A Bad Treaty Returns: The Case of the Law of the Sea Treaty
Although the 1994 treaty modifications have toned down some of the most direct mandatory technology transfer requirements, the treaty still places at risk some very sensitive, and militarily useful, technology which may readily be misused by the navies of ocean mining states. These include: underwater mapping and bathymetry systems, reflection and refraction seismology, magnetic detection technology, optical imaging, remotely operated vehicles, submersible vehicles, deep salvage technology, active and passive military acoustic systems, classified bathymetric and geophysical data, and undersea robots and manipulators.
The military application of these technologies would provide new anti-submarine warfare (ASW) capabilities, strategic deep-sea salvage abilities, and deep-water bastions for launching sub-surface ballistic missiles (SSBM's). With or without the mandatory technology transfer provisions contained in the UNCLOS, U.S. participation would provide a "legal" conduit and cover to justify the acquisition of state- of-the-art deep ocean devices and technology that have profound national security implications. Ocean mining activities by the Enterprise or third world nations, such as China or India, can provide plausible justification for successfully purchasing technologies that, in the absence of ocean mining, would likely be denied on national security grounds.
In a well-timed contribution to the debate on UNCLOS, the Center for Naval Analysis (CNA) published a strong analysis on the potential for the International Seabed Authority to take on a blue water police/enforcement role in support of treaty provisions. CNA demonstrated that there is ample precedent and existing regulatory flexibility whereby, if states parties cooperate, the ISA may develop a military arm that may not only radically extend the functions and purposes envisioned for it by the United States and its industrialized allies but may one day directly threaten U.S. high seas and economic zone interests as well. "The development of international maritime law, especially the Third UN convention of the Law of the Sea (UNCLOS III), has established a legal environment in which the UN could take on a variety of new low- intensity policing functions in support of international agreements. This is especially important in areas of international straits because attempts to police straits could lead to disputes, perhaps even conflicts. For many nations, this mission area could involve coast guards as well as civilian maritime agencies" (Sands).2
An issue recently raised in Congress, and particularly in the Senate, revolves around the extent to which U.S. participation in a decision of a UN body-in this case the UN Security Council and its votes on UN peacekeeping- might commit the United States to expend funds and provide personnel for an action not approved by Congress.... Some in Congress might want to have similar consultations and reporting requirements instituted as a way of keeping up with the work of the International Seabed Authority and its organs and bodies. (Browne)
Given the ambiguity embedded in the charter. rules. regulations, and scope of the ISA as well as the highly uncertain ability of the United States or its allies to significantly influence events within the new organization, the potential of the ISA becoming a runaway train cannot be dismissed. Some of the most likely areas where the ISA may attempt to apply naval power, according to CNA, are: enforcement of fisheries regulation, measures to protect the marine environment,3 protect sea and air traffic, convoy and escort of selected traffic on the high seas,4 and protection of offshore assets such as petroleum platforms, deep-water off-shore port facilities, pipeheads, ocean mining claims and operations.
While UNCLOS has effectively codified many aspects of traditional law and has successfully incorporated several modern issues, such as environment, fisheries, and coastal zone management, these can be regarded as "nice to have" accomplishments but are by no means essential to the political, economic, or military security of the United States. In fact, one of the principal reasons for the establishment of UNCLOS III was to resolve U.S. conflicts with several Latin American states over territorial sea claims in the Pacific Ocean and the repeated seizure of U.S. tuna boats and their crews. After more than ten years of UNCLOS III, ten years of post-UNCLOS III ratification debate, and two more years of negotiation of the agreement, Nicaragua, Peru, Ecuador, and El Salvador still claim 200-mile territorial seas and refuse to become parties to the convention.
With regard to Nicaragua and Peru, their abstention could be due to their claim to the 200-mile territorial sea, which is not in conformity with the Convention.
The reasons for the absence or non-participation of these states are not clear. Only Turkey explained that it had some difficulties with certain provisions of the Convention. Ecuador and El Salvador may have chosen not to vote because of their claim to the 200-mile territorial sea. (Hayashi, 5-6)
There is a common misperception that existing national security export control mechanisms will act as a safety net to ensure that the treaty will not serve as a conduit for militarily critical technology to be exported to potential adversaries. Unfortunately, the "stovepiped" nature of many government policy actions masks the fact that the Clinton administration has virtually eviscerated the export control process within the U.S. government and has dismantled the international regulatory mechanism as well (Leitner, 1995). There is no longer a reliable safety net to prevent foreign military or intelligence services from using the treaty as a cover to acquire highly strategic state-of-the-art technology that may be used to enhance power projection or regional destabilization activities.
ation 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 multinationalize 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.
As stated earlier, of the many precedents embodied in the existence of the ISA, the creation of an international bureaucracy with powers to tax, regulate, and enforce its will are perhaps the most dramatic and, in the long term, the most dangerous. The granting of what are essentially sovereign powers is unprecedented and unfortunately fits within a larger pattern of UN behavior-that being, to free itself from the political domination of the five permanent members of the Security Council as well as to insulate itself from the uncertainties and political limitations accompanying the traditional state-sponsored financing of UN operations.
Secretary General Boutros-Boutros Ghali recently proposed to establish a "world tax" on airline tickets and currency exchanges as an independent means of financing the UN. "Faced with $2.3 billion in arrears from member nations that failed to pay their assessments -- including $1.2 billion owed by the United States -- UN officials and others have long sought an independent means to raise money for the organization's annual budget of roughly $3 billion" (Barber 1996). Disclosure of this plan provoked an immediate negative response in the U.S. Senate when majority leader Bob Dole stated that, "the United Nations continues its out-of-control pursuit of power" and along with colleagues called for an immediate investigation (Barber 1996).
Unfortunately, the Law of the Sea Treaty goes far beyond the Ghali plan and may indeed be viewed as a harbinger of future UN efforts to spin-off or reformulate its activities in such a way as to insulate itself from, and possibly become ascendant to, the sovereign character of nation-states. Unless the United States is willing to insist on further renegotiation of the treaty to protect these and other vital interests, the Senate will have little alternative other than rejection and refusal to ratify. Rejection by the Senate appears to be the only action capable of serving as the catalyst to bring all parties back to the table.