The Law of the Sea Treaty: A Bad Deal for America
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The United Nations did not invent the law of the sea. There has been a law of the sea in effect for many centuries. When Spanish and Portuguese explorers first charted new sea routes to the Americas and Asia, their governments imagined that they could lay claim to all the ocean vastness in between. Successful challenges by new maritime powers, especially Britain and Holland, soon established the principle that the high seas should be open to all. In the early 17th century, the Dutch jurist Hugo Grotius published an extremely learned treatise which summed up the new approach in a catchy phrase: “freedom of the seas.” To secure freedom on the seas, there had to be rules applicable to most situations that also acknowledged—and thereby constrained—necessary exceptions. These rules were developed over centuries in a process of mutual accommodation—and occasional challenge by war at sea—among major maritime powers. Nearly all of this law was “customary law,” meaning that it reflected actual practice among maritime states—including particular agreements among particular states—without being set down in any formal document.
UNCLOS III provides that, if a ship or its crew are seized on the high seas, the flag state can appeal to the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, for a prompt decision on the legality of the seizure.3 The treaty allows states to opt for other forms of arbitration on other disputes, but other forms of arbitration require all nations involved to agree on a specific panel of arbitrators. The only important category of dispute where one party can force another to answer before ITLOS is when a ship has been detained on the high seas and the complaining party seeks its immediate release.
Seizing a ship on the high seas without the consent of its home government would inevitably trigger a diplomatic confrontation. But in the right circumstances, the United States or its allies might feel obliged to act first and try to handle the diplomatic protests later. If intelligence gives reasonably firm indications of an imminent terror attack to be launched from a particular ship, the U.S. could insist on intervening, claiming a right of self-defense that supersedes the general “rules of the road” at sea. Alternatively, the United States might claim that a ship operated by terrorists was so closely analogous to a pirate ship that intervention could be justified under the UNCLOS exemption for piracy. In still another variant, the United States might interpret a bilateral agreement with the flag state as covering a particular intervention, while the flag state insisted on a different interpretation. In any of these cases, the flag state would likely sit on the sidelines while the ship’s operators pursued a claim on their own initiative, “on behalf of the flag State,” as UNCLOS allows.4 It is easy to imagine situations in which U.S. intervention might trigger a complaint to ITLOS. It is hard to imagine situations in which ITLOS would be other than a complicating factor in ensuing U.S. diplomacy toward the flag state.
Nor is there much consolation in the prospect of appealing to ITLOS against the seizure of an American ship, since the most vulnerable American ships would be small craft, gathering intelligence near the coasts of unfriendly states. UNCLOS couples transit rights with provisions for national regulatory measures in coastal waters, including the right of the coastal state to prohibit intelligence gathering in these waters. Suppose an American ship were seized outside the territorial waters of a hostile state, on the claim that it had earlier traversed these waters for illicit purposes and then been pursued into “contiguous” waters—as UNCLOS allows, for a belt of water extending twelve nautical miles beyond the twelve mile reach of “territorial waters.”5 The United States being required to document for ITLOS exactly what its ship was doing in exactly which waters could very well compromise sensitive U.S. intelligence gathering operations.
UNCLOS seems to provide protection against these concerns by stipulating that states may opt out of its compulsory arbitration requirements when disputes concern “military activities...by government vessels and aircraft engaged in non-commercial service.”6 At its narrowest reading, this provision might mean only that ITLOS will avoid intervening in full-scale confrontations between opposing battle fleets—a situation that would create problems far beyond those of dispute resolution. At its broadest, this exemption might mean that any seizure could be excluded from ITLOS review, since seizures are never effectuated by unarmed commercial vessels, which would entirely negate the provision bestowing mandatory jurisdiction on ITLOS for seizures at sea. So which is it?
The only thing certain is that it will be up to ITLOS to decide how far it wants to intrude into U.S. naval strategy. The State Department has proposed ratification with an “understanding” that the military exemption will be read broadly. (Sec. 2, Par. 2 of ‘Text of Resolution of Advice and Consent to Ratification,” printed with Treaty Doc. 103-39 in Hearings on the UN Convention on the Law of the Sea, Ot. 21, 2003, along with “Statement of William H.Taft, Legal Adviser to the Department of State) But UNCLOS itself stipulates that states may not attach “reservations” to their ratification.7 Again, it will be up to ITLOS to decide what significance, if any, should be accorded such unilateral U.S. “understandings.” And the court’s composition is not encouraging. As of September 2005, a clear majority of the court’s 21 judges were from states that cannot be supposed to be friendly to American naval action—including Russia, China, Brazil, Cameroon, Ghana, Senegal, Cape Verde, Tunisia, Lebanon, Grenada, and Trinidad.
It remains a fair question whether a complex U.N. regulatory bureaucracy—especially one that counts international wealth redistribution as one of its functions—is a reassuring presence for investors. The 1994 Agreement does not actually abolish the Planning Commission, but simply suspends its operations until the regulatory council of the Authority “decides otherwise.”15 The Seabed Authority still proclaims, on its official website, that it will oversee “action to protect land-based mineral producers in the third world from adverse economic effects of seabed production.” The 1994 Agreement seems to give at least tacit support to this notion in empowering the Authority to provide “economic assistance” to “developing countries which suffer serious adverse effects on their export earnings” from deep seabed mining.16 The Authority can still direct proceeds from mining or drilling approved for the continental shelf to compensate “affected developing land-based producer States.” If the world wants to encourage mining in the deep seabed, this is no way to do it.
Further, this approach carries an immediate risk to U.S. national security. Allegedly to ensure that the benefits of deep sea mining are properly shared, UNCLOS requires all states to “cooperate in promoting the transfer of technology and scientific knowledge” relevant to exploration and recovery activities in the deep seas.17 The 1994 supplementary agreement endorses these provisions, qualifying them only with vague assurances that technology transfer should be conducted on “fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights.”18 It remains to be seen whether the Authority will assert claims to impose technology transfers in this field. It could do so by making such transfers a condition for approving permits for exploration or recovery by Western firms, since all such activity requires approval of the Authority.19 Yet even without direct demands from the Authority, the Chinese government, by invoking these provisions, managed to obtain microbathymetry equipment and advanced sonar technology from American companies in the late 1990s. China claimed to be interested in prospecting for minerals beneath the deep seas. Pentagon officials warned against sharing this technology with China, given its potential application to anti-submarine warfare. But other officials in the Clinton Administration insisted that the United States, having signed UNCLOS—even if not yet having ratified it—must honor UNCLOS obligations on technology sharing. Future administrations may be more vigilant, but the Authority may, in the future, be more insistent. That is the logic of a treaty that makes mining by firms in one country contingent on the approval of the governments in other countries.
The 1994 Agreement specifies eligibility for the Council with formulas that would assure the United States a permanent seat—as “the state having the largest GNP”—if it were to ratify UNCLOS. It also assures permanent seats for Russia—as the largest state in “Eastern Europe”—and China and India—under a set-aside for “states with large populations.” There will, in any case, always be a majority of developing countries on the Council, given various other eligibility formulas. For instance, only four of the 36 seats are reserved for “states which have made the largest investments in [deep sea mining] activities.”22
Contrary to some advocates’ claims, the 1994 supplementary agreement does not give the U.S. a veto over actions of the Authority. Under UNCLOS, the Council is only required to act by “consensus”—so that one negative vote would constitute a veto—when it endorses “rules, regulations and procedures [which] relate to prospecting, exploration and exploitation in the Area,” that is, the deep seabed.23 However, the 1994 agreement specifies that the Council may make decisions by two-thirds vote on matters of “substance” and by mere majority on matters of “procedure”24 Thus, a mere majority may decide, as a matter of “procedure,” when a seemingly “substantive” decision is really only procedural, empowering the deciding majority to decide on further questions by a simple majority vote.
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.