The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea Treaty, is an international agreement that defines the rights and responsibilities of nations in their use of the world?s oceans, defines ocean boundaries, establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and creates a legal structure for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction. The terms of the Convention were first established in 1982, replacing four treaties dating back to 1958, and required nations to sign and ratify it before it would go into effect.
The United States objected to the provisions of Part XI of the Convention, which provides a structure relating to minerals on the seabed outside any state?s territorial waters or EEZ (Exclusive Economic Zones). Part XI also established an International Seabed Authority (ISA) to authorize seabed exploration and mining and to collect and distribute the seabed mining royalties. Arguing that Part XI was unfavorable to American economic and security interests, the United States refused to ratify the UNCLOS; although, it expressed agreement with the remaining provisions of the Convention.
From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s removed much of the support for some of the more contentious Part XI provisions.
In 1990, discussions were held between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that certain key provisions, including those regarding limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.
The treaty, even after the 1994 Agreement, has failed to win Senate ratification due to opposition from some conservative senators who fear the Treaty would yield U.S. sovereignty to international law, impose environmental pollution fees, and burden U.S. companies with royalties for energy exploitation.
It is interesting to see which countries are not yet a part of the Convention. Countries that have signed, but not ratified, are Afghanistan, Bhutan, Burundi, Cambodia, Central African Republic, Colombia, El Salvador, Ethiopia, Iran, Democratic People?s Republic of Korea, Libya, Liechtenstein, Niger, Rwanda, Swaziland, and United Arab Emirates. Countries that have not signed the Convention are Andorra, Azerbaijan, Ecuador, Eritrea, Israel, Kazakhstan, Kyrgyzstan, Peru, San Marino, South Sudan, Syria, Tajikistan, Timor-Leste, Turkey, Turkmenistan, United States, Uzbekistan, and Venezuela. It is not often that the United States finds itself listed as being in the same class with most of these countries.
In recent months ratification of the Law of the Sea Treaty is again being discussed in the United States Senate. Sen. John Kerry (D-MA), Chairman of the Senate Foreign Relations Committee, is trying to build a case for the pact, which is now endorsed by 161 countries and the European Union. Kerry is holding out the possibility of a vote in a congressional lame-duck session after the November elections.
Several weeks ago Defense Secretary Leon Panetta, Secretary of State Hillary Rodham Clinton, and Army Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, made a rare joint appearance before the committee to argue for the treaty.
?Whatever arguments may have existed for delaying U.S. accession no longer exist and truly cannot even be taken with a straight face,? Secretary Clinton said.
By refusing to ratify the treaty, Secretary Clinton testified, the United States could fail to exploit untapped oil and gas deposits buried beneath the offshore seabed. It could lose out to Russia, Norway and other countries in staking claims to the Arctic Ocean, where melting ice is opening up untold mineral riches. And it could lose credibility in reining in China?s maritime ambitions in the South China Sea.
Secretary Panetta and General Dempsey zeroed in on the national security benefits, arguing that by instituting rules and a mechanism for resolving disputes, the treaty reduces the threat of conflict in hot spots like the South China Sea and the Strait of Hormuz, which Iran has threatened to shut down in retaliation for oil sanctions.
?Frankly, I don?t think this is a close call,? Mr. Panetta said.
A few weeks later, four admirals, including the chief of naval operations and the vice chairman of the Joint Chiefs of Staff, and two generals also appeared before the Committee and appealed to it to ratify the U.N. Convention.
The Secretaries and military leaders insisted that the pact would improve national security and enhance U.S. standing in the world. ?Adm. James Winnefeld Jr., vice chairman of the Joint Chiefs, told the Committee, ?It will fortify our credibility as the world?s leading naval power and allow us to bring to bear the full force of our influence on maritime disputes. In short, it preserves what we have and it gives us yet another tool to engage any nation that would threaten our maritime interests.?
The treaty establishes a system for resolving disputes in international waters and recognizes sovereign rights over a country?s continental shelf out to 200 nautical miles and beyond if the country can provide evidence to substantiate its claims. Adm. Jonathan Greenert, the chief of naval operations, said Iran?s threats to close the Strait of Hormuz signals the importance of ratifying the treaty to deal with violations of international law that would limit access to international waters.
The military officers said the U.S. would have to rely solely on military might to project power abroad and could lose access to energy resources in the extended U.S. continental sea shelves if the Senate does not ratify the treaty. ?Competing claims in the maritime domain by some coastal states are becoming more numerous and contentious. Some of these claims, if left unchallenged, would put us at risk our operational rights and freedoms in key areas of the Asia-Pacific,? said Navy Adm. Samuel J. Locklear III, commander of U.S. Pacific Command.
The officers also argued that ratifying the treaty would give the U.S. more credibility with other treaty members when resolving maritime disputes and conducting naval operations.
?We have young lieutenants that are commanding patrol boats ? and they need the clarity and the continuity and the predictability this convention provides in terms of making determinations on a daily basis on jurisdictional issues and other things,? said Adm. Robert J. Papp Jr., Commandant of the Coast Guard.
GOP members of the Committee constantly challenged the military witnesses.
Appearing after the military leaders, Former Defense Secretary Donald H. Rumsfeld criticized the Treaty as a potential burden on U.S. companies. In his testimony, Rumsfeld argued against ratification, calling the royalties that U.S. companies would have to pay under the pact ?a new idea of enormous consequence.?
Rumsfeld said that under the treaty, industrialized countries pay royalties to less-developed nations for profits made while exploiting unclaimed energy resources, adding that this type of wealth redistribution is a ?novel principle that has, in my view, no clear limits? that ?could become a precedent for the resources of outer space.?
?I do not believe the United States should endorse a treaty that makes it a legal obligation for productive countries to pay royalties to less productive countries, based on rhetoric about the common heritage of mankind,? Rumsfeld said.
Rumsfeld, who served in the George W. Bush administration, has argued previously against ratifying the treaty.
Also testifying against ratification, Heritage Foundation international law specialist Steven Groves said the treaty would force the U.S. to cede its sovereignty under international tribunals with no appeal and expose the U.S. to ?baseless international lawsuits.? He said the U.S. already has the right to exploit resources without acceding to the treaty.
Rumsfeld?s and Grove?s remarks were in sharp contrast to testimony by the heads the U.S. Chamber of Commerce and the American Petroleum Institute. Both business leaders testified that the Treaty would help, not hinder, American businesses. ?Other business supporters say the treaty offers a stronger legal foundation for activities such as offshore oil drilling, metal harvesting, and undersea cable operations.
Sen. Kerry and Sen. Richard G. Lugar of Indiana, the panel?s ranking Republican, said U.S companies would not explore energy resources in the extended continental sea shelves or in the Arctic without the legal certainty the treaty provides.
?The treaty makes it possible for a mining or drilling company to stake an unequivocal legal claim on the ocean floor and have it recognized under international law,? Senator Lugar said. ?They are in favor of this treaty.?
As in the past, ratification rests with Conservative Republican lawmakers. ?The opposition of these conservatives goes back to the Cold War days of Ronald Reagan when the Treaty was first formulated.? Many argue that the GOP?s arguments are outdated and are no longer applicable in today?s world. Nonetheless, the most conservative GOP senators are still firmly wed to these ideological beliefs.
Several Republicans say the treaty ought to be mothballed for good. Senator James Inhofe (R-OK), using Rumsfeld?s argument, complained that under the terms of the agreement, the United States would have to transfer billions of dollars in royalties from oil and gas production on the continental shelf to an international authority, which would redistribute the money to less developed countries.
Senator James Risch (R-ID) said it would oblige the United States to adhere to international agreements to stem greenhouse gas emissions. ?That?s got Kyoto written all over it,? he said, referring to the climate change treaty rejected by the United States.
Senator Risch seemed particularly rankled by Mrs. Clinton?s contention that the treaty?s opponents were driven by ?ideology and mythology,? not facts. ?I hope you weren?t scoffing at us,? he said. ?I?m one of those that fall into that category.?
Senator Corker (R-TN), while saying he had an open mind, suggested that there was more than a bit of politics in the timing of the treaty?s reappearance. If Republicans win the Senate, Democrats would find it even harder to win approval in the next Congress.
Twenty-six of the Senate?s 47 Republicans purportedly have signed a letter pledging to oppose the treaty if it gets to the Senate for a vote.
Senator Kerry has promised that he will delay any vote on UNCLOS until after the election, to avoid the ?hurly-burly of presidential politics.?
In the end, ratification will depend upon whether enough GOP members will cast their votes with Secretaries of Defense and State in both Republican and Democrat administrations and virtually all of the country?s military leaders or if they will continue to hold onto ideological, and perhaps dubious, beliefs and toe the Party line.
Source: http://www.atchisonpublishing.com/2012/08/23/law-of-the-sea-treaty/
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