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Monster from the Deep: Return of UNCLOS

Monster from the Deep: Return of UNCLOS

Mini Teaser: The argument against ratification of the whole UNCLOS seems to be overwhelming, but for reasons that have not been fully argued in public.

by Author(s): Alfred P. Rubin

In December of 1982, after about nine years of negotiation, a comprehensive United Nations Convention on the Law of the Sea (UNCLOS) was concluded at Montego Bay, Jamaica.

The UNCLOS reflects a consensus that ocean resources should be used for the benefit of all mankind, and an assumption that the free-market system is selfish; that capitalism benefits only capitalists and cannot be controlled to make it benefit society in general. A catch-phrase was used to refer to this orientation; the oceans were to be regarded as the "common heritage of mankind." As substance was sought to be put into this phrase, it was gradually eroded until it survived in only one part of the UNCLOS: Part XI, the rules relating to "the Area and its resources" (article 136). The Area is defined in article 1 of UNCLOS as the sea-bed and ocean floor and subsoil beyond the limits of national jurisdiction. It does not include the water column anywhere, the continental shelf, or any other places in which states enforce exclusive economic or territorial rights. UNCLOS sets up a complex regime in which law-making power for the Area was agreed to be given to a multinational "Authority" composed of all the parties to UNCLOS acting by a two-thirds majority in matters of substance.

UNCLOS provides that sixty unqualified ratifications will bring it into force. Reservations are not permitted. Although no industrialized state has ratified UNCLOS yet, sixty states of the developing world have. The executive branch of the United States Government is now seriously considering submitting the UNCLOS to the Senate for "advice and consent" and, if we do ratify, other industrialized states can be expected to follow.

The major objection to UNCLOS raised by the Reagan Administration in 1982 relates to the powers given to the Authority to make rules to govern national efforts to mine the resources of the deep sea-bed and eventually, through its own commercial arm, to compete for those resources. In order to operate effectively, the Authority was to sell licenses, thus gaining an income under an extremely complex assessment scale (UNCLOS Annex III, article 13). The Reagan Administration considered this a form of public enterprise (which it certainly was) inconsistent with American free market principles, therefore unacceptable.

Much of even the industrialized world disagrees with this position. Ideologically, it seems hypocritical: even in the United States we have regulated industries and federal control overriding state control of many aspects of private enterprise, including mining. To many outside the United States, the issue has never seemed to be whether a "socialist" model should control the exploitation of some maritime resources. The question has been whose law should determine the conditions of exploitation. Moreover, ideology aside, it is not self-evident that either a competitive model or a non-competitive model for mining of the deep sea-bed is in the best interests of the United States or any other country, or the planet. The effect of a competitive model with competition between law-making states as well as among entrepreneurs would likely be the mining equivalent of "flags of convenience," where an entrepreneur would gain a competitive advantage by operating under the law of the state with least concern about environmental protection, safety and labor standards or with the most negligent or corrupt enforcement system.

But in any case, the competitive model posed by the Reagan administration cannot work any longer with regard to these resources. The legal complications likely to arise from any transactions involving products made from minerals derived from the Area, or, indeed, investments made from profits derived from the sale of those products or business relations involving the support of the mining activities, are beyond calculation. Under the law of countries that are parties to UNCLOS, it seems likely that rights in the products made from minerals derived from the Area cannot be derived from a non-party's law. The United States, among others, has adopted an expanded "effects doctrine" to apply our law to foreign transactions and there is nothing to prevent a party to the UNCLOS doing the same; nor is there any assurance that even a non-party will not develop "choice of law" rules to refer to the law of UNCLOS or of a party to UNCLOS to govern property rights in some circumstances. Wise investors will not risk their money and wise entrepreneurs their efforts in such a legal morass. Not surprisingly, since 1982 there have been no substantial commercial activities to exploit the resources of the Area even though UNCLOS was not in force.

But many other provisions of UNCLOS were considered to be helpful to American interests and consistent with conservative as well as radical ideologies. In a statement notable for ambiguity even among international lawyers, on March 10, 1983, President Reagan announced that:

"The United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states."

What this means remains hidden in a fog of verbiage. But more than meaning is obscured; the fog conceals valid reasons for the United States to refuse to ratify UNCLOS. These reasons go far beyond the doubts about the economic effects of the Convention.

Most obviously, and possibly what President Reagan's advisors had in mind, coastal states' rights under UNCLOS include the so-called "Pueblo clause." It says that it is not "innocent passage" for any foreign ship in the twelve-mile territorial sea to perform "any act aimed at collecting information to the prejudice of the defense or security of the coastal state" (article 19.c). But American naval vessels underway routinely take soundings and keep their radio receivers turned on, and any coastal state can claim that receiving information about the approaches to a harbor or the configuration of a coast is prejudicial to its security. Although it is possible with some ingenuity to argue that the provision does not mean what it says, foreign states are not bound by the ingenuity of American lawyers. And other provisions of the same article, like the clause forbidding "research or survey activities" (article 19.j) also contain undefined terms that can be interpreted to end American naval rights of passage. Indeed, it is also forbidden to undertake "any other activity not having a direct bearing on passage" (article 19.1). I have never understood how the United States negotiators could accept this language.

There are even more complex problems. UNCLOS sets up a special law of the sea tribunal with jurisdiction to interpret provisions of the Convention that apply equally to military and non-military uses of the sea. Although military uses can be excluded from the purview of the tribunal by particular states on ratifying the UNCLOS (article 298.1.b), a decision interpreting the UNCLOS's language relating to "innocent passage" or "transit passage" through straits, even if rendered in a case involving only non-military activities, would necessarily apply also to military uses. The distinction between military and non-military application of the tribunal provisions is thus untenable. Moreover, even if the United States and other naval powers take advantage of this available exclusion, nothing they do can stop other states from having their own military activity adjudicated by the tribunal. Despite the fact that the tribunal's decision binds only the parties before it, the tribunal's interpretation of a provision of the UNCLOS that applies equally to all parties affects international correspondence in ways potentially disastrous to American naval power.

The principal argument in favor of ratification seems to rest on the assumption that the world needs a comprehensive treaty to clarify and unify the law of the sea; that the alternative is chaos. In my opinion, this argument for ratification is overstated. The legal result of not ratifying the UNCLOS is not chaos in the law of the sea; it is the continued development of that dynamic body of law. Indeed, in areas of changing values and technology our own common law works best without codification.

Sometimes certainty is the highest interest of law-makers. With regard to the law of the sea, however, the fate of the four United Nations Law of the Sea Conventions coming out of Geneva in 1958 is pertinent evidence that other factors that influence the behavior of states can be more important than certainty. The United States ratified all four of those Conventions in 1961 and first violated them when we extended our exclusive fisheries zones to twelve miles in 1966. If the law raises certainty to a higher position than is tolerable in light of those factors favoring change, change occurs nonetheless and the law is degraded.

In sum, the argument against ratification of the whole UNCLOS seems to be overwhelming, but for reasons that have not been fully argued in public. The deep sea-bed mining provisions seem almost irrelevant: the supposed virtues of a free exploitation approach are obviously impossible to implement; the supposed virtues of a cartelized control model of economic development are obviously overstated and, if the states members of the Authority really have an interest in mankind, it seems a safe bet that the United States can participate in modifications of the regime to better suit the needs of the world. Of the other provisions of UNCLOS, some might be useful to the United States and they can continue to be cited as persuasive of the law, even if not formally binding. But many, such as the innocent passage provision and the provisions relating to a special law of the sea tribunal, seem potentially pernicious. Since the UNCLOS must be accepted as a whole or rejected as a whole, rejection seems the wiser course.

Essay Types: Essay