Monster from the Deep: Return of UNCLOS
The author criticizes efforts to bring the Law of the Sea up for vote finding that the treaty is based in "an assumption that the free-market system is selfish; that capitalism benefits only capitalists and cannot be controlled to make it benefit society in general."
In sum, the argument against ratification of the whole UNCLOS seems to be overwhelming, but for reasons that have not been fully argued in public. The deep sea-bed mining provisions seem almost irrelevant: the supposed virtues of a free exploitation approach are obviously impossible to implement; the supposed virtues of a cartelized control model of economic development are obviously overstated and, if the states members of the Authority really have an interest in mankind, it seems a safe bet that the United States can participate in modifications of the regime to better suit the needs of the world. Of the other provisions of UNCLOS, some might be useful to the United States and they can continue to be cited as persuasive of the law, even if not formally binding. But many, such as the innocent passage provision and the provisions relating to a special law of the sea tribunal, seem potentially pernicious. Since the UNCLOS must be accepted as a whole or rejected as a whole, rejection seems the wiser course.
The principal argument in favor of ratification seems to rest on the assumption that the world needs a comprehensive treaty to clarify and unify the law of the sea; that the alternative is chaos. In my opinion, this argument for ratification is overstated. The legal result of not ratifying the UNCLOS is not chaos in the law of the sea; it is the continued development of that dynamic body of law. Indeed, in areas of changing values and technology our own common law works best without codification.
Sometimes certainty is the highest interest of law-makers. With regard to the law of the sea, however, the fate of the four United Nations Law of the Sea Conventions coming out of Geneva in 1958 is pertinent evidence that other factors that influence the behavior of states can be more important than certainty. The United States ratified all four of those Conventions in 1961 and first violated them when we extended our exclusive fisheries zones to twelve miles in 1966. If the law raises certainty to a higher position than is tolerable in light of those factors favoring change, change occurs nonetheless and the law is degraded.
There are even more complex problems. UNCLOS sets up a special law of the sea tribunal with jurisdiction to interpret provisions of the Convention that apply equally to military and non-military uses of the sea. Although military uses can be excluded from the purview of the tribunal by particular states on ratifying the UNCLOS (article 298.1.b), a decision interpreting the UNCLOS's language relating to "innocent passage" or "transit passage" through straits, even if rendered in a case involving only non-military activities, would necessarily apply also to military uses. The distinction between military and non-military application of the tribunal provisions is thus untenable. Moreover, even if the United States and other naval powers take advantage of this available exclusion, nothing they do can stop other states from having their own military activity adjudicated by the tribunal. Despite the fact that the tribunal's decision binds only the parties before it, the tribunal's interpretation of a provision of the UNCLOS that applies equally to all parties affects international correspondence in ways potentially disastrous to American naval power.
Most obviously, and possibly what President Reagan's advisors had in mind, coastal states' rights under UNCLOS include the so-called "Pueblo clause." It says that it is not "innocent passage" for any foreign ship in the twelve-mile territorial sea to perform "any act aimed at collecting information to the prejudice of the defense or security of the coastal state" (article 19.c). But American naval vessels underway routinely take soundings and keep their radio receivers turned on, and any coastal state can claim that receiving information about the approaches to a harbor or the configuration of a coast is prejudicial to its security. Although it is possible with some ingenuity to argue that the provision does not mean what it says, foreign states are not bound by the ingenuity of American lawyers. And other provisions of the same article, like the clause forbidding "research or survey activities" (article 19.j) also contain undefined terms that can be interpreted to end American naval rights of passage. Indeed, it is also forbidden to undertake "any other activity not having a direct bearing on passage" (article 19.1). I have never understood how the United States negotiators could accept this language.