WILL THE SENATE DEEP-SIX U.S. SOVEREIGNTY?

Law of the Sea Treaty is being presented for ratification--again

By Marilyn M. Brannan, Associate Editor

Information Radio Network News

November 1, 2007

“The essential arguments of treaty supporters are pure international ‘lawyerese’—we are told that UNCLOS will somehow ‘guarantee’ our maritime rights.  Meanwhile, the State Department would have a seat at the table with 155 other nations in a “one nation, one vote” situation at the International Seabed Authority.  We would have as much influence as we do in the UN General Assembly, where we are constantly outvoted.”—John Fonte, Senior Fellow, Hudson Institute

The Senate Foreign Relations Committee voted 17-4 on October 31 to approve the Law of the Sea Treaty, meaning it’s now up to 34 Senate Republicans to deep-six this monster.

As we saw with the so-called Immigration Reform bill that the Bush administration and a phalanx of supporters tried unsuccessfully to ram through Congress this summer, there has been a dearth of information provided to the American public about the latest stealth agenda, The Law of the Sea Treaty (LOST).  As with the immigration reform bill, there has been a near-blackout in the liberal media about this treaty and its potentially devastating effects. Apart from a front-page article in the Washington Times (“They Just Don’t Get LOST,” October 25, 2007), and postings by a few on-line news outlets, bloggers and a couple of newsletters, there has been little information provided to the American public about the serious threat posed by LOST if ratified by the Senate.

Senator Jon Kyl (AZ) has indicated that Republican leaders in the Senate have deep misgivings about the inevitable effects of LOST, as it would further empower international organizations at the expense of U.S. sovereignty.  The widespread opposition among Republican leaders over LOST has been virtually unreported in the liberal media.

What is UNCLOS, or LOST?

The treaty that would bind the U.S. and other nations to a myriad of regulations and restrictions is known as the Law of the Sea Treaty (LOST), negotiated between 1973 and 1982 under UNCLOS, the United Nations Convention on the Law of the Sea.  UNCLOS established a transnational institution, the International Seabed Authority (ISA), to regulate maritime activities for over 70 percent of the earth’s surface.  The Convention creates rules governing ocean navigation, conservation, and seabed mining. 

President Reagan raised concerns about LOST in 1982, and the U.S. did not ratify it.  It was revived through new negotiations under President George H. W. Bush.  President Clinton sent it to the Senate during his tenure, but it failed ratification.  The current White House has called for the Senate to ratify LOST, claiming that objections raised by Reagan were fixed by a 1994 amendment. The 1994 amendment did get rid of some of LOST’s objectionable provisions, such as mandatory technology transfers and other strategies for resource redistribution, but it fell far short of “fixing” other problematic provisions in the Treaty.

Opposition

Among those who strongly oppose LOST, on grounds that it would significantly undermine American sovereignty, are Edwin Meese and William Clark, Attorneys General in the Reagan administration; John Lehman, former Secretary of the Navy; and John Bolton, diplomat and former ambassador to the UN. 

Political opposition in Congress includes Senators Vitter (R-LA), Inhofe (OK), DeMint (SC), Kyl (AZ), Sessions (AL), Ensign (NV), Lott (MS), Cornyn (TX) and McConnell (KY).  Presidential candidates Fred Thompson, Mike Huckabee, Tom Tancredo, and Duncan Hunter have expressed their opposition to LOST.  Mitt Romney says he “has concerns” about the treaty “giving unaccountable international institutions more power.”

Retired Admiral James “Ace” Lyons (former commander of the Pacific Fleet) declared that it is “inconceivable” that the “Senate would willingly want to forfeit its responsibility for America’s freedom of the seas to . . . [an] unaccountable international agency.”

The treaty’s sheer size, with 320 articles and nine annexes, is daunting, to say the least.  The Treaty covers everything from “criminal jurisdiction on board a foreign ship” (Article 27) to “Anadromous stocks” and “Catadromous Species” (Articles 65 and 665, which pertain to spawning habits of various species of fish) to the “Jurisdiction of the Seabed Disputes Chamber” (Article 187).

Pros and Cons

One of the arguments being made for ratification is that we need ‘a seat at the table’ to influence the rules.  However, America’s experience with similar multinational bodies such as the UN Human Rights Commission hardly inspires confidence that “having a seat” will enhance our influence.

From a practical standpoint, nations with mutual concerns—a direct Arctic claim, for example—ought to be able to cut a deal “without giving Cuba or Zimbabwe a seat” (Wall Street Opinion Journal, “A Sinkable Treaty,” 11/03/07). 

The Navy likes the “legal framework for navigational rights” that they believe LOST would afford, despite the fact that the Navy has been getting along just fine for three centuries by using the “customary law” that has guaranteed freedom of the seas.  Another troubling aspect of LOST is Article 20, which states, “In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.”  It is not hard to imagine what effect this would have on the ability of U.S. submarines to gather intelligence in coastal waters or deploy special forces on hostile shores (the very raison d’etre for the $1 billion submarine called the USS Jimmy Carter).

The oil and gas industry approves of provisions that create an “exclusive economic zone” for the U.S. out to 200 miles.  Supporters also see great potential for development of resources in the deep seabed, which would be managed by the International Seabed Authority (on which the U.S. would have a seat). But critics are rightly concerned about the powers of direct taxation that LOST confers on the International Seabed Authority.  The details of this innovation are buried in Article 13 of the third annex and contain a mix of “production charges” and annual million-dollar “administrative” fees.  Such measures are a veritable invitation to corruption, especially when the taxes can run as high as 70% of net proceeds.

LOST: Do Members of Congress Have a Clue?

The Washington Times  (October 25, 2007) raised an unsettling point by reminding us that “sometimes even a proposal that has been around forever manages to crawl forward without anyone seeming to have read it.”  One has to wonder if LOST supporters in the Bush administration and in Congress actually know what is in the Treaty.

During a recent Foreign Relations Committee hearing, Sen. Vitter asked State Department Legal Advisor, John Bellinger II, if the treaty would cover pollution from land-based sources.  Bellinger replied, “We’ve worked our way through the Treaty.  We are confident that pollution from land-based sources would not be subject to the jurisdiction of the tribunals or arbitral panels.”  But Vitter, one of few who actually seem to have read the Treaty, responded, “I would point you to Section 6, Article 213, page 176, which is about enforcement with respect to pollution from land-based sources.  It seems to me the very title of that article at least sets up a prima facie case that your statement isn’t correct.”

The chairman of the Senate Foreign Relations Committee, Joe Biden (D-DE), ignored requests from one of his colleagues, Sen. David Vitter, for additional hearings and additional testimony from those opposed to the Treaty. The Center for Security Policy reported that Biden, who scheduled the two hearings that were held, did not attend either of them, nor did two other panel members who also happen to be presidential candidates—Barack Obama and Chris Dodd (CSP Decision Brief, “LOST Runs Silent, Runs Deep,” October 29, 2007). 

Two critics of the Treaty were given just seven minutes each to provide their oral testimony.  On the other side, several of the nine proponents of the Treaty provided misleading testimony about various provisions of the LOST and their ominous implications. Formal requests from Sen. Jim Inhofe, asking the Foreign Relations Committee to examine the Treaty’s myriad repercussions, have gone unanswered.

The Devil in the Details

As John Fonte, Senior Fellow at the Hudson Institute, puts it, “The ultimate question of democratic politics is who ‘decides.’”  With that in mind, it is critical that the American people and their representatives in the Senate understand how disputes between signatories to LOST would be handled.

-- Under UNCLOS (the convention upon which the Law of the Sea Treaty is based) disputes between the U.S. and other parties are settled by mandatory arbitration.  Final decisions are made either by a permanent International Tribunal for the Law of the Sea in Hamburg, Germany, or by an ad hoc court.

-- The Hamburg tribunal consists of 21 judges chosen by member nations, many of them unfriendly to the U.S.

-- An ad hoc court would consist of five judges, two chosen by the U.S., and two chosen by the other party.  The fifth judge (and obviously, the deciding vote) is chosen either by the Secretary General of the UN or by the Hamburg tribunal.  The decisions are final and binding, with no appeal.

International law professor Jeremy Rabkin cites an example of how our sovereignty as a nation would likely be threatened.  He points out that when the Cambodian communists seized the USS Mayaguez in Cambodian waters in 1975, President Ford responded with military force to rescue American sailors and free the ship.  Rabkin notes this type of action would be “problematic” under UNCLOS.  If a treaty signatory (China or Burma, for example) were to seize a U.S. ship in its home waters, the U.S. could not, under the terms of LOST, free our sailors by force; rather, the U.S. would have to submit to mandatory arbitration by the Hamburg tribunal or an ad hoc court, where the U.S. “could very likely” lose the case.  The bottom line is that vital decisions over American security and American lives would not be made by Americans, but by foreign judges, many of them unsympathetic or even hostile to American interests. (John Fonte, “LOST at Sea,” National Review, October 29, 2007)

Supporters of LOST argue that member states can claim an exemption from binding arbitration for “military activities.”  They also point out that the U.S. will attach a special “understandings” clause to the treaty that states any interpretation of what constitutes “military activities” will be defined by the U.S.  This is naive. 

The U.S. might issue an “understanding” that intelligence gathering against China is a legitimate “military activity,” but it is the transnational judges who would decide the matter.  LOST explicitly forbids any “reservations” by a ratifying member state on substantive issues; thus, the special “understandings” the Bush administration plans to add would not fly.  Under UNCLOS, the Hamburg judges would ultimately decide what is and is not a “military activity.”

In the event of an international tribunal ruling against the U.S. and in favor of China, it is highly unlikely an American administration would suddenly withdraw from UNCLOS and alienate the so-called “international community” who were parties to the Treaty.

Once the Senate ratifies a treaty, we are bound by the entire treaty, not just those parts we agree with.  A treaty supersedes state laws.

What Else Do We Need To Know About LOST?

• Ronald Reagan rejected the Law of the Sea Treaty twenty-five years ago.  We have survived since then without being a part to it. There is no justification for haste—let along stealth—in pressing for ratification of this treaty. 
• We should follow President Reagan’s directive while he was in office and observe the Treaty’s provisions regarding navigation (with which we can live) but not be bound by those provisions hostile to our interests. As signatories to LOST, we would not have those choices.
• The American public is rightfully suspicious of secretive initiatives that would undermine U.S. sovereignty; compromise our constitutional form of government and its exclusive responsibility for regulating our national affairs; and endanger our security interests and our economic competitiveness.
• American voters should not be swayed by the fact that President Bush and establishment elites support such controversial initiatives.
• Our republican form of government requires lawmakers to carefully consider the consequences of every law or treaty they approve. Every Senator needs to take a few hours to actually read the Law of the Sea treaty before they put it to a vote.

Some 154 countries have ratified the Law of the Sea Treaty; the U.S. is one of the few holdouts.  Critics of LOST are being labeled “isolationist” or worse, but the U.S. has been abiding voluntarily with fundamental terms of the treaty since 1983—with no ill effect. 

Essentially, the battle over the Law of the Sea Treaty boils down to a fierce struggle between those who support the founding principle of American self-government and the so-called “transnational progressives” who support global governance.  Unfortunately, there are many of the latter who hold powerful positions in the U.S. Senate and are energetically pressing for Senate ratification of LOST.

Ronald Reagan had it right.  Now, it’s up to 34 Republican Senators to demonstrate the courage of Reagan.

“Will Americans rule themselves—or be ruled by others?  This is to be the great question of the 21^st century.” –John Fonte, Senior Fellow, Hudson Institute