Why not ratify the Law of the Sea Treaty

The Senate Foreign Relations Committee has resurrected a highly menacing accord and sent it to the floor for ratification. The treaty, the United Nations Convention on the Law of the Sea (UNCLOS), was first drafted in 1982 and rejected by the Reagan administration. The two components most objectionable were Parts XI and XIII, which forbade states from claiming any marine resources in their territorial waters and forced developed states to transfer marine technology to poorer countries. The very concept of territorial waters was nullified by the treaty, which designated the sea a “common heritage of mankind.” As Article 137 in Part XI stipulates, “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.” The treaty should be rejected. It offers dubious benefits and imposes serious costs on American sovereignty and international maneuver.UNCLOS is unnecessary. The United States, in its customary maritime law, already subscribes to most of the treaty’s provisions, but retains the benefits of sovereignty. The Pentagon has come out in favor of adoption, arguing that UNCLOS will expand American navigation rights and give us a better bargaining position in contentious international disputes (e.g. Russia’s bid to strengthen its position in the Arctic). Both assertions are unfounded or questionable. As an analysis by CATO Institute’s Doug Bandow (March, 2004) demonstrates, no power currently impedes or is likely to seriously challenge either American naval dominance or its commercial shipping, so there is no need to expand American navigation rights. Also, there is no assuring the International Seabed Authority (ISA), the convention’s oversight body, will handle global disputes in a manner favorable to the United States. Membership in the ISA means dealing with administrative fees, mining charges, and taxes. Within the organization itself, the United States will have equal voting with the smallest state and be without a veto power. This means that America will likely not get the stake it wants abroad, but could be compelled to share its coastal resources at home.

The Convention mandates transfers of technology to developing states. The treaty not only reiterates its signatories support for existing bilateral and multilateral efforts to assist poor countries, but proceeds to expand on these and delegate important powers in this area to the ISA. Article 274 in Part XIV holds that, “adequate provision is made by the Authority to facilitate the acquisition of technical assistance in the field of marine technology by States which may need and request it, in particular developing States, and the acquisition by their nationals of the necessary skills and know-how, including professional training.” I doubt there is broad consensus as to what “adequate provision” means. Furthermore, 274 makes “technical documentation on the relevant equipment, machinery, devices and processes…available to all States, in particular developing States which may need and request technical assistance in this field.” A requirement thus exists for sovereign nations to hand over technology blueprints and development plans to any state that “needs and requests” assistance. No distinctions are made between friendly and potentially hostile states nor are there any mechanisms in place to verify legitimate need.

Additionally, the Convention imposes serious economic costs and raises accountability concerns. The National Review has dubbed the UNCLOS the world’s first “international taxing authority.” Beyond the fees and mining charges, the treaty would increase competition and impose severe operational restrictions on American companies. Overseeing all of this are unaccountable supranational organizations, all somehow linked to the ever reliable United Nations. The organization, exploited to weaken American diplomatic maneuver and subject the United States to global demonization, has shown a remarkable ability to objectively deal with the world’s problems. One example is the body’s Human Rights Council which, despite forming in March 2006, has issued nine resolutions condemning only one country: Israel. It is an unpleasant thought that this organization, and groups linked to it, should have such control over America’s territorial waters. The worry is underscored by provisions of Article 140 in Part XI, where “activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.” The chief implication of the first part is that the United Nations, with its interpretation and application of mankind, shall have more rights over development and exploration in our waters than American companies, the citizenry, and Congress. The second part would allow groups like the Palestine Liberation Organization to get a piece of the pie.

The United Nations Convention on the Law of the Sea should not be ratified. United States customary law on maritime matters incorporates most of the treaty’s provisions, while preserving the benefits of sovereignty. Hopes of getting better deals from international marine resource disputes as well as expanded navigation rights are questionable or unfounded. The treaty would subject the United States to the bureaucratic machinations of the International Seabed Authority, with associated administrative fees, tax requirements, and mining regulations. With equal voting power and denied a veto, American commercial and diplomatic interests could pay dearly if the whims of the ISA are unfavorable. American companies will see increased competition, higher operational costs, and profit redistribution. The treaty augments the clout of the United Nations, notorious for its weakening of American maneuver and global standing. For these reasons, the United States should say yes to sovereignty and no to the Law of the Seas Treaty.