Home The Washington Diplomat December 2007

Law of the Sea Convention Likely To Encounter Fierce Headwinds

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Who ultimately controls what happens on and under the oceans? Will a country gain or lose rights if it joins the ambitious United Nations Convention on the Law of the Sea?

Can the international treaty, for instance, force a country to tighten its domestic pollution control laws to meet global environmental standards? Will the security of a nation’s military be compromised if its activities are subject to scrutiny under the convention? Is signing the convention in the best interests of the United States—or any country—especially given the race to secure minerals and other potential riches underneath the world’s waters?

These and other questions aimed at better understanding the fine print of this huge and highly controversial international agreement are expected to be raised when the U.S. Senate takes up a resolution to ratify the convention—a move that has stalled since President Clinton submitted the treaty more than 13 years ago. But on Nov. 1, the Senate Foreign Relations Committee voted 17-4 to send that resolution to the floor, and the full chamber could vote on the matter within weeks, with a two-thirds majority needed to pass.

The impending vote has intensified the debate over the sea treaty, with both sides bringing out their full arsenal of arguments. President George W. Bush, who has made ratification a priority, is joined by a long list of proponents including former President Bill Clinton; former Reagan Secretary of State George P. Shultz; the U.S. military; and a large coalition of shipping, energy, fishing, telecommunications and environmental groups.

These proponents argue that the convention is vital to national security and economic interests because it essentially establishes the rules of the road when it comes to the world’s oceans. Specifically, the treaty—which has been ratified by 155 nations since it was signed in 1982—would codify maritime navigational freedoms, particularly for the military, and would grant the United States, with its extensive coastline, exclusive rights over a vastly increased area of the ocean designated as an exclusive economic zone (EEZ). These EEZs—which were introduced to halt the increasingly heated clashes over fishing rights—give a coastal nation sole exploitation rights over all natural resources within the 200 nautical mile zone of its shoreline.

Moreover, if it joins the treaty, the United States would gain a vital seat on international panels charged with regulating ocean preservation and use. This means that as the competition heats up for dwindling global resources, the U.S. government would have a greater say in the increasingly intense territorial claims over pieces of the seabed—which are particularly evident in the North Pole, where the recent rush to secure parts of the Arctic has pit the United States, Russia, Canada, Norway and Denmark against one another.

On the other side of the debate are the predominantly conservative opponents—many skeptical of the United Nations—who include every major Republican presidential candidate and the majority of Republican senators, as well as former Reagan Attorney General Edwin Meese, retired Commander of the Pacific Fleet Adm. James Lyons, and President of the Center for Security Policy Frank Gaffney, along with organizations such as the Coalition to Preserve American Sovereignty (CPAS).

Although opponents’ objections are numerous and detailed, their overriding concern is that accession to the far-reaching convention, popularly known among critics as the Law of the Sea Treaty (LOST), would mean unprecedented surrender of U.S. sovereign rights to unaccountable, corruption-prone international bureaucracies and tribunals whose regulations and rulings would co-opt U.S. environmental and other laws to the detriment of American economic, business and national security interests.

The convention is “the darling project of the transnational progressives, or ‘transies,’” charges the CPAS Web site, rejectLOST.org. “Their goal is nothing less than the establishment of world government at the expense of traditional sovereignty.” Opinionjournal.com noted on Nov. 3 that “it’s now up to 34 Senate Republicans to send this giant octopus of a document back where it belongs. To wit, the bottom of the ocean.”

But critics of these sea critics say such language reflects an unfounded paranoia over a pact that would actually benefit individual countries. “These are right-wing ivory tower ideologues who are pursuing an America-against-the-world agenda,” argues Caitlyn Antrim, a deputy U.S. representative to the Law of the Sea Convention during the first Reagan administration. “The opponents have twisted the convention to the point where it is unrecognizable from the real thing.”

So what exactly is the real thing? The U.N. Convention on the Law of the Sea (UNCLOS) was concluded in 1982 and replaced four 1958 treaties. It came into force in 1994 and now has 155 signatories. The convention designates the world’s oceans as “the common heritage of all mankind” and establishes a legal framework to promote peaceful usage of the seas, including the equitable use of resources and protection of the marine environment.

“These goals,” says the preamble, “will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked.”

Specifically, the convention defines maritime zones including territorial waters, EEZs and the limits of the outer continental shelf. It sets rules governing freedom of navigation including the right of safe passage of all nationally flagged ships transiting the open seas, including military vessels, through the world’s straits and archipelagos. It also sets rules and guidelines to prevent ocean pollution, and it establishes a legal regime to mine minerals in the deep seabed.

Several international governing bodies are created under the treaty, including the International Seabed Authority (ISA), and U.S. accession to the convention would ensure that U.S. views on such matters as Russia’s claim to a portion of the Arctic are taken into account by the commission, a politically neutral scientific body that is currently reviewing the wave of flag-planting claims taking place around the North Pole.

Although the treaty grants coastal states maritime resource rights within 200 miles of a country’s shorelines, signatories can nearly double that territorial claim if they can show the ISA that their underwater continental shelf extends beyond the coast—hence the rush to submit scientific claims asserting continental shelf rights to the North Pole.

The ISA grants mineral rights in the deep seabed of this expanded continental shelf, a region dubbed the “Area.” In addition to fees associated with these rights, the ISA collects oil and gas royalties derived from drilling in the continental shelf beyond a country’s designated 200 miles. The convention calls for this revenue to then be allocated primarily to underdeveloped nations under a sharing plan subject to the consensus of ISA’s 36-member executive council.

“The [ISA] fees regime is straightforward socialism,” asserts Baker Spring, national security policy analyst at the conservative Heritage Foundation, referring to the ISA’s redistribution scheme. He also points out that under its rules, the ISA can create a subsidiary mining operation called “the Enterprise” to compete with private operations. “The Enterprise,” Spring charges, “is like a government creating a car company with the power to levy taxes on Ford while building cars that compete with Ford. It puts private enterprise totally at a disadvantage.”

The convention also provides for dispute settlement through an international tribunal and arbitration panels that resolve conflicts states can’t settle on their own. Were it to become a party to the convention, the United States would participate in these legal institutions and be able to influence their rulings, according to proponents.

But Spring noted that although “military activities” are exempt under the convention, the agreement does not define such activities, and “that exemption gets blurred when you consider the mandatory dispute settlement provisions,” he explained. “The Navy should be sensitive to this potential impediment to their ability to carry out their mission. Furthermore, under the waiver provisions of the exemptions [Article 298], the Navy could be overruled by a civilian authority.”

This fall, in one of a series of editorials in the Washington Times denouncing the agreement, Frank Gaffney argued that the United Nations is dominated by Third World interests that are corrupt, incompetent and “overwhelmingly hostile to the United States,” and he asks, “Why would the Senate consider putting the U.N. on steroids by assenting to its control seven-tenths of the world’s surface?”

Gaffney further asserts that “LOST would set a precedent for diminishing, and ultimately eliminating, sovereign nations [and] establish the superiority of international mechanisms for managing not just ‘the common heritage of mankind’ but everything that could affect it.”

On this note, Gaffney blasts the convention’s “sweeping” environmental provisions for forcing nations to adopt laws that would protect and preserve the marine environment. He argues that because the oceans are ultimately affected by pollution from air and land sources, “the U.N.’s big power grab would allow it to exercise authority over land-based actions of heretofore sovereign nations.” RejectLOST.org refers to this as a “backdoor way to get the U.S. to abide by the Kyoto Treaty.”

Nonsense, counters Scott Paul, deputy director of external relations at Citizens for Global Solutions. “The convention’s language on land-based pollution of the seas is strictly hortatory,” he said. “Nothing in the Law of the Sea could compel the U.S. to change its policies on land-based pollution.”

Treaty proponent Antrim adds that critics have misconstrued the intent of the Law of the Sea, failing to see the many benefits it offers. “The critics argue that the convention empowers the United Nations but, in fact, the convention has nothing to do with the U.N. Their statements regarding surrender of U.S. sovereignty and their fears about world government dominated by the U.N. and Third World interests are completely misinformed,” she argued. “The U.S. gains an expanded continental shelf over which it has exclusive right to the minerals, and it has complete authority over harvesting of resources in the EEZ. This is the most pro-sovereignty convention that I can imagine.

“That the U.S. would be compelled to abide by other international laws, such as Kyoto, that we have not ratified is absolutely incorrect,” continued Antrim. “Opponents fear ISA overreach but this fear is totally unfounded. The authority is solely confined to mineral resources of the deepest seabeds and under the ’94 agreement, the U.S. has the power to unilaterally block any ISA decisions it deems inimical to its interests.”

“As a non-party, the United States is missing out on a huge economic opportunity, not to mention substantial security and environmental benefits,” added Paul. “This is a chance to advance our national interests and simultaneously begin to restore our leadership role in the international community.”

About the Author

Alan B. Nichols is a contributing writer for The Washington Diplomat.

Last Edited on November 29, 1999