UNCLOS is not administered by the United Nations
The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations. In addition, the only international organization UNCLOS creates (the International Seabed Authority) is no different from the hundreds of other international organizations the U.S. is already party to, including the U.S.- Canadian Fisheries Convention or the International Maritime Organization.
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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 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. 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
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Now, how about this new agency [International Seabed Authority] being a precursor for world government? Well, it has been in existence for twenty-five years. It has a staff of thirty-five, counting the secretaries, and it has a total budget of less than $12 million.21 World government? I do not think so. This is simply yet another run-of-the-mill international organization. There are hundreds, like the U.S.- Canadian Fisheries Convention, the International Maritime Organization, and many others. This is not something fundamentally different.
Myth: Ratifying the Law of the Sea Treaty will create a United Nations bureaucracy. Fact: Not true. Ratifying the LOTS creates nothing. Ratifying the treaty will give the United States a seat on the already-formed International Seabed Authority. The International Seabed Authority has existed for over 20 years. The ISA is the international authority that grants exploration and mining and drilling permits to all nations. The ISA also creates clear, legally binding, protocols for ships while navigating foreign waters. This is long established, current international law. The U.S. opting not to join the ISA does nothing except prevent America from receiving mining and drilling permits, while also creating a gray area legally for our military and for U.S. companies when dealing with waterways belonging to foreign nations. That is why every U.S. business association, including the US Chamber of Commerce and the National Association of Manufacturers, and every sitting military leader of a U.S. Command – including the Secretaries of the Army, Navy and Air force and the Chairman of the Joint Chiefs of Staff - supports the treaty’s ratification.
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The ISA, the institutional component that led the Reagan administration not to support the Convention in 1982, has remained a obstacle for a few vocal critics of the Convention in America. Although the ISA is the only new body created by the Convention that is explicitly authorized to make policy, its mandate is narrow, related to steps furthering security of tenure for those seeking to explore for minerals or mine on the seabed beyond the limits of national jurisdiction. The Part XI Implementation Agreement, which is now read together with the Convention to govern the ISA's operations, rectified all of the Reagan administration's objections to the original Part XI (the administration's only objections to the Convention). The objectionable provisions related to an asserted lack of guaranteed access for qualified private miners, the possibility of payments to national liberation movements, mandatory technology transfers, production limita- tions, and a review conference that could amend Part XI over the objection of the U.S. or other states. The George W. Bush administration has emphasized the 1994 changes with respect to these provisions. It has also emphasized 1994 changes concerning the U.S. role in how the ISA makes its decisions, changes that give the U.S. an effective veto over ISA decisions. Since its inception, the ISA has operated on a low budget and has confined its activities to its specified mandate, behavior that should reassure skeptics who fear an expensive, bloated international bureaucracy.
The critics seem naively to believe that America can simply shoot its way around the oceans, apparently including shooting our NATO allies, such as Canada, with whom we disagree about Arctic straits. Most shamefully, the critics repeat, despite all correction, that the Convention would turn the oceans over to the United Nations. But to the contrary, in its 200 nautical mile economic zones and extended coastal state continental shelves the Convention embodies one of the greatest expansions of national jurisdiction in history and absolutely nothing is turned over to the United Nations. Moreover, the closely cabined International Seabed Authority (ISA), necessary to create bankable property rights for seabed mining, only has jurisdiction over mineral resources of the seafloor in areas beyond national jurisdiction. Far from a menacing international agency poised to take over the world, after a quarter-century of operation the ISA has a staff of 39, considerably smaller than the staff of at least one of the domestic organizations most visibly opposing the Convention. The ISA is simply a small garden variety specialized international agency similar to many in which the United States participates, for example the Great Lakes Fisheries Commission. Even were the critics correct, United States non-adherence to the Convention would not in the slightest end the ISA or change the Convention which is one of the most widely adhered to in the world.
This brings us to the keystone in the arch of opposition. The treaty is officially titled the United Nations Convention on the Law of the Sea. And anything that bears the imprimatur of the United Nations is immediately and unconditionally dead on arrival in a certain tranche of senatorial offices. Sen. Jim DeMint (R-SC), for example, has suggested the United Nations is “ineffective, they’ve been wasteful, there’s corruption, and there is deep concern that there is a lot of anti-American sentiment.”
Here’s the thing: The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations.
The treaty itself does not establish U.N. oversight of any aspect of its implementation. It creates separate management bodies, like the International Seabed Authority, which work to regulate multinational operations in international waters without a direct link to the organization that has attracted so much vitriol from the protectionist wing of the conservative movement.
Apparently, conservative conspiracy theorists’ fears about the United Nations’s purported push for creation of a world government are stronger than their ties to Big Oil, corporate America, and military contractors. As Secretary Clinton put it, “Whatever arguments may have existed for delaying U.S. accession no longer exist and truly cannot even be taken with a straight face.”
The lack of support for this treaty among some GOP lawmakers is stunning. It shows once again that conservatives’ ideological opposition to the United Nations is getting in the way of smart planning for our natural resources.
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In their letter to Senator Reid, the thirty-one signers were concerned with subjugating U.S. sovereignty “to a supranational government that is chartered by the United Nations.”10 Leading conservative activist Phyllis Schlafly described the conservative perspective on the treaty as follows:
LOST [UNCLOS] is the globalists’ dream bill [because] it would put the United Nations in a de facto world government that rules the world’s oceans under the pretense that they belong to the ‘common heritage of mankind.’ That is global speak for allowing the United Nations and its affiliated or- ganizations to carry out a massive unprecedented redistribution of wealth from the United States to other countries.11
This perspective ignores the fact that the United States had been in- volved in negotiations on the wording of UNCLOS since the time of Presi- dent Nixon.12 In 1983, during the Reagan administration, the United States supported the convention with the exception of the deep seabed provisions. President Reagan stated that the United States would recognize the rights of other states in the waters off their coasts as reflected in the convention.13 After President Reagan refused to endorse ratification due to the deep seabed issues, additional negotiations in the United Nations took place, resulting in the “Agreement Relating to the Implementation of Part XI of UNCLOS,” dated 28 July 1994, which satisfied the Reagan conditions. After a yearlong inter-agency review, the Bush administration concluded that all of the concerns raised by President Reagan were addressed by the 1994 Amendments.14 Thus, rather than UNCLOS being forced on the United States by the United Nations, it was instead negotiated with the full participation of the United States, and later specifically amended to answer the objections of President Reagan.
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Contrary to the isolationists’ belief, the United Nations is not involved in implementing, administering, or enforcing UNCLOS. The convention not the United Nations, establishes a number of distinct bodies, separate from the United Nations, to handle specific issues. These include the Commission on the Limits of the Continental Shelf15 and the International Sea Bed Authority.16 The Authority is composed of three bodies: the Assembly, the Council, and the Secretariat.17 Each member nation has one representa- tive in the Assembly.18 The Council is a body of thirty-six persons. As the largest economy in terms of gross national product, if the United States ratified UNCLOS, the United States would have a permanent place on the Council.19 The Council nominates persons for the Secretariat and the As- sembly votes on them.20 An agency called the Enterprise, which works in deep seabed mining, has not been called into action, as mining has yet to start.21 The final organization is the International Tribunal for the Law of the Sea.22 The Tribunal consists of twenty-one members elected by the parties to the Convention and is based in Hamburg, Germany. While UNCLOS establishes various bodies, they are distinct from and independent of the United Nations, which is not involved in administering UNCLOS.
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A handful of opponents continue to voice their concerns about the impact of acces- sion on U.S. sovereignty and security. Doug Bandow, a special assistant to President Reagan in the 1980s who served on the U.S. Law of the Sea delegation, continues to call for the scuttling of the Treaty.93 Bandow cautions against what he refers to as a “redistributionist bent” embodied in Part XI in the form of a portion of deep seabed royalties being distributed to mining and nonmining nations alike. He also notes that the United States ought to stand against the creation of “new oceans bureacracy.”94 At the same time he derides the advocates’ call for Treaty accession as a means of manifesting U.S. leadership. Leadership, suggests Bandow, can be illustrated just as easily by saying no as by saying yes.
Bandow’s arguments fail to carry the same weight today as they did ten years ago. The oceans bureaucracy, as he calls it, is not a prospect that might be stemmed. The Law of the Sea Tribunal is up and running. Judges have been appointed and are hearing and adjudicating cases. The Commission on the Limits of the Continental Shelf is estab- lished and employing Convention principles as required by the Convention.95 As noted above, the United States is currently engaged in mapping its own continental shelf em- ploying Convention principles.96
Myth 6: UNCLOS is an "UN treaty" and sui generis does not serve U.S. interests.
The Convention is not the United Nations; it simply was negotiated under UN auspices, as are many vital international agreements. Such UN treaties as the Anti-Corruption Convention and the Convention for the Suppression of Terrorist Bombings or the International Ship and Port Facility security Code negotiated under the aegis of the International Maritime Organization enhance, not threaten, U.S. security.