UNCLOS would give far-reaching regulatory powers to international and national bureacracies
By ratifying UNCLOS, the United States would be submitting itself to a much wider range of international controls than it has in the past and would give more power and legitimacy to misguided efforts to establish a supra-national government at the United Nations.
Much to Lose, Little to Gain. As a multilateral treaty negotiated under the auspices of the U.N, UNCLOS poses the usual risks to U.S. interests of such multilateral treaties. In the international organizations created by such treaties, the U.S. often faces regional, economic, or political blocs that coordinate their votes to support outcomes counter to U.S. interests. The bloc voting process is fre- quently driven by the same overtly anti-American agenda that is often apparent in the U.N. General Assembly. While the U.S. can achieve positive out- comes in these forums, its successes are usually limited, having been watered down or coupled with demands from other participating states that it would otherwise not accept.
One example of U.S. interests being thwarted by bloc voting is the new U.N. Human Rights Council. The U.S. was a strong proponent of creating a new body to replace the discredited U.N. Commission on Human Rights, which had became a haven for human rights abusers to protect one another from scrutiny and censure. Once locked into negotiations over the specifics of the new council, however, the U.S. was repeatedly outnumbered and isolated. As a result, the council has minimal requirements for membership, and China, Cuba, Pakistan, Saudi Arabia, and other repressive states have won council seats. Unsurprisingly, the council has performed just as badly, if not worse, as its predecessor, and the U.S. has declined even to seek a seat on it.
Further, U.N.-related multilateral treaties often create unaccountable international bureaucracies. The UNCLOS bureaucracy is called the International Seabed Authority Secretariat, which is headed by a secretary-general. The Secretariat has a strong incentive to enhance its own authority at the expense of state sovereignty. Thus University of Virginia School of Law Professor John Norton Moore describes this sort of treaty as a “law-defining international convention.” The law that is being defined and applied by international bureaucrats is one designed to govern the actions of the participating states, not to serve their joint interests. For example, a provision of UNCLOS that would impose direct levies on the revenues of U.S. companies generated through the extraction of resources from the deep seabed reveals this bias against state sovereignty. When international bureaucracies are unac- countable they, like all unaccountable institutions, seek to insulate themselves from scrutiny and become prone to corruption. The International Seabed Authority Secretariat is vulnerable to the same corrupt practices that have been present at the U.N. for years. The most pertinent example of this potential for corruption is the United Nations Oil-for- Food scandal, in which the Iraqi government benefited from a system of bribes and kickbacks involving billions of dollars and 2,000 companies in nearly 70 countries. Despite ample evidence of the U.N.’s systemic weaknesses and vulnerability to corruption, the U.N. General Assembly has yet to adopt the reforms to increase transparency and accountability proposed by former Secretary-General Kofi Annan and others. This example is particularly pertinent considering that the Authority could oversee significant resources through fees and charges on commercial activities within its authority and potentially create a system of royalties and profit sharing.
Neoconservatives have been concerned about rampant anti- Americanism in the United Nations system. And make no doubt about it: this particular treaty is part of the broader United Nations system. Are we creating yet another institution among many that are already there that will pursue essentially this kind of agenda? I think that we are. And I think that the international institutions this Convention establishes, such as the International Seabed Authority/ are going to be subject to the same procedural shenanigans that we see in the United Nations system regarding this anti-American agenda.
Thus, I think it was not coincidental that, prior to her passing, former U.N. Ambassador Jeane Kirkpatrick warned strongly against the United States rushing to join this particular Convention. I have no doubts that the U.N.'s systematic anti- Americanism will be pursued in the Law of the Sea institutions.
Social conservatives—what are near and dear to their hearts? Preserving moral values and the moral standing of the United States. And once again, we come back to the question of the Law of the Sea Convention and the international institutions that it would create, as to whether they would behave consistendy with the highest aspirations humans are called to achieve. To put it mildly, the United Nations system is not a paragon of virtue. We have seen things like the "Oil for Food scandal;" we have seen things like U.N. peacekeepers exploiting women in African peacekeeping missions. We have seen the adoption of resolutions saying that Zionism is a form of racism. All of these are things that have been essential elements of the ongoing United Nations system of which this treaty is a part.
It should not surprise anybody that one of the most prominent social conservatives that ever served in the Senate, Senator Jesse Helms of North Carolina, took it as a personal responsibility to see that the United States did not join this Convention. He was successful during his tenure in doing that, and I think he made very compelling arguments regarding not just this particular institution, but also about the broader problems with the United Nations system as a whole.'"
LOST is a vast and complex undertaking, with obligations and implications that go far beyond the codification of common navigation rights and arrangements that were the initial impetus for the Treaty.
We cannot safely ignore the fact that, during its negotiation, LOST became a vehicle for advancing an agenda promoted by the Soviet Union and so-called “non- aligned movement” during the 1970s, known as the New International Economic Order (NIEO). The NIEO was a classic “united front” effort aimed at undermining the economic and military power of the industrialized West – particularly the United States – in the name of a centrally planned, global redistribution of wealth to the benefit of developing nations.
Toward this end, LOST creates various supranational bodies to develop and enforce its provisions, complete with an executive branch, legislature and judiciary. These agencies operate on the basis of one-nation/one-vote – an arrangement that has proven in the United Nations and elsewhere to be highly disadvantageous to the United States.
The Law of the Sea Treaty and its agencies are indisputably linked to the UN, both substantively and organizationally. What benefits one, benefits the other.
On the substantive plane, other UN agencies routinely promote treaties and regulations designed to build on and reinforce LOST’s importance and the authority of its agencies. A recent example is instructive: A report of a UN review conference on progress between 2004 and 2006 in the implementation of the Convention on Biological Diversity “recognizes the United Nations General Assembly’s central role in addressing issues relating to the conservation and sustainable use of biodiversity in marine areas beyond national jurisdiction.”
The report goes on to “recall that United Nations General Assembly Resolution 60/30 emphasized the universal and unified character of the United Nations Convention on the Law of the Sea, and reaffirmed that the United Nations Convention on the Law of the Sea sets out the legal framework within which all activities in the oceans and seas must be carried out, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on the Environment and Development....” (Emphasis added throughout.)
At a practical level, the ties between the UN and LOST are no less palpable. For example: All staff associated with LOST bodies are paid by the UN system. Day-to- day monitoring of activities regulated by LOST is conducted by UN staff employees. Employees of LOST-related agencies participate in the UN pension plan. And, under the terms of the Treaty, the UN Secretary General plays a direct role in choosing the fifth arbiter for five-person special arbitral tribunals that will hear disputes between parties to LOST. He also is responsible for convening conferences to amend the Treaty.
LOST’s Transnationalist architects have long sought to build up supranational agencies. This treaty allows them to do so in unprecedented ways by: conferring on LOST “organs” responsibility for regulating seven-tenths of the planet (i.e., the world’s oceans and the vast natural resources to be found in and below them); levying what are tantamount to international taxes; and imposing mandatory and un-appealable decisions in disputes that may arise involving parties to the Treaty.
To date, the full, malevolent potential of the Law of the Sea Treaty has been more in prospect than in evidence. Should the United States accede to LOST, however, it is predictable that the Treaty’s agencies will: wield their powers in ways that will prove very harmful to American interests; intensify the web of sovereignty-sapping obligations and regulations being promulgated by this and other UN entities; and advance inexorably the emergence of supranational world government.
It may be that the only check on such undesirable outcomes is for the United States to remain a non-state party to LOST. The latitude such an arrangement affords America to observe Treaty provisions that are unobjectionable – without being bound by those that are – may not only be preferable for this country and its vital interests. It could also help spare other nations the less free, less prosperous and more onerous international order that will emerge if the Transnationalists have their way on the Law of the Sea Treaty.
Even where the United States retains a veto, it does so in common with all other parties to the treaty, not just with a few major powers, as in the U.N. Security Council. So even if the U.S. can force a stalemate, others can do the same and most of those others have no stake at all in seeing development go forward. The U.S. veto on rules about licensing of specific efforts does not, of course, ensure that favorable rules can be enacted. If mining does ever become financially attractive in the deep seabed, the Authority will remain an awkward regulatory structure. In effect, it subjects the handful of countries—or rather firms from such countries—to regulatory oversight from all the other countries in the world, on the grounds that all have a stake in what happens on the deep seabed. So far, the Authority has only issued one set of regulations (governing exploration for manganese or polymetallic nodules, which might be recovered from the surface of the ocean bottom). It has begun work on a new set of regulations on sulfide crusts, found around volcanic hot springs. Regulations are not likely to be restricted to such mining operations, however. Already, the Authority has been urged to issue regulations to limit bioprospecting for commercial applications of new species—mostly microbial—discovered on vents at the depths of the seas. Here again,the handful of firms with the capacity to undertake such initiatives will be subject to control from bystanders. Yet scientists think that exotic bacteria found only at extreme depths of the sea may offer keys to the development of new antibiotics, antitumor agents for treatment of cancer, and other pharmaceutical applications. And the regulatory reach may extend even further. Given its authority to protect the “marine environment” in the deep seas, the Authority might claim some authority to regulate what is done in territorial waters or even on land, when such activities have some effect on the deep seas.
LOST will allow interference with and the penalization of American businesses, including those that conduct research for, equip and provide logistical support to the U.S. military. It will: impose the “Precautionary Principle” (according to which innovations cannot be introduced unless proven free of any adverse consequences); give standing to Alien Torts claims in U.S. courts; require sharing proprietary information and technology with international bureaucrats and competitors; compromise WTO rights; and give precedence to European- dominated international standards. The costs of such derogations of our sovereignty could be high, perhaps even crippling, for affected businesses – including those supporting our armed forces.
By ratifying UNCLOS, the United States would be submitting itself to a much wider range of international controls than it has in the past. Allowing ITLOS to sit in judgment on U.S. naval tactics or allowing the Authority to press U.S. firms to share strategic technologies with countries like China can only prove damaging to U.S. national security. It may also be detrimental to U.S. economic interests to allow the Authority to place conditions on when and how U.S. firms can search for minerals or commercially valuable microbes in the deep seas. In addition, in the long term, there are serious risks involved to American national sovereignty in accepting the underlying premise of UNCLOS III. The most valuable provisions, regarding transit rights and national regulatory rights in exclusive economic zones, are widely accepted. They have therefore a solid claim to be regarded as customary international law. By ratifying the treaty, the United States would be saying that it cannot retain its rights under customary international law unless it agrees to accept new international institutions that other countries happen to favor. Worse, ratification would seem to endorse the notion that American rights can only be secured by appealing to new international institutions. From there it is only a small step to the claim that further progress on other international matters requires submission to new and more far-reaching international controls, developed and implemented by new supranational organs.