The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS
[ Page 24 ]
And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS,9 has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits)10 have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS. Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party).11 It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively)12 of state behavior – and that standard is UNCLOS.
[ Page 24-25 ]
Likewise, with $100-a-barrel oil prices and nearly one-third of all the world’s hydrocarbons being produced off-shore, it would be folly for the U.S. to ignore the need for access to extended outer continental shelf (OCS) oil and gas resources. The great irony of the U.S. debates over the Law of the Sea Convention is that for years (since the Reagan Administration rejected the treaty in the early 1980s) we have been focusing on the wrong seabed resources. Although the original UNCLOS was rightly rejected because of its absurdly drafted provisions on the mining of manganese nodules (including the creation of an international mining consortium, known grandiloquently as “The Enterprise”), UNCLOS has relatively fewer provisions on such ocean resource activities as lifting oil and gas reserves beyond 200 nautical miles, mining polymetallic sulfides and other exotic substances found at mid-ocean ridges, bio-prospecting the unique flora and fauna of the ocean abyss, and salvaging historic shipwrecks.13 That the United States might extend its Arctic continental shelf off Alaska as far out as 350 nautical miles has the oil industry – and Alaska’s Senate delegation – salivating at the possibilities. But that extension would only be possible if the U.S. accedes to UNCLOS and files a claim before the U.N. Commission on the Limits of the Continental Shelf.14
[ Page 26-27 ]
Those who practice and profess international law should be profoundly grateful for this political moment. We can (and must) seek to inform the public about the realities of the institutional and dispute-settlement regimes in UNCLOS. The truth is, of course, that UNCLOS has relatively weak features in this regard, especially compared with such institutions as the WTO. The International Tribunal for the Law of the Sea (ITLOS) will have virtually no docket of cases, aside from applications for prompt release of vessels and crews and the occasional matter regarding fishing rights.19 The vast majority of disputes under UNCLOS will be resolved by ad hoc arbitrators, hand-picked by the parties.20 Likewise, the International Seabed Authority (ISA) is likely to be a rather sclerotic organization, given its limited mandate (with the modifications made to Part XI in 1994)21 until such time (if ever) that deep seabed mining for manganese nodules has even the remote prospect of profitability. Ironically, the work of one UNCLOS institution that does bear attention – the Continental Shelf Commission, which is the technical body that will rule on any U.S. application to extend its claims in the Arctic – has not yet been fully evaluated. As for the “international tax” that the ISA will assess on continental shelf oil and gas production beyond 200 nautical miles,22 that provision, ironically, was based on a proposal made by the Nixon Administration as an alternative to the cumbersome regime for manganese nodules.23