Fears of an overreaching UNCLOS bureaucracy are overwrought
[ 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
The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations. In addition, the only international organization UNCLOS creates (the International Seabed Authority) is no different from the hundreds of other international organizations the U.S. is already party to, including the U.S.- Canadian Fisheries Convention or the International Maritime Organization.