Saturday, September 1, 2007

LOST Creates "Rigged Game" Decision-Making Mechanisms

In early August, 2007, Russian submarines planted their country’s flag on the seabed of the North Pole in a symbolic effort to claim that natural resource-rich area. Moscow’s contention rests on the notion that the seabed under the North Pole is an extension of Russia’s continental shelf. Were that the case, according to the terms of LOST, it would be Russian territory.

In response, the State Department, while expressing doubts about the validity of Russia’s claim, has said that the United States continues to “press hard for ratification” of LOST so that this country will be able to participate in the Treaty organizations’ deliberations about the Russian claim. The question is: Given the nature of LOST’s UN-style decision-making mechanisms, would America’s “seat at the table” reliably translate into outcomes acceptable to this country? If not, are there other ways in which the United States can exercise influence in Arctic and other oceans-related matters?

The Proponents’ claims:

Accession to LOST will ensure that the United States has a “seat at the table” when it comes to deciding on the rights that we and others enjoy in the world’s oceans. Without such a role, the America will, for example, have no say about how the Arctic’s resources are divided up and will lose out on the opportunity to secure its own large stake in the polar seabeds. Furthermore, joining LOST to have a “seat at the table” on the question of the definition of the continental shelf – which is covered by LOST – will not expose the U.S. to the risk of adverse decisions on the division of the continental shelf, which is a bilateral negotiations issue that does not fall within LOST jurisdiction.

The Facts:

  • The only LOST setting in which the United States is guaranteed a “seat at the table” is on the committee that determines the organization’s budget allocations. America may or may not be one of the countries represented on such other multilateral entities as the International Tribunal on the Law of the Sea (ITLOS) or the Commission on the Continental Shelf – which will likely play a role in decisions about the Russian bid.

  • Even on those LOST bodies where it is represented, the United States will not have a veto. As a result, as with the UN General Assembly, it is likely that the U.S. will find itself frequently out-voted, even on matters of significant importance to it.

  • Issues concerning the division of the continental shelf will fall under LOST jurisdiction, and the assertion that joining LOST will allow the U.S. to participate in shelf definition deliberations without exposure to adverse decisions on continental shelf division is false. LOST Article 83 sends such disputes to the LOST compulsory dispute mechanisms, where the U.S. could face adverse, binding decisions that cannot be appealed.

  • There are alternatives to LOST membership ­­that can be used by the United States to achieve satisfactory arrangements with respect to the Arctic without having to subject itself to the high costs of becoming a state party to the Treaty. For example:

    Since 1996, the United States has been a member of the Arctic Council, an intergovernmental forum made up of just the Arctic states – the U.S., Canada, Finland, Iceland, Norway, Russia and Sweden. The Council has proven to be an effective instrument for addressing multilateral concerns involving the Arctic and is far more conducive to outcomes satisfactory to the U.S. than LOST’s 22-nation Continental Shelf Commission or its other, still-less-accountable and still-more-U.S.-unfriendly dispute resolution mechanisms.

    The United States also has participated since 1996 with an even smaller subset of the Arctic states, namely, Russia and Norway, in the Arctic Military Environmental Cooperation (AMEC)Program. AMEC offers a forum for addressing in a constructive way military/environment-related matters involving Arctic operations, outside LOST’s bureaucratic mechanisms and obligations.

    The United States has also demonstrated that it can reach satisfactory understandings regarding oceans-related disputes outside of LOST through bilateral diplomacy. In 1988, the U.S. and Canada negotiated the Arctic Cooperation Agreement, a modus vivendi with respect to the Northwest Passage. The Agreement provided that, although the United States regarded the Passage as an international waterway, it would not send icebreakers or other vessels through it without seeking consent from Canada. For its part, Canada pledged always to give such consent.

The United States is far more likely to achieve results it can live with – in the Arctic seabeds and in other ocean areas – by dealing directly with one or more of the nations immediately involved than by entrusting its equities to UN agencies over which it has effectively no control and that are typically dominated by bureaucrats and/or nations hostile to this country.

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