The dramatic case, Sam-Thambiah against the Secretary-General of the International Seabed Authority, involves allegations of sexual harassment and pornography. One side charges “distortions and fabrications.” The other side alleges “mismanagement and irregularities.” What makes this case unique is that it involves the shadowy world of a U.N.-affiliated agency that the U.S. Senate is poised to provide with millions of dollars through ratification of the United Nations Convention on the Law of the Sea (UNCLOS).
In addition to the explosive corruption case, taken before a United Nations Administrative Tribunal for adjudication, a confidential source in the United Nations has come forward to allege that the International Seabed Authority (ISA) is known for having management problems and that it suffers from a lack of administrative and ethical oversight.
What’s more, a review of the public record demonstrates that many countries belonging to UNCLOS don’t pay their dues or even show up at meetings of the ISA. The notes of one meeting suggest that U.S. ratification of the treaty and membership in the treaty organization could produce more funds to pay more countries to attend.
In effect, Senate ratification of UNCLOS could serve as a financial bailout of a failing and dysfunctional U.N. bureaucracy.
Revelations about scandalous and incompetent behavior at the ISA could not come at a worse time for supporters of UNCLOS. The Senate Foreign Relations Committee has held two recent hearings on UNCLOS (with witnesses stacked 9-2 in favor of ratification). The State Department, which has been holding strategy sessions to facilitate ratification, had been hoping that a committee and full Senate vote were only days or weeks away. But the committee has not examined in even a cursory manner the actual operations of the ISA.
State Department Lies
Ratification has already been complicated by the failure of Deputy Secretary of State John Negroponte and Legal Adviser John B. Bellinger III to be honest with senators about how provisions in the treaty regarding prevention of pollution from land-based sources can be used to sue the United States over its greenhouse gas emissions. One member of the Foreign Relations Committee, Senator David Vitter, has cited evidence that international lawyers intend to use those provisions to sue the U.S. and force costly and draconian reductions in the use of energy blamed for global warming. He accused Bellinger of providing false testimony to the committee.
Another member, Senator Bob Corker, has told a Tennessee newspaper that the hearings have “raised more questions” than they answered and that more needs to be learned before the treaty is voted on.
By ratifying UNCLOS, the Senate could automatically make American taxpayers the largest contributors to the ISA, paying some 25 percent of the ISA’s budget.
A major witness before the committee, Professor Bernard H. Oxman, told the committee on October 4 that the ISA was “a lean organization based in Kingston [Jamaica] that employs approximately 30 people and has an annual budget of some $6 million.”
The claim comes right out of Oxman’s own playbook. The author of a 1996 article, “The Rule of Law and the United Nations Convention on the Law of the Sea,” Oxman had advised treaty supporters to exercise “caution regarding the organization, composition and budgets of the new institutions established” by UNCLOS. The implication was that some countries would shy away from ratifying the treaty if the ISA, the International Tribunal for the Law of the Sea (ITLOS), and the Commission on the Limits of the Continental Shelf were perceived as too expensive and bureaucratic.
In fact, however, the ISA has been racked by allegations of corruption and mismanagement, with the Sam-Thambiah case being the most visible. (The ISA officially has 37 staff positions.)
Oxman called UNCLOS “the most comprehensive and far-reaching treaty for protection of the global environment yet achieved” and said that “…the development of international law benefits from more cases and decisions by the Court.” However, during “this delicate interim period,” when governments are considering ratification, litigation could threaten global ratification, he warned.
Oxman also declared that “Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them.”
Senator Vitter Nails Oxman
Oxman has a vested interest in seeing the treaty ratified, having served as U.S. representative to the Third United Nations Conference on the Law of the Sea and chairing the English Language Group of the Conference Drafting Committee.
In his October 4 testimony, Oxman played down problems with the pact, arguing that Article 213 of UNCLOS on enforcement of domestic and international laws against pollution from land-based sources was “hortatory.” That is, it was meant simply to provide advice and encouragement. “It is not possible as I see it for us to violate that provision,” he claimed.
At this point, Senator David Vitter asked, “If it is not possible for an individual state to violate the provision, why is it in the treaty?” Oxman replied that the provision was designed “to encourage states to deal with the question nationally and internationally but does not tell them precisely what to do.”
Vitter countered: “It seems odd to put a feel-good provision like that with the title, ‘Enforcement with respect to pollution from land-based sources,’ because this treaty does have enforcement mechanisms.”
The senator concluded by noting that Dr. William C.G. Burns had written an article “about the upcoming litigation onslaught of environmental issues under this treaty.” Titled, “Potential Causes of Climate Change Damages in International Fora: The Law of the Sea Convention,” Burns called the treaty “a promising instrument through which such action might be taken given its broad definitions of pollution to the marine environment and the dispute resolution mechanisms contained within its provisions.” (Burns spoke on the subject of “climate change litigation” at the American Society of International Law in March of 2007).
“There are a team of international lawyer-types chomping at the bit,” Vitter noted.
Oxman, as well as Bellinger, who also told the Senate that such provisions were merely “hortatory,” has to know that these provisions may be considered “hortatory” by some and not by others. As such, Vitter is absolutely correct to warn of promised litigation under the treaty. Oxman and Bellinger should have warned the Senate about this legal threat. But they did not.
Oxman may have his own reasons for ignoring the threat. He is a possible U.S. candidate for a judgeship on the International Tribunal for the Law of the Sea.
The ISA, according to a confidential U.N. source, has been racked by scandal and turmoil and is so “lean” that it hasn’t had a chief of administration for five years. That is the official who is supposed to manage the day-to-day activities of the ISA. There’s no need for an organization to be run like that,” the source said, in disgust and contempt over its mismanagement and inability to get things done.
There is no ethics office for the ISA and no requirement for ISA employees to disclose any potential conflicts of interests. The U.N. source warned against going to the office of the Secretary-General of the ISA for information about problems in the agency, saying, “Nobody would tell you the truth.”
The Secretary-General of the ISA is a veteran of the U.N. bureaucracy by the name of Satya N. Nandan and is from Fiji. He is serving his third four-year term as ISA Secretary-General, having first been elected in 1996. A veteran of the U.N. bureaucracy, he served as U.N. Under-Secretary-General and Special Representative for the Law of the Sea. He also served as chairman of the “Group of 77” developing countries of the U.N. Conference on the Law of the Sea from 1978 to 1979. The “Group of 77,” which actually numbers 130 countries and includes China, dominates the membership of the Law of the Sea Treaty organization.
We were tipped off by a confidential U.N. source to the sensational case of Nithi Sam-Thambiah, who had briefly held the position of chief of administration and management at the ISA. Sam-Thambiah was hired in December 2001. Six months later he says he wrote a letter to ISA Secretary-General Nandan requesting a meeting to discuss various “sensitive” issues, including “mismanagement and irregularities” in the organization. One month later, Sam-Thambia was fired.
Nandan claims that he didn’t receive the letter and charged Sam-Thambiah with being incompetent and not qualified for the post.
Sam-Thambiah filed a complaint against the ISA Secretary-General with the United Nations Administrative Tribunal, which issued a judgment on January 31, 2005, that has been posted on the website of the tribunal. While it dismissed Sam-Thambiah’s complaint, the judgment itself is full of charges and counter-charges which suggest a working environment at the ISA that will make the grand task of management of the oceans under UNCLOS a shaky and questionable venture.
The tribunal judgment refers to Nandan’s office sending a letter citing “additional matters” to be raised against Sam-Thambiah, including “allegations of dealings with junior female staff, which bordered on sexual harassment, and allegations of downloading pornographic material from the Internet during office time and with office equipment.”
There is no way, of course, to determine if any of these allegations were true or whether they were peddled in an attempt to discredit Sam-Thambiah and divert attention from his charges of mismanagement and irregularities in the ISA.
We do know that UNCLOS gives the ISA jurisdiction over exploration and exploitation of potentially billions of dollars worth of oil, gas and mineral resources in the “area” beyond 200 miles of a nation’s territorial seas. UNCLOS also gives the ISA the power to charge application “fees” to companies or countries to gain access to the resources.
Alluding to this function, a 1995 report by the United Nations Association on “Sharing the Burden of Financing the United Nations” noted that “only” the ISA “has authority today to directly collect international revenues to finance its activities.” But UNCLOS supporters don’t like calling this a global tax.
Under various provisions of UNCLOS, the ISA can distribute some of these funds to Third World countries and “national liberation movements,” which are designated in Article 140 as “peoples who have not attained full independence or other self-governing status…”
One such movement, identified in the current 2007 International Seabed Authority Handbook, is the Palestine Liberation Organization, now identified simply as “Palestine.” The handbook lists “Palestine” under the category of “National liberation movements which in their respective regions are recognized by the Organization of African Unity or by the League of Arab States.” Israel, like the U.S., has so far refused to ratify UNCLOS.
Records show that the PLO was one of eight official “liberation movements” participating as observers at sessions of the U.N. conferences which produced UNCLOS. Another was the Patriotic Front of Zimbabwe, headed by Robert Mugabe.
One controversial and extremely vague UNCLOS provision, Article 82, is titled, “Payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles.” It declares that a coastal state, such as the U.S., shall make “payments or contributions” through the ISA, “which shall distribute them to States Parties to this Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.”
No one seems to know how much this will cost the U.S.
Peter Sterling of United Oil & Gas Consortium Management Corp. has noted:
“[The ISA] officially came into existence in 1994 but its first Secretary-General, Satya Nandan of Fiji, wasn’t elected until March 1996. The Authority didn’t become fully operational until June 1996. It wasn’t until 2000 that the Assembly of the Authority issued regulations on prospecting and exploration for polymetallic nodules. It was in 2001 that the Authority entered into the first 15-year contracts for exploration for them. This is the only ‘legislative’ accomplishment to date of the Authority. No rules are available for actually mining polymetallic nodules and none are being recovered commercially nor are they ever likely to be under the ill-conceived ISA regime.
“The world has been waiting for ISA regulations for years on such matters as prospecting and exploration of seabed sulfides. The Authority has been working very slowly on these regulations for five years now. Regulations on prospecting and exploration for oil-gas and methyl-hydrates are still to come. But nobody knows how long those will take…
“It just doesn’t make any practical sense to subject U.S. companies to the proposed onerous imports, taxes, dictates and bureaucratic inertia of the International Seabed Authority.”
Until 1998, the expenditures of the ISA were covered by the United Nations budget. This is when “assessments” began on its members for contributions. But as of August 2006, 51 members of the ISA were officially “in arrears” and had failed to pay their dues to the organization. Only 65 members of the ISA―less than half of its total membership―showed up at the entity’s twelfth session, causing Secretary-General Nandan to complain about “poor attendance.” This has been a frequent complaint.
Indeed, a U.N. press release about a 2003 meeting of States Parties to the Law of the Sea Convention reported that “Noting the low level of attendance at the Authority’s meetings in Kingston, Jamaica, he [Nandan] said it had declined to the point where it was difficult to secure a quorum needed to take decisions.” One participant from the country of Benin insisted that the absence of some developing countries from the proceedings “was due to the lack of resources” and “He supported the idea of providing funds for participation of African States, especially least developed countries, in the work of the Authority.” U.S. ratification of UNCLOS could make such funding possible, courtesy of U.S. taxpayers.
In August 1998, according to a detailed report by Michael C. Wood, who served on the ISA’s finance committee, the ISA faced a “considerable cash-flow problem” and the ISA Assembly adopted a resolution urging members to pay contributions as soon as possible. The ISA’s budget “increased substantially, doubling between 1996 and 1999,” he noted. A “large proportion of the budget goes on conference services and on administrative matters, and relatively little on the substantive work of the Authority, though the 1999 budget shows a modest but welcome shift of emphasis in this regard (including a reduction in conference servicing costs),” he added.
Whatever happens to UNCLOS in the Senate, the Congress still has the ultimate say on whether to fund the ISA. In the House of Representatives earlier this year, when the fiscal year 2008 State Department spending bill was being considered, Rep. Roy Blunt successfully submitted an amendment prohibiting U.S. funding of the International Seabed Authority.
The membership of the Senate Foreign Relations Committee can be found here.