U.S. participation in UNCLOS will undermine national sovereignty
UNCLOS establishes institutions (ex. the International Seabed Authority) with executive and judicial powers that in some instances are compulsory. This is a granting of executive powers to the authority that supersedes the sovereign power of the participating states.
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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 testified before the Senate Foreign Relations Committee on October 14, 2003, stated that he sees it as a means for fostering the rule of law in international affairs. In fact, he states 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.
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The most persuasive argument for the Law of the Sea Treaty is the U.S. Navy's desire to shore up international navigation rights. It is true that the Treaty might produce some benefits, clarifying some principles and perhaps making it easier to resolve certain disputes. But our Navy has done quite well without this treaty for the past two hundred years, relying often on centuries-old, well-established customary international law to assert navigational rights. Ultimately, it is our naval power that protects international freedom of navigation. The Law of the Sea Treaty would not make a large enough additional contribution to counterbalance the problems it would create.
President Reagan rejected the Law of the Sea Convention in 1982 and cited several major deficiencies, none of which have been remedied. Reagan was concerned that the U.S., though a major naval power, would have little influence at the International Seabed Authority that the convention created. Although the Authority is supposed to make decisions by consensus, nothing prevents the rest of the “international community” from consistently voting against the United States, as regularly occurs in similar U.N. bodies, such as the General Assembly. In addition, President Reagan was troubled by the fact that the International Seabed Authority has the power to amend the convention without U.S. consent. That concern has also not been remedied in the intervening years.
If there is one overarching characterization that can describe U.S. participation in UNCLOS, it is taking a giant step forward in the continuing delegation of U.S. foreign policy to the United Nations. Recent milestones along this path include U.S. initiatives to multi-nationalize peacekeeping operations such as that in Bosnia, "humanitarian relief" operations as in Somalia and Rwanda, and actual belligerent military operations like the Gulf war.
Ironically, this "contracting out" of U.S. foreign policy is quietly taking place against the backdrop of a growing domestic debate on whether to repeal the War Powers Act, which places strict limits on the president's ability to use military force in support of foreign policy objectives. Would the lifting of War Powers Act restrictions lead the president to commit U.S. forces to ever more complicated and dangerous UN-sponsored military operations? Would the potential military commitments hidden in UNCLOS have a greater likelihood of developing? Will the United States eventually find itself in the position of "world policeman," being assigned roles and missions dictated by others?
Many of those in favor of repealing the War Powers Act argue that meddlesome congressional oversight and second-guessing of presidential prerogatives are burdensome constraints. Imagine the second-guessing and interest group politics imposed by 170 nations and their bloated bureaucracy of international civil servants as the "contracting out" of U.S. foreign policy continues.
The International Seabed Authority and UNCLOS represent the surrender, with little or no compensation, of a variety of tangible U.S. security and sovereignty equities over a geographic area encompassing 70 percent of the earth's surface. The administration is attempting to bind this nation to a treaty and a bureaucratic organization whose basic operating principles are inimical to U.S. interests and that, to date, is officially recognized only by third world and landlocked states.
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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.