The Testimony of
Baker Spring
F.M Kirby Research Fellow in National Security Policy
The Heritage Foundation
On
The United Nations Convention on the Law of the Sea
Before
The House Committee on International Relations
May 12, 2004
Mr. Chairman, it is an honor to have
the opportunity to testify before this distinguished committee on
the matter of ratification of the United Nations Convention on the
Law of the Sea.
Members of The Heritage Foundation staff testify as individuals
discussing their own independent research. The views expressed are
their own, and do not reflect an institutional position for The
Heritage Foundation or its board of trustees.
Mr. Chairman, those who founded our nation recognized the power
to make treaties is an extremely important power. In their wisdom,
they sought to ensure that treaties would serve the national
interest by dividing that power between the executive branch and
the Senate. Article II, Section 2, of the Constitution states that
the president "shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties." Further, Article II establishes a
two-thirds voting requirement for the approval of treaties by the
Senate. Clearly, they intended to place the burden on the
proponents of a treaty to demonstrate its value to the United
States. The far-reaching provisions of the treaty that is the
subject of this hearing amply demonstrate why the nation's founders
divided the treaty-making power. There are compelling reasons why
the Senate should take the time and care necessary to review this
treaty and understand all its implications. While the House of
Representatives does not have a role in the advice and consent
process, its members can and should contribute to the debate over
whether the United States should ratify a treaty such as this
one.
In March 23rd testimony before the Senate Environment and Public
Works Committee, Assistant Secretary of State for Oceans,
International Environment, and Scientific Affairs John F. Turner
confirmed that the administration supports Senate approval for the
ratification of the 1982 United Nations Convention on the Law of
the Sea (hereinafter referred to as the Convention). The
Administration's position is puzzling to me because the United
States had considered and rejected the Convention during the Reagan
Administration. I do not see a compelling reason to revisit the
issue today.
While proponents of the Convention argue that the Clinton
Administration resolved the problems with the treaty that led to
its rejection in the 1980s, through renegotiation in 1994, the fact
remains that it represents a potential turning point for the U.S.
in the history of international relations. The Convention presents
the U.S. with a stark choice. On the one hand, the U.S. may enter
into this treaty and proceed on a path that cedes U.S. sovereignty
to executive and quasi-judicial international authority with
compulsory powers or reject the treaty and stick to the tried and
true international system where relations are established between
and among sovereign states.
While the Convention contains a wide variety of questionable
provisions, its real danger stems from the fact that the treaty
represents more than the sum of its questionable provisions. It
establishes open-ended procedures for administering these
provisions that could lead to negative outcomes for the U.S. that
are all but impossible to predict by simply reading its text. If
the U.S. becomes a participant in this treaty, following a move by
the Senate to approve ratification, it may regret it in the years
ahead.
Myriad Problems. The Convention has a variety of
problems. This is not surprising given that the treaty takes up
more than 150 pages. What is surprising is that even the proponents
of the treaty both inside the Administration and outside it have
publicly acknowledged a number of the dangers associated with
several specific provisions. Prior to any decision to ratify the
Convention, the public should fully understand the dangers posed by
these provisions. The review process, however, should not stop
there. Interested citizens need to take the additional step of
understanding each of these provisions in the context of the
open-ended and in some instances compulsory dispute settlement and
other procedures found in the Convention, over which the U.S. will
only have limited control and that could produce adverse outcomes
that are all but impossible to predict. The following represents
four general shortcomings of the Convention:
Problem #1: Loss of Sovereignty. Traditionally, treaties,
with only narrow exceptions, have been defined as formal agreements
between and among sovereign states that help define their relations
to each other as sovereign states. They are inherently political
agreements. The option to change such relations and the concomitant
power to discontinue adhering to the terms of a treaty is solely
the prerogative of the sovereign.
First and foremost, the Convention represents a departure from
that tradition. It establishes institutions with executive and
judicial powers that in some instances are compulsory. For example,
Section 4 of the Treaty establishes the International Sea-Bed
Authority. The authority basically is given the power to administer
to the "area" under the jurisdiction of the treaty, which includes
all the world's oceans and seabed outside national jurisdiction.
This is a granting of executive powers to the authority that
supersedes the sovereign power of the participating states. Of even
greater concern, Part XV of the Convention establishes dispute
settlement procedures that are quasi-judicial and mandatory. Once
drawn into this dispute settlement process, it will be very
difficult for the U.S. extricate itself from it.
Proponents of the Convention acknowledge the far-reaching
political and legal ramifications of U.S. adherence to the treaty.
University of Virginia School of Law Professor John Norton Moore, a
supporter of the Convention who is also testifying today, stated
that he sees it as a means for fostering the rule of law in
international affairs. In fact, he has stated that adherence to the
Convention is "one of the most important law-defining international
conventions of the Twentieth Century."
This is quite an assertion. In fact, it is the most troubling
aspect of the Convention because the conduct of international
relations for centuries has been a more a political than a legal
process. Unacknowledged in the language about fostering the rule of
law in international relations is the reality that in this
particular case it entails subordinating the powers of the
participating states to the dictates of an international authority.
When it comes to the essential powers for the conduct of
international relations, the use of force, and the exercise of
diplomacy, they are not readily divisible but they are readily
transferable. The Convention is a vehicle for transferring these
essential powers from the participating states to the international
authority established by the treaty itself. It represents the
establishment of the rule of law over sovereign states more than it
is establishing a rule of law made by them.
Former Secretary of State George Shultz provides a succinct
rejoinder to those who envision the rise of the "rule of law" in
international relations in the way it is devised in this
Convention. Speaking at the Library of Congress on February 11,
2004, Secretary Shultz stated:
First and foremost, we must shore up the state system. The world
has worked for three centuries with the sovereign state as the
basic operating entity, presumably accountable to its citizens and
responsible for their well-being. In this system, states also
interact with each other to accomplish ends that transcend their
borders. They create international organizations to serve their
ends, not govern them.
Problem #2: Unnecessary limitations on the exploitation of
resources. The Convention was drafted at time when the failed
policies of state control over resources to meet demands for the
redistribution of those resources were in vogue. Specifically,
Article 140 of the Convention states that all activities outside
the jurisdictional waters of individual states "be carried out for
the benefit of mankind" while "taking into particular consideration
the interests and needs of developing States." These international
waters and the accompanying seabed are defined as those outside the
200-nautical-mile exclusive economic zone (EEZ) the treaty leaves
within the jurisdictional control of participating states.
It is unclear why the U.S. should accept a treaty that is so
explicitly biased against its interests when it comes to the access
to resources. This is particularly so when this bias reflects a
policy preference for the redistribution of resources that the
world abandoned over a decade ago. The world economy is now
organized around the requirements of the market. As elsewhere, the
application of market principles regarding the exploitation of
sea-based resources will ensure the effective and efficient use of
those resources. U.S. adherence to the Convention, therefore, would
represent a step backward.
Problem #3: A step in the direction of international taxing
authority. The Convention contains an ill-advised
revenue-sharing provision that is applied to income derived from
oil and gas production outside the EEZ. The general bias in the
Convention, as I indicated earlier, is in favor of the
redistribution of seabed resources. This bias is codified in the
area of oil and gas revenues. The U.S. will be forced to pay a
contribution to the International Sea-Bed Authority created by the
treaty based on a percentage of its production in the applicable
area beyond the 200-mile limit.
While he asserted the argument against this revenue-sharing
provision was unconvincing, State Department Legal Advisor William
H. Taft IV acknowledged it was an argument that could be made in
the course of October 21, 2003 testimony before the Senate Foreign
Relations Committee. Mr. Taft understates the problem. By any
reasonable definition, this provision would for the first time
allow a U.N.-affiliated international authority to impose a tax
directly on the U.S. for economic activity. At least, I am unaware
of any precedent for this kind of international taxing authority.
Shoring up the state system, as recommended by former Secretary of
State Shultz, means that international institutions should be
funded by the voluntary contributions of their member states. The
extent to which these international institutions are allowed access
to independent streams of revenue is the extent to which they will
seek to obtain governing authority at the expense of the state
system. While the revenue-sharing provision related to oil and gas
production in the Convention is a relatively modest step in this
direction, it is still a step in the wrong direction.
Problem #4: Unnecessary Risks to National Security.
Proponents of the Convention argue that it promotes U.S. security
by codifying a variety of rights to navigate the world's oceans
that are valued by the Navy. While the Navy, quite appropriately,
seeks the codification of these rights, it should be pointed out
that a significant portion of these rights are already established
by a series of four 1958 "Geneva Conventions on the Law of the Sea"
and customary international practice.
On the other hand, the risks to national security posed by the
Convention are often understated. For example, Deputy Assistant
Secretary of Defense for Negotiations Policy Mark T. Esper, who
testified in favor of the Convention, told the Senate Foreign
Relations Committee in an October 21, 2003, hearing that the
mandatory dispute resolution mechanism could be used by states
unsympathetic to the U.S. to curtail its military operations even
though such operations are supposed to be exempt from the
mechanism. This is because it is unclear by the terms of the treaty
what activities will be defined as military. While the Bush
Administration believes that it will be up to each State Party to
determine for itself what activities are military, it is uncertain
enough about the issue that it is recommending the U.S. submit a
declaration reserving its right to determine which activities are
military. Unfortunately, it is not at all certain that a
declaration will suffice to protect vital U.S. national security
interests. Other states may choose to accept or ignore the
declaration, or a future administration may accept the jurisdiction
of a tribunal and be surprised if precedent-setting decisions go
against U.S. interests. While in the future the Navy may recommend
that the U.S. reject a claim of jurisdiction for a tribunal,
civilian authorities both inside and outside the Department of
Defense may overrule the Navy. Amending the text of the treaty may
be the only certain way to protect U.S. interests against
overreaching by other states regarding the mandatory dispute
resolution mechanism. This is my view, in part, because I am not
aware of a precedent for such a mandatory dispute settlement
mechanism that could extend to such sensitive areas.
Members of the House of Representatives have a role in the
debate over the Convention. The four general shortcomings with
the Convention that I have described are derived from a longer list
of specific shortcomings in a variety of the specific provisions it
contains. While the House of Representatives will not consider the
matter of granting consent to ratification, House member should
participate in the general debate over the Convention. I believe
that House members should take the opportunities that are presented
to them to communicate with their Senate colleagues both formally
and informally on this matter. Generally, they should point out to
the Senate that there is no pressing need for rushing to judgment
on ratification. The Convention is a long and complex agreement and
an informed judgment on granting consent to ratification will
necessarily involve a broad debate in the Senate.
Conclusion. The United Nations Convention on the Law of
the Sea is a modest step toward the creation of an international
sovereign authority unchecked by the governed. Nevertheless, it is
a significant one. Given that modern states, including the one
envisioned for a united Europe, are the product of a combination of
just such steps, it is one the United States should not be taking.
Further, the treaty contains a number of specific provisions in
such areas as regulation, energy, the environment, national
security, and constitutional law that are deeply troubling.
National leaders in Europe seem to aspire to relegating their
nations to the status of provinces inside a supranational European
authority. In this context, it is not surprising that some outside
the United State see this move in the direction of broader
authority for international entities, which Secretary Shultz has
warned against, as desirable.
As for America's leaders, they should firmly reject such
aspirations for their nation now. Insofar as the United Nations
Convention on the Law of the Sea seeks to move the United States in
this direction and serves as an indicator of steps yet to come, it
poses a danger to the vision America's fathers had for the nation
they founded in 1776.
Mr. Chairman, I again thank you for the opportunity to testify.
I would be happy to answer any questions the Committee may have
regarding the Convention.