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August 13, 2007

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artemis

There is a lot in this post to comment on, but for such a complicated topic I think the coverage was pretty good. It is important to keep in mind that we are talking about international law, which always has a bit of a political component, and that will be involved in the final division of the continental shelf of the Arctic.

I just want to add a comment on what was an almost throw-away comment about the International Seabed Authority. I took part in the establishment of the US counterpart in NOAA for the issuance of license for seabed mining exploration and have reviewed and written about the system created under the International Seabed Authority. There are a lot of similarities between the two systems, though the US is defunct from lack of funding and the impossibility of granting minesites that have exclusivity against claims from any other country - a situation not anticipated in 1980 when US legislation was passed. The most noticible difference is that the US system is more burdensome in submission of information, review by multiple departments of the US government, and oversight provisions. The ISA system is more tailored to the needs of the initial operations, developing rules in consultation with both miners, regulators and public interest groups. The Seabed Authority is smaller than 40 people, including secretaries and other support personnel, and it supports not only the licensing and regulatory processes and the meetings of the Authority, but serves as the public knowledge warehouse for seabed mining in general.

There is no reason to conjure up nightmares about the Authority. It has been in operation for more than a decade, has approved nine plans of work for exploration, responded to requests for rules to be applied to deep seabed sulphide deposits and generally functioned effectively and with financial prudence.

Informed Lawyer

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 individually and/or collectively in asymmetrical fashion to diminish the military's right to freedom of navigation/ innocent passage.

In addition, recent reports have been released that reflect that 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, about how 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 American pocketbooks, small businesses and daily lives.

For this reason, you might find the following article interesting if not provocative.


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.


Informed Lawyer

Dear Mr. Posner,

There are more than ideological issues driving the current call for more public hearings.

It just depends on whose comments you are listening to.

If you look very closely at the UN Law of the Sea Treaty you can see that it is the largest environmental regulatory treaty in the world.

Should the US ratify the treaty without adequately vetting its numerous environmental provisions and assessing their impact on our economic and legal systems, I would argue that on balance it would be much more harmful than helpful. But, then again, the proof is in the pudding.

Please visit the Institute for Trade, Standards and Sustainable Development's new blog - The ITSSD Journal. It will be updated daily to provide much needed information that has NOT been shared by the witnesses that have thus far been called to testify before the US Senate Foreign Relations Committee.

Informed Lawyer

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 Forest from the Trees.pdf

http://www.itssd.org/Programs/ITSSDAssessmentISO26000Standard.pdf and
http://www.itssd.blogspot.com

Informed Lawyer

http://itssd.blogspot.com/2007/10/myths-realities-4-concerning-un-law-of_1624.html

Myths & Realities #4 Concerning UN Law of the Sea Treaty -
LOST, Land-Based Activities & Sources of Marine Pollution,
And the Precautionary Principle

Myth #4: The UN Law of the Sea Treaty Cannot Be Used by Foreign Governments to Challenge U.S. Regulation of Land, Internal Waterway and Air-Based Sources of Alleged Pollution Affecting the Marine Environment

On September 27, 2007, Deputy U.S. Secretary of State John Negroponte stated during his testimony before the U.S. Senate Foreign Relations Committee that,

“There are some environmental issues that are the subject of international agreements such as ocean dumping, for example, but when you talk about land-based pollution, our view is that that’s just not covered by the [Law of the Sea] Treaty...There is no jurisdiction over marine pollution disputes involving land-based sources” (emphasis added).

That same day, U.S. State Department Legal Adviser John B. Bellinger III stated, in response to questions posed by Senate Finance Committee member Senator David Vitter (SC) that,

“[A]s far as dispute resolution involvement...there can be limitations on the pollution that can emanate [from land-based pollution sources]. But as far as the ability in so far as the ability of any other country to complain about that and bring us to dispute resolution over pollution that would come from land that is not permitted under the treaty” (emphasis added).

Reality #4: The UN Law of the Sea Treaty Sets Forth Broad Legal and Regulatory Proscriptions to Address Marine Pollution, Especially from Land-Based and Atmosphere-based Sources Located and Activities Undertaken Within National Sovereign Borders and Control

A. Official Testimony Misleading and Contrary to the LOST’s Express Terms

Many administration experts well understand that the LOST would apply to activities engaged in and products and substances designed, manufactured, formulated, sold, used and disposed of entirely within U.S. sovereign territory. In particular, the LOST would cover ANY ‘pollution’ source emanating from U.S. land, internal waterways or the air above that directly or indirectly affects the ‘marine environment’. It is therefore very surprising that Messrs. Negroponte and (especially) Mr. Bellinger were seemingly unaware of the prior 2004 Senate Foreign Relations Committee testimony of William H. Taft, IV, former Legal Adviser to the US Department of State.

Here is an excerpt of Mr. Taft’s testimony during a Question and Answer session. It apparently contradicts that of Messrs. Negoponte and Bellinger:

Question 1. If the U.S. becomes a party to UNCLOS, it will become the ‘‘law of the land.’’ Please provide a detailed analysis of all provisions that could raise issues of consistency with current U.S. laws and regulations, including our enforcement practices, with respect to the protection of the marine environment. Please include a description of any obligations under UNCLOS for which additional domestic authorities will be needed. Will the Administration be seeking implementing legislation for any of these provisions and, if not, will any steps be taken to address any such inconsistencies?

Answer...Part XII of the Convention establishes a legal framework for the protection and preservation of the marine environment. It addresses sources of marine pollution, such as pollution from vessels, seabed activities, ocean dumping, and land-based sources...” (emphasis added).

If these officials had been properly briefed, they would have noticed a number of LOST provisions (articles) that address this precise issue. Consequently, one is led to wonder why these officials delivered statements under oath that were at, the very least, uninformed, and at the very most, misleading.

The term ‘pollution of the marine environment’, perhaps one of the LOST’s most central ‘legal terms of art’, is defined in the very first provision of the treaty - Part I, Article 1.1(4). It speaks broadly about both concepts. The notion of ‘pollution’ includes “the introduction by man, directly or indirectly of substances or energy into the marine environment”. The ‘marine environment’, for purposes of this definition, encompasses estuaries, fish and other living resources within national sovereign jurisdiction that ultimately flow into the sea.

“1. For the purposes of this Convention:

... (4) ‘pollution of the marine environment’ means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities;” (emphasis added).

Article 194 is the primary article within the LOST that sets forth the broad obligation and legal duty of care assumed by all national government LOST parties as concerns the marine environment (including the United States should it ratify the LOST). In fact, it prescribes the measures that ALL LOST parties shall take to prevent, reduce and control marine pollution, especially from land-based and atmosphere-based sources.

“Article 194 – Measures to prevent, reduce and control pollution of the marine environment -

1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source...3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping” (boldfaced and underlined emphasis added).

LOST Article 207 goes further and mandates specifically that LOST treaty parties (including the U.S. should it ratify the LOST) shall adopt laws and regulations to address land-based and related water-based sources of marine pollution within their sovereign jurisdictions:

“Article 207 – Pollution from land-based sources -

1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution” (boldfaced and underlined emphasis added).

Article 207 uses prescriptive language to require LOST parties to link and harmonize their national measures with similar regional and global measures. In particular, LOST parties “shall endeavor to...harmonize their policies...[and] establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources” (emphasis added). And, such “[l]aws, regulations, measures, rules, standards and recommended practices and procedures...shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances [CHEMICALS], especially those which are persistent, into the marine environment” (emphasis added).

Just as LOST Article 207 functions to implement specifically, with respect to land-based pollution sources, the broader legal obligations imposed by LOST Article 194, so too, does LOST Article 212 function to require implementation of LOST Article 194 as concerns atmosphere-based sources of marine pollution. For example, “States shall adopt laws and regulations...”

“Article 212 – Pollution from or through the atmosphere –

1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the airspace under their sovereignty, and to vessels flying their flag or vessels or aircraft of their registry...2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.” (Boldfaced and underlined emphasis added).

Given LOST Article 194’s definition of marine pollution as consisting of the introduction by man of ‘energy’ into the marine environment, one may reasonably conclude that LOST Article 212 mandates national government regulation of carbon dioxide and other greenhouse gas emissions from land-based as well as sea-based sources under U.S. sovereignty and control. This would appear, at the very least, to constitute a back-door effort by European nations to secure LOST party compliance with the UN Kyoto Protocol. (This subject, however, will be taken up in greater detail in future ITSSD Law of the Sea Journal entries.)

In addition to the LOST’s prescriptive and mandatory regulatory provisions concerning land-based sources of marine environment pollution, there are also enforcement provisions to ensure that a LOST party compels its citizens to comply with the national rules that it adopts to implement the obligations set forth in LOST Article 207. LOST Article 213, which appears within Section 6 of the treaty entitled, “Enforcement”, sets forth the following rule:

“States shall enforce their laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources” (emphasis added).

LOST Article 222 is the corresponding enforcement provision relating to atmosphere-based sources of marine pollution, including carbon dioxide, within sovereign control. According to its mandatory provisions,

“States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the maritime environment from or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation” (emphasis added).

Last, but not least, there is LOST Article 235. It can be utilized by one LOST party to impose international legal liability at the ‘State’ (national government) level against any other LOST party (e.g., the U.S.) via compulsory, binding tribunal adjudication or voluntary arbitration (assuming that other party e.g., the U.S. has consented) where the latter has failed to fulfill its “international [legal] obligations to impose AND enforce strict new environmental rules nationally to protect and preserve the marine environment from potentially harmful land-based activities.

At a minimum, in the event the U.S. ratifies the LOST, this LOST article can be used to commence litigation against the U.S. at the International Tribunal of the Law of the Sea (ITLOS) or the International Court of Justice (ICJ), or any arbitration proceedings agreed to by the U.S. government. And, whether or not an adverse ruling is secured, such other LOST party could help to shape/influence future U.S. governmental legislative and/or regulatory action. For example, the politics surrounding such proceedings could persuade the U.S. Congress to apply pressure against U.S. state legislatures which traditionally have regulated insurance and/or upon the numerous American industries deemed responsible for land-based sources of marine pollution in ways that could result in substantial increases in the cost of doing business, including related business insurance premiums, as well as downstream service or product cost increases to consumers. It may even persuade the U.S. Congress and state legislatures, let alone federal and state judges, to amend and/or reinterpret current laws and judicial decisions in ways that will impose greater potential future legal liability on American citizens. And, if the U.S. harmonizes its enforcement and liability rules with other nations such as those in Europe, it may even result in widespread imposition of new criminal as well as civil penalties.

B. United Nations Documents Clearly Reflect the Land-based Focus of the LOST and Reliance Upon the Precautionary Principle via the LOST to Ensure Protection and Preservation of the Marine Environment Against Land-Based Pollution Sources

Without doubt, the primary objective of the LOST regime and the European regulatory control agenda behind it in mandating protection and preservation of the global marine environment is to invade what every UN member state would otherwise be entitled to - national sovereignty. In other words, via the exercise of UN supranational institutional jurisdiction and authority and the employment/exportation of ‘international’ law to other LOST parties pursuant to an interpretation of LOST terms consistent with the contra-WTO Precautionary Principle, the LOST will enable European governments to reach into and determine, if not shape, the otherwise sovereign national, state and local environmental regulatory policies of other LOST parties. In the case of the United States, this means breaching the myriad protections against arbitrary and wanton governmental actions guaranteed to U.S. citizens by the U.S. Constitution and its accompanying Bill of Rights.

As three recently published UN documents make crystal clear for all of the world to see, it is actually land-based sources of marine pollution that are the LOST’s main target!

“The regulation of marine pollution is usually analyzed according to the source producing the marine pollution. The sources and their respective contribution to marine pollution load (by mass) are: land-based 82%’ vessel-based 9%; dumping of waste at sea 8%; and off-shore activity 1%” (emphasis added).

“...The vast majority of marine pollution comes from land-based sources. These include sewage outfalls, industrial discharges, runoff from urban storm water and agriculture, river borne and airborne pollution and litter. Land-based sources of marine pollution can also be transported through the air, such as vehicle emissions” (emphasis added).

“As a whole, international instruments concerning marine environmental pollution tend to distinguish four categories of intentional pollution: vessel-based pollution coming from normal utilization of the oceans; deliberate and large, mostly industrial, dumping of wastes; pollution arising from exploration or
exploitation of the sea-bed; land-based pollution whether coming from direct discharges into the ocean or carried into it by rivers...Land-based pollution is defined as pollution of maritime zones due to discharges by coastal establishments or coming from any other source situated on land or artificial structures, including pollution transported from rivers to the sea. Approximately 70 percent of marine pollution comes directly from land-based sources” (emphasis added).

“The major threats to the health, productivity and biodiversity of the marine environment result from human activities on land - in coastal areas and further inland. Some 80% of the pollution load in the oceans originates from land-based activities. This includes municipal, industrial and agricultural wastes and run-off, as well as atmospheric deposition. These contaminants affect the most productive areas of the marine environment, including estuaries and near-shore coastal waters” (emphasis added).

Considering, however, that these UN Environment Program (UNEP) documents (two of which were published within the same year) cite conflicting percentages of marine pollution caused by land-based sources, it is probably prudent to average the results. This would yield the following figure: at least 76% of all marine pollution is caused by land-based sources, and is subject, directly and/or indirectly, to LOST jurisdiction!

The concern by governments about land-based sources of marine pollution tracks back to at least 1985, when the Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources were adopted. These nonbinding guidelines were later reviewed in greater detail in the context of the UNEP Agenda 21 at the 1992 Rio Earth Summit on Sustainable Development.

“Recognizing that control of land-based sources of marine pollution was failing the 1992 United Nations Conference on Environment and Development agreed to advance the subject. Agenda 21 invited the United Nations Environment Programme to convene a meeting on land-based sources as soon as practicable and identified priority actions for control of these sources...Agenda 21 also recommended updating the 1985 Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources [drawn from international agreements such as the UN Law of the Sea Convention] assessing the effectiveness of regional agreements on land-based sources and the formulating of new regional agreements where appropriate...” (emphasis added).

In any event, this 1985 document’s discussion of the ‘serious’ threat posed to the marine environment (including rivers, canals, underground watercourses, other water courses up to the freshwater limit/low freshwater flow, inter-tidal zones, saltwater marshes) by land-based sources led to the convening of another intergovernmental conference in Washington DC during November 1995. The conference resulted in a political declaration and an intergovernmental action plan (‘Global Program of Action’) that called for better management of land-based sources of marine pollution internationally, regionally and nationally.

“The major threats to the health and productivity and biodiversity of the marine environment result from human activities on land -in coastal areas and further inland. Most of the pollution load of the oceans, including municipal, industrial and agricultural wastes and run-off, as well as atmospheric deposition, emanates from such land-based activities and affects the most productive areas of the marine environment, including estuaries and near-shore coastal waters. These areas are likewise threatened by physical alteration of the coastal environment, including destruction of habitats of vital importance for ecosystem health. Moreover, contaminants which pose risks to human health and living resources are transported long distances by watercourses, ocean currents and atmospheric processes” (emphasis added).

Interestingly, this Plan of Action, which even more broadly defined the term ‘marine environment’, more closely related the need to prevent, control and reduce land-based sources of marine pollution at the national, regional and international levels as a matter of legal obligation with the use of the contra-WTO Precautionary Principle.

“4. International law, as reflected in the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and elsewhere, sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources. 5. In accordance with general international law, while States have the sovereign right to exploit their natural resources pursuant to their environmental policies, the enjoyment of such right shall be in accordance with the duty to protect and preserve the marine environment. This fundamental duty is to protect and preserve the marine environment from all sources of pollution, including land-based activities. Of particular significance for the Global Programme of Action are the provisions contained in articles 207 and 213 of UNCLOS... 9. The duty to protect the marine environment from land-based activities was placed squarely in the context of sustainable development by the United Nations Conference on Environment and Development in 1992. Therein, States agreed it is necessary: (a) To apply preventive, precautionary, and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it” (emphasis added).

“24. The precautionary approach should be applied through preventive and corrective measures based on existing knowledge, impact assessments, resources and capacities at national level, drawing on pertinent information and analyses at the subregional, regional and global levels. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent the degradation of the marine environment” (emphasis added).

Specifically, the Plan of Action prescribes the use of the Precautionary Approach/ Precautionary Principle (without adequately distinguishing between the two terms) for purposes of undertaking actions to address land-based sources of persistent organic pollutants, radioactive substances, heavy metals, and oils. As with the declaration adopted above, it is apparent that the United States (during the Clinton-Gore Administrations) had joined with the countries of Europe to become one of 108 countries to adopt the Plan of Action.

And, a more recent United Nations document suggests how different ‘tools and measures’, including regulations, economic instruments, and voluntary initiatives, can be applied by national government officials to reduce the impacts of land-based activities (LBAs) upon the coastal and marine environment, consistent with Part XII of the UNCLOS. Not surprisingly, these devices include reforms of private property rights.

“Other requirements and incentives to induce the implementation of environmental protection measures include: cost-effective and appropriate public and private investment; institutional measures, such as reorganisation, to promote cross-sectoral approaches; the establishment of environmental management agencies; the enactment of environmental legislation, and the reform of property rights”.

According to the report, property right reforms can entail the outright “creation of private or public property rights”, “allocation of property or use rights”, “recognition of customary [traditional] rights” and the restriction of property rights via application of the Precautionary Principle/Approach.

“The role of government, in the context of the mitigation of the effects of land-based activities on the marine environment, is (i) to provide the legal, institutional and policy framework conducive to sustainable development and resource use and (ii) to correct market failure. Various elements might be included here but among the more important are: Maintenance of Future Options - This ‘umbrella’ element is concerned with preventing irreversible actions that might diminish the options of future generations. It would include: adopting a precautionary approach when the ecological impact of a proposed action is uncertain” (emphasis added).

“In general, environmental legislation for coastal and catchment areas provides for a number of legal mechanisms, including: recognition of customary rights, provision of public and private property rights, and revision of property rights when the management regime obstructs the attainment of desired environmental objectives...A number of concepts to support good environmental management are frequently implemented through national legislation. They include the precautionary approach... (emphasis added).

Apparently, a number of environmentalists, United Nations and European commentators believe that the LOST provides a broad and comprehensive enough framework that permits national governments, consistent with evolving regional and international regulations and standards contained within other international environmental treaties, to impose legal measures to control land-based sources of marine pollution via application of the Precautionary Principle and property rights reform.

“Chapter XII of the UNCLOS sets out a broad framework for comprehensive measures to control marine pollution. Although drafted a quarter century ago, and prior to the development of the sustainable development paradigm, its provisions still provide a solid basis for the prescription of standards and for their enforcement regimes. The provisions are supplemented by a range of treaty laws that prescribe standards in much greater detail for more narrowly defined sources of pollution or for particular regions.”

This expansive interpretation of international law is compatible with the prior (2004) U.S. Senate Foreign Relations Committee testimony proffered by Roger T. Rufe. Mr. Rufe is a retired U.S. Coast Guard Vice Admiral and a former CEO of The Ocean Conservancy (OTC), an environmental activist group. He is also currently serving at the pleasure of the president as Director of the Department of Homeland Security’s (DHS) Operations Directorate.

Although the Precautionary Principle did not exist and was therefore not expressly included in the original LOST text at the time the treaty was negotiated, Mr. Rufe strongly urged the Committee that the Precautionary Principle be read and/or incorporated into the LOST upon U.S. ratification and/or at a time(s) in the future when amendments to the LOST are considered by the international community. This result should obtain, according to Mr. Rufe, because the Precautionary Principle has largely evolved as a norm of international environmental law around the LOST during the intervening years. In addition, he argues that the Precautionary Principle has since been included within at least one LOST protocol and a host of related UN Environment Program multilateral environmental treaties that not only prevent land-based sources of marine pollution, but also protect living marine resources from land-based activities.

This latter subject will be addressed in a forthcoming installment of the ITSSD Law of the Sea Treaty Journal’s ‘Myth & Realities’ series.


See “Vitter on Law of the Sea: Part 2”, YouTube (Sept. 27, 2007) at: http://www.youtube.com/watch?v=h8IVFcCfaIM .
Id.
See “RESPONSES OF WILLIAM H. TAFT, IV, LEGAL ADVISER, DEPARTMENT OF STATE, TO ADDITIONAL QUESTIONS FOR THE RECORD SUBMITTED BY SENATOR JOHN F. KERRY”, on the United Nations Convention on the Law of the Sea, Before the Senate Foreign Relations Committee, (March 11, 2004) at: p. 183.
See Article 1.1(4) of the UN Law of the Sea Convention (UNCLOS), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf .
See Article 194(1) and (3)(a) of UNCLOS, supra.
See Article 207(1) and (2), UNCLOS, supra.
See Article 207(3), UNCLOS.
This terminology impliedly references other UN environmental treaties that the president has quietly submitted to the U.S. Senate Foreign Relations Committee for ratification, namely, the UN Stockholm Convention on Persistent Organic Pollutants – POPS and the UN Convention on Biological Diversity.
See Article 207(5), UNCLOS.
See Article 212(1) and (2), UNCLOS. In fulfilling these obligations, States shall “tak[e] into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation.” Art. 212(1). “States shall endeavor to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. Art. 212(3).
“In the 110th Congress, three bills have been introduced that would impose multi-pollutant controls on utilities. They are all four-pollutant proposals that include carbon dioxide.” See Larry Parker and John Blodgett, “Air Quality: Multi-Pollutant Legislation in the 110th Congress”, CRS Report for Congress (May 25, 2007) at p. 2, at: http://www.ncseonline.org/NLE/CRSreports/07Jun/RL34018.pdf .
See e.g., “IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emission From Ships”, Resolution A.963(23) Adopted December 5, 2003 at: http://www.sof.or.jp/proj/pdf/Res963.pdf . “RECALLING Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning the prevention and control of marine pollution from ships and other matters concerning the effect of shipping on the marine environment, RECALLING FURTHER that, in accordance with Article 212 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), resolution A.719(17) invited the Marine Environment Protection Committee (MEPC) to develop legally binding measures to reduce air pollution from ships through the preparation of a new Annex to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), RECALLING ALSO that, on 26 September 1997, the Conference of Parties to MARPOL 73/78 (the Air Pollution Conference) adopted a new Annex VI - Regulations for the Prevention of Air Pollution from Ships - to the Convention in order to reduce the contribution by shipping to air pollution, NOTING that the Air Pollution Conference, by its resolution 8 concerning CO2 emissions from ships, invited the Organization, in co-operation with the United Nations Framework Convention on Climate Change (UNFCCC), to undertake a study of CO2 emissions from ships for the purpose of establishing the amount and relative percentages of CO2 emissions from ships as part of the global inventory of CO2 emissions... BEING AWARE ALSO that the Kyoto Protocol, which was adopted by the Conference of the Parties to the UNFCCC in December 1997 and has yet to enter into force, requires the countries listed in Annex 1 to the UNFCCC to pursue the limitation or reduction of GHG emissions from marine bunker fuels, working through IMO (article 2.2), BEING AWARE ALSO that in its Decision 2/CP.3 the December 1997 Conference of the Parties to the UNFCCC, recalling the 1996 Revised Guidelines for National Greenhouse Gas Inventories of the Intergovernmental Panel on Climate Change which state that emissions based upon fuel sold to ships engaged in international transport are not to be included in national totals but reported separately, urged the Conference’s Subsidiary Body for Scientific and Technological Advice (SBSTA) to further elaborate on the inclusion of emissions from international bunker fuels in the overall inventories of Parties to the UNFCCC... BEING CONVINCED that the Organization should take the lead in developing GHG limitation and reduction strategies and mechanisms for international shipping and that, in doing so, it should co-operate with the Conference of the Parties to the UNFCCC... HAVING CONSIDERED the recommendation made by the Marine Environment Protection Committee at its forty-ninth session, 1. URGES the Marine Environment Protection Committee to identify and develop the mechanism or mechanisms needed to achieve the limitation or reduction of GHG emissions from international shipping... REQUESTS the Secretariat of the Organization to continue co-operating with the Secretariat of UNFCCC and the Secretariat of the International Civil Aviation Organization” (emphasis added). Id., at Preamble pp. 1-2; Paragraphs 1 and 3.
“[**The Committee and its Working Group on Air Pollution had long and extensive debates on how to follow up resolution A.963(23) on IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emissions from Ships. By the resolution, the Assembly urged MEPC to identify and develop the necessary mechanisms needed to achieve the limitation or reduction of GHG emissions from international shipping. Among the items considered was whether only emission of CO2 or of all six greenhouse gases identified by the Kyoto Protocol should be included. The MEPC agreed to consider the follow-up actions to resolution A.963(23) in a technical and methodological perspective and to concentrate the work on CO2 emissions. The Committee also agreed to continue the work at the next session and, in particular, to consider further a draft work plan to identify and develop the mechanisms needed to achieve the goal set by the Assembly. Greenhouse gases - In November 2003, IMO adopted resolution A.963(23) IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emissions from Ships. At its 52nd session in October 2004, the Marine Environment Protection Committee (MEPC) made progress on developing draft Guidelines on the CO2 Indexing Scheme and urged Members to carry out trials using the scheme and to report to the next session. One purpose of developing guidelines on CO2emission indexing is to develop a simple system that could be used voluntarily by ship operators during a trial period. The Committee agreed that a CO2 indexing scheme should be simple and easy to apply and take into consideration matters related to construction and operation of the ship, and market based incentives. At is 53rd session in July 2005, the MEPC approved Interim Guidelines for Voluntary Ship CO2 Emission Indexing for Use in Trials. Meanwhile, the Committee recognized that IMO guidelines on greenhouse gas emissions have to address all six greenhouse gases covered by the Kyoto Protocol (Carbon dioxide (CO2); Methane (CH4); Nitrous oxide (N2O); Hydrofluorocarbons (HFCs); Perfluorocarbonds (PFCs); and Sulphur hexafluoride (SF6)”. See “Air Pollution Rules to Enter into Force in 2005”, International Maritime Organization Press Release (May 2005) at: http://www.imo.org/Newsroom/mainframe.asp?topic_id=848&doc_id=3620 . ****It is CRITICAL to note how the European Union has taken control over this process: “THE SECOND WAY IN WHICH THE EU HAS STAMPED ITS AUTHORITY ON OTHER JURISDICTIONS IS THROUGH INFLUENCING THE DECISIONS OF INTERNATIONAL STANDARD-SETTING ORGANIZATIONS AND GLOBAL REGULATORY BODIES SUCH AS THE INTERNATIONAL MARITIME ORGANIZATION OR UNECE, THE GENEVA-BASED BRANCH OF THE UNITED NATIONS THAT DEALS WITH ECONOMIC CO-OPERATION...OFFICIALS IN BRUSSELS SAY THE EU WILL IN THE FUTURE BE IN EVEN BETTER SHAPE TO DOMINATE GLOBAL STANDARD-SETTING. THOUGH IT TENDS TO ACT IN UNISON, THE EU AFTER ALL WIELDS NOT ONE BUT UP TO 27 VOTES IN BODIES SUCH AS THE IMO. THIS ENABLED THE UNION TO PERSUADE THE MARITIME GROUPING TO BAN SINGLE-HULL TANKER SHIPS FROM INTERNATIONAL WATERS EARLIER THAN MANY NON-EUROPEAN COUNTRIES WANTED.” See Tobias Buck, “Standard Bearer”, Financial Times (July 10, 2007) at: http://search.ft.com/ftArticle?queryText=Setter&id=070710000622 .
See Article 213, “Enforcement With Respect to Pollution from Land-based Sources” UNCLOS, supra.
Id., at Article 222, “Enforcement With Respect to Pollution from or Through the Atmosphere”.
Id., at Article 235(1), “Responsibility and Liability”, UNCLOS Section 9. “RESPONSIBILITY AND LIABILITY”.
This is likely to include companies that build, operate and/or manage waste water treatment facilities, landfills, hazardous waste cites, incinerators, industrial facilities, power plants, recreational tourism facilities, construction works (including dams, coastal structures, harbor works, coastal mining (sand and gravel), research centers, aquaculture facilities, agricultural and horticultural facilities, mining”, transportation facilities, etc.” See “Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities”, United Nations Environment Programme UNEP(OCA)/LBA/IG.2/7 (Dec. 5, 1995) at pp. 12-13, at: http://www.gpa.unep.org/documents/full_text_of_the_english.pdf .
“2. States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. 3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds” (emphasis added). Id., at Article 235(2) - (3).
“The Council of Europe adopted on November 4, 1998, the Convention on the Protection of the Environment through Criminal Law, E.T.S. 172. The provisions call for administrative sanctions for less serious offenses, while serious, intentional offenses should result in imprisonment or fines and may call for reinstatement of the environment (Art. 6) or confiscation of profits (Art. 7). The text also calls for criminalizing acts that ‘endanger’ the environment by creating a significant risk of serious harm. Article 2 lists categories of intentional offenses that the states parties must declare criminal both as to the principals and those aiding and abetting the commission of the offenses” (emphasis added). See Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, United Nations Environment Programme (2005) at p. 57, at: http://www.unep.org/law/PDF/JUDICIAL_HBOOK_ENV_LAW.pdf .
See “EU Hides Behind Private Standards in Effort to Secure Global Regulatory Control”, Institute for Trade, Standards and Sustainable Development, PR Newswire (Oct. 9, 2007) at: http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/10-09-2007/0004678304&EDATE= .
See Lawrence A. Kogan, “Europe’s Warnings on Climate Change Belie More Nuanced Concerns”, Institute for Trade, Standards and Sustainable Development (June 2006) at: http://www.itssd.org/White%20Papers/Europe_sWarningsonClimateChangeBelieMoreNuancedConcerns.pdf .
See Lal Krukulasuriya and Nicholas A. Robinson, Training Manual on International Environmental Law, United Nations Environment Programme (2005) at par. 7, at p. 147, at: http://www.unep.org/law/PDF/law_training_Manual.pdf .
Id., at par. 21, at p. 150.
See Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, supra at pp. 71-72.
See “The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities”, United Nations Environment Program at: http://www.gpa.unep.org .
See “Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources”, Decision 13/18/II of the Governing Council of UNEP (May 24, 1985), at: http://www.unep.org/law/PDF/UNEPEnv-LawGuide&PrincN07.pdf . “These guidelines are suggested as a broad framework for the development of similar agreements in those regions where such agreements are called for; for the guidance of Governments in areas which are not at present covered by any regional agreements; and for the preparation in the long term, should the need arise, of a global convention on pollution from land-based sources designed to strengthen international institutional arrangements to ensure the harmonization and application of global and regional rules, criteria, standards and recommended practices and procedures and to review the effectiveness of measures taken” (emphasis added). Id., at p. 2.
“This set of guidelines is addressed to Governments with a view to assisting them in the process of developing appropriate bilateral, regional and multilateral agreements and national legislation for the protection of the marine environment against pollution from land-based sources. They have been prepared on the basis of common elements and principles drawn from relevant existing agreements, drawing upon experience already gained through their preparation and implementation. Principal among these agreements are the United Nations Convention on the Law of the Sea (Part XII), the Paris Convention for the Prevention of Marine Pollution from Land-based Sources, the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, and the Athens protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources” (emphasis added). Id.
See Lal Krukulasuriya and Nicholas A. Robinson, Training Manual on International Environmental Law, United Nations Environment Programme supra, at par. 22, at p. 150.
According to the 1985 document, the term ‘land-based sources’ is defined as: “Municipal, industrial or agricultural sources, both fixed and mobile, on land, discharges from which reach the marine environment, in particular: a. From the coast, including from outfalls discharging directly into the marine environment and through run-off; b. Through rivers, canals of other watercourses, including underground watercourses; and c. Via the atmosphere: (ii) Sources of marine pollution from activities conducted on offshore fixed or mobile facilities within the limits of national jurisdiction...” It also defined the term ‘marine environment’ as “the maritime area extending, in the case of watercourses, up to the freshwater limit and including inter-tidal zones and salt-water marshes” and the term ‘freshwater limit’ as “the place in watercourses where, at low tide and in a period of low freshwater flow, there is an appreciable increase in salinity due to the presence of sea water.” See “Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources”, at p. 3.
See “Washington Declaration on Protection of the Marine Environment from Land-Based Activities” (Nov. 1, 1995) at: http://www.gpa.unep.org/documents/washington_declaration_english.pdf . “Having therefore adopted the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, Hereby declare their commitment to protect and preserve the marine environment from the impacts of land-based activities, and Declare their intention to do so by: 1. Setting as their common goal sustained and effective action to deal with all land-based impacts upon the marine environment, specifically those resulting from sewage, persistent organic pollutants, radioactive substances, heavy metals, oils (hydrocarbons), nutrients, sediment mobilization, litter, and physical alteration and destruction of habitat” (underlined emphasis in original; italicized emphasis added). Id., at p. 1.
See “Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities”, supra.
“Areas of concern (what areas are affected or vulnerable): (not listed in order of priority) (i) Critical habitats, including coral reefs, wetlands, seagrass beds, coastal lagoons and mangrove forests; (ii) Habitats of endangered species; (iii) Ecosystem components, including spawning areas, nursery areas, feeding grounds and adult areas; (iv) Shorelines; (v) Coastal watersheds; (vi) Estuaries and their drainage basins; (vii) Specially protected marine and coastal areas; and (viii) Small islands.” Id., at p. 14.
Id., at pp. 7-8.
Id., at p. 14.
Id., at p. 39, par. 104(b)(i).
Id., at p. 42, par. 111(a).
Id., at p. 45, par. 118(b)(i).
Id., at p. 47, par. 124(b)(i).
See “Adoption of the GPA at the Washington Conference (1995) 108 Countries”, United Nations Environment Program at: http://www.gpa.unep.org/documents/adoption_gpa_washington_conference_english.pdf .
“Regulation is familiar, has a perceived high degree of certainty, and is compatible with existing legal frameworks. On the other hand, it imposes a high enforcement burden, is inflexible and often economically inefficient, and fails to provide incentives for continuing improvements. Economic instruments increase economic efficiency by devolving decision-making to the target sector, provide incentives for continuing improvement, increase flexibility, and in some cases reduce the enforcement burden. Their disadvantages include political barriers to setting charges and taxes high enough to alter environmentally damaging behaviour – or to providing subsidies and other incentives for desirable behaviour - and perceived uncertainty about their cost effectiveness. Voluntary action by industry may also reduce the enforcement burden, increase economic efficiency, enhance flexibility, and allow the use of industry knowledge to develop industry-specific solutions consistent with business goals.” See “Protecting the Oceans from Land-based Activities: Land-based Sources and Activities Affecting the Quality and Uses of the Marine, Coastal and Associated Freshwater Environment”, Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection, United Nations Environment Programme (Jan. 15, 2001), Executive Summary at pp. 3-4, at: http://www.jodc.go.jp/info/ioc_doc/GESAMP/report71.pdf .
“A number of international agreements contain general provisions for the protection and preservation of the marine environment Among the more important are: Part XII of the United Nations Convention on the Law of the Sea – UNCLOS...The sustainable development of coastal and marine areas requires selecting a suite of these [tools and measures], tailored to local, national, and regional circumstances within a framework of cross-sectoral management. The suitability of a given measure usually depends less upon its inherent technical merits than upon its benefits and costs relative to other measures, upon the priority of the issue that the measure addresses, and most importantly, upon the prospects for effective implementation. There are three main types of policy instruments to induce implementation: regulations; economic instruments; and instruments to induce voluntary action.” See “Protecting the Oceans from Land-based Activities: Land-based Sources and Activities Affecting the Quality and Uses of the Marine, Coastal and Associated Freshwater Environment”, supra, Executive Summary at p. 3.
Id., at pp. 3-4.
“Under normal market conditions, resource use is neither rational - viewed from the perspective of overall benefit to society - nor equitable, because the market does not reflect the costs of private actions that are borne elsewhere either publicly or privately, such as the environmental costs of wetland drainage or of environmentally harmful effluent discharged into a river. This market failure arises from a discrepancy between private and societal interests. This discrepancy can be corrected through a range of measures, including regulatory and economic instruments and the creation of private or public property rights” (emphasis added). Id., at p. 76.
“Promotion of Efficient Resource Use Policies that promote technical economic efficiency without infringing equity (fairness) or environmental considerations will promote the welfare of present and future generations. Elements would include: allocating property or use rights”. Id., at p. 78. “In the absence of a sound environmental policy, land-based activities generate negative externalities, represented by the degradation of marine and coastal resources as markets fail fully to reflect their value. The failure of governance associated with such market failure allows the root causes to have a devastating effect on natural resources and ecosystems. Allocating resources through establishment of property and use rights is central to overcoming this failure” (emphasis added). Id., at pp. 116-117.
Id.
Id., at p. 111. “In addition other tools are available, including the “establishment of an institutional framework (e.g. enabling legislation for agencies); establishment of regulations, criteria, standards, and implementation guidance, with associated provisions for enforcement; establishment of protected areas; zoning, set back lines and administrative controls on development; restrictions on certain agricultural and forestry practices that result in soil erosion or excessive depletion of standing forest; and EIA requirements. Id. “The rational and equitable allocation of property or use rights is the key element in policies to correct market failure. Priority actions: use price mechanisms where appropriate to bring the scarcity of resources and the internalization of environmental costs to bear on decision making; where economic instruments are not appropriate, use regulatory instruments, such as zoning, or organizational instruments, such as the establishment of community managed areas; promote the creation of individual and common property rights; maintain or re-establish customary rights” (emphasis added). Id., at p. 124.
See Lal Krukulasuriya and Nicholas A. Robinson, Training Manual on International Environmental Law, United Nations Environment Programme supra, at par. 21, at p. 150.
“The precautionary approach today is endorsed internationally as a fundamental policy. It is absolutely critical that such an approach is utilized for our world’s oceans... We have generally exploited our resources, in the oceans as on land, in absence of unanimous agreement that these resources are at risk. As a result, proof of our error is beginning to pour in. The draft report from the federal oceans commission concluded last year that our oceans are in trouble. Specifically, the trouble comes from overfishing, coastal development and habitat loss, runoff and point source pollution and climate change...The environmental community noted in 1998 that the concept ‘precautionary principle’ did not exist at the time UNCLOS was negotiated, and that consequently the term did not appear in the Convention. However, we urged then and TOC urges now that the United States play a leadership role in future Convention amendments to ensure the appropriate application of this principle to guide decision-making. Fortunately, the Convention, as a constitution, does establish some principles and tools that may provide a framework for future application of the precautionary approach. Moreover, subsequent multilateral agreements related to UNCLOS do include use of the precautionary principle, including the Straddling Stocks Agreement. We therefore believe this approach is compatible with UNCLOS and urge the United States to work to ensure that subsequent changes to UNCLOS appropriately utilize the precautionary approach” (emphasis added). See PREPARED STATEMENT OF VICE ADMIRAL ROGER T. RUFE, JR., USCG (RET.), PRESIDENT, THE OCEAN CONSERVANCY, WASHINGTON, DC, before The Committee on Foreign Relations, United Nations Convention on the Law of the Sea, Senate Executive Report 108-110 (March 11, 2004) at pp. 130-131, at: http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.181&filename=er010.pdf&directory=/diska/wais/data/108_cong_reports .

Informed Lawyer

UNCLOS Alchemy

By Lawrence A. Kogan, Esq.*


U.S. State Department Legal Adviser John B. Bellinger III’s recent letter to the editor (“LOST will benefit U.S.” – Washington Times 10/31/07) reflects but another example of the true battle in which we are all, in one way or another, now engaged - namely, the battle against ignorance, apathy and bad ideas.

The letter to the editor proclaims that US ratification of the United Nations Convention on the Law of the Sea (UNCLOS) will provide “enormous national security...advantages to the United States, including clear legal rights of navigation for our military through and over the world’s oceans”. Yet it fails to mention the severe economic, legal and security-related costs associated with subjugating the US military’s absolute customary international law right to freedom of navigation to environmental concerns. Much to the contrary, the US military’s right to freedom of navigation has been steadily eroding since the1990’s as the result of the Clinton-Gore administration’s ‘enlightened’ “military operations other than war” policy and the ‘lawfare’ tactics employed by other UNCLOS parties with the help of environmental extremist groups. The European Union and its member states, for example, have continued to convert their economic rights over their exclusive economic zones (EEZs) into legal sovereign claims by establishing environmental ‘Particularly Sensitive Sea Areas’ (PSSAs) all along European coastlines, a bad idea to which the president’s ill-informed advisers, and apparently, some ignorant developing country governments, have increasingly warmed. And, environmental extremist groups have continued to press for the creation of more and more public ocean trusts, consistent with the utopian ‘common heritage of mankind’ doctrine, within other coastal states’ EEZs, known as ‘Marine Protected Areas’ - at the expense of coastal state economic rights and flag states’ legal right to freedom of navigation. Consequently, US military and commercial vessels must now tread lightly when navigating through these environmental sanctuaries and may even be legally compelled to avoid them altogether, costing time, resources and perhaps US national security. Environmentalists have also been working alongside liberal US federal judges to strictly reinterpret US environmental laws, consistent with Europe’s Precautionary Principle and UN Environment Program (UNEP) multilateral treaty law that the US has thus far refused to ratify, including those of UNCLOS, to preclude the US navy’s free deployment of sonar detection technology during essential routine military training exercises within US territorial waters and EEZs, all at the expense of our national security. This has occurred along both US coastlines and in the Hawaiian Islands and Puerto Rico despite the absence of scientific evidence demonstrating that the technologies used actually cause substantial harm to marine life.

In addition, the letter to the editor declares that ratification of the UNCLOS is necessary to provide the US with “economic sovereign rights over enormous oil, gas and other resources” in light of the ‘gold rush’ claims now being staked by Russia and other countries...to Artic resources.” However, it neglects to mention how legal commentators agree that the contest between Russia, Norway, Denmark, Canada and the US over the Artic continental shelf areas essentially amounts to a legal border dispute among contiguous and/or adjacent states that need NOT be resolved through the redistributionist mechanisms of the UNCLOS. Contrary to an August Financial Times article the battle for Artic oil does NOT hinge on a UN panel. UNCLOS jurisdiction is necessary in this case only to preserve the legal authority of the otherwise unsustainable bureaucracies established by the treaty – the Commission on the Limits of the Continental Shelf, to ensure the legal existence of a global commons in the Artic – ‘the Area’ - , the living and nonliving resources of which could then be regulated and taxed by the International Seabed Authority and later reallocated and distributed among other UNCLOS parties. In other words, the State Department should be candid with the American people, and not promote the false pretense that the US government needs to ratify the UNCLOS to peaceably resolve in America’s favor this apparent race over Artic resources. The US may pursue diplomatic negotiations with the Russian government or, if necessary, resort to a mutually agreed upon international legal forum to sort out competing claims, without the US ever ratifying the UNCLOS. Indeed, the Government of Peru recently chose to pursue this course of action in an effort to resolve its territorial sea dispute with neighboring Chile, noting along the way, its express lack of desire to sign and ratify the UNCLOS. In other words, Peru was determined NOT to subject its local and regional affairs to the scrutiny and oversight of the world body.

Lastly, the letter to the editor states that the US would not be committed to implement Kyoto standards, presumably within US sovereign territory (land, air, internal and territorial waters), if it were to ratify the UNCLOS, even though practically ALL other UNCLOS parties are also parties to the underlying UN Framework Convention on Climate Change which the Kyoto Protocol is designed to implement. The letter makes this bold assertion, furthermore, although it is more likely than not that the requirements of the Kyoto Protocol will be construed by other UNCLOS parties as extending to the global commons, namely to the ‘Area’, consistent with UN Agenda 21, in order to protect the marine environment from the potential environmental hazards associated with oil, gas and mining exploitation. If the US government does not intend, in the future, either to ratify the Kyoto Protocol or to adopt federal Kyoto-style (-lite) greenhouse gas emissions cap and trade regulatory measures within the territorial US, and does not plan for US government and/or commercial vessels, platforms and/or other man-made structures (e.g., rigs) operating on the high seas to submit to international greenhouse gas emissions standards developed, administered and enforced by the International Maritime Organization, expressly referred to as an ‘expert’ UNCLOS international standards body, for purposes of implementing the UNCLOS obligation to protect and preserve the marine environment consistent with international law and standards, including the Kyoto Protocol, why then would the US oil and gas industries work so diligently, silently and unobtrusively to secure a special amendment to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London Protocol 1996) (IMO - LC-LP.1/Circ.11)? Shouldn’t the U.S. Congress be afforded the opportunity to investigate whether the US oil and gas industry trade associations especially sought this amendment because it would allow their members to sequester (pump back into the seabed floor) the carbon dioxide and other greenhouse gases emitted during the process of oil and gas drilling and extraction, which would entitle them not only to escape liability for ‘pollution dumping’ under the prior terms of the convention’s protocol, but also to economically profit under forthcoming US greenhouse gas regulations from the resulting offset credits that such sequestration would generate? Isn’t public transparency and accountability, consistent with US constitutional due process, called for in this situation?

Here is a timeline / table which readers may find helpful in visualizing the following sequence of events from which they may then draw their own conclusions:

Date Initiative Subject Matter
February 10, 2007 London Protocol Amendment enters into force Deep Sea Drilling/Mining CO2 Sequestration no longer deemed a ‘pollutant’
April 2007 Atlantic Council Issues Report
Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law Recommends that the US ratify the UNCLOS to improve America’s image with Europeans
April 30, 2007 White House Press Release:
EU-US Summit a Political Success Greater Transatlantic Economic and Regulatory
Cooperation Pursued
May 14, 2007 Washington Note blog entry US-EU officials meet to discuss UNCLOS
May 15, 2007 White House Press Release:
President Submitting UNCLOS to US Senate for Ratification Senate Foreign Relations Committee Hearings on UNCLOS


As noted, the London Protocol amendment went into force on February 10, 2007. On April 30, 2007, the White House issued a press release proclaiming the 2007 EU-US transatlantic summit a political ‘success’. On May 15, 2007, approximately two weeks later and 90 days following the entering into force of the London Protocol amendment, the White House announced President Bush’s desire to seek U.S. Senate ratification of the UNCLOS. On May 14th, 2007, one day before the issuance of the White House press release, an unsubstantiated but thought-provoking entry entitled, “Bush Will Push the Law of the Sea”, appeared on the internet-based Washington Note blog. It corroborated a recommendation contained within a recent April 2007 report issued by the Atlantic Council of the United States and co-authored by a former State Department legal adviser.

Reasonable persons may find, in light of all of the above information, that the US State Department had unwisely pursued greater short-term transatlantic economic and regulatory integration in the mistaken belief that it would restore America’s positive image abroad and improve US national security. State Department and other government officials have effectively testified in support of this objective. Unfortunately, the facts also reveal that the price to be paid to secure Europe’s cooperation on promoting and expanding the President’s Proliferation Security Initiative will likely be far too high, especially if it entails the long-term surrender to Europe of America’s unique constitutional sovereignty over its own economic, legal and political affairs upon the ratification of the UNCLOS.

The fundamental question then that all Americans should now ask themselves and their elected representatives is why have the various congressional committees possessing oversight jurisdiction thus far refused to hold open public hearings to consider whether the benefits are commensurate with the costs that US ratification of the UNCLOS is likely to generate. Arguably, if such hearings had already been commenced, the congress might now be, in the words of former Congressman Lee H. Hamilton, engaged in the throes of an “extensive debate [of the kind] written into the very structure of our congressional system.” I believe that Mr. Hamilton is not only correct, but that he would also agree that, no matter the shape a serious and constructive debate over UNCLOS ratification ultimately assumes, the American people, in the end, will have greatly benefited from it - by both avoiding the onset of political apathy and by witnessing the conversion of truly bad or misconceived ideas into good and useful ones.


See John B. Bellinger, III, “LOST will benefit U.S.”, Washington Times Letter to the Editor (Oct. 31, 2007) at: http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20071031/EDITORIAL/110310008/1013/EDITORIAL&template=printart .
See “Myths & Realities #2: U.S. Naval Freedom of Navigation and Avoidance of LOST Tribunal Jurisdiction Despite Europe’s Aggressive Use of the Precautionary Principle?”, ITSSD Journal on the Law of the Sea Treaty at: http://itssd.blogspot.com/2007/10/myth-realities-2-concerning-un-law-of_31.html .
See Lawrence A. Kogan, “U.S. Military Review of the Law of the Sea Treaty Lacking”, ITSSD Journal (Oct. 4, 2007) at: http://itssd.blogspot.com/2007/10/us-military-review-of-law-of-sea-treaty_04.html .
“...I have instructed the U.S. delegation to the International Maritime Organization (IMO) to submit a proposal for international measures that would enhance protection of the Papahānaumokuākea Marine National Monument, the area including the Northwestern Hawaiian Islands. Last June, I issued a proclamation establishing the Monument, a 1,200-mile stretch of coral islands, seamounts, banks, and shoals that are home to some 7,000 marine species. The United States will propose that the IMO designate the entire area as a Particularly Sensitive Sea Area (PSSA) –- similar to areas such as the Florida Keys, the Great Barrier Reef, and the Galapagos Archipelago –- which will alert mariners to exercise caution in the ecologically important, sensitive, and hazardous area they are entering. This proposal, like the Convention on the Law of the Sea, will help protect the maritime environment while preserving the navigational freedoms essential to the security and economy of every nation.” See “President's Statement on Advancing U.S. Interests in the World's Oceans” White House Press Release (May 15, 2007) at: http://www.whitehouse.gov/news/releases/2007/05/20070515-2.html .
See Sam Bateman,“UNCLOS and its Limitations as the Foundation for a Regional Maritime Security Regime” Institute of Defence and Strategic Studies, Nanying Technological University, Singapore (April 2006) at pp. 14-18, at: http://www.isn.ethz.ch/pubs/ph/details.cfm?lng=en&id=27159 .
This subject matter will be addressed in a forthcoming entry of the ITSSD Journal’s Myths & Realities on the Law of the Sea Treaty series.
Id.
See, e.g., Julian Ku, “Peru Will Not Ratify Law of the Sea Treaty”, Opinio Juris (9/5/07) at: http://www.opiniojuris.org/archives/archive_2007_09_02-2007_09_08.shtml .
See Michael Peel and Daniel Dombey, “Battle for Artic Oil Hinges on UN Panel”, Financial Times (Aug. 10, 2007) at: http://us.ft.com/ftgateway/superpage.ft?news_id=fto081020071404008525 .
See Lawrence A. Kogan, “Myths & Realities Concerning the UN Law of the Sea Treaty: LOST Does Incorporate Europe’s Contra-WTO Precautionary Principle!”, ITSSD Journal (Oct. 6, 2007) at: http://itssd.blogspot.com/2007/10/myths-and-realities-concerning-un-law_06.html .
See “Peru Will Not Sign U.N. Law of the Sea in Border Dispute with Chile”, LivinginPeru.com (Sept. 4, 2007) at: http://www.livinginperu.com/news-4632-politics-peru-will-not-sign-u-n-law-sea-border-dispute-with-chile .
See Lawrence A. Kogan, “Myths & Realities #4 Concerning UN Law of the Sea Treaty: LOST, Land-Based Activities & Sources of Marine Pollution, and the Precautionary Principle” (Oct. 17, 2007) at fn#s 12 and 13, at: http://itssd.blogspot.com/2007/10/myths-realities-4-concerning-un-law-of_5097.html .
See UNCLOS Annex VIII, “Special Arbitration”, Articles 1 and 2: “Article 1 - Subject to Part XV, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to...(2) protection and preservation of the marine environment... may submit the dispute to the special arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based. Article 2 - A list of experts shall be established and maintained in respect of each of the fields of...(2) protection and preservation of the marine environment... The lists of experts shall be drawn up and maintained, in the field of... in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization...” The Bush Administration, within its resolution of ratification to UNCLOS, has expressly stated that it has chosen to submit to jurisdiction under UNCLOS Annex VIII Special Arbitration for matters other than those deemed to constitute ‘military activities’.
See “Notification of Entry into Force of the ‘CO2 Sequestration’ Amendments to Annex 1 to the London Protocol 1996”, 1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER (LONDON PROTOCOL 1996) LC-LP.1/Circ.11 (Feb. 16, 2007) at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D17756/11.pdf .
Id., at p. 1.
While reasonable persons could disagree about the meaning and veracity of this statement it does, nevertheless, suggest that the White House might have followed one of the key recommendations made by former Department of State Legal Adviser, William H. Taft IV contained within a recently released April 2007 report issued by the Atlantic Council. In the report entitled, Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law, Mr. Taft and his co-author recommended that, “The United States and Europe should make clear their commitment to working together to strengthen the international legal system through a public declaration... The United States and European Union should further demonstrate their commitment to this declaration through some additional actions. The United States should join at least one multilateral agreement that will enhance its reputation as a leader in the international legal field while also furthering U.S. interests. In particular, securing ratification of the UN Convention on Law of the Sea would reinforce the U.S. position as a leader not only in legal, but also environmental matters — topics on which the U.S. reputation has dropped considerably in recent years, especially in Europe” (emphasis added) See William H. Taft IV and Frances G. Burwell, “Law & the Lone Superpower: Rebuilding a Transatlantic Consensus on International Law”, The Atlantic Council of the United States Policy Paper (April 2007) at pp. 13-14, at: http://www.acus.org/docs/070417_Law%20_&%20_The_Lone_Superpower.pdf .
See “EU/US Summit: April 30, 2007, White House, Washington, DC” European Union, Delegation of the European Commission to the USA at: http://www.eurunion.org/partner/summit/20070430sum.htm . See, e.g., “2007 EU-U.S. SUMMIT STATEMENT ENERGY SECURITY, EFFICIENCY, AND CLIMATE CHANGE” at: http://www.eurunion.org/partner/summit/Summit20070430/EnergSecur&ClimChnge.pdf ; “Joint Report on the Roadmap for US-EU Regulatory Cooperation” at: http://www.eurunion.org/partner/summit/Summit20070430/JtReptRoadmapUSEURegCoop042007.pdf .
See Scott Paul “Big News: Bush Will Push Law of the Sea”, The Washington Note (May 14, 2007) at: http://www.thewashingtonnote.com/archives/002128.php . Despite its questionable nature, the entry seems to place Mr. Bellinger at a then-recent meeting with high-level European diplomats speaking about the UNCLOS. The curious entry was made by Mr. Scott Paul, Deputy Director of Government Relations at Citizens for Global Solutions, formerly known as the World Federalist Association See “About Scott Paul”, The Washington Note at: http://www.thewashingtonnote.com/about.php ; See “World Federalist Institute – About Us”, Citizens for Global Solutions website at: http://globalsolutions.org/wfi ; “The United States and the Law of the Sea: Time to Join”, In the Beltway – Citizens for Global Solutions at: http://globalsolutions.org/in_the_beltway/united_states_and_law_sea_time_join . According to Mr. Paul, “I recently heard a story about a meeting between [John] Bellinger and a group of high-level European diplomats that got me really fired up about UNCLOS. Bellinger promised the Europeans that the Bush Administration wanted to cooperate more closely and take a more multilateral approach in its foreign policy. The Europeans responded that so long as the US refuses to join the Law of the Sea – the most common-sense international agreement on the map – they will view these promises with a great deal of skepticism (for me, it’d take more than just UNCLOS to convince me of this supposed change of heart)” (emphasis added). See Scott Paul “Big News: Bush Will Push Law of the Sea”, The Washington Note, supra; “Big News: Bush Will Push the Law of the Sea” Securing America.com (May 14, 2007) at: http://securingamerica.com/ccn/node/12104#comment-210149 . .
See “President's Statement on Advancing U.S. Interests in the World's Oceans” supra.
See “Written Testimony of Deputy Secretary of Defense, Gordon England, Before the Senate Foreign Relations Committee – Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention”, (Sept. 27, 2007) at pp. 3, 5-7, at: http://www.senate.gov/~foreign/testimony/2007/EnglandTestimony070927.pdf
See WRITTEN TESTIMONY OF JOHN D. NEGROPONTE, DEPUTY SECRETARY U.S. DEPARTMENT OF STATE BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE ON SEPTEMBER 27th, 2007, ACCESSION TO THE 1982 LAW OF THE SEA CONVENTION AND RATIFICATION OF THE 1994 AGREEMENT AMENDING PART XI OF THE LAW OF THE SEA CONVENTION [Senate Treaty Document 103-39]
at pp. 2, 5-6, 18, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
See Statement of Admiral Patrick M. Walsh, U.S. Navy Vice Chief of Naval Operations Before the Senate Committee on Foreign Relations Hearing on the Law of the Sea Convention (Sept. 27, 2007) at pp. 6-8, 10, at:
http://www.senate.gov/~foreign/testimony/2007/WalshTestimony070927pdf .
According to US State Department lawyer Susan Biniaz, “Several countries, including Indonesia and Malaysia, have refused to join the US-led PSI unless and until the US joins UNCLOS”. See Peter Buxbaum, “US Administration Pushes UNCLOS” ISN Security Watch (8/23/07) at: http://www.isn.ethz.ch/news/sw/details.cfm?id=18027 . “During his confirmation hearings for Chief of Naval Operations before the Senate Armed Services Committee on September 27, Admiral Roughead stated that he saw in the Pacific that some countries would avoid participating with us in the proliferation security initiative because we are not party to the Law of the Sea Convention.” See STATEMENT OF PROFESSOR BERNARD H. OXMAN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS (Oct. 4, 2007) at p.2, at: http://www.senate.gov/~foreign/testimony/2007/OxmanTestimony071004.pdf .
Id. “Washington says that signing on to the UN Convention of the Law of the Sea will give the US more power in the war on terror, but some question at what expense...‘We want to get more countries involved,’ said Biniaz. ‘Joining UNCLOS will enable other countries to participate in PSI with the understanding we are following international law.’ Biniaz also noted that the US does not have a proxy fighting for its interests within UNCLOS or on the international tribunal” (emphasis added).*** Id.
According to Mr. Hamilton, “Most people are uncomfortable with disagreement and debate. As individuals, this is fine; but as citizens, I would argue that we should not only get used to it, we should be pleased by it. It has been a constant in American politics, and let us hope it always will be. Extensive debate is written into the very structure of our congressional system. At every level, from subcommittees through committees to the floor of each chamber and then to the conference committees that bring members from each house of Congress together, there is the presumption of discussion, debate, disagreement and even argument. Our Founders understood the importance of conflict in the system, both as a way for all views to be represented, and as a process for building common ground among them. For the fundamental fact of our democracy is that Americans, despite all that unites us, nonetheless have much that divides us: different philosophies, different prospects in life, different backgrounds, different communities, different ways to define what is in our self-interest, what is in our community's interest, and what is in our nation’s best interest. It's true that these divisions can be exacerbated by special interests, the media and politicians all seeking to exploit them to their own ends, but that doesn't mean the initial differences don't exist. They do. And it is Congress' job to sort through them as it strives to find the majorities it needs to move forward on legislation. If there weren't conflict, Congress wouldn't be doing its job.” See Lee H. Hamilton, “Debate Good for the System”, The Washington Times Commentary (Oct. 31, 2007) at: http://www.washingtontimes.com/article/20071031/COMMENTARY/110310012/1028/election .


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