Neo-Isolationists Scuttle UNCLOS
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This shortsighted view is against U.S. national interests. The U.S. military prefers to use UNCLOS to ensure that our ships can navigate freely throughout the world, rather than relying on existing amendable interna- tional laws. Businesses desire the certainty that their claims on the conti- nental shelf and deep seabed will be valid and recognized before investing billions of dollars into drilling and extraction projects. U.S. territory could be significantly enlarged as U.S. rights to the 200-nautical mile exclusive economic zone around Guam, Hawaii, and other distant possessions would be recognized by the other 166 signatories. Due to the continental shelf provisions, U.S. interest in the seas and ocean floor off the coast of Alaska could extend as far as 350 miles. This is especially important now as the Arctic Ocean is warming. The four other Arctic nations—Canada, Denmark, Russia and Norway—are signatories, and the United States should be at the table when these issues are negotiated. Finally, the United States would have a permanent seat on the Council (as the nation with the largest gross national product), should the country ratify and thereby have veto power over the substantive and financial issues that arise under UNCLOS.
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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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The isolationists were also concerned that U.S. corporations could be subject to the compulsory dispute resolution measures in the Convention. This highlights the limited knowledge of those who signed the letter to Senator Reid. Lawyers who practice international law prefer international arbitration or appearing before an international tribunal rather than local adjudication in a country whose legal system may not be well-established. These U.S. senators seem to believe that by bypassing UNCLOS ratification, disputes will be subject exclusively to U.S. law. This belief is incorrect, as U.S. corporations have subsidiaries worldwide that are subject to lawsuits in local jurisdictions.
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Another concern, as voiced by U.S. Senator James Risch of Idaho, is that ratification of UNCLOS could be grounds for ratifying the Kyoto Protocol on Climate Change and all other conventions drafted by international bodies.26 Legal advisor John Bellinger in the first Bush administration commented that Section 222 of UNCLOS encompasses applicable international rules and standards, and if the United States does not ratify Kyoto or other conventions, these treaties are not applicable to the United States.27 This logic does not satisfy U.S. senators like Risch.28
Senator Mike Lee of Utah took this argument one step further. He hypothesized that the Assembly could take the position in the future that UNCLOS ties the United States into a climate change regime like the Kyoto Protocol. Secretary Clinton disagreed and stated that the United States had no obligation to accept anything decided by the Assembly on climate change. Should this thinking—that in ratifying UNCLOS, the United Nations can call for blanket application of other international laws—become an eventuality, the United States can simply withdraw from UNCLOS. This could be something agreed by all in advance of the ratification.
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If the words “United Nations” are a red flag to some, the concept of a foreign entity taxing a U.S. corporation is anathema. This is what some, including Senator Risch, see in UNCLOS. He argues that since 1776, the United States has never ceded its authority to tax anyone else.29 As Secretary Clinton pointed out, UNCLOS is a royalty agreement related to drilling and extraction in areas beyond 200 nautical miles from a coast.30 She has stated that U.S. companies already pay royalties to at least one commission—the Inter- national Telecommunication Union—so a precedent exists.31 U.S. oil and gas companies routinely pay royalties to foreign nations based on profits made from the materials pumped or extracted in these countries. Another leading isolationist, Senator James Inhofe of Oklahoma, argued that the royalties were taxes paid to a foreign entity. The Chairman of the Committee, Senator John Kerry, responded that President Reagan renegotiated this issue “with the oil companies and gas companies at the table” and they all agreed to the royalties. He also pointed out that the UNCLOS royalties were far less than the royalties paid in the Gulf of Mexico. Indeed, while certain isolationists may object to these royalties, those who would be paying them—the Exxons, Shells and Lockheed Martins—support UNCLOS. These companies realize that 93 percent of some profit is much better than 100 percent of nothing, as they are wary of drilling on the Continental Shelf since the United States has not ratified UNCLOS.