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INFO: LAW OF THE SEA (CON)

INFORMATION: LAW OF THE SEA (CON)

By Mike Wascher

Resolved: The United States should accede to the United Nations Convention on the Law of the Sea without reservations.

This brief explores the CON (negative) side of the resolution. Note: I included long pieces of evidence that include excellent background, but much too long to be read into a round. Pieces of evidence that has underscores may be read in your debates.

CON: Advocacy Against Accession........................................................................................................................UNCLOS not needed. Customary international law and the US Navy are enough..............................................................

*US can legally assert an Arctic claim without being party to UNCLOS, specifically through the 1958 Continental Shelf Convention............................................................................................................................................................................................*US can influence CLCS as a non member. We scuttled Russia's initial Arctic claim........................................................................*US and Russia claims in Arctic are NOT in conflict. 1990 Treaty settled. (Russia’s dispute is with Canada).................................*US law (1980 Hard Mineral Resources Act) protects our right to deep seabed drilling.....................................................................*US can pursue Arctic claims in the Arctic without being a party to UNCLOS through Presidential proclamation, bilateral agreements and Arctic Ocean Conference............................................................................................................................................

Sharing of technology/Lawsuits.............................................................................................................................................*US can influence CLCS as a non member. We scuttled Russia's initial Arctic claim........................................................................*The technology transfer provisions are overly broad and would threaten American economic competitiveness and security..........

Redistribution of American dollars (Royalty Sharing)..........................................................................................................*LOST requires royalty sharing gained from accessing resources under the EEZ...............................................................................*Royalty transfers would be in the hundreds of billions and go to corrupt governments.....................................................................

Enormous cost to US..............................................................................................................................................................*Accession would force the U.S. to hand over enormous sums in resource royalties..........................................................................*Ratification forces a transfer of oil and gas royalties to the ISA.........................................................................................................*UNCLOS allows Isa to raid the US treasury.......................................................................................................................................*UNCLOS allows ISA to “tax” the US.................................................................................................................................................

Forfeiture of sovereignty........................................................................................................................................................*LOST places the US under direct control of the Seabed Authority....................................................................................................*How the Seabed authority undermines sovereignty............................................................................................................................*UNCLOS compromises U.S. sovereignty compromised as decision-making is given to unaccountable international bodies (ISA)....................................................................................................................................................................................................*UNCLOS is open ended and could undermine U.S. sovereignty allowing international bodies to threaten U.S. interests..............

Interdiction...........................................................................................................................................................................*UNCLOS Ratification undermines U.S. interdiction efforts.............................................................................................................*UNCLOS undermines US naval interdiction efforts.........................................................................................................................*UNCLOS undermines our ability to track/capture terrorists at sea...................................................................................................*UNCLOS makes it more difficult to intercept terrorists/WMD........................................................................................................

Works Cited............................................................................................................................................................

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CON: ADVOCACY AGAINST ACCESSION


UNCLOS not needed. Customary international law and the US Navy are enough

*US can legally assert an Arctic claim without being party to UNCLOS, specifically through the 1958 Continental Shelf Convention

Captain Raul Pedrozo, Associate Professor, Naval War College’s International Law Department, also served as a Special Assistant to the Under Secretary of Defense for Policy, “A Response to Cartner's and Gold's Commentary on Is it Time for the United States to Join the law of the Sea Convention”, Journal of Maritime Law and Commerce, October 2011, accessed at HerinOnline

While I agree completely with Cartner and Gold that UNCLOS “reduces uncertainty and confusion for all states parties” claiming an extended continental shelf, the United States must be prepared to act unilaterally if the Senate does not give advice and consent in the near future. Clearly, as indicated in the NWC Global Shipping Game report, accession to UNCLOS would provide greater certainty and predictability “of the future security and political environment that industry desires in order to invest in economic development of the Arctic region.” However, even without U.S. accession, if there is money to be made, U.S. industry will invest in the region if the U.S. Navy is there to guarantee and protect access. Therefore, while unilateral action may not be the “best” option, it remains a viable (and perhaps the only) option and we should not undercut our ability to claim an extended continental shelf based on the 1958 Continental Shelf Convention by allowing Administration officials to incorrectly state that the United States can only claim an extended continental shelf if we join UNCLOS. Fortunately, not all Administration officials are misinformed on the law. While recognizing the importance of UNCLOS, Margaret Hayes, the chair of the Department of State Extended Continental Shelf Interagency Task Force, acknowledged that “the existence of an extended continental shelf does not depend on a coastal nation having joined the convention” and “that there are other ways to establish what the outer limits might be (emphasis added).”

*US can influence CLCS as a non member. We scuttled Russia's initial Arctic claim

Frank Gaffney, President, Center for Security Policy, “Ronald Reagan was right: The Lww of the Sea Treaty was and remains unacceptable”, Submitted Testimony, Hearing on the Law of the Sea Convention, Testimony before the Senate Foreign Relations Committee, October 4, 2007, p 19, accessed at https://www.foreign.senate.gov/imo/media/doc/GaffneyTestimony071004.pdf

The United States was able to play a role in the Commission’s non- acceptance of Russia’s first claim to the Arctic seabed back in 2001, even though it was not a party to LOST – and, therefore, not at risk of being bound by adverse Commission decisions. This episode demonstrates that, by remaining outside of the Treaty, America can retain its freedom of action (including the use of bilateral diplomacy and more constructive multilateral mechanisms, such as the Arctic Council) and still challenge such over-reaching Russian claims and win.



https://www.foreign.senate.gov/imo/media/doc/GaffneyTestimony071004.pdf


*US and Russia claims in Arctic are NOT in conflict. 1990 Treaty settled. (Russia’s dispute is with Canada)

Iain Murray, “LOST at Sea: Why America Should Reject the Law of the Sea Treaty”, National Center for Policy Analysis, March 2013, p 7, accessed at http://www.ncpathinktank.org/pub/bg167

What of the Arctic? [A 2011 Bloomberg BusinessWeek editorial argued: “The U.S. continental shelf off Alaska extends more than 600 miles into the Arctic Ocean. American companies have been reluctant to invest in exploiting this underwater terrain, which contains vast untapped reserves of oil and natural gas. That’s because the U.S., as a nonparticipant in the sea convention, has no standing to defend its ownership of any treasures that are found there.” Yet this is exactly the same case as in the Gulf of Mexico. Only three nations contest the ownership of resources in the extended North American continental shelf in the Arctic: the United States, Canada and Russia. American relations with Canada are friendly; therefore, a United States-Mexico-style treaty with Canada demarcating appropriate lines north of Alaska should be relatively easy to achieve. Russia might be perceived as a more intractable problem; but a 1990 treaty between the United States and the Soviet Union defines the maritime boundary between the two powers. Under the Treaty, Russia has claimed vast areas beneath the Arctic Ocean, but these claims in no way infringe upon the 1990 Treaty. Actually, they are a challenge to Canada rather than the United States. South of the Arctic Ocean, the treaty line protects U.S. claims to large areas of extended continental shelf in the Bering Sea and in the Pacific Ocean southwest of the Alaskan Aleutian Islands. Accordingly, there is no barrier (barring the low one of a necessity to negotiate a treaty with Canada) to the United States developing the extended continental shelf in the Arctic and its environs in the same way it has in the Western Gap.

*US law (1980 Hard Mineral Resources Act) protects our right to deep seabed drilling


As for the ability to develop deep sea resources, the United States has a clear position, as close to the Grotian and Wilsonian ideals of the free sea as one can get: “Like the fish of the high seas the minerals of the deep seabed are open to anyone to take.” This principle is also embodied in the Deep Seabed Hard Mineral Resources Act of 1980, which guarantees the right of U.S. citizens and corporations to explore and develop such resources regardless of whether the United States accedes to the Treaty.

*US can pursue Arctic claims in the Arctic without being a party to UNCLOS through Presidential proclamation, bilateral agreements and Arctic Ocean Conference

Dr. Ariel Cohen, Senior Research Fellow in Russian and Eurasian Studies and International Energy Policy, The Heritage Foundation and director CENRG and Senior Fellow, IAGS, “From Russian Competition to Natural Resources Access: Recasting U.S. Arctic Policy”, Heritage Foundation Backgrounder, June 15th, 2010, acxcessed at http://thf_media.s3.amazonaws.com/2010/pdf/bg2421.pdf

LOST in the Arctic. The U.S. Arctic Region Polcy urges the Senate to approve U.S. accession to LOST. However, the U.S. can execute its Arctic policy without ratifying LOST. At present, America is not bound by the treaty’s procedures and strictures, but the U.S. is pursuing its claims under international law as an independent, sovereign nation, relying on President Harry S. Truman’s Presidential Proclamation No. 2667, which declares that any hydrocarbon or other resources discovered beneath the U.S. continental shelf are the property of the United States. 4 The U.S. has shown that it can successfully defend its rights and claims through bilateral negotiations and in multilateral venues, such as through the Arctic Ocean Conference, which met in Greenland in May 2008.



http://thf_media.s3.amazonaws.com/2010/pdf/bg2421.pdf

http://www.ncpathinktank.org/pub/bg167

http://www.ncpathinktank.org/pub/bg167


Sharing of technology/Lawsuits

Doug Bandow, Free Enterprise Scholar, Competitive Enterprise Institute, “The Law of the Sea Treaty: Impeding American Entrepreneurship and Investment”, CEI, September 2007, accessed at http://cei.org/pdf/6151.pdf

Another failed fix involves technology transfer. Section 5, paragraph 1(b) of the revised text replaces the mandatory technology transfer requirement with a duty of sponsoring states to facilitate the acquisition of mining technology “if the Enterprise or developing States are unable to obtain” equipment commercially. Yet the Enterprise and developing nations would find themselves unable to purchase machinery only if they were unwilling to pay the market price or preserve trade secrets, or a government restricted the sale of technology with sensitive dual-use capabilities. The new clause might be interpreted to mean that industrialized states and private miners, whose “cooperation” is to be “ensured” by their respective governments, are therefore responsible for mandating and subsidizing the Enterprise’s acquisition of technology.

Moreover, the amended agreement leaves intact a separate, open-ended mandate for coerced collaboration. Article 144 stipulates: [T]he Authority and States Parties shall co-operate in promoting the transfer of technology and scientific knowledge...In particular they shall initiate and promote: (a) programmes for the transfer of technology to the Enterprise and to developing States (b) measures directed towards the advancement of the technology of the Enterprise and the domestic technology of developing States, particularly by providing opportunities to personnel from the Enterprise and from developing States for training.

Leaving the ISA with an ambiguous but seemingly expansive grant of authority risks allowing it to indirectly resurrect the provisions dropped in order to entice the U.S. to ratify the LOST. The ultimate impact could be unpredictable. For instance, some defense analysts worry that China has used its status as a potential miner to win U.S. government approval for undersea mining technology purchases that have security as well as resource development uses. Government vetting of such purchases is difficult enough now, but the LOST could do away with that sensitive technology protection altogether.

*US can influence CLCS as a non member. We scuttled Russia's initial Arctic claim


The United States was able to play a role in the Commission’s non- acceptance of Russia’s first claim to the Arctic seabed back in 2001, even though it was not a party to LOST – and, therefore, not at risk of being bound by adverse Commission decisions. This episode demonstrates that, by remaining outside of the Treaty, America can retain its freedom of action (including the use of bilateral diplomacy and more constructive multilateral mechanisms, such as the Arctic Council) and still challenge such over-reaching Russian claims and win.

*The technology transfer provisions are overly broad and would threaten American economic competitiveness and security


The Law of the Sea Treaty requires extensive transfers of data and technology – at least some of which could be highly detrimental to America’s industrial competitiveness (including in fields far removed from maritime-related activities) and to the national security. For example:

• LOST’s Article 266 mandates that states “cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions” and “endeavor to foster favorable economic and legal conditions for the transfer of marine technology.”





http://cei.org/pdf/6151.pdf


• Article 268 requires states to “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”

• Article 269 calls for parties to “establish programs of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance.” (Emphasis added.)

• Compulsory dispute settlement mechanisms afford further opportunities to obtain sensitive technology and information. Article 6 of Annex VII requires that parties to a dispute “facilitate the work of the arbitral tribunal and…provide it with all relevant documents, facilities and information.” It can therefore be expected that countries may bring the United States or its businesses before arbitral tribunals – without expectation of a favorable result, solely for the purpose of obtaining sensitive technology information.

The object of these provisions is consistent with the socialist, redistributionist and one-world vision that animated many of LOST’s negotiators: No matter what the costs may be to U.S. security and business interests, the fruits of marine research, exploration and exploitation of “the Area” – the waters covered by the Treaty – and the associated technology must be shared with developing nations, land-locked states and “geographically challenged” countries.

Some of the technologies in question are most sensitive. They include: underwater mapping and bathymetry systems; reflection and refraction seismology; magnetic detection technology; optical imaging; remotely operated vehicles; submersible vehicles; deep salvage technology; active and passive acoustic systems; bathymetric and geophysical data; and undersea robots and manipulators. Many of these technologies are inherently “dual-use,” having both military and civilian applications. Their military applications include: anti-submarine warfare; strategic deep-sea salvage; and deep-water bastions for sub-surface launching of ballistic missiles.

The effect of mandatory sharing of such technology could directly benefit not only this country’s economic competitors. It could also help America’s military adversaries, both actual and potential.

The so-called “fixes” with respect to technology transfer obligations contained in the 1994 Agreement do not alter this reality. As noted above, in the first place, the Agreement could not and did not amend the Treaty. Secondly, even if it had done so, the Agreement did not purport to modify all areas in which information and technology transfers are required. For example, all relevant information about deposits and geology must still be provided to the International Seabed Authority’s “Enterprise” in order to apply for a permit to develop seabed resources, together with the technology necessary to exploit such resources.

The United States is the nation with the most to lose – from an economic and national security point of view – from the sort of obligatory technology transfer provisions contained in the Law of the Sea Treaty, including those that would be binding even if the 1994 Agreement has effect.

America has long imposed unilateral export control restrictions precisely for the purpose of preventing transfers that will result in harm to this country. U.S. accession to LOST would require a substantial liberalization, if not wholesale scrapping, of such important self-defense measures.

Actual or potential competitors/adversaries like China, Russia, state-sponsors of terror and even European “allies” understand full well what a technology windfall U.S. adherence to LOST could represent. It would be irresponsible, not to say foolish in the extreme, to believe that none of these parties will take advantage of the opportunity to reap that windfall, to our very considerable detriment.




Redistribution of American dollars (Royalty Sharing)

*LOST requires royalty sharing gained from accessing resources under the EEZ

Steven Groves, Senior Research Fellow, Heritage Foundation, "The Law of the Sea: Costs of U.S. Accession to UNCLOS”, testimony before the United States Senate Committee on Foreign Relations, June 14, 2012, accessed at https://www.heritage.org/testimony/the-law-the-sea-costs-us-accession-unclos

If the U.S. accedes to UNCLOS, it will be required by Article 82 to transfer royalties generated from hydrocarbon production of the U.S. “extended continental shelf” (ECS) to the International Seabed Authority for redistribution to developing and landlocked countries. Since the value of the hydrocarbon resources lying beneath the U.S. ECS may be worth trillions of dollars, the amount of royalties that the U.S. Treasury would be required to transfer to the Authority would be substantial. In any event, U.S. accession would amount to an open-ended commitment to forgo an incalculable amount of royalty revenue for no appreciable benefit.

*Royalty transfers would be in the hundreds of billions and go to corrupt governments

Steven Groves, Senior Research Fellow, Heritage Foundation, "The Law of the Sea: Costs of U.S. Accession to UNCLOS”, testimony before the United States Senate Committee on Foreign Relations, June 14, 2012, accessedf at https://www.heritage.org/testimony/the-law-the-sea-costs-us-accession-unclos

If the U.S. accedes to UNCLOS, it will be required pursuant to Article 82 to transfer royalties generated on the U.S. continental shelf beyond 200 nautical miles (nm)—an area known as the “extended continental shelf” (ECS)—to the International Seabed Authority. These royalties will likely total tens or even hundreds of billions of dollars over time. Instead of benefiting the American people, the royalties will be distributed by the Authority to developing and landlocked nations, including some that are corrupt, undemocratic, or even state sponsors of terrorism such as Cuba and Sudan.

Article 82 of UNCLOS requires member states to “share” a portion of their royalty revenue for all oil, gas, or other mineral resources extracted from the ECS:

“The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”

These payments are to be made to the Authority on an annual basis by the states parties, and are based on the value of production at the particular site—in most cases, an offshore drilling platform extracting oil or natural gas from the ECS. According to a recent study conducted for the Authority, such payments are considered “international royalties.”

The potential size of the U.S. ECS worldwide is significant. The value of the hydrocarbon deposits lying beneath the U.S. ECS is difficult to estimate, but it is likely substantial. According to the U.S. Extended Continental Shelf Task Force, “Given the size of the U.S. continental shelf, the resources we might find there may be worth many billions if not trillions of dollars.”

Member states begin to pay these “international royalties” during the sixth year of production at the drilling site. Starting with the sixth year of production, UNCLOS members must pay 1 percent of the value of the total production at that site to the Authority. Thereafter, the royalty rate increases in increments of 1 percentage point per year until the twelfth year of production, when it reaches 7 percent. The rate remains at 7 percent until production ceases at the site.



https://www.heritage.org/testimony/the-law-the-sea-costs-us-accession-unclos

https://www.heritage.org/testimony/the-law-the-sea-costs-us-accession-unclos


Enormous cost to US

*Accession would force the U.S. to hand over enormous sums in resource royalties

Steven Groves, Senior Research Fellow, Heritage Foundation, “Accession to Convention on the Law of the Sea Unnecessary to Advance Arctic Interests”, The Heritage Foundation, June 26, 2014, accessed at http://thf_media.s3.amazonaws.com/2014/pdf/BG2912.pdf

Regardless, the supposed benefits of electing a U.S national to the CLCS and having a “seat at the table” at annual UNCLOS meetings do not justify U.S. accession to the convention. These benefits, such as they are, should be weighed against the detriments of joining the convention:

If the U.S. accedes to UNCLOS, Article 82 would require the U.S. to transfer royalties generated from hydrocarbon production of the U.S. ECS to the International Seabed Authority for redistribution to developing and landlocked countries. Since the value of the hydrocarbon resources lying beneath the U.S. ECS may be in the trillions of dollars, the amount of royalties that the U.S. Treasury would be required to transfer to the Authority would be significant.

*Ratification forces a transfer of oil and gas royalties to the ISA

Steven Groves, Senior Research Fellow, Heritage Foundation, “Accession to the U.N. Convention on the Law of the Sea Would Expose the U.S. to Baseless Climate Change Lawsuits”, Heritage Backgrounder #2660, March 12, 2012, accessed at www.heritage.org/global-politics/report/accession-un-convention-the-law-the-sea-would-expose-the-us-baseless-climate

Finally, unlike the situation in the Paramilitary Activities and Avena cases, it would not be politically feasible for the United States to withdraw from UNCLOS in the wake of an adverse climate change judgment. The U.S. could not limit its withdrawal to UNCLOS’s compulsory dispute resolution provisions, but instead would be required to withdraw from the entire convention, exposing it to criticism for rejecting the convention’s environmental protection rules, deep seabed regulations, and navigational provisions.

*UNCLOS allows Isa to raid the US treasury

Steven Groves, Senior Research Fellow, Heritage Foundation, “Law of the Sea Treaty Once Again Rears Its Ugle Head in U.S. Senate, Deseret News, May 18, 2012, accessed at https://www.deseretnews.com/article/765576815/Law-of-the-Sea-Treaty-once-again-rears-its-ugly-head-in-US-Senate.html?pg=all

It's bad enough when American tax dollars are blown on government-created debacles such as Solyndra and "Operation Fast and Furious." But at least in those instances the expenditures carried a bare modicum of democratic legitimacy.

What if, on the other hand, the U.S. Treasury was raided for billions of dollars, which were then redistributed to the rest of the world by an international bureaucracy headquartered in Kingston, Jamaica?

That's what will surely happen if the U.S. Senate gives its advice and consent to the United Nations Convention on the Law of the Sea, a deeply flawed treaty that was rejected by President Ronald Reagan in 1982. (The treaty was revived by President Clinton, who sent it to the Senate in 1994. It has languished there ever since.)

Like a vampire, the Law of the Sea Treaty (a.k.a. "LOST") is never quite dead. It rises from the grave every few years for Senate hearings, as it has done in 1994, 2003 and 2007. And so it is again in 2012. The Obama administration is pushing for Senate action on the treaty, and Sen. John Kerry, D-Mass., is currently scheduling a series of hearings to extol the purported benefits of LOST, the first of which is set for May 23.

Of course, the vampire must feed, and its sustenance is American dollars, sucked out of the U.S. Treasury by a provision of LOST known as Article 82. If the U.S. joins LOST, it will be required by Article 82 to forfeit royalties generated from oil and gas development on the continental shelf beyond 200 nautical miles — an area known as the "extended continental shelf" (ECS).



https://www.deseretnews.com/article/765576815/Law-of-the-Sea-Treaty-once-again-rears-its-ugly-head-in-US-Senate.html?pg=all

https://www.deseretnews.com/article/765576815/Law-of-the-Sea-Treaty-once-again-rears-its-ugly-head-in-US-Senate.html?pg=all

http://www.heritage.org/global-politics/report/accession-un-convention-the-law-the-sea-would-expose-the-us-baseless-climate

http://www.heritage.org/global-politics/report/accession-un-convention-the-law-the-sea-would-expose-the-us-baseless-climate

http://thf_media.s3.amazonaws.com/2014/pdf/BG2912.pdf


Currently, oil companies pay 100 percent of the royalties generated from such development to the U.S. Treasury based on the value of oil and natural gas extracted from the Gulf of Mexico and in the Arctic Ocean. The Treasury retains a part of those royalties, and the remainder is divided between Gulf states and the National Historic Preservation Fund.

But under LOST, the United States would be forced to transfer a part of that revenue to the International Seabed Authority, a new international bureaucracy created by the treaty and based in Jamaica. Voila! What was once income paid into the Treasury for the benefit of the American people is transformed into "international royalties" by LOST. To borrow a phrase from former presidential candidate Ross Perot, that "giant sucking sound" you hear is American dollars heading from Washington to Kingston.

How much blood, ahem, money are we talking about? While it's difficult to estimate the total value of all the oil and gas on the vast areas of U.S. ECS, an interagency study group known as the Extended Continental Shelf Task Force estimates that the ECS resources "may be worth many billions, if not trillions of dollars." The royalties that the American people stand to lose is obviously significant.

*UNCLOS allows ISA to “tax” the US

Baker Spring, Research Fellow, National Security Policy, Heritage Foundation, “The United Nations Convention on the Law of the Sea”, testimony before the House Committee on International Relations, May 12, 2004, accessed at http://commdocs.house.gov/committees/intlrel/hfa93660.000/hfa93660_0f.htm

Problem #3: A step in the direction of international taxing authority. The Convention contains an ill-advised revenue-sharing provision that is applied to income derived from oil and gas production outside the EEZ. The general bias in the Convention, as I indicated earlier, is in favor of the redistribution of seabed resources. This bias is codified in the area of oil and gas revenues. The U.S. will be forced to pay a contribution to the International Sea-Bed Authority created by the treaty based on a percentage of its production in the applicable area beyond the 200-mile limit.

While he asserted the argument against this revenue-sharing provision was unconvincing, State Department Legal Advisor William H. Taft IV acknowledged it was an argument that could be made in the course of October 21, 2003 testimony before the Senate Foreign Relations Committee. Mr. Taft understates the problem. By any reasonable definition, this provision would for the first time allow a U.N.-affiliated international authority to impose a tax directly on the U.S. for economic activity. At least, I am unaware of any precedent for this kind of international taxing authority. Shoring up the state system, as recommended by former Secretary of State Shultz, means that international institutions should be funded by the voluntary contributions of their member states. The extent to which these international institutions are allowed access to independent streams of revenue is the extent to which they will seek to obtain governing authority at the expense of the state system. While the revenue-sharing provision related to oil and gas production in the Convention is a relatively modest step in this direction, it is still a step in the wrong direction.



http://commdocs.house.gov/committees/intlrel/hfa93660.000/hfa93660_0f.htm


Forfeiture of sovereignty

*LOST places the US under direct control of the Seabed Authority

Thomas Jacobson, “Ratifying UN Law of the Sea Treaty Would Harm U.S. Sovereignty Part I”, The zcenter for Sovereignty and Security A Division of Freedom Alliance Issue Brief, September 21, 2011, accessed at https://freedomalliance.org/wp-content/uploads/2011/10/Ratifying-UN-Treaty.pdf

But if the United States ratifies LOST, it will bring the nation under the power and direction of the International Seabed Authority (ISA or “the Authority”) and all its organizations and agencies. When the treaty was once before on a fast track to ratification, Oliver North said, “The deeply flawed, Soviet-era agreement (would give) unelected, unaccountable international bureaucrats control over 71 percent of the Earth’s surface.” The USA would have to contend for its rights with 162 other Party Nations such as China, Cuba, Russian Federation, Somalia, Sudan, and Yemen.4 Prior to, and apart from LOST even to this day, the normal process of international relations and negotiations govern and protect the maritime rights of all nations. What LOST did was to create an international entity similar to the United Nations to supersede the sovereignty of nations and exercise governing authority over most of the Earth’s surface. What follows are some examples of how this treaty will adversely impact American sovereignty if the United States Senate gives its consent to ratification.

*How the Seabed authority undermines sovereignty


LOST established the International Seabed Authority as the global administrative institution to implement the provisions of the Treaty. All National Parties are ISA members, and the headquarters is in Kingston, Jamaica [Part XI, Art. 156]. “The Authority” has three principal organs: the Assembly, a Council, and the Secretariat [Art. 158], plus a commercial Enterprise, and the International Tribunal for the Law of the Sea (see Mandatory Dispute Resolution).

The Assembly, “the supreme organ,” has one representative from each of the 162 Party Nations, each with one vote. It has power to: “establish general policies,” elect the Council members, elect the ISA Secretary General, and for the Enterprise, elect the Governing Board and its Director-General [Part XI, Arts. 159, 160]. It also has powers “to assess the contributions of members” (tax Party Nations for revenues), and share (redistribute) income from taxes and activities in “the Area” (all international waters). Both the Assembly and the Council have separate powers to establish any subsidiary global organizations “necessary for the exercise of (ISA) functions” [Arts. 160, 162].

The Council has 36 members elected from among the Assembly by that body, from its various groups of nations, for whom they speak. The Council serves as “the executive organ of the Authority”; picks the candidates for Secretary-General, Director-General and the Board; decides whether to “approve plans of work” (e.g., drilling, mining requests); initiates proceedings against countries or companies for non-compliance; may “issue emergency orders” to stop operations; can “disapprove areas for exploitation”; and creates “specific policies” based on the Treaty and the “general policies established by the Assembly” [Art. 162]. Unlike the Permanent Members of the United Nations Security Council, no member of the ISA Council has a “veto” despite the repeated statements to the contrary by proponents of LOST.

In addition, an entity called the Enterprise was established to “carry out the functions” of ISA worldwide, including commercial enterprises of “transporting, processing and marketing of materials” [Part XI, Arts. 158, 170].



https://freedomalliance.org/wp-content/uploads/2011/10/Ratifying-UN-Treaty.pdf

https://freedomalliance.org/wp-content/uploads/2011/10/Ratifying-UN-Treaty.pdf


The Secretariat, or administration, is comprised of the Secretary-General (SG) and staff necessary to “fulfill the administrative functions of the Authority.” The SG is elected by the Assembly for a four-year term, serves as the ISA’s chief administrative officer, and prepares the first draft of the budget [Part XI, Arts. 166, 167, 172]. Since 2008, Mr. Nii A. Odunton of Ghana has been Secretary-General. Somewhat disconcerting is the requirement that the SG and staff function exclusively as “international officials,” who “shall not seek or receive instructions from any government or from any other source external to the Authority” [Art. 168].

The ISA classified itself as an “international legal personality” with “privileges and immunities” that cover its leaders, representatives of Member Nations, personnel, property, assets, documents, archives, industrial secrets, and proprietary data, plus exemption “from all direct taxation” on personnel or goods exported or imported [Part XI, Arts. 176-183]

If the USA does not ratify LOST, it retains all of its sovereign rights over its territorial waters, continental shelf, and the airspace above, plus all the rights in and above international waters recognized in international law.

If the USA ratifies LOST, all of the rights mentioned above are restricted and regulated by the ISA and its Member Nations, and the USA would become just one voice with one vote among 163 nations, with no veto power, and far less influence than it enjoys in other international bodies, such as the United Nations Security Council. Any American plans for exploration or exploitation of resources within international waters would require Council approval, which could also stop operations at anytime. The U.S. Government and American companies would be required to provide proprietary information to the ISA for any activities or operations in the Area, but would have no control over that information, and be prohibited from prosecuting any ISA personnel for misuse of that information. In fact, the ISA is authorized to transfer “technology and scientific knowledge” to developing nations [Part XI, Arts. 144, 150 (d)]. The U.S. Government and American companies would likely have little influence on the Secretariat, whose leaders and staff would be prohibited from receiving any special influence or “instructions” from them. Also, the USA would be required to grant ISA leaders and representatives the same “privileges and immunities” that high officials and diplomats from foreign nations enjoy. In addition, while the ISA would collect revenues (taxes) from the USA and royalties (taxes) from American companies with operations in international waters, ISA leaders, staff, and goods cannot be taxed.

*UNCLOS compromises U.S. sovereignty compromised as decision-making is given to unaccountable international bodies (ISA)


Problem #1: Loss of Sovereignty. Traditionally, treaties, with only narrow exceptions, have been defined as formal agreements between and among sovereign states that help define their relations to each other as sovereign states. They are inherently political agreements. The option to change such relations and the concomitant power to discontinue adhering to the terms of a treaty is solely the prerogative of the sovereign.

First and foremost, the Convention represents a departure from that tradition. It establishes institutions with executive and judicial powers that in some instances are compulsory. For example, Section 4 of the Treaty establishes the International Sea-Bed Authority. The authority basically is given the power to administer to the "area" under the jurisdiction of the treaty, which includes all the world's oceans and seabed outside national jurisdiction. This is a granting of executive powers to the authority that supersedes the sovereign power of the participating states. Of even greater concern, Part XV of the Convention establishes dispute settlement procedures that are quasi-judicial and mandatory. Once drawn into this dispute settlement process, it will be very difficult for the U.S. extricate itself from it.

Proponents of the Convention acknowledge the far-reaching political and legal ramifications of U.S. adherence to the treaty. University of Virginia School of Law Professor John Norton Moore, a supporter of the Convention who is also testifying today, stated that he sees it as a means for fostering the rule of law in international affairs. In fact, he has stated that adherence to the Convention is "one of the most important law-defining international conventions of the Twentieth Century."





This is quite an assertion. In fact, it is the most troubling aspect of the Convention because the conduct of international relations for centuries has been a more a political than a legal process. Unacknowledged in the language about fostering the rule of law in international relations is the reality that in this particular case it entails subordinating the powers of the participating states to the dictates of an international authority. When it comes to the essential powers for the conduct of international relations, the use of force, and the exercise of diplomacy, they are not readily divisible but they are readily transferable. The Convention is a vehicle for transferring these essential powers from the participating states to the international authority established by the treaty itself. It represents the establishment of the rule of law over sovereign states more than it is establishing a rule of law made by them.

Former Secretary of State George Shultz provides a succinct rejoinder to those who envision the rise of the "rule of law" in international relations in the way it is devised in this Convention. Speaking at the Library of Congress on February 11, 2004, Secretary Shultz stated:

First and foremost, we must shore up the state system. The world has worked for three centuries with the sovereign state as the basic operating entity, presumably accountable to its citizens and responsible for their well-being. In this system, states also interact with each other to accomplish ends that transcend their borders. They create international organizations to serve their ends, not govern them.

*UNCLOS is open ended and could undermine U.S. sovereignty allowing international bodies to threaten U.S. interests


While proponents of the Convention argue that the Clinton Administration resolved the problems with the treaty that led to its rejection in the 1980s, through renegotiation in 1994, the fact remains that it represents a potential turning point for the U.S. in the history of international relations. The Convention presents the U.S. with a stark choice. On the one hand, the U.S. may enter into this treaty and proceed on a path that cedes U.S. sovereignty to executive and quasi-judicial international authority with compulsory powers or reject the treaty and stick to the tried and true international system where relations are established between and among sovereign states.

While the Convention contains a wide variety of questionable provisions, its real danger stems from the fact that the treaty represents more than the sum of its questionable provisions. It establishes open-ended procedures for administering these provisions that could lead to negative outcomes for the U.S. that are all but impossible to predict by simply reading its text. If the U.S. becomes a participant in this treaty, following a move by the Senate to approve ratification, it may regret it in the years ahead.





Interdiction

*UNCLOS Ratification undermines U.S. interdiction efforts

Jack Goldsmith, law professor, Harvard and Jeremy Rabkin, law professor. George Mason University, “A Treaty the Senate Should Sink”, Washington Post, July 2, 2007, accessed at http://www.washingtonpost.com/wp-dyn/content/article/2007/07/01/AR2007070100934.html

Deputy Secretary of State John D. Negroponte and Deputy Defense Secretary Gordon England maintain that the convention will enhance U.S. security. They argued in the Washington Times last month that to meet the "complex array of global and transnational security challenges," the United States must have "unimpeded maritime mobility -- the ability of our forces to respond any time, anywhere, if so required."

This is true, but ratifying the convention won't bring this benefit. Instead it would put America's naval counterterrorism efforts under the control of foreign judges. Suppose the United States seizes a vessel it suspects of shipping dual-use items that might be utilized to build weapons of mass destruction or other tools of terrorism. It's not a wild supposition. Under the Proliferation Security Initiative, the United States has since 2003 secured proliferation-related high-seas interdiction agreements with countries such as Belize and Panama, which provide registration for much international shipping. If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.

The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.

The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N. secretary general or the president of the Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention -- not just China and Russia but other unfriendly nations such as Cuba and Burma -- can contribute.

At minimum, these tribunals would pose awkward questions to the United States about the evidence behind a seizure, how we gathered it and who vouches for the information. At worst they would follow the recent example of the International Court of Justice and use a legal dispute to score points against American "unilateralism" and "arrogance" for a global audience keen to humble the United States. In every case, a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.

It's true that the convention exempts "military activities" from the tribunals' jurisdiction, but it does not define the term. The executive branch, worried about this ambiguity, has proposed a condition to ratification that would allow the United States to define the exemption for itself. But this condition amounts to a "reservation" disallowed by the treaty. International tribunals would still have the last word on the validity of the U.S. condition and the resulting scope of permissible U.S. naval actions.

Supporters note that many of the treaty's "freedom of the seas" provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are "already widely accepted in practice." They maintain that ratifying the convention would nonetheless provide "welcome legal certainty." In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.



http://www.washingtonpost.com/wp-dyn/content/article/2007/07/01/AR2007070100934.html


President Bush invokes a different rationale for ratifying the convention, arguing that it would "give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted." What this really means is that American views of the law of the sea, even on issues related to national security, could be outvoted by a majority in an international forum. How can this make us safer?

*UNCLOS undermines US naval interdiction efforts


A particularly contentious question involves the impact the Law of the Sea Treaty could have on the Proliferation Security Initiative (PSI), a multi-country arrangement launched in 2003 for the purpose of permitting the United States and other participants to stop foreign vessels suspected of transporting weapons of mass destruction “in their internal waters, territorial seas, or contiguous zones.”

PSI is one of the most effective tools the U.S. government has employed to try to stop the transfer of WMD and their delivery systems. Proponents of the Treaty point out that most of those with whom we partner in the PSI are Treaty members and cite LOST as justification for their participation.

Yet, the Law of the Sea Treaty provides only a handful of exceptions to the right of “innocent passage” afforded vessels in these waters. Specifically, LOST’s Article 110 only permits such intercepts in four instances: piracy (i.e., the ship is flying no national flag), slavery, narcotics trafficking and unauthorized radio broadcasting. In addition, LOST provides government-owned ships operating on the high seas complete immunity from the jurisdiction of any foreign country. Since most terrorist-sponsoring nations and their totalitarian enablers have state-owned merchant marines, the Treaty can thus be used to protect proliferation activities on the high seas.

PSI is not compatible with LOST, despite proponents’ claims to the contrary. As a treaty, LOST is binding international law on the parties, whereas PSI is only an informal arrangement between certain nations, and carries no force as international law. The argument that PSI can be executed within the rules of LOST, even though LOST clearly prohibits boarding actions critical to PSI, ignores the fact that LOST outranks PSI in the hierarchy of international law.

As a result, unless one or more of the Treaty-approved circumstances for an at-sea intercept applies, LOST member states could be precluded from participating in such an action – even when there might be compelling evidence that nuclear or other WMD or their delivery systems were on board. As long as the United States continues not to be a LOST state party, it can always act unilaterally. That option, however, will be foreclosed, and our security possibly endangered as a result, if the Senate consents to the Treaty’s ratification.

In this connection, it must be noted that the Chinese and Russians have strenuously objected to the Proliferation Security Initiative, claiming that it violates LOST. They can be expected to seek mandatory dispute resolution of the matter should the United States become a state party. Should the ruling go against us, a critical tool in the nation’s effort to prevent the spread of nuclear, chemical and biological weapons and their delivery systems could be lost for good.





*UNCLOS undermines our ability to track/capture terrorists at sea

David Ridenour, vice president, National Center for Public Policy Research, “Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage”, National; Policy Analysis #542, National Center for Public Policy Research, August 2006, accessed at https://nationalcenter.org/ncppr/2006/08/01/ratification-of-the-law-of-the-sea-treaty-a-not-so-innocent-passage-by-david-ridenour

Opponents of the treaty also contend that it could inhibit the U.S.'s ability to pursue international terrorists and prevent the transportation of weapons of mass destruction on the sea. They appear to be correct.

Article 110 of the Law of the Sea Treaty specifies military ships are "not justified in boarding [a foreign ship] unless there is reasonable grounds for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting...; (d) the ship is without nationality or (e) ...the ship is, in reality, of the same nationality as the warship." Boarding of ships involved in the illicit drug trade is also permitted.

Note that boarding of ships engaged in "unauthorized broadcasts" is considered to be justified, but boarding ships carrying terrorists or weapons of mass destruction is not.

Unauthorized broadcasting, by the way, is not only a justification to board, but for certain countries, a requirement under the treaty. Policymakers would be wise to remember that the U.S. has itself engaged in "unauthorized broadcasts," using such vessels as the Coastal Messenger, a mobile transmitting station for Voice of America broadcasts behind the Iron Curtain during the 1950s and 1960s.

*UNCLOS makes it more difficult to intercept terrorists/WMD


As Jeremy Rabkin, professor of government at Cornell University, has noted: "The only important category of dispute where one party can force another to answer before ITLOS is when a ship has been detained on the high seas and the complaining party seeks immediate release."

The prospects that disputes such as these taken to ITLOS would be ruled in the U.S.'s favor are poor. Many ITLOS judges, certainly a clear majority, are from countries that have either been openly hostile to the United States or are at best unreliable allies. Among the countries represented on ITLOS are South Africa, China, Russia, Tanzania, Lebanon, Brazil, Argentina and France.

ITLOS certainly could complicate the U.S.'s efforts to interdict terrorists and weapons of mass destruction.

For example, if the U.S. chose to act on intelligence information that a foreign-flagged ship (perhaps flying the flag of Syria, Iran or North Korea) was carrying terrorists and boarded the ship, the U.S. could expect to have to answer to ITLOS.



https://nationalcenter.org/ncppr/2006/08/01/ratification-of-the-law-of-the-sea-treaty-a-not-so-innocent-passage-by-david-ridenour





WORKS CITED

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