Second negative briefs
C. MARINE ECOSYSTEM COULD BE DESTROYED
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- D. POTENTIAL HARMS OUTWEIGH ALLEGED BENEFITS
- SK/N214. LAW OF THE SEA TREATY: Solvency 1. UNCLOS RELIES ON DYSFUNCTIONAL BUREAUCRACIES
- 2. UNCLOS HAS NO EFFECTIVE ENFORCEMENT MECHANISM
- 3. UNCLOS WILL NOT ENCHANCE U.S. ACCESS TO RESOURCES
- 4. UNCLOS WILL NOT REDUCE ACDIFICATION POLLUTION
- 5. UNCLOS WILL NOT GIVE U.S. LEVERAGE OVER CHINA
- SK/N215. LAW OF THE SEA TREATY: Disad A. UNCLOS VIOLATES U.S. NATIONAL SOVEREIGNTY 1. REAGAN OPPOSED UNCLOS TO PROTECT SOVEREIGNTY
- 2. COMMON HERITAGE OF MANKIND IS UNACCEPTABLE
- 3. SEABED AUTHORITY VIOLATES SOVEREIGNTY
- 4. MANDATORY ROYALTIES VIOLATE SOVEREIGNTY
- 5. 1994 REVISIONS DID NOT ELIMINATE FATAL FLAWS
- B. U.S. WOULD BE VICTIMIZED BY HOSTILE FORCES 1. U.S.WOULD BE SUBJECT TO VINDICTIVE LAWSUITS
C. MARINE ECOSYSTEM COULD BE DESTROYED SK/N213.09) David A. Wirth [Professor of Law, Boston College], BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2013, LexisNexis Academic, p. 418. Iron, which scientists believe is the limiting factor of phytoplankton growth in its natural environment, would most likely be the nutrient of choice for ocean fertilization. Therefore, in practice, ocean fertilization would likely involve dumping a large quantity of iron filings into the ocean. This approach is relatively untested. Preliminary experimentation revealed uncertainties regarding the optimal ocean fertilization method and questioned its ultimate effectiveness. Potential negative consequences are also unpredictable. For example, boosting carbon uptake by microorganisms could deplete the ocean's oxygen supply and have harmful effects on marine ecosystems. SK/N213.10) EARTH ISLAND JOURNAL, Autumn 2012, p. 12, GALE CENGAGE LEARNING, Expanded Academic ASAP. There had been doubts about whether the carbon captured by ocean fertilization would stay in the upper ocean layers, where it could mix back into the air. The latest study is the first convincing evidence that carbon absorbed by algae during photosynthesis can sink to the ocean bed. The research, however, failed to answer questions about possible damage to marine life from artificially generated algal blooms. Some types of diatoms known as red tides, for example, can be harmful to underwater ecosystems. When these algae decay in large quantities, they absorb oxygen and release nitrogen into the water, killing off fish, marine mammals, and birds. Red tides can also trigger skin and respiratory problems in humans. SK/N213.11) Michael Gross, CHEMISTRY AND INDUSTRY, January 2013, ESCOHost, p. 27. Others have argued that we still know far too little about the effects of large-scale release of iron on the ecosystems. For instance, blooms would deplete the water of oxygen, which could endanger animals in the fertilised surface waters. Under certain conditions, the fertilisation could encourage unwanted types of algae, including those that release toxins. Moreover, the decomposing phytoplankton could boost the growth of bacteria that produce nitrous oxide or methane, which are both more potent greenhouse gases than CO^ and could offset any positive contribution to carbon sequestration the fertilisation might make. SK/N213.12) Michael Gross, CHEMISTRY AND INDUSTRY, January 2013, ESCOHost, p. 27. Chisholm [oceanographer at MIT] warns that ocean fertilisation scaled up might carry large risks and bring little benefit: 'Many people have calculated that if you fertilised all of the low iron regions of the oceans for 100 years, and if all the resulting carbon settled to the deep, it would have a minimal effect on the trajectory of CO2 in the atmosphere. Not to mention that in fertilising the oceans you - by design - change the structure of the food web. 'We have damaged many coastal ecosystems by unintentional nutrient enrichment from land run-off. Let's not make the same mistake intentionally in the open oceans. Small-scale experiments do not cause problems because they are ephemeral, but large- scale implementation is a different matter.' D. POTENTIAL HARMS OUTWEIGH ALLEGED BENEFITS SK/N213.13) Lisa Dilling & Benjamin Hale, SCIENCE, TECHNOLOGY & HUMAN VALUES, March 2011, p. 190, GALE CENGAGE LEARNING, Expanded Academic ASAP. Finally, we observe that ocean fertilization, and other related geoengineering technologies, propose not strictly to clean up carbon emissions, but actually to move the universe to some future, unknown state. Given the introduced criteria, we impose a "future-state constraint". We conclude that ocean fertilization is not an acceptable solution for mitigating climate change. SK/N214. LAW OF THE SEA TREATY: Solvency 1. UNCLOS RELIES ON DYSFUNCTIONAL BUREAUCRACIES SK/N214.01) THE ECONOMIST, February 22, 2014, p. 51(US), GALE CENGAGE LEARNING, Expanded Academic ASAP. But for the most part UNCLOS relies on member countries and existing organisations for monitoring and enforcement. The result is a baffling tangle of overlapping authorities that is described by the Global Ocean Commission, a new high-level lobby group, as a "co-ordinated catastrophe". SK/N214.02) THE ECONOMIST, February 22, 2014, p. 51(US), GALE CENGAGE LEARNING, Expanded Academic ASAP. Dozens of organisations play some role in the oceans (including 16 in the UN alone) but the outfit that is supposed to co-ordinate them, called UN-Oceans, is an ad-hoc body without oversight authority. There are no proper arrangements for monitoring, assessing or reporting on how the various organisations are doing--and no one to tell them if they are failing. SK/N214.03) Gus Bilirakis [member, U.S. House Foreign Affairs Committee], THE WASHINGTON TIMES, May 25, 2012, p. B3, LexisNexis Academic. The Law of the Sea Treaty seeks to regulate and limit the use of the world's oceans for commercial use and environmental management and would determine the extent to which national territory extends off a nation's coasts. In doing so, the treaty ignores centuries of already established international practices regarding freedom of navigation on the seas and would empower multiple U.N.-established bureaucracies. One cannot be assured that these bureaucracies will fight for the best interests of responsible international actors or of the sea itself. This is particularly troubling when keeping in mind the dubious track records of other U.N. commissions, such as allowing known human rights abusers to lead the U.N. Commission on Human Rights. 2. UNCLOS HAS NO EFFECTIVE ENFORCEMENT MECHANISM SK/N214.04) THE ECONOMIST, February 22, 2014, p. 51(US), GALE CENGAGE LEARNING, Expanded Academic ASAP. The high seas are not ungoverned. But UNCLOS has significant faults. It is weak on conservation and the environment, since most of it was negotiated in the 1970s when these topics were barely considered. It has no powers to enforce or punish. SK/N214.05) LEGAL MONITOR WORLDWIDE, June 6, 2014, pNA, LexisNexis Academic. Third, unlike the later Agreement Establishing the World Trade Organization, signed in 1994, UNCLOS lacks an effective enforcement mechanism. 3. UNCLOS WILL NOT ENCHANCE U.S. ACCESS TO RESOURCES SK/N214.06) Editorial, ALASKA JOURNAL OF COMMERCE, August 2, 2012, pNA, LexisNexis Academic. We've also been told LOST would be a boon to our offshore resource development, potentially adding an area the size of California to Alaska's claims on the continental shelf. Considering that we don't drill off the coast of California we have now, and all the trouble Shell has encountered trying to drill less than 100 miles offshore in the Arctic, it's hard for us to imagine we'll suddenly be developing resources past our exclusive economic zone any time soon by ratifying LOST. SK/N214.07) Ed Feulner [President, The Heritage Foundation], THE WASHINGTON TIMES, May 22, 2012, p. B4, LexisNexis Academic. It is hard to say exactly how much hydrocarbon deposits there are beneath the extended continental shelf, but according to the ECS Task Force, "Given the size of the U.S. continental shelf, the resources we find there may be worth many billions, if not trillions, of dollars." Forgoing such a treasure is not the only way that the United States could lose out financially under LOST. 4. UNCLOS WILL NOT REDUCE ACDIFICATION & POLLUTION SK/N214.08) THE ECONOMIST, February 22, 2014, p. 51(US), GALE CENGAGE LEARNING, Expanded Academic ASAP. Changes to high-seas management would still do nothing for two of the worst problems, both caused on land: acidification and pollution. SK/N214.09) THE ECONOMIST, February 22, 2014, p. 51(US), GALE CENGAGE LEARNING, Expanded Academic ASAP. The European Union and 77 developing countries want an "implementing agreement" to strengthen the environmental and conservation provisions of UNCLOS. They had hoped to start what will doubtless be lengthy negotiations at a UN conference in Rio de Janeiro in 2012. But opposition from Russia and America forced a postponement; talks are now supposed to start by August 2015. 5. UNCLOS WILL NOT GIVE U.S. LEVERAGE OVER CHINA SK/N214.10) Editorial, ALASKA JOURNAL OF COMMERCE, August 2, 2012, pNA, LexisNexis Academic. Proponents of LOST say it is needed to resolve territorial disputes among nations, such as China's claims in the South China Sea or Russia's advances into the Arctic. The problem with that is every Arctic nation and a host of others signed on to LOST have already declined to accept Article 298 of the treaty, which sets out the dispute arbitration process. Countries that have exempted themselves from dispute resolution regarding territorial claims, military matters and areas where the U.N. Security Council has jurisdiction include: Norway, Russia, the United Kingdom, Denmark, Canada and China. SK/N214.11) Editorial, ALASKA JOURNAL OF COMMERCE, August 2, 2012, pNA, LexisNexis Academic. So even if the U.S. ratified LOST, it can't bring China or Russia to a dispute resolution because those nations have already declared they won't accept the process. Besides, how is it that we can negotiate bilaterally with the Russians on nuclear weapons (badly, we may add, in the last round of START talks), but we need a U.N. arbiter to resolve territorial disputes? SK/N214.12) Donald H. Rumsfeld [former U.S. Secretary of Defense], THE WASHINGTON TIMES, July 18, 2012, p. B1, LexisNexis Academic. It is correct that the treaty might provide some benefit in codifying existing rules of the road, but it would not solve many existing maritime disputes, such as in the South China Sea, where the Philippines and Vietnam are contesting China's territorial claims. All of those nations are already signatories to the Law of the Sea Treaty and yet there has been no resolution of their differing views. SK/N214.13) LEGAL MONITOR WORLDWIDE, June 6, 2014, pNA, LexisNexis Academic. There are several problems with trying to rely on UNCLOS. First, the dispute settlement provisions of UNCLOS may not apply in this case. On signing the convention, as well as on ratification, and afterwards, countries can opt out of the binding dispute settlement processes relating to certain sea boundary disputes (Article 298). China exercised that opt-out in relation to maritime boundaries in 2006. SK/N214.14) LEGAL MONITOR WORLDWIDE, June 6, 2014, pNA, LexisNexis Academic. More controversially, on ratifying the treaty in 1996, China declared that it "reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone". SK/N214.15) LEGAL MONITOR WORLDWIDE, June 6, 2014, pNA, LexisNexis Academic. Second, UNCLOS deals with issues of maritime law and rights in the seas around the islands. It cannot settle disputes about who owns the islands themselves. SK/N214.16) LEGAL MONITOR WORLDWIDE, June 3, 2014, pNA, LexisNexis Academic. Facing flak from the US, Japan and others over its assertive maritime policy in the contested waters, Deputy Chief of the People's Liberation Army (PLA) Wang Guanzhong said China historically had sovereignty over the South China Sea. He was addressing the last day of the annual Shangri-La Dialogue in Singapore. Though China is a signatory of the United Nations Convention on the Law of the Sea (UNCLOS) and fully respects it, the 1982 treaty cannot be retrospectively applicable to China which had controlled the area for over 2000 years, state-run CCTV reported. SK/N214.17) LEGAL MONITOR WORLDWIDE, June 3, 2014, pNA, LexisNexis Academic. Vietnam, Philippines, Malaysia, Brunei along with Taiwan strongly contest China's claims over the South China Sea. US has said it backs their demand for settlement of the dispute without taking a position on the claims and counter- claims. "The UNCLOS is not suited to determining the ownership of islands and reefs. Maritime law is a vast and rich legal system that includes more than just the United Nations Convention", Wang [China’s Deputy Chief of the People's Liberation Army] said. SK/N215. LAW OF THE SEA TREATY: Disad A. UNCLOS VIOLATES U.S. NATIONAL SOVEREIGNTY 1. REAGAN OPPOSED UNCLOS TO PROTECT SOVEREIGNTY SK/N215.01) Edwin Meese III [former U.S. Attorney General], PROVIDENCE JOURNAL, June 8, 2012, p. 7, LexisNexis Academic. How odd, then, to hear proponents of the convention (also known as the Law of the Sea Treaty, or LOST) insist that Reagan would gladly sign on today. To hear them tell it, the Gipper’s reservations were few, minor and subsequently taken care of in a 1994 agreement now incorporated in the treaty. But with the treaty again under consideration by the Senate, it’s important to note that Reagan s objections to it were anything but trivial. In his view, articulated long before he entered the Oval Office, its fatal flaw was as great as it was simple: LOST posed a direct threat to American sovereignty. SK/N215.02) John O’Sullivan, NATIONAL REVIEW, September 10, 2007, p. 22, GALE CENGAGE LEARNING, Expanded Academic ASAP. But second, it [UNCLOS] defined the mineral and other resources of the deep sea beyond territorial waters as "the common heritage of mankind" and established a complex international bureaucracy--the International Seabed Authority (ISA)--to regulate their exploitation. This was objectionable to Reagan's America on any number of grounds: It intruded on national sovereignty. It was tantamount to an international tax on mineral extraction. And it forced U.S. companies mining the seabed to transfer technology--perhaps militarily sensitive technology--to the ISA and to other countries. Reagan's firmness paid off. UNCLOS languished until the end of the Cold War. SK/N215.03) Kristina Wong & Sean Leangell, THE WASHINGTON TIMES, July 17, 2012, p. A1, LexisNexis Academic. Critics of the [Law of the Sea] treaty argue that it would subject U.S. sovereignty to an international body, require American businesses to pay royalties for resource exploitation and subject the U.S. to unwieldy environmental regulations as defined. SK/N215.04) Sara Sorcher, NATIONAL JOURNAL DAILY, July 30, 2012, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Opponents argue that the [Law of the Sea] treaty infringes upon U.S. sovereignty and forces the United States to abide by international environmental restrictions, while making American companies pay royalties to a United Nations body. 2. COMMON HERITAGE OF MANKIND IS UNACCEPTABLE SK/N215.05) Donald H. Rumsfeld [former U.S. Secretary of Defense], THE WASHINGTON TIMES, July 18, 2012, p. B1, LexisNexis Academic. Reagan understood well that underlying the Law of the Sea Treaty was a new concept of enormous consequence - that the riches of the oceans beyond national boundaries are the "common heritage of mankind" and thus are owned in common by all people. This novel idea of "ownership" requires anyone who finds a way to make use of such riches to pay royalties of unknown amounts - potentially tens or even hundreds of billions of dollars - for redistribution to less-developed nations. The treaty establishes a strange way of looking at industry, investment, talent, risk and good fortune that is, in my view, fundamentally incompatible with the basic tenets of capitalism and free markets. SK/N215.06) Steven Groves [The Heritage Foundation], STATES NEWS SERVICE, December 4, 2012, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. Accession to UNCLOS is simply not a viable option. The philosophical basis of the convention, in the words of the preamble, is to "contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries." 3. SEABED AUTHORITY VIOLATES SOVEREIGNTY SK/N215.07) David Hartley [Temple U. Law School], TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Fall 2012, LexisNexis Academic, p. 340. Part XI of UNCLOS III outlined not only the [International Seabed] Authority, but also the system of governance for the deep seabed. First, UNCLOS established a zone that lies beyond the limits of national jurisdiction and consists of "the ocean floor and subsoil thereof," which is to be called "the Area." The Area's resources belong to the common heritage of mankind, while the rights to these resources are vested to the Authority on behalf of all mankind. The Authority was given specific rights to control and regulate the extraction of the Area's mineral resources. SK/N215.08) Steven Groves [The Heritage Foundation], STATES NEWS SERVICE, December 4, 2012, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. By acceding to UNCLOS, the United States would place itself and its seabed mining companies under the regulatory power and control of the International Seabed Authority, an international organization created by the convention. U.S. companies would be forced to pay excessive fees, costs, and an as yet undetermined percentage of royalties to the Authority to fund its operations and to be redistributed to developing countries. In short, U.S. accession would represent a radical sea change because it would create an unprecedented layer of international bureaucratic authority, oversight, and regulatory burden on American companies. SK/N215.09) Edwin Meese III [former U.S. Attorney General], PROVIDENCE JOURNAL, June 8, 2012, p. 7, LexisNexis Academic. Of particular concern was Part XI of the treaty, which created supra-national executive, legislative and judicial mechanisms to regulate the mineral resources of the world’s oceans. One of these institutions--the International Seabed Authority--is assigned the power to regulate deep seabed mining and development on the extended continental shelf. In return for assuring those rights, the ISA would receive royalties from gas and oil exploration. Those revenues would then be redistributed to poorer countries. 4. MANDATORY ROYALTIES VIOLATE SOVEREIGNTY SK/N215.10) Kristina Wong & Sean Leangell, THE WASHINGTON TIMES, July 17, 2012, p. A1, LexisNexis Academic. They [Law of the Sea Treaty opponents] also say the treaty seeks to transfer wealth from U.S. companies exploiting energy resources to poorer, landlocked countries - setting a dangerous precedence for wealth distribution. SK/N215.11) Editorial, ALASKA JOURNAL OF COMMERCE, August 2, 2012, pNA, LexisNexis Academic. Another reason LOST drew opposition was the International Seabed Authority that would govern the development of any of those new claims beyond 200 miles. If you think Alaska's oil tax regime is bad, the royalty scheme under LOST is essentially the ACES of the sea. According to the treaty, if a project earns a 20 percent or greater return on investment, a 70 percent royalty is kicked back to the International Seabed Authority headquartered in Jamaica. The ISA then uses this money to aid "geographically disadvantaged" countries that lack coastlines. SK/N215.12) Donald H. Rumsfeld [former U.S. Secretary of Defense], THE WASHINGTON TIMES, July 18, 2012, p. B1, LexisNexis Academic. There are practical and moral arguments in favor of developed countries providing financial and other forms of aid to poor countries. But the decision to provide such aid has always been and should remain a sovereign choice for each nation. In the case of the United States, it is a choice for American citizens and their elected representatives. I am convinced that the United States should not endorse a treaty that makes such a massive redistribution of wealth a legal obligation. SK/N215.13) Donald H. Rumsfeld [former U.S. Secretary of Defense], THE WASHINGTON TIMES, July 18, 2012, p. B1, LexisNexis Academic. Redistributing a significant portion of the value of the minerals in the deep seabed to nations and organizations that will have absolutely nothing to do with their extraction is a novel and dangerous principal that has no clear limits. Imagine if fishermen who exerted themselves to catch fish on the high seas were required by a U.N. treaty to pay a share of their take to countries that had nothing to do with the fishermen's costly and dangerous efforts. The treaty supporters making the argument for world "ownership" of the deep seabed could make similar arguments for outer space in the future. SK/N215.14) Ed Feulner [President, The Heritage Foundation], THE WASHINGTON TIMES, May 22, 2012, p. B4, LexisNexis Academic. "In addition to needlessly exposing itself to baseless environmental lawsuits," writes The Heritage Foundation's Steve Groves, an expert on LOST, "the United States would be required to transfer billions of dollars in oil and gas royalties ... to the International Seabed Authority for redistribution to the developing world." What does this mean? In short, it means that the United Nations will have an independent source of income, courtesy of the United States. 5. 1994 REVISIONS DID NOT ELIMINATE FATAL FLAWS SK/N215.15) Steven Groves [The Heritage Foundation], STATES NEWS SERVICE, December 4, 2012, pNA, GALE CENGAGE LEARNING, Expanded Academic ASAP. The revisions to the seabed mining provisions negotiated by the Clinton Administration in 1994 did not and could not correct the convention's fundamental flaws. SK/N215.16) Donald H. Rumsfeld [former U.S. Secretary of Defense], THE WASHINGTON TIMES, July 18, 2012, p. B1, LexisNexis Academic. Law of the Sea Treaty proponents cite the 1994 renegotiation and amendments as definitive proof that President Reagan's concerns, most notably about the deep seabed mining provisions, were resolved. However, many nations that are currently signatories have not agreed to the 1994 so-called "fixes," so their status is debatable. B. U.S. WOULD BE VICTIMIZED BY HOSTILE FORCES 1. U.S.WOULD BE SUBJECT TO VINDICTIVE LAWSUITS SK/N215.17) John O’Sullivan, NATIONAL REVIEW, September 10, 2007, p. 22, GALE CENGAGE LEARNING, Expanded Academic ASAP. Signing UNCLOS would probably change two things about navigation rights: We would likely be asked to enforce such rights for others as well as for ourselves; and we would be conceding a dangerous regulation of those rights to a tribunal drawn from nations not very friendly to the U.S. Jeremy Rabkin, a former professor of government at Cornell, points to two such practical risks arising from ratification. If the U.S. Navy were to interdict a foreign vessel thought to be carrying nuclear contraband, it might find itself hauled before ITLOS and entangled in complex legalisms indefinitely. SK/N215.18) John O’Sullivan, NATIONAL REVIEW, September 10, 2007, p. 22, GALE CENGAGE LEARNING, Expanded Academic ASAP. Britain has joined UNCLOS since Thatcher, with the result that the Irish government sought to compel Britain to close down a nuclear reactor on British soil on the grounds that it was adversely impacting the maritime environment and so violating the environmental features of UNCLOS. And if the U.S. actually does sign on, that will add federal judges to the long list of people seeking to exploit the treaty to constrain and direct America's elected policymakers. SK/N215.19) Ed Feulner [President, The Heritage Foundation], THE WASHINGTON TIMES, May 22, 2012, p. B4, LexisNexis Academic. Environmental activists are high on the treaty, too. That is because they anticipate suing the U.S., if it joins LOST, to force America to adopt the radical climate-change agenda they have been unsuccessful at imposing. So far, at least. Climate-change alarmists have tried again and again in recent years to secure an international agreement. In Denmark, Mexico and South Africa, they have tried to come up with a legally binding climate-change pact. Considering what an economic wrecking ball such an agreement would represent to the U.S. and its allies, we can be glad they failed. But now they think they have found a solution: LOST. SK/N215.20) Ed Feulner [President, The Heritage Foundation], THE WASHINGTON TIMES, May 22, 2012, p. B4, LexisNexis Academic. Groups such as Greenpeace would love a chance to make the U.S. pay in international court. And that is just what we would do under the U.S. Convention on the Law of the Sea - pay. Download 0.49 Mb. Share with your friends:
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