07 Aug 2007 Law of the Sea Debate Continues

The conversation that began with Doug Bandow’s article in the American Spectator on the law of the Sea Treaty, continued in the American Spectator’s letters column and then moved to this blog goes forth with a rebuttal to husband David’s last points from Robert J. McManus of Kile Goekjian Reed & McManus, pllc:

My letter in American Spectator, which your husband David purports to rebut in your blog, referred to “the dwindling band of sneering treaty opponents . . .” And so, I was disappointed, but not surprised, that your husband’s rebuttal included a sneering reference to my profession (attorney), strongly implying that my disagreement with Doug Bandow’s article was motivated by my personal financial self-interest. Nevertheless:

1. Your husband (May I call him David?) argues that the treaty will harm the cause of fisheries conservation, because it “requires states that cannot harvest the entire allowable catch in certain areas to make the surplus available to other nations . . . .” I believe this point is specious, because, under Art. 62.2, the coastal state has exclusive competence to determine “allowable catch” (a defined term) in its 200-mile economic zone (which, under Article 61, may well be less than “maximum sustainable yield.”). Article 297.3(a) even exempts the coastal state’s determination from compulsory dispute settlement.2. David also argues that oil and gas exploration will be rendered illegal, because CO2 causes global warming, which kills coral reefs. “You do the math,” he sneers. No, you do the math; I’ll fall back on critical thought. Nothing in the treaty requires parties to adhere to environmental norms to which they have not independently subscribed. (See Article 297.1(c), for instance.) David will be on target only when the US ratifies some other treaty which prohibits oil and gas exploration. (Don’t hold your breath.) In the meantime, the US will have plenty of company. Every nation on earth consumes oil and gas, thereby supposedly contributing to global warming and coral reef bleaching. They would all be subject to the dreaded “environmental litigation” you mention if the point were well taken.

3. I confess I don’t understand David’s lead-off point about “underwater vehicles,” but he seems to believe that the US could not use ROVs, or even paravanes (which are unquestionably submerged “vehicles”), in mine-sweeping operations inside the 12-mile limit if it ratifies the treaty. I assume he understands that the “innocent passage” provisions of the treaty do not apply to US military operations in our own territorial sea. This non-problem would arise only when someone has mined some other territorial sea, thereby impeding innocent passage in the first place; without a more specific hypothetical, I can’t respond further. Anyway, this alleged issue seems somehow to have escaped the notice of the CNO and the JCS.

Please tell me more about how I can profit personally from US accession to the LOS treaty. I’m all ears.Robert J. McManus
Kile Goekjian Reed & McManus, pllc

David’s response:

Although I don’t agree with the points that Robert McManus made, I applaud him for citing specific reasons why he believes my criticisms of the Law of the Sea Treaty are not valid. This sets him apart from most of the LOST proponents I’ve encountered.He is, nonetheless, off base.

First, he calls my suggestion that the treaty might contribute to resource damage (by requiring the sharing of surplus fish stocks) “specious” because, he notes, Article 62.2 specifies coastal states have the exclusive right to determine allowable catches. Actually, Article 62.2 deals with determining harvest capabilities — not determining allowable catches — but it is a long treaty and mistakes such as this are easy to make.

Mr. McManus probably meant to cite Article 61, which does specify that the coastal nations “shall” determine “allowable catches.”

But in noting this requirement, Mr. McManus seems to suggest that a coastal nation can simply pick the “allowable catch” number that suits it at any given time. It can’t. Article 61 goes on to specify what factors the coastal state shall consider in determining the catch.

Mr. McManus notes that 297.3(a) exempts the coastal state’s determinations on its catches from compulsory dispute settlement. He neglects to mention, however, that 297.1(c) requires mandatory dispute resolution if it is alleged that, in exercising its sovereign rights governing resources, the coastal state acts in contravention of international standards “which are applicable to the coastal State and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention.”

In any case, Section 70 of the treaty, which attempts simultaneously to satisfy nations that wish to harvest its entire allowable catch while still providing “equitable arrangements” for nearby disadvantaged states to participate in the “exploitation” of the same “living resources,” would at the very least have to be seen as encouraging a trend toward overfishing.

All this may be beside the point, as whether a coastal state is required to participate in compulsory dispute settlement does not free it from its obligations under the treaty, which surely will not escape the attention of the legal teams of interested parties.

Second, Mr. McManus dismisses my argument that environmental activists could use the treaty to stop oil and gas exploration, using, among other things, concern over global warming as an excuse. He argues that the United States would not be required to submit to any environmental requirements to which it hasn’t already subscribed, and he cites 297.1 to back him up. But that provision — as the citation earlier clearly indicates — says no such thing. The United States is not party to the Kyoto Protocol, which clearly would qualify under 297.1.

Furthermore, environmental advocacy groups have already signaled their intent to use the treaty to pursue their global warming-related regulatory objectives. As Dr. Thilo Bode, then the international executive director of Greenpeace, wrote in 2000: “Global warming is likely to have a big impact at sea. The oceans play a central role in shaping the Earth’s climate, absorbing carbon dioxide and other gases, and redistributing heat and water. Sea levels have risen by an estimated 10-25 centimeters over the last century, and as this continues the waters will cover land and coastal habitats in many countries… Solving the environmental problems facing the oceans and ensuring sustainable fisheries is one of the greatest challenges facing humankind in the 21st century. No single nation or region can do this alone: it will require comprehensive international cooperation as required by the United Nations Convention on the Law of the Sea.”

Article 212.1 of the treaty (among others, such as 207) could even be read as a mandate that party states adopt regulations limiting carbon dioxide emissions: “States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation.”

The Senate Foreign Relations Committee acknowledged the treaty’s mandate on party states to combat “pollution” affecting the oceans in its 2004 report accompanying the treaty, saying “[The Law of the Sea Treaty] advances U.S. interests in the protection of the environment by creating obligations binding on all States to protect and preserve the marine environment from pollution from a variety of sources, and by establishing a framework for further international action to combat pollution.”

While it is unlikely that treaty negotiators more than a generation ago had carbon dioxide in mind when they referred to “pollution,” no such assumption can be made in the post-Kyoto era.

Mr. McManus is, of course, correct that every nation consumes oil and gas and emits greenhouse gases. But few nations contribute 25% of the world’s emissions, which makes the United States a tempting target — even more tempting given our rejection of the Kyoto Protocol.

Further, treaties ratified by the United States can be given the effect of domestic law in U.S. courts. This simply isn’t so in many other countries.

Third, Mr. McManus confesses that he didn’t understand my point about underwater vehicles, so I’ll explain further. Under the Convention on the Territorial Sea and Contiguous Zones to which the United States is a party, submarines are required to operate on the surface of the water to invoke the right of innocent passage. The Law of the Sea Treaty extends this surfacing requirement to all underwater vehicles, thus applying to unmanned underwater vehicles, including those used in mine detection. Such a surfacing requirement would render these vehicles ineffective.

He is correct that the issue would arise when mines are placed in the territorial sea of another coast nation, but he’s wrong in suggesting that innocent passage would be impeded in these cases anyway.

The concern here is that mines placed by third parties — rogue states or terrorists — could damage or destroy U.S. naval vessels that are otherwise exercising their right to innocent passage because mine detection vessels can’t do their job. It would have been wise when the treaty was renegotiated to, at minimum, consider such craft as extensions of the vessels they are protecting.

Finally, Mr. McManus implies that I said in my response to his American Spectator letter that he would personally profit from U.S. ascension to the Law of the Sea Treaty. I did not and I don’t think any reasonable reader would conclude that I did.

My point was only that the Law of the Sea Treaty would spur lawsuits and be a boon to the legal profession — a profession to which, I note, Mr. McManus belongs. I regard this comment as no different than an observation that changes to the tax code are a boon to CPAs. It was meant as good-natured ribbing.

There seems to have been already one casualty of the Law of the Sea Treaty: Its proponents’ sense of humor.