the Bush administration has endorsed it and the full Senate could take up the measure soon.
Resources under the Arctic Ocean and an ice-free Northwest Passage are listed as reasons for the United States to ratify the Law of the Sea Treaty (LOST). But Jim Johnston, former member of the U.S. delegation studying the treaty, said that does not square with his experience in that role.
Johnson, a retired Amoco economist and policy adviser to The Heartland Institute, said the Senate "ought to protect the nation's consumers by rejecting LOST and its potential mineral cartel."
Another concern is that Europe is using international means, such as the treaty, to impose a "better safe than sorry" regulatory model for the environment that jeopardizes America's free enterprise system, said Lawrence Kogan, an international business attorney and pro-U.S. sovereignty activist.
A rising number of environmental controls have been put in place in Europe, Kogan said, noting there are at least 45 different articles on environmental regulation in LOST that embrace the "precautionary principle."
Environmental regulations in the treaty are tied with "Europe's penchant for gaining the economic upper hand" against America, he added.
Edwin Feulner, president of The Heritage Foundation, worries that the treaty is an example of an old problem of lawmakers racing to pass bills they have not actually read.
Experts who have bothered to look beyond the treaty's title know LOST would create a bureaucratic International Seabed Authority with the power to regulate trade, exploration and mining in the world's oceans, he explained.
This authority would basically be an aquatic United Nations of the sea, it is pointed out. Except, instead of issuing toothless condemnations of the United States, "this authority would have the actual power to thwart American interests." A look at how the United States fares in the United Nations shows what could be expected.
For example, the treaty would give environmental activists the power to bring action against the United States. for violating the Kyoto Protocol, even though the Senate never ratified that accord and senators have sensibly made it clear they wouldn't agree to Kyoto if it would harm American economic interests.
And the treaty's authority wouldn't stop with the sea. In a recent Senate hearing, Sen. David Vitter, R-La., cited a section of the treaty on enforcement with respect to pollution from land-based sources indicating it would cover those areas.
The treaty insists that any country that signs it will be required to pass "laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere," Feulner said.
"The problem is that once the Senate ratifies the treaty, we're bound by the entire thing, not just those parts we agree with," he added. That is a point that came up recently in a Supreme Court case indicating a treaty supersedes state laws.
Proponents of the Law of the Sea Treaty appear to have gained momentum in Washington to finally get approval of the pact in the Senate. That could be changed if Senators would take time to read the treaty before they vote to see it is a bad proposal.
Any risk of putting U.S. sovereignty and national security issues in the hands of international tribunals clearly in not worth taking.
TYLER PAPER.com, TYLER MORNING TELEGRAPH (TYLER, TX)
Editorials
Posted on Wednesday, October 24, 2007
United States ratification of the Law of the Sea Treaty was rejected years ago because of sovereignty concerns, but the issue failed to die and has been revived in Congress with disturbing momentum.
President Ronald Reagan vetoed the measure in 1982 because it would have hurt American sovereignty. President Bill Clinton brought the issue back in the 1990s without success, but the treaty has been hanging around through the years.
With a Democratic majority in Congress the treaty is back and surprisingly, and mistakenly in the view of many observers, the Bush administration has endorsed it and the full Senate could take up the measure soon.
Resources under the Arctic Ocean and an ice-free Northwest Passage are listed as reasons for the United States to ratify the Law of the Sea Treaty (LOST). But Jim Johnston, former member of the U.S. delegation studying the treaty, said that does not square with his experience in that role.
Johnson, a retired Amoco economist and policy adviser to The Heartland Institute, said the Senate "ought to protect the nation's consumers by rejecting LOST and its potential mineral cartel."
Another concern is that Europe is using international means, such as the treaty, to impose a "better safe than sorry" regulatory model for the environment that jeopardizes America's free enterprise system, said Lawrence Kogan, an international business attorney and pro-U.S. sovereignty activist.
A rising number of environmental controls have been put in place in Europe, Kogan said, noting there are at least 45 different articles on environmental regulation in LOST that embrace the "precautionary principle."
Environmental regulations in the treaty are tied with "Europe's penchant for gaining the economic upper hand" against America, he added.
Edwin Feulner, president of The Heritage Foundation, worries that the treaty is an example of an old problem of lawmakers racing to pass bills they have not actually read.
Experts who have bothered to look beyond the treaty's title know LOST would create a bureaucratic International Seabed Authority with the power to regulate trade, exploration and mining in the world's oceans, he explained.
This authority would basically be an aquatic United Nations of the sea, it is pointed out. Except, instead of issuing toothless condemnations of the United States, "this authority would have the actual power to thwart American interests." A look at how the United States fares in the United Nations shows what could be expected.
For example, the treaty would give environmental activists the power to bring action against the United States. for violating the Kyoto Protocol, even though the Senate never ratified that accord and senators have sensibly made it clear they wouldn't agree to Kyoto if it would harm American economic interests.
And the treaty's authority wouldn't stop with the sea. In a recent Senate hearing, Sen. David Vitter, R-La., cited a section of the treaty on enforcement with respect to pollution from land-based sources indicating it would cover those areas.
The treaty insists that any country that signs it will be required to pass "laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere," Feulner said.
"The problem is that once the Senate ratifies the treaty, we're bound by the entire thing, not just those parts we agree with," he added. That is a point that came up recently in a Supreme Court case indicating a treaty supersedes state laws.
Proponents of the Law of the Sea Treaty appear to have gained momentum in Washington to finally get approval of the pact in the Senate. That could be changed if Senators would take time to read the treaty before they vote to see it is a bad proposal.
Any risk of putting U.S. sovereignty and national security issues in the hands of international tribunals clearly in not worth taking.
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.
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