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
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Sunday, January 27, 2008
Friday, January 25, 2008
Multilateralist UNCLOS Rallying Cry: "We Should Go Forth, Take The Intellectual & Policy High Ground, And Do Battle With The Forces of Isolationism"
http://www.harvardilj.org/online/126
The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS
by: David J. Bederman
Download PDF of Article
January 18, 2008
49 Harv. Int'l L. J. Online 21 (2008)
David J. Bederman is a Professor of Law at Emory University.
A conservative president, generally hostile to United States participation in international institutions and foreign entanglements, nevertheless expressly requests the Senate to give its advice and consent to a treaty with broad implications for the development of international law. A variety of national business and commercial interests, as well as domestic organizations devoted to global peace and development, also support the ratification of the convention. Scores of former government officials, military leaders, and their cohorts from civil society endorse the treaty. But, in reaction to the claims made by an “elite” foreign policy establishment, Wall Street, and the White House, concerns in the heartland are raised about the U.S. abandoning its sovereignty if it were to join the new international regime.
Rhetoric escalates, and even begins to impact the early stages of the next presidential election. Fears of compromising American exceptionalism and surrendering to foreign or international authority pervade the public discourse. What first appeared to be a piece of foreign policy housekeeping – ratification of a treaty fully consistent with the national interest – becomes, instead, a debate for the heart and soul of American foreign policy and a reflection on our place in the world.
A “ripped-from-the-headlines” summary of today’s discussions about ratification of the 1982 U.N. Convention on the Law of the Sea[1] (UNCLOS)? Not entirely. Rather, it is as much a memoir of two earlier incidents in U.S. diplomatic history, each of which was formative in the creation of a uniquely American apotheosis of isolationism in reaction to participation in international institutions. The first was the Senate’s consideration of the Jay Treaty[2] in the summer of 1795. The president was George Washington, and one of the more controversial provisions of the treaty with Britain was the referral of outstanding claims between the two countries to arbitral tribunals that could issue binding decisions (particularly regarding the payment of private prewar debts owed by Americans to British merchants that previously could not have been collected in U.S. courts).[3] The opposition party, led by Thomas Jefferson, was against the pro-British (and anti-French) commercial aspects of the treaty. Despite the fact that the Senate voted to approve the treaty (and the House later voted to fund obligations under the treaty), when Jefferson became president in 1801 relations with Britain turned frosty, leading ultimately to the disastrous War of 1812. U.S. resistance led to at least one of the arbitral tribunals never finishing its business.
The second incident is of more recent vintage. In 1919, at the conclusion of the First World War, President Woodrow Wilson negotiated the Treaty of Versailles, which created the League of Nations.[4] Wilson’s defeat in the Senate, where many debilitating reservations were applied to the treaty, is a well-known cautionary tale for many students of international legal history. Less remembered is that in the decades following, the Senate had the opportunity to consider U.S. membership as an adherent to the Permanent Court of International Justice (PCIJ), the forerunner of today’s World Court.[5] Even during the administrations of Presidents Harding and Coolidge – neither partisans of the internationalist wing of the Republican Party or great fans of international institutions – there was support for the U.S. to join the Court and agree to submit certain kinds of international disputes to its jurisdiction.[6] Nevertheless, public opinion swayed a blocking third of senators to oppose the protocol of accession to the PCIJ Statute. Concerns over a diminution of American sovereignty ultimately carried the day, part and parcel of a wave of isolationist sentiment that dominated U.S. politics and the conduct of foreign affairs until December 7, 1941.
Both of these earlier incidents involving U.S. engagements with international institutions resonate today, in part, because of the caustic political environment that motivated contemporary American political discourse and the later vindication of internationalist ideals.[7]
The Senate’s current consideration of the 1982 UNCLOS is shaping-up to be another such defining moment. It has the potential to define not only U.S. oceans policy for the years to come but also, more importantly, the tenor of this nation’s attitudes towards international regimes. It is worth examining the contours of the debate, and the role of international law and international legal argumentation in the councils of power.
A starting-point for the discussion is President George W. Bush’s statement of May 15, 2007 in support of UNCLOS:
I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.[8]
In five nicely crafted sentences, the White House makes the foreign-establishment case for joining this treaty system. There is, in fact, something for everyone in UNCLOS and in the President’s statement of support: strengthening national security and the ability of our armed forces to project power around the world, access to natural resources of the ocean, and a commitment to environmental protection.
But it is the last sentence that is of interest here. The president is reflecting on a process-oriented vision of U.S. participation in an international regime. A “seat at the table,” is a homey metaphor for on-going, consistent engagement in the institutions and mechanisms of diplomacy and international law-building. In recognizing that these processes involve “debate” and “interpret[ation],” the Administration acknowledges that a unilateralist approach to a system of governance for the world’s oceans would be futile and counter-productive. At stake is nothing less than this country’s rights under a regime that is “vital to our interests.”
President Bush frames our engagement as being not for the sake of some inchoate and abstract goal of international harmonization for cooperation’s sake, but, rather, for the vindication of the national interest. That is as it should be.
And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS,[9] has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits)[10] have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS.
Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party).[11] It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively)[12] of state behavior – and that standard is UNCLOS.
Likewise, with $100-a-barrel oil prices and nearly one-third of all the world’s hydrocarbons being produced off-shore, it would be folly for the U.S. to ignore the need for access to extended outer continental shelf (OCS) oil and gas resources. The great irony of the U.S. debates over the Law of the Sea Convention is that for years (since the Reagan Administration rejected the treaty in the early 1980s) we have been focusing on the wrong seabed resources.
Although the original UNCLOS was rightly rejected because of its absurdly drafted provisions on the mining of manganese nodules (including the creation of an international mining consortium, known grandiloquently as “The Enterprise”), UNCLOS has relatively fewer provisions on such ocean resource activities as lifting oil and gas reserves beyond 200 nautical miles, mining polymetallic sulfides and other exotic substances found at mid-ocean ridges, bio-prospecting the unique flora and fauna of the ocean abyss, and salvaging historic shipwrecks.[13] That the United States might extend its Arctic continental shelf off Alaska as far out as 350 nautical miles has the oil industry – and Alaska’s Senate delegation – salivating at the possibilities. But that extension would only be possible if the U.S. accedes to UNCLOS and files a claim before the U.N. Commission on the Limits of the Continental Shelf.[14] [THIS IS NOT TRUE]
Projection of naval power and gaining access to ocean resources have been two, central organizing themes of the development of the Law of the Sea over the past 500 years. There has also always been a sense that the evolution of these norms should not simply be left up to a Hobbesian (or Darwinian) struggle in a state of nature.
Major developments in the Law of the Sea’s history – whether Grotius’s famous 1609 treatise Mare Liberum,[15] or the Truman Proclamations of 1945[16] – have been predicated on international legal argumentation, not just bald assertions of authority and power. But, insofar as contemporary critics of UNCLOS have focused on the institutional and dispute-settlement aspects of the treaty, those tenets of cooperation and the rule of law are being challenged at a level of rhetorical hostility that is virtually unprecedented.
Phyllis Schlafly has this to say about UNCLOS:
LOST [the “Law of the Sea Treaty”] is the globalists’ dream bill. It would put the United States in a de facto world government that rules all the world's oceans under the pretense that they belong to “the common heritage of mankind.” That's global-speak for allowing the United Nations and its affiliated organizations to carry out a massive, unprecedented redistribution of wealth from the United States to other countries. . . .
LOST has already created the International Seabed Authority (ISA) and given it total jurisdiction over all the oceans and everything in them, including “solid, liquid or gaseous mineral resources.” LOST even gives the ISA something the UN bureaucrats have lusted after for years: the authority to impose international taxes (disguised by euphemisms such as fees and royalties).
LOST would subject our governmental, military and business operations to mandatory dispute resolution by the International Tribunal for the Law of the Sea in Hamburg, Germany. If you think activist judges in the United States are out of control, wait till you try your case before this UN tribunal, whose decisions cannot be appealed. . . .
The best protection for U.S. interests in the world’s oceans is the U.S. Navy, which should not and must not be subject to orders or regulations made by paper pushers in the ISA or rulings of the International Tribunal. U.S. access to the high seas, as well as freedom of the seas for all countries, is best protected by a great U.S. Navy, not a UN bureaucracy financed by a global tax.[17]
All of the ingredients for isolationist rhetoric are apparent from this piece: a jot of American antipathy of international regulation and bureaucracy, a dash of distrust of foreign judges, a hefty slice of jingoism, all leavened with a pinch of paranoia. This style of discourse has been repeated not only in public opinion pieces (as in this example), but also in Senate testimony.[18]
Those who practice and profess international law should be profoundly grateful for this political moment. We can (and must) seek to inform the public about the realities of the institutional and dispute-settlement regimes in UNCLOS.
The truth is, of course, that UNCLOS has relatively weak features in this regard, especially compared with such institutions as the WTO. The International Tribunal for the Law of the Sea (ITLOS) will have virtually no docket of cases, aside from applications for prompt release of vessels and crews and the occasional matter regarding fishing rights.[19] [WITH DUE RESPECT, THIS IS AN OVERSIMPLIFICATION WITHOUT FOUNDATION]**
The vast majority of disputes under UNCLOS will be resolved by ad hoc arbitrators, hand-picked by the parties.[20] Likewise, the International Seabed Authority (ISA) is likely to be a rather sclerotic organization, given its limited mandate (with the modifications made to Part XI in 1994)[21] until such time (if ever) that deep seabed mining for manganese nodules has even the remote prospect of profitability. [WITH DUE RESPECT, THIS IS AN INACCURATE ASSESSMENT - ITSSD RESEARCH SOON TO BE PUBLISHED WILL BEAR THIS OUT]***
Ironically, the work of one UNCLOS institution that does bear attention – the Continental Shelf Commission, which is the technical body that will rule on any U.S. application to extend its claims in the Arctic – has not yet been fully evaluated. As for the “international tax” that the ISA will assess on continental shelf oil and gas production beyond 200 nautical miles,[22] that provision, ironically, was based on a proposal made by the Nixon Administration as an alternative to the cumbersome regime for manganese nodules.[23] [THIS IDEA LIVES ON IN MORE RECENT UNITED NATIONS REFORM PROPOSALS - SOON-TO-BE PUBLISHED ITSSD RESEARCH BEARS THIS OUT]**
In addition to making the lawyerly arguments that are necessary to explain UNCLOS’s institutional and dispute-settlement provisions, we should also be prepared to defend the very principles of functional cooperation and the progressive development of international law. [KUMBAYA 'GO-ALONG-TO-GET ALONG'ISM]**
We should not be embarrassed at the prospect that the effectiveness and legitimacy of such rules, processes and institutions are being questioned or challenged. Rather, secure in the knowledge that – at least with U.S. ratification of UNCLOS – the value of international cooperation actually supports and enhances the national interest, we should go forth, take the intellectual and policy high ground, and do battle with the forces of isolationism.
[1] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
[2] Treaty of Amity, Commerce, and Navigation, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116, 12 Bevans 13.
[3] See Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction Over Treaty-Based Suits by Foreign States Against States, 104 Colum. L. Rev. 1765, 1783, 1855–60, 1862–66 (2004); 1 Richard B. Lillich & Burns H. Weston, International Claims: Their Settlement by Lump Sum Agreements 26–27 (1975).
[4] Treaty of Peace with Germany (Treaty of Versailles), June 28, 1919, T.S. No. 4, 2 Bevans 43.
[5] Statute of the Permanent Court of International Justice art. 36, Dec. 16, 1920, 6 L.N.T.S. 390.
[6] See Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: II, 54 Yale L.J. 534, 567–68 (1945). See generally Denna Frank Fleming, The United States and the World Court, 1920-1966 (1945); Michael Dunne, The United States and the World Court, 1920-1935 (1988).
[7] See, e.g., Roger P. Alford, The American Influence on International Arbitration, 19 Ohio St. J. on Disp. Resol. 69, 72 (2003) (“If the Jay Treaty was much maligned then, it is much beloved today. The arbitral commissions established under the Jay Treaty were the beginning of the modern era of international arbitration.”).
[8] President’s Statement on Advancing U.S. Interests in the World's Oceans, 43 Weekly Comp. Pres. Doc. 635 (May 15, 2007), available at http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html.
[9] See J. Ashley Roach & Robert W. Smith, United States Responses to Excessive Maritime Claims 15–16 (2d ed. 1996); George Galdorisi, The United States’ Freedom of Navigation Program: A Bridge for International Compliance with the 1982 United Nations Convention on the Law of the Sea?, 27 Ocean Dev. & Int’l L.J. 399 (1996).
[10] For archipelagic sea-lanes passage, see UNCLOS, supra note 2, arts. 52–54. For transit passage through international straits connecting one part of the high seas (or EEZ) with another part, see id. art. 37.
[11] See Geneva Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 7477; Geneva Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82.
[12] Baselines are the lines from which all the maritime zones that a coastal state can project and still be recognized by UNCLOS (like the 12 nautical mile territorial sea and 200 nautical mile Exclusive Economic Zone (EEZ)) are measured. Normally the baselines are coterminous with the coast line but it is a common technique for coastal states to make extravagant maritime claims by pushing-out their baselines. See UNCLOS, supra note 2, arts. 3–15.
[13] See id. arts. 238 (marine scientific research) and 303 (shipwrecks). See also Lyle Glowka, Bioprospecting, Alien Invasive Species, and Hydrothermal Vents: Three Emerging Legal Issues in the Conservation and Sustainable Use of Biodiversity, 13 Tulane Envtl. L. J. 329, 335–36 (2000); Samuel Bleicher, The Law Governing Exploitation of Polymetallic Sulfide Deposits from the Seabed, in Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn (Thomas Buergenthal ed., 1984).
[14] See UNCLOS, supra note 2, art. 76 & Annex II.
[15] Hugo de Groot, Mare Liberum [Freedom of the Seas], (Ralph van Deman Magoffin trans., Carnegie Endowment for Int’l Peace 1916) (1609).
[16] Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 3 C.F.R. 67 (1943-48), reprinted in 13 Dep’t State Bull. 453, 485 (1945); Proclamation No. 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas, 3 C.F.R. 68 (1943-48), reprinted in 13 Dep’t State Bull. 453, 486 (1945).
[17] Phyllis Schlafly, Sink the Law of the Sea Again, Sept. 26, 2007, http://www.eagleforum.org/column/2007/sept07/07-09-26.html. Actually, Ms. Schlafly’s essay is among the more coherent and intelligent of the critiques of UNCLOS. For other examples, see Carolina Mendoza, Beware the Law of the Seas Treaty, Nov. 27, 2007, The Conservative Voice, http://www.theconservativevoice.com/article/29442.html; Frank J. Gaffney, Jr., Don’t Get LOST: The White House Toys with Signing a Very Kerry Treaty, March 18, 2004, National Review Online, http://www.nationalreview.com/gaffney/gaffney200403181156.asp; Frank Gaffney, Jr., Op-Ed, The U.N.’s Big Power Grab, Wash. Times, Oct. 2, 2007, at A14, available at http://washingtontimes.com/article/20071002/COMMENTARY03/110020010/1012.
[18] See The Convention on the Law of the Sea: Hearing Before the Comm. on Foreign Relations, 110th Cong. 1 (2007) (statements of Frank J. Gaffney, Jr., President, Center for Security Policy and Fred Smith, President, Competitive Enterprise Institute), available at http://www.senate.gov/~foreign/hearings/2007/hrg071004a.html.
[19] For a list of the fifteen ITLOS cases docketed over the past decade, see International Tribunal for the Law of the Sea, Proceedings and Judgments – List of Cases, http://www.itlos.org/start2_en.html.
[20] See UNCLOS, supra note 2, art. 287.
[21] See G.A. Res. 48/36, U.N. Doc. A/RES/48/263 (28 July, 1994), reprinted in 33 I.L.M. 1309 (1994).
[22] See UNCLOS, supra note 2, art. 82.
[23] See President Richard Nixon, Statement About United States Oceans Policy (May 23, 1970), reprinted in 2 New Directions in the Law of the Sea: Documents 751-52 (S. Houston Lay, Robin Churchill & Myron Nordquist eds., 1973), available at www.state.gov/r/pa/ho/frus/nixon/e1/53194.htm.
Suggested Citation: David J. Bederman, The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS, 49 Harv. Int’l L.J. Online 21 (2008), http://www.harvardilj.org/online/126.
The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS
by: David J. Bederman
Download PDF of Article
January 18, 2008
49 Harv. Int'l L. J. Online 21 (2008)
David J. Bederman is a Professor of Law at Emory University.
A conservative president, generally hostile to United States participation in international institutions and foreign entanglements, nevertheless expressly requests the Senate to give its advice and consent to a treaty with broad implications for the development of international law. A variety of national business and commercial interests, as well as domestic organizations devoted to global peace and development, also support the ratification of the convention. Scores of former government officials, military leaders, and their cohorts from civil society endorse the treaty. But, in reaction to the claims made by an “elite” foreign policy establishment, Wall Street, and the White House, concerns in the heartland are raised about the U.S. abandoning its sovereignty if it were to join the new international regime.
Rhetoric escalates, and even begins to impact the early stages of the next presidential election. Fears of compromising American exceptionalism and surrendering to foreign or international authority pervade the public discourse. What first appeared to be a piece of foreign policy housekeeping – ratification of a treaty fully consistent with the national interest – becomes, instead, a debate for the heart and soul of American foreign policy and a reflection on our place in the world.
A “ripped-from-the-headlines” summary of today’s discussions about ratification of the 1982 U.N. Convention on the Law of the Sea[1] (UNCLOS)? Not entirely. Rather, it is as much a memoir of two earlier incidents in U.S. diplomatic history, each of which was formative in the creation of a uniquely American apotheosis of isolationism in reaction to participation in international institutions. The first was the Senate’s consideration of the Jay Treaty[2] in the summer of 1795. The president was George Washington, and one of the more controversial provisions of the treaty with Britain was the referral of outstanding claims between the two countries to arbitral tribunals that could issue binding decisions (particularly regarding the payment of private prewar debts owed by Americans to British merchants that previously could not have been collected in U.S. courts).[3] The opposition party, led by Thomas Jefferson, was against the pro-British (and anti-French) commercial aspects of the treaty. Despite the fact that the Senate voted to approve the treaty (and the House later voted to fund obligations under the treaty), when Jefferson became president in 1801 relations with Britain turned frosty, leading ultimately to the disastrous War of 1812. U.S. resistance led to at least one of the arbitral tribunals never finishing its business.
The second incident is of more recent vintage. In 1919, at the conclusion of the First World War, President Woodrow Wilson negotiated the Treaty of Versailles, which created the League of Nations.[4] Wilson’s defeat in the Senate, where many debilitating reservations were applied to the treaty, is a well-known cautionary tale for many students of international legal history. Less remembered is that in the decades following, the Senate had the opportunity to consider U.S. membership as an adherent to the Permanent Court of International Justice (PCIJ), the forerunner of today’s World Court.[5] Even during the administrations of Presidents Harding and Coolidge – neither partisans of the internationalist wing of the Republican Party or great fans of international institutions – there was support for the U.S. to join the Court and agree to submit certain kinds of international disputes to its jurisdiction.[6] Nevertheless, public opinion swayed a blocking third of senators to oppose the protocol of accession to the PCIJ Statute. Concerns over a diminution of American sovereignty ultimately carried the day, part and parcel of a wave of isolationist sentiment that dominated U.S. politics and the conduct of foreign affairs until December 7, 1941.
Both of these earlier incidents involving U.S. engagements with international institutions resonate today, in part, because of the caustic political environment that motivated contemporary American political discourse and the later vindication of internationalist ideals.[7]
The Senate’s current consideration of the 1982 UNCLOS is shaping-up to be another such defining moment. It has the potential to define not only U.S. oceans policy for the years to come but also, more importantly, the tenor of this nation’s attitudes towards international regimes. It is worth examining the contours of the debate, and the role of international law and international legal argumentation in the councils of power.
A starting-point for the discussion is President George W. Bush’s statement of May 15, 2007 in support of UNCLOS:
I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted.[8]
In five nicely crafted sentences, the White House makes the foreign-establishment case for joining this treaty system. There is, in fact, something for everyone in UNCLOS and in the President’s statement of support: strengthening national security and the ability of our armed forces to project power around the world, access to natural resources of the ocean, and a commitment to environmental protection.
But it is the last sentence that is of interest here. The president is reflecting on a process-oriented vision of U.S. participation in an international regime. A “seat at the table,” is a homey metaphor for on-going, consistent engagement in the institutions and mechanisms of diplomacy and international law-building. In recognizing that these processes involve “debate” and “interpret[ation],” the Administration acknowledges that a unilateralist approach to a system of governance for the world’s oceans would be futile and counter-productive. At stake is nothing less than this country’s rights under a regime that is “vital to our interests.”
President Bush frames our engagement as being not for the sake of some inchoate and abstract goal of international harmonization for cooperation’s sake, but, rather, for the vindication of the national interest. That is as it should be.
And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS,[9] has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits)[10] have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS.
Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party).[11] It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively)[12] of state behavior – and that standard is UNCLOS.
Likewise, with $100-a-barrel oil prices and nearly one-third of all the world’s hydrocarbons being produced off-shore, it would be folly for the U.S. to ignore the need for access to extended outer continental shelf (OCS) oil and gas resources. The great irony of the U.S. debates over the Law of the Sea Convention is that for years (since the Reagan Administration rejected the treaty in the early 1980s) we have been focusing on the wrong seabed resources.
Although the original UNCLOS was rightly rejected because of its absurdly drafted provisions on the mining of manganese nodules (including the creation of an international mining consortium, known grandiloquently as “The Enterprise”), UNCLOS has relatively fewer provisions on such ocean resource activities as lifting oil and gas reserves beyond 200 nautical miles, mining polymetallic sulfides and other exotic substances found at mid-ocean ridges, bio-prospecting the unique flora and fauna of the ocean abyss, and salvaging historic shipwrecks.[13] That the United States might extend its Arctic continental shelf off Alaska as far out as 350 nautical miles has the oil industry – and Alaska’s Senate delegation – salivating at the possibilities. But that extension would only be possible if the U.S. accedes to UNCLOS and files a claim before the U.N. Commission on the Limits of the Continental Shelf.[14] [THIS IS NOT TRUE]
Projection of naval power and gaining access to ocean resources have been two, central organizing themes of the development of the Law of the Sea over the past 500 years. There has also always been a sense that the evolution of these norms should not simply be left up to a Hobbesian (or Darwinian) struggle in a state of nature.
Major developments in the Law of the Sea’s history – whether Grotius’s famous 1609 treatise Mare Liberum,[15] or the Truman Proclamations of 1945[16] – have been predicated on international legal argumentation, not just bald assertions of authority and power. But, insofar as contemporary critics of UNCLOS have focused on the institutional and dispute-settlement aspects of the treaty, those tenets of cooperation and the rule of law are being challenged at a level of rhetorical hostility that is virtually unprecedented.
Phyllis Schlafly has this to say about UNCLOS:
LOST [the “Law of the Sea Treaty”] is the globalists’ dream bill. It would put the United States in a de facto world government that rules all the world's oceans under the pretense that they belong to “the common heritage of mankind.” That's global-speak for allowing the United Nations and its affiliated organizations to carry out a massive, unprecedented redistribution of wealth from the United States to other countries. . . .
LOST has already created the International Seabed Authority (ISA) and given it total jurisdiction over all the oceans and everything in them, including “solid, liquid or gaseous mineral resources.” LOST even gives the ISA something the UN bureaucrats have lusted after for years: the authority to impose international taxes (disguised by euphemisms such as fees and royalties).
LOST would subject our governmental, military and business operations to mandatory dispute resolution by the International Tribunal for the Law of the Sea in Hamburg, Germany. If you think activist judges in the United States are out of control, wait till you try your case before this UN tribunal, whose decisions cannot be appealed. . . .
The best protection for U.S. interests in the world’s oceans is the U.S. Navy, which should not and must not be subject to orders or regulations made by paper pushers in the ISA or rulings of the International Tribunal. U.S. access to the high seas, as well as freedom of the seas for all countries, is best protected by a great U.S. Navy, not a UN bureaucracy financed by a global tax.[17]
All of the ingredients for isolationist rhetoric are apparent from this piece: a jot of American antipathy of international regulation and bureaucracy, a dash of distrust of foreign judges, a hefty slice of jingoism, all leavened with a pinch of paranoia. This style of discourse has been repeated not only in public opinion pieces (as in this example), but also in Senate testimony.[18]
Those who practice and profess international law should be profoundly grateful for this political moment. We can (and must) seek to inform the public about the realities of the institutional and dispute-settlement regimes in UNCLOS.
The truth is, of course, that UNCLOS has relatively weak features in this regard, especially compared with such institutions as the WTO. The International Tribunal for the Law of the Sea (ITLOS) will have virtually no docket of cases, aside from applications for prompt release of vessels and crews and the occasional matter regarding fishing rights.[19] [WITH DUE RESPECT, THIS IS AN OVERSIMPLIFICATION WITHOUT FOUNDATION]**
The vast majority of disputes under UNCLOS will be resolved by ad hoc arbitrators, hand-picked by the parties.[20] Likewise, the International Seabed Authority (ISA) is likely to be a rather sclerotic organization, given its limited mandate (with the modifications made to Part XI in 1994)[21] until such time (if ever) that deep seabed mining for manganese nodules has even the remote prospect of profitability. [WITH DUE RESPECT, THIS IS AN INACCURATE ASSESSMENT - ITSSD RESEARCH SOON TO BE PUBLISHED WILL BEAR THIS OUT]***
Ironically, the work of one UNCLOS institution that does bear attention – the Continental Shelf Commission, which is the technical body that will rule on any U.S. application to extend its claims in the Arctic – has not yet been fully evaluated. As for the “international tax” that the ISA will assess on continental shelf oil and gas production beyond 200 nautical miles,[22] that provision, ironically, was based on a proposal made by the Nixon Administration as an alternative to the cumbersome regime for manganese nodules.[23] [THIS IDEA LIVES ON IN MORE RECENT UNITED NATIONS REFORM PROPOSALS - SOON-TO-BE PUBLISHED ITSSD RESEARCH BEARS THIS OUT]**
In addition to making the lawyerly arguments that are necessary to explain UNCLOS’s institutional and dispute-settlement provisions, we should also be prepared to defend the very principles of functional cooperation and the progressive development of international law. [KUMBAYA 'GO-ALONG-TO-GET ALONG'ISM]**
We should not be embarrassed at the prospect that the effectiveness and legitimacy of such rules, processes and institutions are being questioned or challenged. Rather, secure in the knowledge that – at least with U.S. ratification of UNCLOS – the value of international cooperation actually supports and enhances the national interest, we should go forth, take the intellectual and policy high ground, and do battle with the forces of isolationism.
[1] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
[2] Treaty of Amity, Commerce, and Navigation, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116, 12 Bevans 13.
[3] See Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction Over Treaty-Based Suits by Foreign States Against States, 104 Colum. L. Rev. 1765, 1783, 1855–60, 1862–66 (2004); 1 Richard B. Lillich & Burns H. Weston, International Claims: Their Settlement by Lump Sum Agreements 26–27 (1975).
[4] Treaty of Peace with Germany (Treaty of Versailles), June 28, 1919, T.S. No. 4, 2 Bevans 43.
[5] Statute of the Permanent Court of International Justice art. 36, Dec. 16, 1920, 6 L.N.T.S. 390.
[6] See Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: II, 54 Yale L.J. 534, 567–68 (1945). See generally Denna Frank Fleming, The United States and the World Court, 1920-1966 (1945); Michael Dunne, The United States and the World Court, 1920-1935 (1988).
[7] See, e.g., Roger P. Alford, The American Influence on International Arbitration, 19 Ohio St. J. on Disp. Resol. 69, 72 (2003) (“If the Jay Treaty was much maligned then, it is much beloved today. The arbitral commissions established under the Jay Treaty were the beginning of the modern era of international arbitration.”).
[8] President’s Statement on Advancing U.S. Interests in the World's Oceans, 43 Weekly Comp. Pres. Doc. 635 (May 15, 2007), available at http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html.
[9] See J. Ashley Roach & Robert W. Smith, United States Responses to Excessive Maritime Claims 15–16 (2d ed. 1996); George Galdorisi, The United States’ Freedom of Navigation Program: A Bridge for International Compliance with the 1982 United Nations Convention on the Law of the Sea?, 27 Ocean Dev. & Int’l L.J. 399 (1996).
[10] For archipelagic sea-lanes passage, see UNCLOS, supra note 2, arts. 52–54. For transit passage through international straits connecting one part of the high seas (or EEZ) with another part, see id. art. 37.
[11] See Geneva Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 7477; Geneva Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82.
[12] Baselines are the lines from which all the maritime zones that a coastal state can project and still be recognized by UNCLOS (like the 12 nautical mile territorial sea and 200 nautical mile Exclusive Economic Zone (EEZ)) are measured. Normally the baselines are coterminous with the coast line but it is a common technique for coastal states to make extravagant maritime claims by pushing-out their baselines. See UNCLOS, supra note 2, arts. 3–15.
[13] See id. arts. 238 (marine scientific research) and 303 (shipwrecks). See also Lyle Glowka, Bioprospecting, Alien Invasive Species, and Hydrothermal Vents: Three Emerging Legal Issues in the Conservation and Sustainable Use of Biodiversity, 13 Tulane Envtl. L. J. 329, 335–36 (2000); Samuel Bleicher, The Law Governing Exploitation of Polymetallic Sulfide Deposits from the Seabed, in Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn (Thomas Buergenthal ed., 1984).
[14] See UNCLOS, supra note 2, art. 76 & Annex II.
[15] Hugo de Groot, Mare Liberum [Freedom of the Seas], (Ralph van Deman Magoffin trans., Carnegie Endowment for Int’l Peace 1916) (1609).
[16] Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 3 C.F.R. 67 (1943-48), reprinted in 13 Dep’t State Bull. 453, 485 (1945); Proclamation No. 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas, 3 C.F.R. 68 (1943-48), reprinted in 13 Dep’t State Bull. 453, 486 (1945).
[17] Phyllis Schlafly, Sink the Law of the Sea Again, Sept. 26, 2007, http://www.eagleforum.org/column/2007/sept07/07-09-26.html. Actually, Ms. Schlafly’s essay is among the more coherent and intelligent of the critiques of UNCLOS. For other examples, see Carolina Mendoza, Beware the Law of the Seas Treaty, Nov. 27, 2007, The Conservative Voice, http://www.theconservativevoice.com/article/29442.html; Frank J. Gaffney, Jr., Don’t Get LOST: The White House Toys with Signing a Very Kerry Treaty, March 18, 2004, National Review Online, http://www.nationalreview.com/gaffney/gaffney200403181156.asp; Frank Gaffney, Jr., Op-Ed, The U.N.’s Big Power Grab, Wash. Times, Oct. 2, 2007, at A14, available at http://washingtontimes.com/article/20071002/COMMENTARY03/110020010/1012.
[18] See The Convention on the Law of the Sea: Hearing Before the Comm. on Foreign Relations, 110th Cong. 1 (2007) (statements of Frank J. Gaffney, Jr., President, Center for Security Policy and Fred Smith, President, Competitive Enterprise Institute), available at http://www.senate.gov/~foreign/hearings/2007/hrg071004a.html.
[19] For a list of the fifteen ITLOS cases docketed over the past decade, see International Tribunal for the Law of the Sea, Proceedings and Judgments – List of Cases, http://www.itlos.org/start2_en.html.
[20] See UNCLOS, supra note 2, art. 287.
[21] See G.A. Res. 48/36, U.N. Doc. A/RES/48/263 (28 July, 1994), reprinted in 33 I.L.M. 1309 (1994).
[22] See UNCLOS, supra note 2, art. 82.
[23] See President Richard Nixon, Statement About United States Oceans Policy (May 23, 1970), reprinted in 2 New Directions in the Law of the Sea: Documents 751-52 (S. Houston Lay, Robin Churchill & Myron Nordquist eds., 1973), available at www.state.gov/r/pa/ho/frus/nixon/e1/53194.htm.
Suggested Citation: David J. Bederman, The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS, 49 Harv. Int’l L.J. Online 21 (2008), http://www.harvardilj.org/online/126.
Saturday, January 19, 2008
Academics Befuddled About Why the US Senate Has Not Yet Voted on UNCLOS Ratification
http://www.opiniojuris.org/posts/1200350661.shtml
All Quiet on UNCLOS
by Duncan Hollis
January 14, 2008
Notwithstanding its recent efforts to avoid recess appointments with 12 second sessions, the Senate will return in full next Monday. For international lawyers, the big question is whether UNCLOS finally gets a vote for the Senate's advice and consent. As I noted here and here, the SFRC voted UNCLOS out of Committee last fall largely along party lines. But it's been all quiet since. Indeed, I've heard from a couple of sources that the window for Senate A&C to accession is closing, if not closed. What I don't know is why?
Is it that the Democrats really don't have the two-thirds majority for A&C?
Or, is the opposition less than a third of the Senate, but the Senate leadership doesn't want to have the UNCLOS fight given all the procedural roadblocks and counter-measures even a handful of heavily committed Senators can invoke to oppose the treaty or forestall a vote?
I suppose the fact that the election cycle is in full swing may have some explanatory value as well. But, what do readers think (or know)?
If UNCLOS doesn't get a vote this Congress, it has to go back and start all over again at the SFRC, something I suspect UNCLOS supporters would be eager to avoid.
In that respect, I wonder if the supporters have one last push in them, or if the best chance for U.S. accession in the last decade has already passed.
All Quiet on UNCLOS
by Duncan Hollis
January 14, 2008
Notwithstanding its recent efforts to avoid recess appointments with 12 second sessions, the Senate will return in full next Monday. For international lawyers, the big question is whether UNCLOS finally gets a vote for the Senate's advice and consent. As I noted here and here, the SFRC voted UNCLOS out of Committee last fall largely along party lines. But it's been all quiet since. Indeed, I've heard from a couple of sources that the window for Senate A&C to accession is closing, if not closed. What I don't know is why?
Is it that the Democrats really don't have the two-thirds majority for A&C?
Or, is the opposition less than a third of the Senate, but the Senate leadership doesn't want to have the UNCLOS fight given all the procedural roadblocks and counter-measures even a handful of heavily committed Senators can invoke to oppose the treaty or forestall a vote?
I suppose the fact that the election cycle is in full swing may have some explanatory value as well. But, what do readers think (or know)?
If UNCLOS doesn't get a vote this Congress, it has to go back and start all over again at the SFRC, something I suspect UNCLOS supporters would be eager to avoid.
In that respect, I wonder if the supporters have one last push in them, or if the best chance for U.S. accession in the last decade has already passed.
Reagan Diaries & Ambassador Malone Comments Confirm Concerns About Collectivist UNCLOS Redistributing Wealth & Making New International Economic Order
110th CONGRESS SENATE EXEC. REPT. 110-9
CONVENTION ON THE LAW OF THE SEA DECEMBER 19, 2007.
(pp. 24-25)
http://www.fas.org/irp/congress/2007_rpt/lots.pdf
Mr. BIDEN, from the Committee on Foreign Relations, submitted the following REPORT together with MINORITY VIEWS
[To accompany Treaty Doc. 103–39]
IX. MINORITY VIEWS
MINORITY VIEWS OF SENATORS DEMINT AND VITTER
Ronald Reagan Biographer Dinesh D’Souza tells of an incident that occurred only a few weeks after Reagan was elected president:
According to aides who were present at the meeting, Reagan was asked by Alexander Haig, his new Secretary of State, to approve continuing negotiations for the Law of the Sea treaty. Reagan said he would not support the treaty and asked that negotiations be suspended. Incredulous, Haig tried to make him see the light by pointing out that discussions had been ongoing for years
and that every recent president and virtually all leading figures in both Parties accepted the general framework of the treaty.
‘‘Well, yes,’’ Reagan said, ‘‘but you see, Al, that’s what the last election was all about.’’ ‘‘About the Law of the Sea treaty?’’ Haig sneered. ‘‘No,’’ Reagan replied. ‘‘It was about not doing things just because that’s the way they’ve been done before.’’
Since that time, proponents have attempted to paint Reagan’s objections as limited in scope, focused on a few minor changes to the seabed mining section. Meanwhile, key Reagan advisers like Ed Meese, Jeanne Kirkpatrick and James Malone have countered that his concerns were much more broad, relating to the fundamental collectivist philosophy embodied in the treaty. They suggested that even if the seabed mining regime was fixed or even deleted altogether,
Reagan would still not have signed it. Who is correct?
For a quarter century, this question has gone unanswered. However, we now have new insights, with the release of The Reagan Diaries. On page 90, we find the answer in President Reagan’s own hand—
Tuesday, June 29 [1982]. Decided in NSC meeting—will not sign ‘‘Law of the Sea’’ Treaty even without seabed mining provisions.
Reagan’s concerns with the treaty were summed up in a 1984 article written by his chief Law of the Sea Negotiator, James Malone.
"The Law of the Sea Treaty’s provisions establishing the deep seabed mining regime were intentionally designed to promote a new world order—a form of global collectivism known as the new international economic order (NIEO) that seeks ultimately the redistribution of the world’s wealth through a complex system of manipulative central economic planning and bureaucratic coercion."
This applies not only to the seabed mining regime, but to all of the treaty with the exception of a few provisions dealing with navigation.
In 1995, Commenting on the 1994 Agreement, Ambassador Malone reiterated his earlier criticism:
"This remains the case today. All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."
We believe certain provisions of the United Nations Convention on the Law of the Sea, particularly those dealing with navigation, have merit. We further appreciate the Navy’s interest in the treaty.
However, the navigation provisions are primarily limited to the first 4 parts—11 pages out of a 188 page treaty. The rest establishes a massive bureaucracy to govern the seas and anything that can be construed to impact the seas—even if the impact is de minimus.
CONVENTION ON THE LAW OF THE SEA DECEMBER 19, 2007.
(pp. 24-25)
http://www.fas.org/irp/congress/2007_rpt/lots.pdf
Mr. BIDEN, from the Committee on Foreign Relations, submitted the following REPORT together with MINORITY VIEWS
[To accompany Treaty Doc. 103–39]
IX. MINORITY VIEWS
MINORITY VIEWS OF SENATORS DEMINT AND VITTER
Ronald Reagan Biographer Dinesh D’Souza tells of an incident that occurred only a few weeks after Reagan was elected president:
According to aides who were present at the meeting, Reagan was asked by Alexander Haig, his new Secretary of State, to approve continuing negotiations for the Law of the Sea treaty. Reagan said he would not support the treaty and asked that negotiations be suspended. Incredulous, Haig tried to make him see the light by pointing out that discussions had been ongoing for years
and that every recent president and virtually all leading figures in both Parties accepted the general framework of the treaty.
‘‘Well, yes,’’ Reagan said, ‘‘but you see, Al, that’s what the last election was all about.’’ ‘‘About the Law of the Sea treaty?’’ Haig sneered. ‘‘No,’’ Reagan replied. ‘‘It was about not doing things just because that’s the way they’ve been done before.’’
Since that time, proponents have attempted to paint Reagan’s objections as limited in scope, focused on a few minor changes to the seabed mining section. Meanwhile, key Reagan advisers like Ed Meese, Jeanne Kirkpatrick and James Malone have countered that his concerns were much more broad, relating to the fundamental collectivist philosophy embodied in the treaty. They suggested that even if the seabed mining regime was fixed or even deleted altogether,
Reagan would still not have signed it. Who is correct?
For a quarter century, this question has gone unanswered. However, we now have new insights, with the release of The Reagan Diaries. On page 90, we find the answer in President Reagan’s own hand—
Tuesday, June 29 [1982]. Decided in NSC meeting—will not sign ‘‘Law of the Sea’’ Treaty even without seabed mining provisions.
Reagan’s concerns with the treaty were summed up in a 1984 article written by his chief Law of the Sea Negotiator, James Malone.
"The Law of the Sea Treaty’s provisions establishing the deep seabed mining regime were intentionally designed to promote a new world order—a form of global collectivism known as the new international economic order (NIEO) that seeks ultimately the redistribution of the world’s wealth through a complex system of manipulative central economic planning and bureaucratic coercion."
This applies not only to the seabed mining regime, but to all of the treaty with the exception of a few provisions dealing with navigation.
In 1995, Commenting on the 1994 Agreement, Ambassador Malone reiterated his earlier criticism:
"This remains the case today. All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."
We believe certain provisions of the United Nations Convention on the Law of the Sea, particularly those dealing with navigation, have merit. We further appreciate the Navy’s interest in the treaty.
However, the navigation provisions are primarily limited to the first 4 parts—11 pages out of a 188 page treaty. The rest establishes a massive bureaucracy to govern the seas and anything that can be construed to impact the seas—even if the impact is de minimus.
Scientists doubt climate change
http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20071221/NATION/844993096/1002
Washington Times
December 21, 2007
By S.A. Miller - More than 400 scientists challenge claims by former Vice President Al Gore and the United Nations about the threat of man-made global warming, a new Senate minority report says.
The scientists — many of whom are current or former members of the U.N. Intergovernmental Panel on Climate Change (IPCC) that shares the 2007 Nobel Peace Prize with Mr. Gore for publicizing a climate crisis — cast doubt on the "scientific consensus" that man-made global warming imperils the planet.
"I find the Doomsday picture Al Gore is painting — a six-meter sea level rise, 15 times the IPCC number — entirely without merit," said Dutch atmospheric scientist Hendrik Tennekes, one of the researchers quoted in the report by Republican staff of the Senate Environment and Public Works Committee.
"I protest vigorously the idea that the climate reacts like a home heating system to a changed setting of the thermostat: just turn the dial, and the desired temperature will soon be reached," Mr. Tennekes said in the report.
Sen. James M. Inhofe of Oklahoma, ranking Republican on the Environment and Public Works Committee, said the report debunks Mr. Gore's claim that the "debate is over."
"The endless claims of a 'consensus' about man-made global warming grow less-and-less credible every day," he said.
After a quick review of the report, Gore spokeswoman Kalee Kreider said 25 or 30 of the scientists may have received funding from Exxon Mobil Corp.
Exxon Mobil spokesman Gantt H. Walton dismissed the accusation, saying the company is concerned about climate-change issues and does not pay scientists to bash global-warming theories.
"Recycling of that kind of discredited conspiracy theory is nothing more than a distraction from the real challenge facing society and the energy industry," he said. "And that challenge is how are we going to provide the energy needed to support economic and social development while reducing greenhouse-gas emissions."
The Republican report comes on the heels of Saturday's United Nations climate conference in Bali, Indonesia, where conferees adopted a plan to negotiate a new pact to create verifiable measurements to fight global warming in two years.
In the Senate report, environmental scientist David W. Schnare of the U.S. Environmental Protection Agency said he was skeptical because "conclusions about the cause of the apparent warming stand on the shoulders of incredibly uncertain data and models. ... As a policy matter, one has to be less willing to take extreme actions when data are highly uncertain."
The hundreds of others in the report — climatologists, oceanographers, geologists, glaciologists, physicists and paleoclimatologists — voice varying degrees of criticism of the popular global-warming theory. Their testimony challenges the idea that the climate-change debate is "settled" and runs counter to the claim that the number of skeptical scientists is dwindling.
The report's authors expect some of the scientists will recant their remarks under intense pressure from the public and from within professional circles to conform to the global-warming theory, a committee staffer said.
Several scientists in the report said many colleagues share their skepticism about man-made climate change but don't speak out publicly for fear of retribution, according to the report.
"Many of my colleagues with whom I spoke share these views and report on their inability to publish their skepticism in the scientific or public media," atmospheric scientist Nathan Paldor, professor of Dynamical Meteorology and Physical Oceanography at the Hebrew University of Jerusalem, said in the report.
The IPCC has about 2,500 members.
HEATED DEBATE
The following are comments from some of the more than 400 scientists in a Republican report on global warming:
•"Even if the concentration of 'greenhouse gases' double, man would not perceive the temperature impact."
Oleg Sorochtin of the Institute of Oceanology at the Russian Academy of Sciences
•"I find the Doomsday picture Al Gore is painting — a six-meter sea level rise, 15 times the [U.N. Intergovernmental Panel on Climate Change] number — entirely without merit. ... I protest vigorously the idea that the climate reacts like a home heating system to a changed setting of the thermostat: just turn the dial, and the desired temperature will soon be reached."
Atmospheric scientist Hendrik Tennekes, former research director at the Netherlands' Royal National Meteorological Institute
•"The hypothesis that solar variability and not human activity is warming the oceans goes a long way to explain the puzzling idea that the Earth's surface may be warming while the atmosphere is not. The [greenhouse-gas] hypothesis does not do this. ... The public is not well served by this constant drumbeat of false alarms fed by computer models manipulated by advocates."
David Wojick, expert reviewer for U.N. Intergovernmental Panel on Climate Change
•"The media is promoting an unprecedented hyping related to global warming. The media and many scientists are ignoring very important facts that point to a natural variation in the climate system as the cause of the recent global warming."
Chief Meteorologist Eugenio Hackbart of the MetSul Meteorologia Weather Center in Sao Leopoldo-Rio Grande do Sul, Brazil
•"There's no need to be worried. It's very interesting to study [climate change], but there's no need to be worried."
Anton Uriarte, a professor of physical geography at the University of the Basque Country in Spain
Source: Sen. James M. Inhofe of Oklahoma, ranking Republican on the Environment and Public Works Committee
Washington Times
December 21, 2007
By S.A. Miller - More than 400 scientists challenge claims by former Vice President Al Gore and the United Nations about the threat of man-made global warming, a new Senate minority report says.
The scientists — many of whom are current or former members of the U.N. Intergovernmental Panel on Climate Change (IPCC) that shares the 2007 Nobel Peace Prize with Mr. Gore for publicizing a climate crisis — cast doubt on the "scientific consensus" that man-made global warming imperils the planet.
"I find the Doomsday picture Al Gore is painting — a six-meter sea level rise, 15 times the IPCC number — entirely without merit," said Dutch atmospheric scientist Hendrik Tennekes, one of the researchers quoted in the report by Republican staff of the Senate Environment and Public Works Committee.
"I protest vigorously the idea that the climate reacts like a home heating system to a changed setting of the thermostat: just turn the dial, and the desired temperature will soon be reached," Mr. Tennekes said in the report.
Sen. James M. Inhofe of Oklahoma, ranking Republican on the Environment and Public Works Committee, said the report debunks Mr. Gore's claim that the "debate is over."
"The endless claims of a 'consensus' about man-made global warming grow less-and-less credible every day," he said.
After a quick review of the report, Gore spokeswoman Kalee Kreider said 25 or 30 of the scientists may have received funding from Exxon Mobil Corp.
Exxon Mobil spokesman Gantt H. Walton dismissed the accusation, saying the company is concerned about climate-change issues and does not pay scientists to bash global-warming theories.
"Recycling of that kind of discredited conspiracy theory is nothing more than a distraction from the real challenge facing society and the energy industry," he said. "And that challenge is how are we going to provide the energy needed to support economic and social development while reducing greenhouse-gas emissions."
The Republican report comes on the heels of Saturday's United Nations climate conference in Bali, Indonesia, where conferees adopted a plan to negotiate a new pact to create verifiable measurements to fight global warming in two years.
In the Senate report, environmental scientist David W. Schnare of the U.S. Environmental Protection Agency said he was skeptical because "conclusions about the cause of the apparent warming stand on the shoulders of incredibly uncertain data and models. ... As a policy matter, one has to be less willing to take extreme actions when data are highly uncertain."
The hundreds of others in the report — climatologists, oceanographers, geologists, glaciologists, physicists and paleoclimatologists — voice varying degrees of criticism of the popular global-warming theory. Their testimony challenges the idea that the climate-change debate is "settled" and runs counter to the claim that the number of skeptical scientists is dwindling.
The report's authors expect some of the scientists will recant their remarks under intense pressure from the public and from within professional circles to conform to the global-warming theory, a committee staffer said.
Several scientists in the report said many colleagues share their skepticism about man-made climate change but don't speak out publicly for fear of retribution, according to the report.
"Many of my colleagues with whom I spoke share these views and report on their inability to publish their skepticism in the scientific or public media," atmospheric scientist Nathan Paldor, professor of Dynamical Meteorology and Physical Oceanography at the Hebrew University of Jerusalem, said in the report.
The IPCC has about 2,500 members.
HEATED DEBATE
The following are comments from some of the more than 400 scientists in a Republican report on global warming:
•"Even if the concentration of 'greenhouse gases' double, man would not perceive the temperature impact."
Oleg Sorochtin of the Institute of Oceanology at the Russian Academy of Sciences
•"I find the Doomsday picture Al Gore is painting — a six-meter sea level rise, 15 times the [U.N. Intergovernmental Panel on Climate Change] number — entirely without merit. ... I protest vigorously the idea that the climate reacts like a home heating system to a changed setting of the thermostat: just turn the dial, and the desired temperature will soon be reached."
Atmospheric scientist Hendrik Tennekes, former research director at the Netherlands' Royal National Meteorological Institute
•"The hypothesis that solar variability and not human activity is warming the oceans goes a long way to explain the puzzling idea that the Earth's surface may be warming while the atmosphere is not. The [greenhouse-gas] hypothesis does not do this. ... The public is not well served by this constant drumbeat of false alarms fed by computer models manipulated by advocates."
David Wojick, expert reviewer for U.N. Intergovernmental Panel on Climate Change
•"The media is promoting an unprecedented hyping related to global warming. The media and many scientists are ignoring very important facts that point to a natural variation in the climate system as the cause of the recent global warming."
Chief Meteorologist Eugenio Hackbart of the MetSul Meteorologia Weather Center in Sao Leopoldo-Rio Grande do Sul, Brazil
•"There's no need to be worried. It's very interesting to study [climate change], but there's no need to be worried."
Anton Uriarte, a professor of physical geography at the University of the Basque Country in Spain
Source: Sen. James M. Inhofe of Oklahoma, ranking Republican on the Environment and Public Works Committee
Boiling down the UNCLOS "debate"
UN Dispatch
November 5, 2007
http://www.undispatch.com/archives/2007/11/while_gail_coll.php
While Gail Collins's shtick on the political attention being paid to the Convention on the Law of the Sea does her readers a bit of a disservice considering its actual importance, her column in Saturday's Times does a pretty good job of boiling down the "debate."
Bill Clinton wanted the treaty, but gave up trying to find 67 votes in the Senate. Nothing much has happened since, except 155 other countries have ratified it, including several that didn't exist when it was first passed. The United States, of course, is not the only nation holding back because of well-considered reservations. I hear Libya made some excellent points. And our side also includes all the parts of the Axis of Evil we have yet to invade.
While the pros will tell you all about the importance of having a rational system for arbitrating disputes over the Alaskan continental shelf, the cons spin up conspiracy theories about how the International Seabed Authority will force us to give up our cars and cancel the war on terror.
Just take my word. The Navy wants the treaty. Greenpeace wants the treaty. The oil and gas industry wants the treaty. George W. Bush wants the treaty.
The fact that the U.S. Navy backs the treaty is a point that the "Captain" seems to have missed. And while Pejman Yousefzadeh feels better that Tyler Cowen has reservations about UNCLOS, I'm a little more comforted by the fact that everybody who has a dog in this fight -- the military, the environmentalists, industry, the President, and rational thinkers in general -- supports the convention.
The number of people who really care about stopping the treaty is not large. But even if there were only 200, what if 120 of them go to the Iowa caucus? John McCain, who used to support the treaty, recently waved the white flag on a conservative Web site. "I think that we need a Law of the Sea," he blogged. "I think it's important, but I have not frankly looked too carefully at the latest situation as it is, but it would be nice if we had some of the provisions in it. But I do worry a lot about American sovereignty aspects of it, so I would probably vote against it in its present form."
The other candidates have issued statements that seem to reflect an inability to come up with any rational arguments. Rudy Giuliani said he "cannot support the creation of yet another unaccountable international bureaucracy that might infringe on American sovereignty and curtail America's freedoms," and Fred Thompson roused himself long enough to announce that "the efforts of treaty proponents would be better spent reforming an ineffective, unaccountable and corrupt United Nations." Mitt Romney's spokesman just said Mitt has "concerns."
Posted by Matthew Cordell - November 5, 2007 12:04 PM - Validators
November 5, 2007
http://www.undispatch.com/archives/2007/11/while_gail_coll.php
While Gail Collins's shtick on the political attention being paid to the Convention on the Law of the Sea does her readers a bit of a disservice considering its actual importance, her column in Saturday's Times does a pretty good job of boiling down the "debate."
Bill Clinton wanted the treaty, but gave up trying to find 67 votes in the Senate. Nothing much has happened since, except 155 other countries have ratified it, including several that didn't exist when it was first passed. The United States, of course, is not the only nation holding back because of well-considered reservations. I hear Libya made some excellent points. And our side also includes all the parts of the Axis of Evil we have yet to invade.
While the pros will tell you all about the importance of having a rational system for arbitrating disputes over the Alaskan continental shelf, the cons spin up conspiracy theories about how the International Seabed Authority will force us to give up our cars and cancel the war on terror.
Just take my word. The Navy wants the treaty. Greenpeace wants the treaty. The oil and gas industry wants the treaty. George W. Bush wants the treaty.
The fact that the U.S. Navy backs the treaty is a point that the "Captain" seems to have missed. And while Pejman Yousefzadeh feels better that Tyler Cowen has reservations about UNCLOS, I'm a little more comforted by the fact that everybody who has a dog in this fight -- the military, the environmentalists, industry, the President, and rational thinkers in general -- supports the convention.
The number of people who really care about stopping the treaty is not large. But even if there were only 200, what if 120 of them go to the Iowa caucus? John McCain, who used to support the treaty, recently waved the white flag on a conservative Web site. "I think that we need a Law of the Sea," he blogged. "I think it's important, but I have not frankly looked too carefully at the latest situation as it is, but it would be nice if we had some of the provisions in it. But I do worry a lot about American sovereignty aspects of it, so I would probably vote against it in its present form."
The other candidates have issued statements that seem to reflect an inability to come up with any rational arguments. Rudy Giuliani said he "cannot support the creation of yet another unaccountable international bureaucracy that might infringe on American sovereignty and curtail America's freedoms," and Fred Thompson roused himself long enough to announce that "the efforts of treaty proponents would be better spent reforming an ineffective, unaccountable and corrupt United Nations." Mitt Romney's spokesman just said Mitt has "concerns."
Posted by Matthew Cordell - November 5, 2007 12:04 PM - Validators
The Precautionary Principle in the Law of the Sea
Ecologic (Germany)
Book: The Precautionary Principle in the Law of the Sea - Modern decision Making in International Law
By Simon Marr, lawyer with Ecologic Legal (2003)
Publisher: Martinus Nijhoff, Den Haag/London
Pages: 253
Language: English
ISBN: 90 411 2015 7
The purpose of this study is to examine the present status of implementation of the precautionary principle in the law of the sea and to extract evidence of its acceptance as part of customary international law.
The thesis examines the precautionary principle in the law of the sea. The precautionary principle is a risk management tool for policy makers which has been broadly implemented in international environmental law in a variety of different sectors and formulations. It is best described in Principle 15 of the Rio Declaration which states that "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation".
For example, it is commonly applied in the area of health, the environment and sustainable development. Despite the fact that it has been implemented in a number of international treaties as well as national laws, its content and status is still highly debated and various questions arise which make further examination of the precautionary principle necessary. Questions such as: its status as a rule of customary international law including its scope, addressee, triggering threshold, precautionary action measures, and eventually limits of the precautionary principle still have not been clarified, and it seems as if vagueness and ambiguity preclude a more detailed evaluation of these questions.
Thus, the purpose of this study is to examine the present state of affairs regarding the implementation of the precautionary principle in the law of the sea and to extract evidence of its acceptance as part of customary international law.
The scope of this study is limited by its primary focus upon the precautionary principle in different sectors in the law of the sea, i.e. pollution of the marine environment, conservation and management of marine living resources, and transboundary transports of radioactive and hazardous wastes. To this end, it is deemed important to scrutinize the precautionary principle on a sector-by-sector basis, discovering whether it has been implemented in different sectors differently.
As environmental protection is difficult to restrict to specific sectors, however, in some cases the scope has been extended to areas not directly linked to marine environment, i.e. air emissions of hazardous substances. Furthermore, this study is not meant to be exhaustive, focusing only on the most pertinent international or national implementations of the precautionary principle in the relative sectors.
Moreover, Chapter 4 draws upon national court decisions dealing in most cases with the licensing requirements of the relative authorities and which have no direct bearing on marine pollution. This study takes these licensing requirements into account since the overall sector in which the courts decided was that of environmental protection. Hence, they are secondarily related to the marine environment and could serve as an indicator for the justiciability of the precautionary principle in national jurisprudence.
Chapter 1 sets out the history and some basic considerations of the precautionary principle. Chapter 2 identifies the key to the precautionary principle: science and its implications. Chapter 3 formulates limits to the precautionary principle. The subsequent chapters then turn to the state practice in different sectors: Chapter 4 - pollution of the marine environment, Chapter 5 - marine biodiversity, Chapter 6 - dumping of radioactive and hazardous substances and incineration, Chapter 7 - conservation and management of marine living resources, and Chapter 8 - transboundary movements of radioactive and hazardous substances, where the implementation of the precautionary principle in international agreements, national legislation and its application in litigation as far as available will be scrutinized. Chapter 9 sets out the prerequisites for state practice as accepted custom, which would also be the applied standard for finally evaluating whether the precautionary principle has evolved into a rule of customary law. Last but not least, Chapter 10 will draw some preliminary conclusions.
Key conclusions
One key conclusion of this thesis is the fact that the precautionary principle has developed from a "soft law" instrument with only guiding qualities for policy makers to a "hard rule" of customary international law in the sectors of pollution of the marine environment and conservation and management of living marine resources.
This thesis demonstrates that as a minimum standard the precautionary principle as a rule of customary international law is best reflected in Principle 15 of the Rio Declaration. It also shows that there is an emerging practice of law which makes the precautionary principle subject to a proportionality test which includes a cost-benefit analysis. In addition to these findings, this thesis shows which sectors of the law of the sea the precautionary principle is being applied to in a common way. To this end, it indicates that there is also an emerging practice of international law, which includes, inter alia, to make GMOs subject to a strict risk analysis, discharge ballast water on the high seas, decommission disused offshore platforms on land or make the transit passage of ships carrying radioactive or hazardous waste dependent on prior notification or authorization.
Furthermore, this thesis argues that in relation to procedural matters, the precautionary principle as a rule of customary international law includes the switch of the burden of proof. Accordingly, the onus of proof for the harmlessness of the effects of an environmentally sensitive activity lies with the one wanting to pursue the activity. To this end, under certain conditions the application of the precautionary principle as a rule of customary law can also have an impact on the provisional measures according to Art. 290 (5) of the Law of the Sea Convention.
Book: The Precautionary Principle in the Law of the Sea - Modern decision Making in International Law
By Simon Marr, lawyer with Ecologic Legal (2003)
Publisher: Martinus Nijhoff, Den Haag/London
Pages: 253
Language: English
ISBN: 90 411 2015 7
The purpose of this study is to examine the present status of implementation of the precautionary principle in the law of the sea and to extract evidence of its acceptance as part of customary international law.
The thesis examines the precautionary principle in the law of the sea. The precautionary principle is a risk management tool for policy makers which has been broadly implemented in international environmental law in a variety of different sectors and formulations. It is best described in Principle 15 of the Rio Declaration which states that "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation".
For example, it is commonly applied in the area of health, the environment and sustainable development. Despite the fact that it has been implemented in a number of international treaties as well as national laws, its content and status is still highly debated and various questions arise which make further examination of the precautionary principle necessary. Questions such as: its status as a rule of customary international law including its scope, addressee, triggering threshold, precautionary action measures, and eventually limits of the precautionary principle still have not been clarified, and it seems as if vagueness and ambiguity preclude a more detailed evaluation of these questions.
Thus, the purpose of this study is to examine the present state of affairs regarding the implementation of the precautionary principle in the law of the sea and to extract evidence of its acceptance as part of customary international law.
The scope of this study is limited by its primary focus upon the precautionary principle in different sectors in the law of the sea, i.e. pollution of the marine environment, conservation and management of marine living resources, and transboundary transports of radioactive and hazardous wastes. To this end, it is deemed important to scrutinize the precautionary principle on a sector-by-sector basis, discovering whether it has been implemented in different sectors differently.
As environmental protection is difficult to restrict to specific sectors, however, in some cases the scope has been extended to areas not directly linked to marine environment, i.e. air emissions of hazardous substances. Furthermore, this study is not meant to be exhaustive, focusing only on the most pertinent international or national implementations of the precautionary principle in the relative sectors.
Moreover, Chapter 4 draws upon national court decisions dealing in most cases with the licensing requirements of the relative authorities and which have no direct bearing on marine pollution. This study takes these licensing requirements into account since the overall sector in which the courts decided was that of environmental protection. Hence, they are secondarily related to the marine environment and could serve as an indicator for the justiciability of the precautionary principle in national jurisprudence.
Chapter 1 sets out the history and some basic considerations of the precautionary principle. Chapter 2 identifies the key to the precautionary principle: science and its implications. Chapter 3 formulates limits to the precautionary principle. The subsequent chapters then turn to the state practice in different sectors: Chapter 4 - pollution of the marine environment, Chapter 5 - marine biodiversity, Chapter 6 - dumping of radioactive and hazardous substances and incineration, Chapter 7 - conservation and management of marine living resources, and Chapter 8 - transboundary movements of radioactive and hazardous substances, where the implementation of the precautionary principle in international agreements, national legislation and its application in litigation as far as available will be scrutinized. Chapter 9 sets out the prerequisites for state practice as accepted custom, which would also be the applied standard for finally evaluating whether the precautionary principle has evolved into a rule of customary law. Last but not least, Chapter 10 will draw some preliminary conclusions.
Key conclusions
One key conclusion of this thesis is the fact that the precautionary principle has developed from a "soft law" instrument with only guiding qualities for policy makers to a "hard rule" of customary international law in the sectors of pollution of the marine environment and conservation and management of living marine resources.
This thesis demonstrates that as a minimum standard the precautionary principle as a rule of customary international law is best reflected in Principle 15 of the Rio Declaration. It also shows that there is an emerging practice of law which makes the precautionary principle subject to a proportionality test which includes a cost-benefit analysis. In addition to these findings, this thesis shows which sectors of the law of the sea the precautionary principle is being applied to in a common way. To this end, it indicates that there is also an emerging practice of international law, which includes, inter alia, to make GMOs subject to a strict risk analysis, discharge ballast water on the high seas, decommission disused offshore platforms on land or make the transit passage of ships carrying radioactive or hazardous waste dependent on prior notification or authorization.
Furthermore, this thesis argues that in relation to procedural matters, the precautionary principle as a rule of customary international law includes the switch of the burden of proof. Accordingly, the onus of proof for the harmlessness of the effects of an environmentally sensitive activity lies with the one wanting to pursue the activity. To this end, under certain conditions the application of the precautionary principle as a rule of customary law can also have an impact on the provisional measures according to Art. 290 (5) of the Law of the Sea Convention.
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