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08/23/2007
Law of the Sea, Part II
The other day I laid out the 1982 Law of the Sea Convention that
is in the news again today as Russia, Canada and other players
begin to stake their claims to the Arctic as the sea ice disappears.
Today, just a few words on the importance of the issue and how
it might play out.
At stake are 460,000 square miles of Arctic seabed that not only
may hold up to 25% of the world’s undiscovered oil and gas, but
also vast quantities of minerals, as well as fishing stocks and
highly lucrative shipping routes.
Five nations have direct interests: Russia, United States, Canada,
Norway and Denmark, with the latter responsible for Greenland.
Over 150 nations have signed off on the treaty, but the United
States hasn’t for various reasons. President Bush has been
advocating Senate approval, saying we need to have a “seat at
the table.”
Meanwhile, Canadian Prime Minister Stephen Harper is now
asserting his nation’s claim to the Northwest Passage, in addition
to his announced plan to add two military bases in the Arctic.
The U.S. has long said the passage isn’t Canadian, Canada
having first claimed it in 1973.
“It is a strait for international navigation,” U.S. Ambassador
David Wilkins told the AP’s Rob Gillies. “That’s not a unique
view of the United States. That is the view shared by a majority
of the countries in the world.”
[The Northwest Passage runs below the North Pole from the
Atlantic to the Pacific and can cut off 7,000 kilometers on the
traditional Panama Canal journey from east to west.]
Some analysts say that in the case of Prime Minister Harper, he’s
using the issue to separate himself from President Bush for
consumption back home. As one analyst told the AP, “It’s a
gratuitous way to create a little distance between himself and (the
president).”
Back to the Law of the Sea Convention specifically, when it
comes to the Russians planting a little flag below the North Pole,
John Norton Moore, an international law scholar at the
University of Virginia, told the Wall Street Journal’s Mary
Anastasia O’Grady, “Jurisdiction over resources is not
determined by staking claims.” That will be decided by the
“(UN) commission on the limits of the continental shelf,”
established under the convention.
O’Grady: “On the other hand, if Russia thinks it can bully its
way into the Arctic while it stirs up nationalism back home,
planting the flag makes perfect sense.”
O’Grady adds that “American and European solidarity with
Canada against Russian expansionism in the Arctic will be
crucial. But Canada’s case would be stronger if it weren’t
simultaneously making its own unsubstantiated claims of
sovereignty over the Northwest Passage.”
But as for the U.S. and approval of the treaty, states can only
stake claims beyond the accepted 200 nautical miles offshore
within 10 years of signing, thus any claims that the others make,
let alone those of the U.S. if and when the Senate approves, will
be dragged out for years.
Earlier this year, former Reagan attorney general Edwin Meese
III, Baker Spring, and Brett D. Schaefer, writing for The
Heritage Foundation, offered their reasons why the Senate should
not ratify the treaty.
In part:
“As a multilateral treaty negotiated under the auspices of the UN,
UNCLOS (United Nations Convention on the Law of the Sea)
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 frequently driven by the
same overtly anti-American agenda that is often apparent in the
UN General Assembly. While the U.S. can achieve positive
outcome 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 .
“Further, UN-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 unaccountable 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 UN 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 .
“Many UN bodies suffer vulnerability to corruption,
mismanagement, and abuse, and the U.S. should be concerned
about the protections in place to prevent the occurrence of these
ills in the International Seabed Authority .
“(In conclusion) the United States should be wary of joining
sweeping multilateral treaties negotiated under the auspices of
the United Nations. Indeed, the bar should be set very high for
U.S. participation in (such) treaties .The United Nations
Convention on the Law of the Sea is no exception.”
While I understand the points being made by Meese et al, I
disagree. As President Bush has said, we need a seat at the table
on this one.
Hott Spotts will return next week.
Brian Trumbore
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