Charles Wesley Faires

United Societies in Space June 15, 2012

Mobile: +1.404.409.4468 E-Mail: wes@orions-belt.com

Call for Opposition to US Ratification of the Law of the Sea Treaty

by Wes Faires, Chairman, Treaty Policy

Introduction In the interest of the growing private space sector, The United Societies in Space hereby presents for immediate release its formal opinion on US Ratification of the United Nations Convention on the Law of the Sea. We at USIS would like to strongly advocate against treaty ratification. The treaty is currently under debate within the Senate Foreign Relations Committee, and at last count was 6 votes short of senate majority in support of the treaty; Conditions are right for fast track ratification before the end of the year. Sparse media coverage cites Arctic controversy created by Russia's claim to the north pole and naval issues in the South China Sea to fuel the argument, however, the underlying issues that stand in the way of US ratification from the get go have yet to be properly addressed. USIS is of the opinion that implementation of Part XI, (even as amended in the 1994 Agreement) affecting territorial jurisdiction of the deep sea bed, would set a precedent for governance beyond national borders that is contrary to the best interest of mankind as a whole. The implications of the treaty extend well beyond the scope of seafloor resources, It is our concern that ratification of UNCLOS would pave way for application of this form of governance to other areas outside national jurisdiction, such as Outer Space and its -resources. Treaty provisions relating to the Deep Sea Bed such as governance of mineral resources and direct legislative authority over private citizens by an international regime, as well the prohibition of property rights would be detrimental to the private space sector if applied to the Moon and other Celestial Bodies. Individual Sovereignty vs. International Regime Treaty opponents claim ratification would entail a submission of US sovereignty, citing the mandatory adherence to the International Tribunal for the Law of the Sea.Not only has this nationalistic view grown

Charles Wesley Faires

Mobile: +1.404.409.4468 E-Mail: wes@orions-belt.com

Call for Opposition to US Ratification of the Law of the Sea Treaty

stale over the past three decades, it fails to encompass the entire issue. Unlike the WTO, ICJ, ICC or other instruments of supranational governance, the Law of the Sea goes beyond regulation on the national level - The private citizens people of America will be subject to the jurisdiction of a new court! [1]. The treaty gives rise to a dangerous new type of governing body. This International SeaBed Authority (ISA) is the regime which will exercise full sovereign rights to the ocean floor under international waters, charging private citizens wishing to conduct mining operations a six figure application fee; All private mining operations must be approved and monitored by Authority, subject to termination lest a percentage of all resouces (or monetary equivalent) are shared with the ISA [2]. Indeed, for the first time in legislation, inclusion of "natural/juridical persons" in the treaty provisions has yielded an international organization with the ability to govern the actions of private citizens directly. We should all think twice about entrusting this type of money and control over resources to the ISA, which, in 2002, had its power cut for failing to pay its air conditioning bill to host country Jamaica. [3]. Implications Beyond National Borders The foundational principle serving as the blueprint for governance in territories beyond national jurisdiction, the Common Heritage of Mankind principle is expressed in Article 136, legally defined in Article 137, permanently solidified in Article 155 and reaffirmed in Section 4 of the 1994 Agreement, establishing 3 main principles to govern areas beyond national borders: 1. International regime is granted autonomy over the Deep Sea Bed 2. Establishes authority to directly legislate individual citizens from the supranational level 3. Private property rights are outright forbidden [4]

The treaty's precedent setting value for governance beyond national borders, a landmark accomplishment for supra-nationalism, its first act is a slap in the face to private citizens.
With the Common Heritage of Mankind principle secured over the deep sea bed, legal precedent is set for governance beyond national jurisdiction; Ratification of the Law of the Sea Treaty would certainly give

Charles Wesley Faires

Mobile: +1.404.409.4468 E-Mail: wes@orions-belt.com

Call for Opposition to US Ratification of the Law of the Sea Treaty

strength to acceptance of the CHM principle as customary international law when it comes to dealing with territorial jurisdiction beyond national borders. Considering that the same provisions of the CHM principle (territorial governance by appointed international regime, and exclusion of private property rights) are implemented in the Moon Treaty, a U.N. 'treaty in force', whose jurisdiction covers the entire solar system outside of Earth, the implications here are astronomical [5]. Constitutional and Human Rights Issues Ratification the Law of the Sea and the Moon Treaty brings into law embedded principles which forbid private property without due process, depriving US Citizens of their 5 Amendment privileges [6]. Moreover, this arbitrary denial of property directly violates the UN's own Universal Declaration of Human Rights (Article 17) [7]. Affecting over 7 billion natural persons, spanning 70% of the Earth's surface, and 6 trillion miles into interplanetary space, it could be said that the largest scale violation of human rights in legislative history is unfolding beyond national borders, through solidification of the Common Heritage of Mankind principle as the standard for governance. Conclusion The USA has enacted its own legislation in conformity with the principles set forth in the Law of the Sea Treaty as relates to Territorial Waters, Exclusive Economic Zone, Continental Shelf, Contiguous Zones and Navigation/Overflight, yet the push for senate ratification continues. At this point, then, the major affect of US accession to UNCLOS would be to effectively cement supra-national resource governance into international law. One notion often espoused by proponents of the treaty is that the deep sea bed issues in Part XI objected to by the US were fixed in the 1994 Agreement concerning UNCLOS implementation. While it is true that some legal aspects of mineral sharing were scaled back, the agreement re-affirmed the very
th

Charles Wesley Faires

Mobile: +1.404.409.4468 E-Mail: wes@orions-belt.com

Call for Opposition to US Ratification of the Law of the Sea Treaty

core concepts which we diametrically oppose regarding the Common Heritage principle, supranational governance and prohibition of private property [8] [9]. The treaty, underpinned by a form of governance contrary to interest of mankind as a whole, solidifies a hostile climate for individual sovereignty beyond national borders, has the potential to stunt the growth of the private space sector in its infancy. We at the United Societies in Space cite the preclusion of private property rights and implications for supranational governance of non-national territories rooted in its deep seabed provisions in opposing US ratification of the United Nations Convention on the Law of the Sea.

Citations:
1 Id, Art. 187 esee also Art. 153 para. 2(b) Establishes jurisdiction over natural/juridical persons by the International Tribunal for the Law of the Sea (ITLOS) Deep Seabed Disputes Chamber 2 United Nations Convention on the Law of the Sea art. 153, Dec. 10, 1982, 1833 U.N.T.S. 397 [UNCLOS] - Activities in the Area shall be organized, carried out and controlledby the Authority on behalf of mankind 3 ISBN: 9766105006 (ISBA/8/A/5/Add. 1 Arts. 18-19) - Selected Decisions and Documents of the Eighth Session ISA, 2002 Pp. 12-13 Retrieved from: http://isa.org.jm/files/documents/EN/SelDecisions/SelDecision8-En.pdf 4 Id, art. 137,[UNCLOS] Art. 137, Para. 1-3, - Paragraph 1 states that No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. Paragraph 2 States thatAll rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.Paragraph 3 states that No State or natural or juridical person shall claim, acquire or exercise rights with respect to theminerals recovered from the Area. 5 Agreement Governing Activities of States on the Moon and Other Celestial Bodies Article. 11, para. 1, 3, 5. and Article 1 Dec. 17, 1979, 18 I.L.M. 1434 6 The Constitution of the United States, Amendment 5 States No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 7 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). Article 17 states Everyone has the right to own property alone as well as in association with others, and that No one shall be arbitrarily deprived of his property. 8 A/RES/48/263. (1994) Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 - Annex, Section 4 9 UNCLOS, article 155, paragraph 2, (a) principle of the common heritage of mankind, (b) the international regime designed to ensure equitable exploitation of the resources of the Area (c) an Authority to organize, conduct and control activities in the Area, and (d) exclusion of claims or exercise of sovereignty over any part of the Area