A Constitution for the Oceans?

When recently perusing the website of the Hamilton Project (an excellent consortium of progressive-leaning policy papers), I came across something that I never knew existed. To my surprise a comprehensive framework, established under the imprimateur of the United Nations, exists that seeks to set forth rules governing the uses of the non-territorial oceans (i.e., the open seas) and their resources, including the airspace above and the seabed and minerals below.

OceanThis international treaty of sorts–called the United Nations Convention on the Law of the Sea (UNCLOS)–was first adopted in Montego Bay in 1982, and has since been modified an adopted by 155 nations (yes, in case you are wondering, even Lesotho has signed on). The text of the Convention may be read here.

Some of the major features of this Convention include:

  • Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection;
  • All States enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas; they are obliged to adopt, or cooperate with other States in adopting, measures to manage and conserve living resources;
  • States are bound to prevent and control marine pollution and are liable for damage caused by violation of their international obligations to combat such pollution;
  • Disputes can be submitted to the International Tribunal for the Law of the Sea established under the Convention, to the International Court of Justice, or to arbitration. Conciliation is also available and, in certain circumstances, submission to it would be compulsory. The Tribunal has exclusive jurisdiction over deep seabed mining disputes.

Conspicuosly absent from the list of ratifiers? You guessed it: the United States. Refreshingly, however, this is not due to any intransigence on the part of the Bush Administration. In fact, President Bush listed UNCLOS as one of his “top 5” treaty priorities in 2004. Lip service is one thing, and action is another, but all things considered it is a step in the right direction that a proposal wasn’t rejected outright under the auspices that the United States would somehow cede its sovereignty to every other nation in the world. The White House should be commended for its leadership.

No, despite the support of the Bush Administration (to wit, as recently as May 2007), the former Chairman of the Joint Chiefs of Staff Richard Myers, and the U.S. Chief of Naval Operations Admiral Vern Clark, a small group of conservative U.S. senators have opposed the treaty and precluded its progression for ratification in the Senate on grounds that it would impair America’s sovereignty. This, despite the fact that it was approved 19-0 by the Senate Foreign Relations Committee in February 2004.

This argument is stale and rejected by many who apply the same argument in different contexts, with respect to international organizations and treaties. In fact, ratifying UNCLOS would benefit the United States in a variety of ways…

Economically, the Convention would not limit in any way the U.S.’s sovereign rights over the resources near our states’ coasts. On the contrary, it would allow the United States sovereignty over resources within the extended continental shelf beyond this “exclusive economic zone” extending 200 miles off our vast shorelines. The legality of such actions at present could be disputed. Moreover, it is significant that the oil, natural gas, shipping, fishing, and telecommunications industries overwhelmingly support the Convention because of the new opportunities that it opens up to them for exploration.

Diplomatically, approving the Convention would be a symbolic gesture away from past “with us or against us” comments that so many people abroad associate with the U.S. over the past half decade. Ratifying a treaty the the rest of the industrial and “Western” world has sought fit to approve evinces a willingness to take part in a global chess game that will in fact be advantageous to our national interests.

National security-wise, as Admiral Clark testified to the United States Senate Committee on Environment & Public Works:

Although the Convention was drafted over 20 years ago, the Convention supports U.S. efforts in the war on terrorism by providing important stability and codifying navigational and overflight freedoms, while leaving unaffected intelligence collection activities. Future threats will likely emerge in places and in ways that are not yet known. For these and other as yet unknown operational challenges, we must be able to take maximum advantage of the established navigational rights codified in the Law of the Sea Convention to get us to the fight rapidly. The diversity of challenges to our national security combined with a more dynamic force structure makes strategic mobility more important than ever. The oceans are fundamental to that maneuverability and, by joining the Convention, we further ensure the freedom to get to the fight, twenty-four hours a day and seven days a week, without a permission slip.

Environmentally, the Convention is a major boon for conservation. Its provisions relating to marine pollution and fisheries conserve aquatic resources for future generations at very little metaphoric or financial cost. Although not a perfect measure environmentally, given the increased availability for deep sea drilling, it nonetheless does establish conservation rules that at present exist only as norms that may be ignored.

In sum, this treaty that I had never heard of is important because it serves a diverse mix of American national interests. Liberals and progressives should be aware of this treaty, and should consider supporting it, because its many-headed initiatives are beneficial to bolstering international respect for the United States, improving flexible national security, expanding in a structured fashion economic opportunities, and strengthening the protections to some of the world’s most fragileecological environments that exist under the 70% of the Earth that exists under water.

Creative Commons-licensed photo courtesy of flickr.com user IvanoMak.

[Note: this post was edited to add bold text in places, after its orginal publishing]

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Published in: on August 31, 2007 at 1:04 am Comments (1)

One Comment

  1. On October 2, 2007 at 12:09 am Informed Lawyer Said:

    It is perhaps advisable to consider why it is necessary for both Chambers of the US Congress to hold public, transparent and comprehensive hearings in review of the UN Law of the Sea Convention BEFORE it is submitted to the full Senate for Ratification. There are numerous congressional committees that possess oversight jurisdiction to vet the various dimensions of this treaty, arguably the largest environmental regulatory treaty in the world. After all, is it not every Americans’ constitutionally guaranteed right to be afforded due process of law? In this case, due process consists of being educated by their elected representatives about how this treaty with an expansive will reach into US sovereign territory and affect their businesses, private pocketbooks and daily lives.

    For this reason, the blogger community might be interested in the following article:

    The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty

    By J. William Middendorf II* and Lawrence A. Kogan**

    During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.

    These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.

    Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.

    While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.

    Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.

    These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.

    This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

    Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.

    More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.

    In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.

    The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.

    * Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.
    ** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.