U.S. interested in U.N. Law of the Sea Treaty

As I have already discussed extensively on this blog, the Doctrine of Discovery and Russia’s audacious claim to the Arctic seabed has reawakened interest in the United States in becoming a party to the United Nations Convention on the Law of the Sea.  Two former U.S. Secretaries of State, James Baker and George Shultz, advocated just this action in the Wall Street Journal on Sept 26, at page A21.  They are concerned that the U.S. is being left out of the Convention process and decisions, and about Russia planting its flag on the Arctic seabed.

The Senate will hold hearings on the Convention this coming week.  The Convention’s primary function is to define maritime zones and to allocate resource rights.  The resource rights is no doubt what interests these ex-Secretary of States and the Senate at this time. 

Russia, of course, planted its flag on the Arctic seabed as part of its strategy to claim the 10 BILLION tons of oil and gas estimated to be there (20-25% of the world’s known reserves).  Canada, Denmark and the U.S. took immediate steps to counter Russia’s claim.

The U.S. strategy now entails becoming a party to the U.N. Convention to try to block Russia and to establish under international law a U.S. claim to these same resources.

When the Convention was finalized in 1982, the Reagan Administration did not support it.  Several conservative Senators and groups still do not support the U.S. signing the Convention or ever looking to the U.N. to establish its’ rights or to exercise any authority over U.S. sovereignty. 

President Bush and other presidents have supported the U.S. becoming a party and a strong push is now on for that action.  According to Secretaties Baker and Shultz, it will protect U.S. sovereign interests, national and economic security, promote our international leadership role, and increase the U.S. ability to fight terrorism.

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0 Responses to U.S. interested in U.N. Law of the Sea Treaty

  1. Notwithstanding what these fine political and military officials have said in favor of the UNCLOS, they plainly do not understand the evolving world order of laws and regulations in which we now live.

    One of the most blaring omissions in the statements coming forth from the US military in support of the UN Law of the Sea Convention is a thorough analysis of the treaty’s more than 45 environmental articles, regulations and protocols, and numerous other standards that could be used to diminish the military’s right to freedom of navigation/ innocent passage.

    In addition, recently released reports have described how the US military will be increasing its reliance on private contractors more than 50% during the next 5-10 years. The myriad activities of private contractors designing, formulating, producing, testing, delivering and deploying technologies for military application are highly unlikely to qualify for exemption as ‘military activities’ under the UNCLOS. The military brass is quite confident, at least publicly, that they could unilaterally determine what is or is not a ‘military activity’ for purposes of qualifying for the treaty exemption. And, they believe that they could fit all such activities neatly under one ‘military activity’ tent. They are unlikely, however, to succeed in exempting their supply chains.

    Furthermore, the environmentally-obsessed EU member states have 27 votes for every 1 vote cast by the US at the UNCLOS Secretariat meetings, which the administration has been less than forthcoming in explaining.

    Lastly, there remains a quaint notion within US constitutional law which is commonly referred to as ‘due process’. In the context of the Senate Foreign Relations Committee hearings that are now underway, this means transparency and a thorough publicly aired review. Unfortunately, this has not yet occurred considering that a number of house and senate committees possess oversight jurisdiction which they have yet to exercise to review the various dimensions of the UNCLOS that have not been considered in light of new international environmental law developments since the previous UNCLOS hearings. The American people are entitled to know from their elected representatives how this expansive treaty which will reach into US sovereign territory (land, internal waterways and air above) and into the US regulatory and free enterprise systems, will affect Americans’ pocketbooks, small businesses and daily lives.


    The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty

    By J. William Middendorf II* and Lawrence A. Kogan**

    During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.

    These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.

    Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.

    While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.

    Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.

    These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.

    This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

    Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.

    More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.

    In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.

    The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.

    * Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.
    ** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.

  2. EU Hides Behind ‘Private’ Standards in Effort to Secure Global Regulatory Control

    Developing Countries May Have New Grounds to Bring WTO Actions Against Europe

    PRINCETON, N.J., Oct. 9 /PRNewswire-USNewswire/ — In the current issue
    of the Global Trade and Customs Journal, international trade and regulatory lawyer Lawrence Kogan details how the European Union and its member states previously enlisted private European environmental standards bodies to promote official government sustainable forest management policies that
    likely violated the World Trade Organization rights of developing countries and their industries. In addition, the article describes how these same EU governments are behind the ongoing efforts of other European pressure
    groups to promote, via United Nations agencies and international standardization organizations, the adoption by global industry supply chains of overly strict corporate social responsibility standards.

    According to Mr. Kogan, “It is no secret that the EU aspires to ‘usurp America’s role as a source of global standards,’ and to become ‘the world’s regulatory capital’ and ‘standard-bearer.'” Therefore, it is natural that they would endeavor to employ whatever nontransparent means are available
    to push their regulatory control agenda forward.” As EU trade commissioner Peter Mandelson claimed in a prior speech, ‘exporting our rules and standards around the world is one source [and expression] of European power.'”

    Two recent articles appearing in the Financial Times and the Economist confirm this assessment. “The Commission, the EU’s executive body, states openly that it wants other countries to follow EU rules and its officials are working hard to put that vision into practice… [T]he Union [has]… a
    body of law running to almost 95,000 pages — a set of rules and regulations that covers virtually all aspects of economic life and that is constantly expanded and updated. Compared with other jurisdictions, the
    EU’s rules tend to be stricter, especially where product safety, consumer protection and environmental and health [sustainable development] requirements are concerned.”

    The European regulatory model is worrisome, emphasizes Kogan, paraphrasing from one article, especially “because ‘it rests on the [standard-of-proof-diminishing, burden-of-proof-reversing, guilty-until-proven-innocent, I-fear-therefore-I-shall-ban, hazard-(not
    risk)-based] Precautionary Principle’, which is inconsistent with both WTO law and US constitutionally-guaranteed private property rights.” As another article reaffirms, “In Europe corporate innocence is not assumed. Indeed, a vast slab of EU laws…reverses the burden of proof, asking industry to
    demonstrate that substances are harmless…[T]he philosophical gap reflects the American constitutional tradition that everything is allowed until it is forbidden, against the Napoleonic tradition codifying what the state
    allows and banning everything else.”

    “Notwithstanding its knowledge of Europe’s extraterritorial activities,” warns Kogan, “the 110th US Congress may soon ratify the UN Law of the Sea Convention without all of its committees possessing oversight
    jurisdiction having first adequately reviewed in public hearings its 45-plus environmental regulatory articles — which also incorporate
    Europe’s Precautionary Principle! This would essentially open up the floodgates to a tsunami of costly non-science and non-economics-based environmental laws, regulations and standards that would abridge Americans’ Fifth Amendment rights, impair U.S. industry’s global economic competitiveness and fundamentally reshape the American legal and free enterprise systems.

    The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. This ITSSD study and
    related materials are accessible online at:
    http://www.itssd.org/GTCJ_03-offprints KOGAN – Discerning the Forestfrom the Trees.pdf,
    http://www.itssd.org/Programs/ITSSDAssessmentISO26000Standard.pdf and

  3. Pingback: Native America, Discovered and Conquered » Blog Archive » NY Times editorial on UN Convention on the Law of the Sea

  4. Please see the New & Improved ITSSD Journal on the UN Law of the Sea Convention, with more accurate information than the recently released Senate Foreign Relations Committee Report, at:


    There are three other ITSSD Journals of that would be of interest to your readers:

    ITSSD Journal on Economic Freedom, at:


    ITSSD Journal on Intellectual Property, at:


    ITSSD Journal on Pathological Communalism, at:


  5. Pingback: Native America, Discovered and Conquered » Blog Archive » Doctrine of Discovery and Antarctica?

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