# 542  

August 2006



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
.




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