The United Nations Convention on the Law of the Sea: The Risks Outweigh the Benefits
The authors argue that the United Nations Convention on the Law of the Sea "is likely to have unintended negative consequences for U.S. interests" and that "[n]othing has occurred since 2004 that should lead the Senate to reverse its earlier decision to decline to take up the treaty."
Much to Lose, Little to Gain. As a multilateral treaty negotiated under the auspices of the U.N, UNCLOS poses the usual risks to U.S. interests of such multilateral treaties. In the international organizations created by such treaties, the U.S. often faces regional, economic, or political blocs that coordinate their votes to support outcomes counter to U.S. interests. The bloc voting process is fre- quently driven by the same overtly anti-American agenda that is often apparent in the U.N. General Assembly. While the U.S. can achieve positive out- comes in these forums, its successes are usually limited, having been watered down or coupled with demands from other participating states that it would otherwise not accept.
One example of U.S. interests being thwarted by bloc voting is the new U.N. Human Rights Council. The U.S. was a strong proponent of creating a new body to replace the discredited U.N. Commission on Human Rights, which had became a haven for human rights abusers to protect one another from scrutiny and censure. Once locked into negotiations over the specifics of the new council, however, the U.S. was repeatedly outnumbered and isolated. As a result, the council has minimal requirements for membership, and China, Cuba, Pakistan, Saudi Arabia, and other repressive states have won council seats. Unsurprisingly, the council has performed just as badly, if not worse, as its predecessor, and the U.S. has declined even to seek a seat on it.
Further, U.N.-related multilateral treaties often create unaccountable international bureaucracies. The UNCLOS bureaucracy is called the International Seabed Authority Secretariat, which is headed by a secretary-general. The Secretariat has a strong incentive to enhance its own authority at the expense of state sovereignty. Thus University of Virginia School of Law Professor John Norton Moore describes this sort of treaty as a “law-defining international convention.” The law that is being defined and applied by international bureaucrats is one designed to govern the actions of the participating states, not to serve their joint interests. For example, a provision of UNCLOS that would impose direct levies on the revenues of U.S. companies generated through the extraction of resources from the deep seabed reveals this bias against state sovereignty. When international bureaucracies are unac- countable they, like all unaccountable institutions, seek to insulate themselves from scrutiny and become prone to corruption. The International Seabed Authority Secretariat is vulnerable to the same corrupt practices that have been present at the U.N. for years. The most pertinent example of this potential for corruption is the United Nations Oil-for- Food scandal, in which the Iraqi government benefited from a system of bribes and kickbacks involving billions of dollars and 2,000 companies in nearly 70 countries. Despite ample evidence of the U.N.’s systemic weaknesses and vulnerability to corruption, the U.N. General Assembly has yet to adopt the reforms to increase transparency and accountability proposed by former Secretary-General Kofi Annan and others. This example is particularly pertinent considering that the Authority could oversee significant resources through fees and charges on commercial activities within its authority and potentially create a system of royalties and profit sharing.
Assertion #1: The U.S. needs to join UNCLOS to “lock in” the navigation rights it currently enjoys under customary international practice. Implied in this argument is the presumption that other nations, the vast majority of which are UNCLOS participants, will ignore their obligations under the treaty and forgo the concurrent privileges regarding navigation rights afforded by customary international practice just because the U.S. is not a party to the treaty. This, according to the Bush Administration, will manifest itself in the form of some coastal states demanding notification by U.S. ships entering their waters or airspace.
Fact: These states have reciprocal interests in navigation rights that will discourage them from making such demands. Second, the few irresponsible states that may decide to make such challenges are not going to be dissuaded by the “locking in” argument or U.S. appeals to the navigation provisions of UNCLOS.
Assertion #3: U.S. participation in UNCLOS will not undermine intelligence operations. Fact: It is impossible to confirm this assertion because the relevant intelligence activities are classified. It is clear, however, that U.S. participation in UNCLOS is unlikely to facilitate U.S. intelligence activities. For example, a coastal state may demand that all submarines entering its exclusive economic zone surface and identify themselves. Even if the U.S. were a party to the treaty, the Navy would not invoke UNCLOS to justify its presence in these waters when it engages in intelligence operations. Instead, it would simply ignore the demand and avoid being caught. On this basis, it is unclear how the U.S. intelligence community would suffer by not joining the treaty.