Ratification of the Law of the Sea Treaty: A
Not-So-Innocent Passage
by David A. Ridenour
The
"right of innocent passage" is the right of any nation's ships to
traverse continuously and expeditiously through the territorial
waters of a coastal nation, subject to certain conditions.1
Under the Law of the Sea Treaty, such passage is conditioned on
passing in a manner that isn't threatening to "sovereignty,
territorial integrity or political independence" or the "good order
and security" of that nation.
By this
definition, if the Law of the Sea Treaty was a ship, it would fail
to qualify.
That's
because there are serious flaws in the treaty that - if U.S.
ratified the treaty - could place U.S. sovereignty, security and
political independence in doubt.
This
analysis of the Law of the Sea Treaty will focus on the threats to
political independence, particularly as they relate to environmental
policy, and to threats to security.
Background
The Law
of the Sea Treaty, formally known as the Third United Nations
Convention on the Law of the Sea, or UNCLOS III, was adopted in
1982. Its purpose is to establish a comprehensive set of rules
governing the oceans and to replace previous U.N. Conventions on the
Law of the Sea, one in 1958 (UNCLOS I) and another in 1960 (UNCLOS
II), that were believed to be inadequate.2
Negotiated in the 1970s, the treaty was heavily influenced by the
"New International Economic Order," a set of economic principles
first formally advanced at the United Nations Conference on Trade
and Development (UNCTAD). That agenda called for "fairer"
terms of trade and development financing for the so-called
under-developed and developing nations.3
Another
way the New International Economic Order has been described is
"redistributionist."
The Law
of the Sea Treaty calls for technology transfers and wealth
transfers from developed to undeveloped nations.4
It also requires parties to the treaty to adopt regulations and laws
to control pollution of the marine environment. Such
provisions were among the reasons President Ronald Reagan rejected
the treaty in 1982. As Edwin Meese, U.S. Attorney General
under President Reagan, explained recently, "...it was out of step
with
the concepts of economic liberty and free enterprise that Ronald
Reagan was to inspire throughout the world."5
In
additional to the economic provisions, the treaty also establishes
specific jurisdictional limits on the ocean area that countries may
claim, including a 12-mile territorial sea limit and a 200-mile
exclusive economic zone limit.6
Some
proponents of the treaty believe that the treaty will establish a
system of property rights for mineral extraction in deep sea beds,
making the investment in such ventures more attractive.7
Notwithstanding concerns raised about the Law of the Sea Treaty -
and there have been many - the U.S. Senate Foreign Relations
Committee recommended U.S. accession to the treaty in a unanimous
vote in March 2004.
More
than two years later, a vote of the entire U.S. Senate has yet to be
scheduled.
Defense and Security Concerns
One of
the concerns raised by critics of the Law of the Sea Treaty is that
it could be used to sharply limit U.S. military operations.
Among the examples they cite is Article 20, which stipulates: "In
the territorial sea, submarines and other underwater vehicles are
required to navigate on the surface and to show their flag."8
Proponents of the treaty counter that this provision merely
establishes the conditions for invoking a "right of innocent
passage" in the territorial waters of another nation.9
The "right of innocent passage" is the right of any nation's ships
to traverse continuously and expeditiously through the territorial
waters of a coastal nation, subject to certain conditions.10
Because
Article 20 doesn't mention "innocent passage," this provision
may provide opponents of U.S. military operations a pretext - albeit
a fairly weak one - for claiming that the surfacing requirement
applies to all U.S. submarines operating in territorial waters.
Such claims would be unlikely to prevail, as it is fairly clear,
based on the context, that this provision deals with innocent
passage.
Advocates of the treaty also argue that Law of the Sea Treaty merely
maintains the status quo for submarines passing through territorial
waters because the United States is already a party to the 1958
Convention on the Territorial Sea and the Contiguous Zone which,
they contend, contains similar language.11
U.S. submarines have traversed territorial waters while submerged
over the past 48 years, they say, largely unaffected by the
Territorial Sea Convention's surfacing requirement.
Where
submarines are concerned, they appear to be correct.
But
Article 20 also adds something completely new: The requirement that
"other underwater vehicles" navigate on the surface.12
The surfacing requirement would thus presumably apply to Autonomous
Underwater Vehicles (AUVs) and Remotely Operated Underwater Vehicles
(ROVs), among others (including, presumably, the next generation of
such vessels) for the first time.
AUVs,
unmanned underwater drones, and ROVs, underwater vehicles controlled
by operators at the surface, have numerous military applications,
including mine detection and neutralization, surveillance and
inspection of underwater installations and topography, among others.13
Some of
these activities are otherwise consistent with the Law of the Sea
Treaty's definition of "innocent passage." An AUV or ROV used
to detect mines to protect a ship exercising its right of innocent
passage, for example, appears to meet the requirement that it engage
only in activities with "direct bearing on passage." But
because these vehicles must be submerged to be used effectively they
would be considered "prejudicial to the peace, good order and
security of the state" by doing so, even though advancing the peace,
good order and security is precisely the purpose for which they
would be used.
If the
U.S. ratifies the Law of the Sea Treaty, the use of AUVs and ROVs
for these and other purposes could be reduced.
Opponents of the treaty also contend that it could inhibit the
U.S.'s ability to pursue international terrorists and prevent the
transportation of weapons of mass destruction on the sea.14
They appear to be correct.
Article
110 of the Law of the Sea Treaty specifies military ships are "not
justified in boarding [a foreign ship] unless there is reasonable
grounds for suspecting that: (a) the ship is engaged in piracy; (b)
the ship is engaged in the slave trade; (c) the ship is engaged in
unauthorized broadcasting...; (d) the ship is without nationality or
(e) ...the ship is, in reality, of the same nationality as the
warship." Boarding of ships involved in the illicit drug trade
is also permitted.15
Note
that boarding of ships engaged in "unauthorized broadcasts" is
considered to be justified, but boarding ships carrying terrorists
or weapons of mass destruction is not.
Unauthorized broadcasting, by the way, is not only a justification
to board, but for certain countries, a requirement under the treaty.16
Policymakers would be wise to remember that the U.S. has itself
engaged in "unauthorized broadcasts," using such vessels as the
Coastal Messenger, a mobile transmitting station for Voice of
America broadcasts behind the Iron Curtain during the 1950s and
1960s.17
The
treaty does permit states to pursue, apprehend and board ships for
violation of other laws and regulations, too, but only if the state
is in "hot pursuit" of the ship. To qualify as "hot pursuit,"
such pursuit must begin in the "internal waters, the archipelagic
waters, the territorial sea or the contiguous zone of the pursing
State, and may only be continued outside the territorial sea or the
contiguous zone" if the pursuit has been uninterrupted.18
States
that detain ships for reasons or by means other than those
prescribed in the Law of the Sea Treaty could find their actions
subject to review and judgment by the International Tribunal of the
Law of the Sea (ITLOS) in Hamburg, Germany.
The Law
of the Sea Treaty normally gives states the option, by mutual
consent, of choosing between ITLOS, the International Court of
Justice or "arbitral tribunals" to settle their disputes. When
agreement between the states involved in the dispute can not be
reached, an arbitral tribunal would be given jurisdiction in the
case.
When
provisional measures are sought, however - as they likely would be
when ships are detained - the rules are different. Provisional
measures are akin to temporary injunctions - orders requiring one to
do something or cease doing something - in the interest of
preventing irreparable harm. Article 290, paragraph 5 of
the Law of the Sea Treaty specifies that ITLOS would automatically
adjudicate such disputes when states can not reach agreement on the
method of adjudication or arbitration "within two weeks from the
date of the request for provisional measures."19
As
Jeremy Rabkin, professor of government at Cornell University, has
noted: "The only important category of dispute where one party can
force another to answer before ITLOS is when a ship has been
detained on the high seas and the complaining party seeks immediate
release."20
The
prospects that disputes such as these taken to ITLOS would be ruled
in the U.S.'s favor are poor. Many ITLOS judges, certainly a
clear majority, are from countries that have either been openly
hostile to the United States or are at best unreliable allies.
Among the countries represented on ITLOS are South Africa, China,
Russia, Tanzania, Lebanon, Brazil, Argentina and France.21
ITLOS
certainly could complicate the U.S.'s efforts to interdict
terrorists and weapons of mass destruction.
For
example, if the U.S. chose to act on intelligence information that a
foreign-flagged ship (perhaps flying the flag of Syria, Iran or
North Korea) was carrying terrorists and boarded the ship, the U.S.
could expect to have to answer to ITLOS.
Finally, opponents of the Law of the Sea Treaty contend that Article
88 of the treaty, which stipulates that "the high seas shall be
reserved for peaceful purposes" together with Article 301's
requirement to refrain from "any threat or use of force against the
territorial integrity or political independence of any state" have
the potential of unduly constraining U.S. defense operations on the
high seas.22
Proponents counter that warships of all major powers freely travel
through the high seas even though the treaty is already in force for
nations that have ratified it,23
which, as of this writing, stood at 149 nations.24
But the U.S.'s circumstances are very different than those of the
149 parties to the treaty. As the world's only remaining
superpower, the U.S. is the only nation capable of extended,
extensive long-range maritime operations.25
What's more, the U.S. has military obligations that other nations
simply do not. Many of the parties to the treaty26
don't have organized navies. Others don't have significant
ones.27 Consequently, most
parties to the treaty have less interest in the military
implications of Article 88 than does the United States. The
ratification of the treaty by these nations therefore should not be
the yardstick by which the risks to U.S. military interests are
measured.
Supporters of the treaty also argue that Article 301 would have
little impact on U.S. military operations as the provision is the
same as Article 2(4) of the U.N. Charter.28
Although these two provisions are similar, there are some key
differences.
For one
thing, the bodies responsible for enforcement of the Law of the Sea
Treaty's Article 301 and the U.N. Charter's Article 2(4) are
different.
Under
the U.N. Charter, the Security Council is the principal enforcement
body. The United States has a permanent seat on the security
council and, as such, has veto powers. Under the Law of
the Sea Treaty, enforcement responsibilities fall to such bodies as
ITLOS, which, as noted earlier, is unlikely to be favorable to U.S.
positions, and the International Seabed Authority (ISA), with
a similarly unfavorable composition. The ISA's executive body,
the Council, is composed of representatives of 36 countries, the
majority of which can not be counted on to support U.S. positions.
Its membership includes representatives from the Sudan, Malaysia,
China, Indonesia, South Africa, Namibia, Nigeria, Kenya, Guyana,
Argentina, Russia and Myanmar (name given to Burma by its military
junta), among others.29
Article
301 of the Law of the Sea Treaty also has wording slightly different
that the U.N. Charter's Article 2(4), replacing the more objective
phrase "shall refrain from the threat" with a more subjective "shall
refrain from any threat." This opens the possibility that U.S.
military operations on the high seas could be inhibited when states
merely "feel" threatened by them.
It is
in this context that provisions such as Article 88 take on greater
significance.
The
Senate Foreign Relations Committee determined that the risks to U.S.
military activity were sufficient enough to address them in its
Committee Report. Among other things, it specified that the
Senate's advice and consent for U.S. accession to the Law of the Sea
Treaty be subject to the understanding "that nothing in the
Convention referring to 'peaceful purposes' impairs the inherent
right of individual or collective self-defense or rights during
armed conflict."30
Unfortunately, the Committee did not also specify that the Senate's
advice and consent to be subject to the understanding that the
United States has the inherent right to defend itself during
peacetime through pre-emptive action. Pre-emptive action may
be required, for example, if the U.S. learns through reliable
intelligence that a specific ship is carrying terrorists, weapons of
mass destruction or both.
Even
with such conditions, the U.S. would likely gain little advantage.
That's
because Article 309 of the treaty specifies that no "reservations or
exceptions may be made to this Convention unless expressly permitted
by other articles of this Convention." While states are
permitted to declare exceptions pertaining to military activities
when ratifying the treaty under Article 298, such declarations would
only free States from the dispute resolution process outlined in
Articles 286-296. They would still be obligated to the dispute
resolution requirements contained in Articles 279-285.31
Environmental Concerns
When
the energy industry and environmentalists agree on an issue, one of
the two likely doesn't fully comprehend the implications...
...and
it's probably not the environmentalists.
Ratification of the Law of the Sea Treaty is supported by much of
the energy industry, including "most of its major" trade
associations32 and by leading
environmental organizations, including Greenpeace, the Natural
Resources Defense Council, Environmental Defense and World Wildlife
Fund, among others.33
The
energy and mining sectors believe the treaty will help move deep sea
mining and oil exploration forward by establishing
internationally-recognized title to minerals.34
So why
would so many environmental groups with a history of opposing oil
and gas exploration endorse this idea?
Answer:
They wouldn't.
Opponents of the Law of the Treaty believe that environmentalists
are using the treaty as a vehicle to achieve through international
institutions that which they can't achieve through domestic ones -
namely, more onerous environmental standards. This is
consistent with the statements and actions of environmental groups
to-date. Greenpeace, for example, has said, "The benefits of
the U.N. Convention on the Law of the Sea are substantial, including
its basic duties for states to protect and preserve the marine
environment and to conserve marine living species."35
The Natural Resource Defense Council (NRDC), for its part, cited the
Law of the Sea Treaty's environmental provisions as an argument in
its challenge of the Navy's use of so-called "intense active sonar"
several years ago. The NRDC said, in part, "The United Nations
Law of the Sea Convention... requires States 'to assess the
potential effects... on marine environment'... of systems such as
high intensity active sonar, and to take all measures 'necessary to
prevent, reduce and control pollution of the marine environment from
any source'... The danger to marine life from... sonar... is clearly
documented." The Navy ultimately agreed to scale back its use
of this sonar technology.
Ratification of the Law of the Sea Treaty appears to carry with it
the risk that the United States - and other parties to the treaty -
may lose control of their environmental laws.
Nations
have already attempted to use the Law of the Sea Treaty's
environmental provisions to affect the environmental policies of
others. In 1999, Australia and New Zealand appealed to the
International Tribunal of the Law of the Sea (ITLOS) to shut down
Japan's experimental southern blue fin tuna fishing program, citing
Articles 64 and 116-119. Although the Tribunal ultimately
decided that it lacked jurisdiction in the case, Australia and New
Zealand did gain a temporary injunction on the program.36
More recently, Ireland sought ITLOS's help in forcing the United
Kingdom to abandon its planned opening of the Sellafield MOX plant,
a nuclear fuel reprocessing plant in northern eastern England,
arguing that it would contribute to pollution of the North Sea.
Although ITLOS did not rule in Ireland's favor, it ordered both
Ireland and the United Kingdom to enter into consultations.37
In a
great ironic twist, the Law of the Sea Treaty - supported by many in
the energy sector - may give environmentalists a blunt instrument to
use against the energy industry.
Article
212 of the treaty states, in part, "States shall adopt laws and
regulations to prevent, reduce and control pollution of the marine
environment from or through the atmosphere... States, acting
especially through competent international organizations... shall
endeavor to establish global and regional rules, standards and
recommended practices and procedures to prevent, reduce and control
pollution."38 This
sounds like a directive to impose Kyoto Protocol-style regulations
designed to reduce state emissions of greenhouse gases. These
gases are emitted through the use of the very products the energy
industry sells.
Backdoor implementation of the Kyoto Protocol might be advanced by
arguing that U.S.'s anthropogenic greenhouse gas emissions
(one-quarter of such emissions world-wide) are warming the planet,
causing irreparable harm to coral reefs, home to the world's most
biologically-diverse marine ecosystems.
Alternatively, they could argue that sea levels are rising due to
U.S.-induced climate change, causing beach erosion in such countries
as the Maldives, Comoros or the Seychelles. To bolster their
case, they might cite Article 194(2) of the treaty which states:
"States shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause
damage by pollution to other States and their environment."
Some
environmental advocates clearly believe the Law of the Sea Treaty
can be used for such purposes.
Writing
for Our Planet, a publication of the United Nations Environment
Programme, Greenpeace International Executive Director Thilo Bode
noted in 2000:
Global warming is likely to have a big impact at sea... Sea
levels have risen by an estimated 10-25 centimetres over the
last century, and as this continues the waters will cover land
and coastal habitats in many countries... Solving the
environmental problems facing the oceans... is one of the
greatest challenges facing humankind... No single nation or
region can do this alone: it will require comprehensive
international cooperation as required by the United Nations
Convention on the Law of the Sea."39
Opponents of the Law of the Sea Treaty also fear that, should the
U.S. ratify the treaty, environmentalists will have an additional
avenue for pursuing environmental law suits in U.S. courts. As
the U.S. Supreme Court has stated, "international law is part of our
law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction, as often as questions of right
depending on it are duly presented for determination." This
seems to leave the door wide open for the use of international law
in U.S. courts.40
Further, as Frederic L. Kirgis, writing for the American Society of
International Law, notes, "Provisions in treaties and other
international agreements are given effect as law in domestic courts
of the United States... if they are 'self-executing'... the primary
consideration is intent... that the provision become effective as
judicially-enforceable domestic law without implementing
legislation."41
Whether
the Law of the Sea Treaty or specific provisions of the treaty meet
this test will undoubtedly be subject of some debate.
Conclusion
Sufficient concerns about the implications for U.S. national
security and U.S. environmental policy exist that the United States
should be wary of acceding to the Law of the Sea Treaty.
These concerns, in summary, include:
*
Article 20 would extend the surfacing requirement to vessels not
covered under previous conventions, including those that would
otherwise qualify for innocent passage such as unmanned vessels
used for mine detection and other purposes.
*
The Law of the Sea Treaty would impede the U.S.'s ability to
capture international terrorists and confiscate weapons of mass
destruction through detention of ships on the high seas.
The treaty specifies that the boarding of ship is not justified
except when a ship is believed to be engaged in piracy,
unauthorized broadcasting, drug trafficking, is obscuring its
nationality or shows no nationality. Detention of ships in
a manner other than those prescribed in the treaty would subject
such actions to the judgment of the International Tribunal of
the Law of the Sea in Hamburg, Germany.
*
Article 88's stipulation that "the high seas shall be reserved
for peaceful purposes" and Article 301's requirement that
parties to the convention refrain from "any threat or use of
force against the territorial integrity or political
independence of any state" may be used to impede U.S. military
operations at sea. The Treaty's opt-out provisions for
military activities would only free the U.S. from the
requirement to participate in a specific dispute resolution
process, not dispute resolution itself.
*
The marine conservation provisions of the treaty could be used
by activists to achieve through international institutions that
which they haven't been able to achieve through domestic
legislation.
*
The conservation provisions may give environmental organizations
a new avenue to pursue environmental lawsuits in U.S. courts.
*
The conservation provisions may provide the means for forcing
the U.S. to adopt the Kyoto Protocol or similar
emissions-control schemes - schemes the U.S. has rejected.
# # #
David Ridenour is vice president of the National
Center for Public Policy Research. Comments may be sent to
dridenour@nationalcenter.org.
Footnotes:
1 Kissi
Agyeberg, "Theory in Search of Practice: The Right of Innocent
Passage in the Territorial Sea," Cornell Law School, Ithaca, New
York, 2005.
2 David B. Sandalow, "Law of the Sea Convention: Should the U.S.
Join?" The Brookings Institution, Washington, D.C., August 2004.
3 Robert Looney, "New International Economic Order," Prepared for
the Routledge Encyclopedia of International Political Economy, 1999.
4 Doug Bandow, "Sink the Law of the Sea Treaty," Cato Institute,
Washington, D.C., March 12, 2004.
5 Edwin Meese III, "Reagan Would Still Oppose Law of the Sea
Treaty," Human Events, April 25, 2005.
6 Carrie E. Donovan, "The Law of the Sea Treaty," The Heritage
Foundation, Washington, D.C., April 2, 2004.
7 David B. Sandalow, "Law of the Sea Convention: Should the U.S.
Join?," The Brookings Institution, Washington, D.C., August 2004.
8 United Nations Convention on the Law of the Sea, 1994 Agreement
Relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea.
9 Sandalow.
10 Agyeberg.
11 Testimony of John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, U.S.
Senate Environment and Public Works Committee, Washington, D.C.,
March 23, 2004.
12 Convention on the Territorial Sea and The Contiguous Zone, April
29, 1958.
13 "Design Report: Littoral Warfare Submarine, VT Total Ship Systems
Engineering," Aerospace and Ocean Engineering College of
Engineering, Virginia Polytechnic Institute, Blacksburg, Virginia.
14 Jeremy Rabkin, "Law of the Sea Treaty: A Bad Deal for America,"
Competitive Enterprise Institute, Washington, D.C., June 1, 2006.
15 United Nations Convention on the Law of the Sea, 1994 Agreement
Relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea.
16 Ibid.
17 "Courier,1952," U.S. Coast Guard.
18 United Nations Convention on the Law of the Sea, 1994 Agreement
Relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea.
19 Ibid.
20 Rabkin.
21 International Tribunal of the Law of the Sea, October 1, 2005.
22 Frank Gaffney, "LOST at Sea," Jewish World Review, May 5, 2004.
23 John Norton Moore and William A. Schachte, Jr., "The Senate
Should Give Immediate Advice and Consent to the Law of the Sea
Convention: Why the Critics Are Wrong," Columbia Journal of
International Affairs, Vol. 59, Issue 1.
24 "Chronological Lists of Ratifications of, Accessions to and
Successions to the Convention and the Related Agreements as of April
28, 2006," Division for Ocean and the Law of the Sea, United
Nations.
25 Force Sustainment from the Sea," Policy Paper, U.S. Department of
the Navy, Washington, D.C.
26 Chronological Lists of Ratifications of, Accessions to and
Successions to the Convention and the Related Agreements as of April
28, 2006," Division for Ocean and the Law of the Sea, United
Nations.
27 Andrew Toppan, Hazegray World Navies Today.
28 Transcript of panel discussion, "Should the U.S. Ratify the Law
of the Sea Treaty?" Brookings Institution, Washington, D.C., May 4,
2004.
29 "Composition of the Council 2005-2008," International Seabed
Authority, Kingston, Jamaica.
30 "U.N. Convention on the Law of the Sea Report," U.S. Senate
Foreign Relations Committee, Washington, D.C., March 11, 2004.
31 United Nations Convention on the Law of the Sea, 1994 Agreement
Relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea.
32 Paul L. Kelly, "American Security Interest and the Law of the
Sea: Energy Security."
33 "The United States and the U.N. Convention on the Law of the Sea
(UNCLOS): Full Steam Ahead," Citizens for Global Solutions,
Washington, D.C., March 9, 2005.
34 Moore and Schachte.
35 "Statement in Recognition of the International Year of the
Ocean," Greenpeace, Amsterdam, The Netherlands, 1998.
36 "'Phillipe Sands, Unilateralism,' Values and International Law,"
2000.
37 International Tribunal for the Law of the Sea (ITLOS): MOX Plant
Case (Ireland v. United Kingdom) - Order Related to Request for
Provisional Measures, No. 10 (December 3, 2001), American Society of
International Law, Washington, D.C.
38 United Nations Convention on the Law of the Sea, 1994 Agreement
Relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea.
39 Thilo Bode, "Sea Changes," Our Planet (United Nations Environment
Programme), November 2000.
40 Frederic L. Kirgis, "Is Foreign Law International Law," The
American Society of International Law, Washington, D.C., October 31,
2005.
41 Frederic L. Kirgis, "International Agreements and U.S. Law," The
American Society of International Law, Washington, D.C., May 1997.