The United Nations Convention on the Law of the Sea, U.S. should Ratify

By: Ben Haight

“As the broader U.S. domestic debate over UNCLOS’ many provisions continues, let there be no misunderstanding: from a national security perspective, UNCLOS is overwhelmingly in the United States’ best interest.”

-Vice Admiral James W. Houck[i]

            The third United Nations Conference on the Law of the Sea took place from 1973 until 1982 and resulted in the international agreement called the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS came into force in 1994. While the United States took the lead in drafting the original 1982 instrument, as well as a later 1994 agreement, the U.S. has not ratified UNCLOS. Today, UNCLOS has 157 signatories and 166 parties.[ii] The United States remains on the sideline.

American presidents, both Democrat and Republican, have supported U.S. accession to UNCLOS. President Ronald Reagan, an early skeptic of UNCLOS, later in his administration ordered that we follow UNCLOS’ terms.[iii] Department of Defense was very active in drafting UNCLOS and has consistently supported accession.[iv] Despite the fact that the Senate Foreign Relations Committee has voted and supported UNCLOS during the committee stage, the treaty has not been fully voted on by the Senate.[v] This failure to act has left the United States without a strong voice and without legal backing during international ocean and sea negotiations.

Opponents to UNCLOS consistently argue that the convention is not necessary and requires the United States to forfeit substantial amounts of sovereignty. Additionally, they point out that UNCLOS does not allow reservations and subjects the U.S. to every provision.[vi] Opponents argue that America’s navigational interests are protected by customary international law and, therefore, convention ratification is worthless.[vii] This argument makes a big assumption, however, that customary international law will not change. Just in recent years, there seems to be shifting trends in foreign states’ ocean policies that may modify what is now considered customary.[viii]

Furthermore, ratification does not seem unnecessary because UNCLOS ensures the availability of legal certainty for U.S. corporations seeking offshore developments and a navigational structure for America’s Navy. Part XI of UNCLOS regulates “The Area.”[ix] The Area is the deep ocean and is referred to as “the common heritage of mankind.”[x] It contains a great amount of minerals and hydrocarbon resources, which are used in many products today and highly sought after by major companies. UNCLOS opponents argue that there are no legal barriers to developing the Area. Deep-sea development would be a major investment and, without the legal certainty guaranteed by UNCLOS, business executives refuse to invest in the Area absent UNCLOS accession. During a time of drastic Arctic ice melting, which has exposed lots of untapped hydrocarbon resources, the time to accede to UNCLOS and invest in the Area is now. America cannot afford to stand by and watch Russia take the lead in the Area.[xi]

United States accession to UNCLOS is critical to maintaining national security and navigational freedom. Furthermore, the need for legal certainty is extremely critical to both American businesses interested in developing the Area as well as the United States Navy. Customary international law is not static and should not be considered as a realistic barrier to UNCLOS accession. As drafted by many American representatives, UNCLOS is overwhelmingly in America’s best interests. It would be wise and timely for the next American President to make UNCLOS accession a priority in the first 100 days in office and put pressure on the Senate to vote in favor of UNCLOS.

 

Ben Haight is third-year law student at The Pennsylvania State University. Ben is a Senior Editor on the Penn State Journal of Law and International Affairs and is an Ensign in the Judge Advocate General’s Corps, U.S. Navy.

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Gauging the international balance of power from the confines of the Middle East

By: Taimoor Choudhry

The unfolding events in the Middle East provide a clear picture of the ongoing power struggle in the International system. The  Middle East is one of the most dynamic regions in the world for a reason. Mired with instability, the region is a prominent example of geopolitics at play and a fitting illustration of the so called “resource curse.” Instead of benefiting the region, its abundance energy reserves has made the Middle East a target for countries seeking hegemony. It is the modern equivalent of the “Great Game,” where the race to the top depends on securing energy resources.  The United States is one of the principle players in the Great Game. As a result, the current events in the middle east tell a great deal about US standing in the international community.

At the end of the cold war, the US emerged as the sole super power of the 20st century. Its rise to power was not coincidental. Instead, it was an outcome of a carefully planned foreign policy by men such as Henry Kissinger who were stout in the art of real politics. The aim of this foreign policy was to sustain in US drive to global hegemony by way of securing vital energy resources in the Middle East; and, up until a decade or so ago, the foreign policy had been successful, as the United States had gained a strong foothold in the Middle East.

The success, however,  came at a cost. US incessant intervention in the Middle East during the 20th century had created enemies. In turn, these enemies utilized cowardly and shameful means to attack the US, forcing its hand to invade Afghanistan and Iraq. Given its historical legacy in the region, however, the war against Afghanistan and Iran tarnished US’s credibility in the Middle East. US’s opponents, such as Iran, have used the taint of war to chip away at US’s footing and influence in the Middle East, while strengthening their own standing in the region.

Many, including myself, have argued that the approach has worked. US’s ability to influence events in the Middle East has waned. For example, the US could do nothing more than employ the threat of war and sanctions to stop a defiant Iran from allegedly developing nuclear weaponry. The bite from the sanctions, however, was being undercut by other countries.[i] Furthermore, Iran, keen to the realities of a thinly stretched US military, became ever more defiant, seeing the threats of war as mere rhetoric masking the aging hegemon’s limitations. US’s diminishing influence in the Middle East is further support by the events in the Arab Spring.

The Arab Spring has uprooted old power structures and alliances, and the US can’t do anything other than letting the developments unfold. For example, the US could do nothing to stop the over through of Egyptian President Mubarak, a long standing US ally.  When it has taken action, such as in Libya, the US has been unable to control the aftermath. Libya is now a country engulfed in civil war. In addition, the Arab Spring provided a situation  in which US’s historical standing in the Middle East was challenged by its historical rival, Russia.

In Syria, the situation was rapidly deteriorating. Assad’s excessive use of force against its citizens had taken the lives of hundreds of thousands of innocent bystanders. Images of unyielding brutality had brought the Syrian conflict to the international forefront, and many were calling for US intervention. Intervening in Syria would have been beneficial to the US for two reasons: First, supporting the rebel cause would demonstrate US support for the Arab Uprising, improving US’s image and credibility amongst the younger Middle Eastern generation. Second, the overthrow of Assad, as viewed by many, would destroy Iran’s long standing allies, enabling the US to finally put an end to Iran’s nuclear ambitions.

However, the US, facing strong opposition from Russia and China[ii], refrained from intervening in Syria. Nevertheless, the US drew a line, which if crossed would make intervention inevitable.  The line was the use of weapons by Assad’s regime in the civil war. Unfortunately, the line was crossed; Syrian military used chemical weapons against its citizens, leaving thousands dead. Now, it was the US’s turn to respond.

After the chemical attack, both Russia and China warned against US intervention in Syria.[iii] In addressing the American people and their political leaders, Russian President Putin stated that a response would “increase violence and unleash a new wave of terrorism.”[iv] In the wake of this warning, long standing US allies Britain and France decided to back down and not intervene in Syria, leaving the US to consider solo military action. In the end, President Obama decided to not take military action, choosing, instead, to follow a diplomatic plan proposed by Russia.

President Obama’s decision to not take military action in Syria even after it used chemical attacks demonstrates that the international balance of power is shifting. It is no longer the unipolar system that emerged after the cold war. Instead, the international system is becoming a mulipolar where one power can no longer dictate the terms. Given this backdrop, it is critical that the US change its foreign policy to one that is more conducive to the changing environment. In addition, the US should also focus inwards to address some of the issues that its society is facing. The aging hegemon needs to tend to its wounds, which are a consequence of its historical foreign policy. In doing so, it must realize that what made it special was not its might, but its adherence to freedom and justice.

The Human Rights Committee: A Mechanism of Noncompliance and Failure

By: Ben Haight

“The Human Rights Committee has been unable to penetrate either the surface or the conscience of most states to meaningfully advance the ICCPR.”

-Makau wa Mutua[i]

The International Covenant on Civil and Political Rights (ICCPR) is an international treaty that was adopted by the United Nations on December 16, 1966 and came into force on March 23, 1976. The ICCPR is intended to protect various rights such as the right of self-determination, right to life, right to privacy, freedom of religion, freedom of assembly, freedom of speech, and various due process rights. The Covenant has 74 signatories and 167 parties.

Part IV of the ICCPR created the Human Rights Committee (HRC).[ii] The HRC is a body of 18 experts, who are elected by member states, that meets three times a year. The HRC has three main functions: examining state reports and comments on them, producing general comments for state parties, and considering individual complaints.[iii] The HRC must be distinguished from the Commission on Human Rights, which is a UN political forum where state parties may debate human rights issues.

Human Rights scholar and professor of law Makau wa Mutua writes, “The primary purpose of human rights law is to contain the predatory impulses of the state.”[iv] This can only be accomplished with human rights laws, which cut through the sovereignty of member states. Without accompanying domestic legislation that makes the human rights law justiciable or an international enforcement mechanism with legal authority, the “predatory impulses” will be difficult to contain. While the HRC was created for this purpose, it has remained largely ineffective and the ICCPR is consistently ignored throughout the world.

Article 2(2) states that “Each State Party to the present Covenant undertakes to take the necessary steps…to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” In other words, state parties must pass domestic legislation to make the ICCPR self-executing, giving individuals a private right of action for violations of the treaty.[v] If state parties do not internalize the ICCPR, the functions and reports of the HRC will be ignored.[vi] Individual complainants must exhaust any domestic remedies, which are not always available, before the committee will take notice.[vii]

Unfortunately for the HRC, the ICCPR uses very broad and vague language and has not been domestically adopted by most state parties. The vague language allows further noncompliance in autocratic regimes and the most consistent human rights violators. Furthermore, liberal democracies claim that the rights protected in the ICCPR are already part of their domestic law and additional self-executing legislation is not necessary.[viii] This makes it extremely difficult for the HRC, the ICCPR’s intended enforcement body, to make any positive impact or effectively address any human rights issues.

The HRC and its 18 expert members are meant to be independent of the UN and not representative of their home state. It is the UN Secretary General, however, that provides the HRC with many of its resources.[ix] Because of this, the HRC tends to be part of the UN and, therefore, subject to the continuous politics and beauracratic tendencies of the larger organization. Additionally, the HRC has limited resources and struggles to keep pace with the influx of reports and individual complaints.[x] Elected HRC experts also lack tenure and must be re-elected every four years. This lack of independence makes it impossible for human rights violations to be addressed absent politics.[xi]

The ICCPR empowers the HRC to transmit to states “such general comments as it may consider appropriate.”[xii] The ICCPR did not give any direction to the HRC, however, on how to best accomplish this role. Furthermore, the views expressed by the HRC in these reports are not legally binding and have taken a passive tone.[xiii] Because of this, the HRC’s reports are largely ignored.

A constant conflict persists in the realm of international treaties. Most states support their purpose but reject any kind of strong enforcement mechanism through the use of treaty reservations. In the absence of legal and enforcement authority, treaties will remain largely symbolic and do little to advance human rights law. By establishing an extremely powerless Human Rights Committee, the ICCPR is inadequate and has failed to demand universal compliance.

 

Ben Haight is third-year law student at The Pennsylvania State University. Ben is a Senior Editor on the Penn State Journal of Law and International Affairs and is an Ensign in the Judge Advocate General’s Corps, U.S. Navy.

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The Globalization of Competition Law: Uncertainty of Enforcement and the Google Case Study

Photo Credit: iDesign[1]

By: Aaron L. Schwartz

As the consumption of goods and services becomes increasingly globalized, multinational firms are finding it difficult to lawfully navigate the murky waters of international competition law. The current international regime lacks any cohesive policy; each state’s national competition authority applies its own unique tests and standards to determine whether a firm’s conduct is unlawful or super-competitive. Consequently, multinational firms are forced to speculate, with no degree of certainty, how their actions will be assessed in individual jurisdictions. The result of this unpredictability negatively impacts the natural operation of global markets to the detriment of consumers.

I.                   The Negative Effects on Consumers

There is no dispute that a firm engaging in anticompetitive conduct should be punished for its illegal behavior. Predatory monopolistic conduct or cartelization agreements almost always disrupt markets and reduce consumer welfare. But anticompetitive actions are not always so clear cut, and these laws have the potential to harm consumers if applied in a manner that subverts competition.[2]

When operating in single nation markets, firms are able to assess local antitrust laws and plan competitive strategies accordingly. However, when a multinational firm interacts with the global market, lawful competitive strategies used in one nation may be unlawful and anticompetitive in another. In such scenarios, firms cannot always anticipate the legal consequences of their actions. This opens the door for antitrust litigation, which can become duplicative as each individual competition authority assess the firms’ conduct and applies their own legal tests and standards.

Further, when facing multiple identical lawsuits in varying jurisdictions, a firm must divert funds, resources, and attention away from its research and development activities. The firm must also plan for potentially hefty fines and sanctions that may arise down the road. The number of years over which an investigation takes place multiplied by the varying jurisdictions may severely handicap an otherwise innovative firm. In the end, the consumer suffers; directly from the firm’s inability to compete at its fullest capacity in the marketplace, and indirectly from the slowdown of product innovation and technological advancements.

II.                The Google Case Study

Google presents a great example of the unpredictability firms face in international competition enforcement. Over the last few years Google’s conduct has been investigated by seven different national competition authorities. Each investigation is grounded on allegations that Google abused its dominant position in the search engine and online advertising market. The varying results of the investigation are outlined below.

In May 2012, after two years of investigation, the Vice-President of the European Commission (EC), Mr. Joaquim Almunia, issued a policy statement that Google was unlawfully “divert[ing] traffic” from rival search engines.[3] Because the statement was not a legal opinion carrying a penalty, Google subsequently entered into negotiation with the EC. [4] On October 1, 2013, the two sides reached a tentative deal in which the EC agreed to end its investigation and Google agreed to modify the operation of its search engine to allow competitor listings to have higher visibility on Web search queries.[5] The EC expects to finalize this agreement by the spring of 2014, after competitor companies submit comments on the proposed resolution.[6]

On January 7, 2013, the United States Federal Trade Commission (FTC) determined that, despite a somewhat harmful effect on rivals’ ability to compete in the market, Google’s behavior did not rise to the level of a “searching bias” because the company’s innovative techniques had a sufficient pro-competitive justification.[7]According to Guy Lougher[8] the U.S.’s and E.U.’s divergent legal conclusions stem from conflicting legal standards—noting that the U.S. imposes a higher standard for determining “whether an activity amounts to monopolization.”[9]

On July 18, 2013, the South Korean Fair Trade Commission (KFTC) dismissed its investigation into whether Google abused its search engine market position. The KFTC’s investigation concluded that there was sufficient competition in the cellular search engine market such that consumers could easily use alternative search engine platforms.[10]

On September 22, 2011, the Federal Court of Australia found against the Australian Competition and Consumer Commission, and in favor of Google, when holding that Google did not engage in misleading or deceptive conduct by publishing certain sponsored links on its website.[11]

While Google has thus far escaped significant fines imposed by national competition authorities, the firm continues to face several burdensome open investigations. On December 19, 2013, pursuant to an ongoing investigation, the Canadian Competition Bureau filed a legal motion against Google with the Federal Court of Canada.[12] Moreover, on May 24, 2013, the FTC decided to reopen its investigation into Google’s conduct after receiving another round of complaints by Google’s rivals. Other open and ongoing investigations include: the Brazil’s competition authority, Conselho Administrativo de Defesa Economica (CADE);[13] the Competition Commission of India (CCI);[14] and the Argentinian Competition Commission.[15]

III.             Conclusion

Unfortunately, there is no easy solution to this problem. Each state has a different national market and different interests with respect to the protection of consumer welfare. However, the endless global litigation that Google and other similar multinational firms face demonstrates the need for reform. Unless and until national competition authorities derive a method that allows firms to act rationally and with a degree of certainty in all markets, stability and innovative productivity may suffer.

 

Aaron L. Schwartz is a third year law student at The Pennsylvania State University – The Dickinson School of Law. He is an active member of the Student Bar Association, the Journal of Law and International Affairs, and the Moot Court Board (Jessup Team). Mr. Schwartz graduated from the University of Wisconsin—Madison.

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[1] http://www.referenceforbusiness.com/management/Mar-No/Multinational-Corporations.html.