Wednesday, July 16, 2008

LOST oil prophets

By Ben Lerner

From The American Spectator

Against the alarming backdrop of gasoline prices at over $4 a gallon, oil industry executives are busily working the halls of Congress to make the case for increasing domestic oil supply. In addition to pushing for access to the Arctic National Wildlife Refuge (ANWR) and oil reserves off the east and west coasts, however, some industry reps are also rehashing the argument that the Law of the Sea Treaty (LOST) presents an opportunity further to secure American oil by "locking in" drilling rights in our Arctic continental shelf.

It should arguably be self-evident to the oil industry, based upon its own long and difficult experience with trying to open up additional domestic sources, that LOST enthusiasts are promising much more than our politicians have shown a willingness to deliver. Were the industry to think things through and conduct its due diligence on this treaty, it would also be self-evident that LOST will impose severe costs on American oil companies, leaving the consumer stranded at the pump with even higher gasoline prices, after having been led to believe that salvation lies beneath the polar ice.

On paper, LOST provides a mechanism through which a state party can seek to expand the outer limits of its continental shelf beyond the standard 200 miles from shore, and exploit the natural resources within that area. Under procedures laid out in Annex II of the treaty, the petitioning party submits geologic data and makes its case for expansion before a LOST body called the Commission on the Limits of the Continental Shelf, which then makes its determination as to the claim. The American Petroleum Institute and other industry players have therefore estimated that under LOST, the U.S. could expand its mineral exploration/development area by just under 300,000 square miles.

Sounds like a great way to bring more oil on-line, and bring gasoline prices down, until one is faced with two harsh realities: the persistent division within Congress on domestic oil exploration, and the persistent agenda of the international community to "level" the global economic playing field at the expense of American enterprise.

It has become abundantly clear over successive Congresses and administrations that the political will to expand domestic oil/gas extraction simply does not exist. Even now, with President Bush pushing Congress to lift the ban on offshore exploration and open ANWR, Speaker Pelosi's response has been to dismiss these proposals as "more of the same failed policies of the past..."

This gridlock over ANWR and offshore drilling, of course, has been with us for decades. In 2005, even with a supportive President and a House and Senate controlled by largely supportive Republicans, ANWR leasing could not find its way into that year's energy bill. Merely considering the idea became a non-starter with the 2006 Democratic takeover of both chambers redefining the legislative landscape.

Offshore drilling has so far not fared any better. Repeated attempts to lift decades-old bans on it have failed, even with mechanisms thrown into energy legislation over the years that would have allowed coastal states the opportunity to permit or deny exploration at various distances off their respective coasts.

Then there's the polar bear, which Interior Secretary Kempthorne announced in May he was listing as a threatened species under the Endangered Species Act. Although his office has asserted that the listing will still allow energy production in Alaska, members of Congress -- including Rep. Edward Markey, chairman of the House Select Committee on Energy Independence and Global Warming -- have expressed strong objections to any such notion. Do we really believe none of this will resurface if oil companies are given the green light to drill in our section of the Arctic continental shelf?

GIVEN ALL OF THIS, is there really any basis on which the oil industry can assume that more area on which to drill in theory will result in more drilling opportunities in practice? In all likelihood, any newly acquired continental shelf will likely be locked away with the rest of the oil prospects. As hopeful as the industry may be, pushing LOST to increase oil supply is ultimately akin to Sisyphus rolling his rock up the hill, doomed to watch it fall to the bottom yet again.

Suspending disbelief for the moment and assuming new drilling would be allowed, joining this treaty would be far from cost-free, either for the oil industry or for the American consumer. As has been thoroughly documented by Lawrence Kogan of the Institute for Trade, Standards and Sustainable Development, the marine environmental protection requirements emanating from LOST are rooted in the European-derived "precautionary principle," a legal tenet requiring assurance that a proposed action will cause no harm to the environment before proceeding. The costs of this regime are real, and the risk is not hyperbole -- according to a recent front page article from the Washington Post, American chemical companies must now conform to recently passed EU laws premised exactly upon this principle, which affected companies are saying will add billions to their costs.

Other pitfalls for the industry lie buried deep within the treaty text. LOST contains numerous technology transfer requirements that will undoubtedly be used to compel American oil companies to hand over sensitive technologies to other nations. LOST's provisions on prevention of marine pollution from land-based sources could easily serve as a convenient peg on which to hang the greenhouse gas-regulating Kyoto Protocol, even though that treaty has also never been ratified. All of these increased costs of doing business will predictably be passed on to the consumer, the addition of American Arctic oil to the market notwithstanding.

The American people are rightfully demanding solutions to our energy crisis, but make no mistake: LOST is not one of them. Big Oil's arguments to the contrary ignore the political track record on increasing domestic supply while underestimating the harm that LOST will likely inflict upon the industry, with the effect of raising gas prices, not lowering them. So much for locking in relief.

This article appeared originally in The American Spectator.

Ben Lerner is Senior Research Associate with the Center for Security Policy in Washington, D.C.

Monday, June 30, 2008

Message from the dolphins?

By Jeremy Rabkin and Ben Lerner

from The Washington Times

The Supreme Court agreed last week to hear an appeal in Winter v. NRDC. The case concerns injunctions forcing the U.S. Navy to discontinue use of sonar detection systems off the California coast, because environmental advocates fear the sonar will injure marine mammals like dolphins.

The risk to dolphins is disputed. Meanwhile, the government claims that training naval crews with sonar detection devices is crucial preparation for war at sea. The relevant environmental statute does provide an exemption for military measures, but the lower courts decided training activities were not urgent enough to qualify for it. Now the Supreme Court will decide whether courts should heed the military experts or the environmental advocates.

The odds are good that the Supreme Court will heed the arguments pressed on behalf of the Navy. The Supreme Court often overrules overreaching by the left-leaning U.S. 9th Circuit Court of Appeals, which is based in San Francisco.

But what if the previous ruling against the Navy hadn't come from a lower federal court but from an international tribunal? Would our own Supreme Court then have to go along? The answer might well be yes, if the United States ratifies the U.N. Convention on the Law of the Sea (UNCLOS), as the Senate Foreign Relations Committee has urged.

UNCLOS establishes an international seabed authority with power to promulgate standards for the protection of "resources" in or under the high seas, including animal life. UNCLOS allows this authority or other states to make claims against a signatory that fails to honor protective standards. If such disputes can't be resolved voluntarily, they can be brought to the International Tribunal for the Law of the Sea or to a special arbitration panel, whose key members would be chosen by international authorities.

The Law of the Sea treaty makes participation in such proceedings "compulsory." That means the tribunal or the arbitration panel can go ahead even if the charged party thinks the proceedings are improper or inappropriate in the circumstances. States can invoke an exemption for "military activities." But since that term is not defined in the treaty, it will be up to international authorities to say when it applies. They are most unlikely to read this exemption as broadly as the United States would like to do.

What happens if an international court takes a different view of U.S. naval practices than we do? We got a disturbing hint in March from the Supreme Court. In Medellin v. Texas, the court ruled Texas courts were not bound to obey a decision of the International Court of Justice.

The ICJ had ordered Texas not to execute a Mexican national, because his conviction for murder) was obtained without notifying Mexican consular officers of the trial (as required by an international treaty on consulates, which the United States has long embraced.).

A majority of the Supreme Court agreed that Texas was not bound by the ICJ ruling. But no justice said Texas could never be bound to obey an international tribunal. Three dissenters insisted the ruling of the ICJ should now have been treated as binding law within the U.S. legal system. The majority simply held that the treaty which allowed Mexico to pursue its dispute over Medellin's case did not make clear it would be "self-executing" - that is, given direct, binding effect within the U.S. legal system.

Even the majority acknowledged that some treaties could operate this way, so long as language in the treaty (confirmed or not contracted by the U.S. ratification resolution) indicated an intention to give it direct effect in domestic law.

Will the Convention on the Law of the Sea work this way? Justice John Paul Stevens, in a concurring opinion, pointed to provisions in UNCLOS which, he said, clearly indicated decisions of the Law of the Sea tribunal must be treated as binding by U.S. courts. No other justice challenged that claim. The matter is still uncertain, but Medellin suggests a majority of justices may already be ready to treat decisions of international courts or arbitration panels as binding authority for U.S. courts.

If we do ratify UNCLOS and we find there are lots of problems from letting its tribunals dictate U.S. law, Congress might try to enact legislation directing U.S. courts not to adhere to international rulings in this area. But that would probably provoke a great deal of condemnation from foreign governments, protesting American bad faith.

The United States might try to withdraw from UNCLOS altogether. But that response would surely provoke intense international controversy, too.

Here's a suggestion: Why don't we look more carefully before committing to this treaty? The Senate Foreign Relations Committee has persuaded itself that the treaty is good for foreign relations. Why not have the armed services committees in both houses consider what changes the treaty might impose (or require us to make) in activities of the Navy?

Why not have congressional committees with jurisdiction over environmental protection and commerce look at other implications?

We have had some recent warning lights. At the very least, we shouldn't ratify this treaty without giving U.S. courts more direction from Congress about what - or who - it would commit them to heed.

Jeremy Rabkin is a professor of international law and constitutional law at George Mason University. Ben Lerner is senior research associate at the Center for Security Policy.

Wednesday, June 18, 2008

LOST in the Arctic: The U.S. Need Not Ratify the Law of the Sea Treaty to Get a Seat at the Table

by Steven Groves
Heritage Foundation

Last month at the Arctic Ocean Conference (AOC) in Ilulissat, Greenland, high-level diplomats from the United States and the other four nations that border the Arctic region--Canada, Denmark, Norway, and Russia--met to discuss territorial claims regarding the Arctic Circle. At the conclusion of the meeting, the five countries issued a joint statement declaring that, "[b]y virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean," each nation was in a unique position to address the exploitation of natural resources in the Arctic.[1]

The AOC was conceived in response to controversial actions undertaken by the Russian Federation. In August 2007, one of Russia's deep-water submersibles planted a flag on the sea floor beneath the North Pole.[2] Several U.S. politicians and media outlets seized on the Russian stunt as an opportunity to push for Senate ratification of the contentious United Nations Convention on the Law of the Sea (LOST). They adopted the mantra that the United States, if it fails to ratify LOST, "will not have a seat at the table" to resolve territorial claims such as those in dispute in the Arctic. For example:

  • Senator Richard Lugar (R-IN), at a September 27, 2007, Senate Foreign Relations Committee hearing regarding LOST, lamented that "Russia is already making excessive claims in the Arctic. Until we become a party to the Convention, we will be in a weakened position to protect our national interests in these discussions."[3]
  • Deputy Secretary of State John Negroponte, at that same hearing, echoed Senator Lugar's sentiment: "Setting aside its recent flag planting...Russia's continuing data collection in the Arctic reflects its commitment to maximizing its sovereign rights under the Convention over energy resources in that region. Currently, as a non-party, the United States is not in a position to maximize its sovereign rights in the Arctic or elsewhere. We do not have access to the [U.N.] Commission [on the Limits of the Continental Shelf]'s procedures for according international recognition and legal certainty to our extended shelf."[4]
  • In October 2007, The New York Times, after dismissing opponents of LOST as "cranky right-wingers," editorialized that "[t]he steady retreat of the sea ice in the Arctic Ocean...has touched off a scramble among nations to determine who owns what on the ocean floor. Unless the United States ratifies the treaty, it will not have a seat at the table when it comes time to sort out competing claims."[5]
  • A March 2008 New York Times editorial repeated the "seat at the table" theme: "[President Bush] must keep the pressure on Congress to approve, finally, the Law of the Sea. Without that approval, the United States will have no voice when decisions are made about rights of passage, exploring the ocean floor and fishing."[6]
  • An August 2007 editorial in The Christian Science Monitor opined that the United States "may not have a good seat at the table to decide [the Arctic's] future" because it is not a party to LOST.[7]

Senator Lugar, Ambassador Negroponte, and The New York Times are merely repeating an argument previously asserted by the White House. For example, in May 2007, President Bush issued a statement on "advancing U.S. interests in the world's oceans" that declared: "I urge the Senate to act favorably on U.S. accession to the United Nations Convention on the Law of the Sea during this session of Congress.... [I]t will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted."[8]

However, the United States was still invited to and attended the AOC despite the fact that it is not a party to LOST. Such active participation in the debate over Arctic territorial claims disproves any contentions that the United States' "seat at the table" is contingent upon its ratification of LOST.

A Valid Assertion of Rights

By attending the Ilulissat conference, the United States acted as an independent, sovereign nation should act. The U.S. has interests in the Arctic that are worthy of protection,[9] and meeting with other interested nations in a multilateral setting was the proper protocol for securing such interests.

Yet even if the government of Denmark had decided not to invite the United States to the Ilulissat meeting--thereby depriving it of a "seat at the table"--U.S. interests would not have been negated. Denmark, Russia, Canada, Norway, or any other nations are unable to assert credible claims on U.S. territory in the Arctic or anywhere else in the world. Indeed, the United States secured its rights to the resources on its continental shelf when, in Presidential Proclamation No. 2667, President Harry S. Truman declared:

I, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the continental shelf.

Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.[10]

In making this declaration, President Truman ensured that any crude oil, natural gas, minerals, and any other resources discovered beneath the U.S. continental shelf were the property of the United States. Such resources belong to the United States because fate or Providence placed them beneath the U.S. continental shelf; the matter was no longer open to debate.

A Sovereign and Independent Nation

President Truman, acting as the leader of a sovereign and independent nation--and without the permission of the United Nations or the "international community"--did not believe that the U.S. needed to be party to an international treaty such as LOST before he declared U.S. rights over its own resources. Rather, the only "seat at the table" President Truman required when he made Presidential Proclamation No. 2667 was the chair behind his desk in the Oval Office.

The "seat at the table" argument has been thoroughly debunked by U.S. participation in the Arctic Ocean Conference. Membership in an international treaty is clearly not required to secure and protect sovereign rights to a nation's own territory, whether such land is located in the Arctic or anywhere else in the world.

The United States should continue to behave in the international arena as a sovereign and independent nation and not as a country that looks to the United Nations or the "international community" to determine its own rights.

Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.

[1] "The Ilulissat Declaration," Arctic Ocean Conference, May 27-29, 2008, at
(June 13, 2008).

[2] Doug Struck, "Russia's Deep-Sea Flag-Planting at North Pole Strikes a Chill in Canada," The Washington Post, August 7, 2007, at
(June 13, 2008).

[3] Senator Richard Lugar, "Opening Statement for Hearing on the UN Law of the Sea Convention," Committee on Foreign Relations, U.S. Senate, September 27, 2007, at (June 13, 2008).

[4] John D. Negroponte, "The UN Convention on the Law of the Sea," written testimony before Committee on Foreign Relations, U.S. Senate, September 27, 2007, at (June 13, 2008).

[5] Editorial, "Twenty-Five Years and Counting," The New York Times, October 31, 2007, at
(June 13, 2008). A previous New York Times editorial described opponents of LOST as "a tiny but noisy group of xenophobic activists." Editorial, "Rescuing the Law of the Sea," The New York Times, August 22, 2004, at
(June 13, 2008).

[6] Editorial, "Oceans at Risk," The New York Times, March 9, 2008, at (June 13, 2008).

[7] Editorial, "Scramble for the Arctic," The Christian Science Monitor, August 21, 2007, at (June 13, 2008).

[8] Press release, "President's Statement on Advancing U.S. Interests in the World's Oceans," The White House, May 15, 2007, at
(June 13, 2008).

[9] See the forthcoming Heritage Foundation Backgrounder by Ariel Cohen, Ph.D., regarding U.S. Arctic policy.

[10] Presidential Proclamation No. 2667, "Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf," September 28, 1945, at (June 13, 2008). Subsequent legislation further defined the U.S. continental shelf; see, for example, the Outer Continental Shelf Lands Act of 1953, 43 U.S.C. § 1331.

Friday, March 21, 2008

Sirens in the Strait

by Ben Lerner

In ancient Greek mythology, the Sirens were beautiful sea-maidens, known for chanting sweet melodies to lure hapless sailors into dangerous waters, only to face their demise amongst the jagged rocks. Today's Sirens are similarly dangerous, using the promise of peace and stability on the oceans to lure various American constituencies into the perilous contours that make up the United Nations Convention on the Law of the Sea (also known as the Law of the Sea Treaty, or LOST).

Because the melody takes many forms, numerous analysts have dutifully responded by providing warnings, on these pages and elsewhere, about the various pitfalls and shortcomings contained in this Treaty. We have yet to see, however, a direct response to a particularly disingenuous and dangerously naive siren song: the assertion that our maritime interaction with the terrorism-sponsoring, petro-dictators of Iran could prove less explosive, if only we sign up for the "legal order for the seas and oceans" that LOST holds itself out to be.

In the ongoing debate over whether to subject American maritime interests to the whims of the "international community," a subset of LOST proponents have taken to pointing to the January 2008 near-altercation between U.S. warships and Iranian speedboats in the Strait of Hormuz as evidence of the necessity of U.S. ratification. The notion, however, that accession to LOST either could have prevented such a confrontation or will effectively do so in the future reveals both a lack of understanding about the nature of the leadership in Tehran, as well as a remarkable lack of understanding of the Treaty's potential to enable and encourage Iranian aggression against the United States.

The incident at issue occurred on January 6, 2008, when, according to accounts by the U.S. Navy, five armed Iranian speedboats manned by the infamous Iranian Revolutionary Guard Corps aggressively approached three American warships in the Strait. The speedboats maneuvered very close to the convoy, with at least one coming within 200 yards of one of the ships. Navy recordings picked up a heavily accented voice in English, the exact source of which was not entirely clear, saying "I am coming to you...You will explode after a few minutes." One of the speedboats proceeded to drop several small, white box-like floating objects in the path of the American convoy.

In the course of the exchange, an American sailor was recorded as saying, "This is a coalition warship. I am engaged in transit passage in accordance with international law. I intend no harm." After ignoring this and other repeated warnings from the warships for roughly 30 minutes, the speedboats fled as American commanders prepared to open fire. In a briefing given shortly after the incident, Vice Admiral Kevin Cosgriff, Commander of U.S. Naval Forces Central Command, maintained that the warships were traveling 15 miles from Iranian land territory at the time, and therefore outside the outer limits of the 12-mile Iranian territorial waters.

For its part, Tehran accused the United States of "fabricating" the video and audio footage that captured the episode. The Revolutionary Guard Corps maintained that it only asked the warships to identify themselves, as is typical Iranian practice with respect to ships passing through the Strait of Hormuz, according to the Iranian Defense Minister. Vice Admiral Cosgriff responded that the American vessels were clearly marked, and had been identified by Iranian authorities earlier that day.

From this incident flows the argument in some quarters that American ratification of LOST will take away Iran's "pretext" to challenge American warships in the Strait of Hormuz as it did in January. Apparently, by approving our previous signature to a piece of paper, the U.S. will change Iranian behavior by somehow strengthening the American position that LOST's provisions allowing "transit passage" through international straits, such as the Strait of Hormuz, are already customary international law, of which the U.S. is entitled to avail itself.

Of course Iran, while having signed LOST, has yet to ratify it, and therefore would not be bound by any of its terms even if we were to commit ourselves. Putting that aside, with respect to Washington-Tehran tensions, American ratification of LOST would at best severely constrain American rights on the oceans while allowing Iran to continue to thumb its nose at whatever "international consensus" emerged on the Strait of Hormuz or other issues. Moreover, at worst, Iran could opt to ratify LOST in response, enabling Ahmadinejad and his masters to exploit the myriad opportunities the Treaty provides for waging "lawfare" against the U.S. in ways that put our national security at grave risk.

To assert that American ratification will strengthen the U.S. position on legality of passage in the Strait by bringing other countries on board with our interpretation is to ignore Iran's track record of non-responsiveness to any semblance of international consensus. By all accounts, Iran remains well on its way to the level of independent uranium enrichment that would allow it to have nuclear weapons, despite successive rounds of United Nations sanctions intended to force Iran to suspend such activities. Through its proxy, Hezbollah, Iran also continues to disregard the U.N.'s explicit recognition that Israel, by withdrawing from southern Lebanon in 2000, fully implemented U.N. Security Council Resolution 425 -- adherence to which was supposed to eliminate the "pretext" for further Hezbollah (Iranian) attacks. And of course one could write a treatise on Tehran's ongoing persecution of religious minorities, despite the oft-expressed global condemnation of such practices, including most recently the State Department's designation of Iran as a "Country of Particular Concern" on such matters.

If, for the sake of argument, there was reason to believe Iran would take seriously any global consensus on passage through the Strait of Hormuz that would supposedly emerge from American ratification of LOST, the U.S. would still be paying far too high a price simply to codify what we already maintain is our right under customary international law. Under LOST, state parties have the ability to use any number of LOST provisions to undermine American sovereignty and security.

The text of LOST would prevent Navy vessels from engaging in the very activities necessary for a strong national defense, for example, by reserving the oceans for "peaceful purposes" and prohibiting submarines from traversing below the surface in territorial waters, and would require the U.S. to transfer knowledge of sensitive marine technology to requesting parties. Although some contend that we already adhere to some of the navigational practices found in LOST, either because we recognize them as customary international law or consider ourselves bound to such practices by previous (non-LOST) treaty commitments, this Treaty alters the framework entirely by requiring state parties to submit to mandatory dispute resolution mechanisms, the rulings of which are binding and without appeal.

While the Department of Defense has maintained that American military activities will be exempt from dispute resolution, and that in any event the U.S. will only submit to LOST arbitration panels where the DoD insists we will win handily, there is plenty of room for abuse. "Military activity", while nominally exempt from any dispute resolution, remains undefined in the treaty, leaving opportunity for parties hostile to U.S. interests to frame our exercises or operations as "environmental" activities subject to arbitration. The recent ruling by a U.S. District Court judge that sonar training off of the West Coast was not a national security issue, but rather an environmental issue subject to the constraints of federal environmental statutes, illustrates the reality of this risk.

This danger would be magnified in a LOST arbitration panel. Under LOST, if the disputing parties cannot agree on the make-up of the panel, the fifth panelist must be chosen by either the President of the International Law of the Sea Tribunal, or the Secretary General of the United Nations, neither of whom could be relied upon to select a "swing" panelist that would not, acting out of ultimately political motives, tip the panel against the U.S.

Even without any subsequent Iranian ratification, countries that are already party to LOST-- including China and Russia, with their increasingly aggressive territorial claims and military confrontations with the U.S. -- could take advantage of the obligations buried in the treaty text to our detriment. Iran, were it to ratify LOST, would be no less inclined to wage such lawfare to accomplish what five Revolutionary Guard Corps speedboats could not.

The United States cannot afford to be seduced by those who overestimate Iran's sense of global responsibility while underestimating its potential to use LOST as yet another asymmetrical weapon. American sovereignty, an unfettered Navy, and where applicable, customary international law, remain our best tools for ensuring stability in critical ocean pathways like the Strait of Hormuz.

This article first appeared in American Spectator, and can be viewed in its original form here.

Thursday, February 7, 2008

CPAS Press Release: "Judge Delivers 'Lawfare' Victory Against the Navy and to the Benefit of Americas Enemies"

(Washington, D.C.): Yesterday, a federal judge overruled President Bush’s January, 2008 waiver exempting the Navy from environmental statutes that the Natural Resources Defense Council (NRDC) had previously argued should prevent the Navy from conducting critical sonar training off the coast of California. In light of this ruling, the Coalition to Preserve American Sovereignty once again urges the President to withdraw his support for the Law of the Sea Treaty (LOST), the ratification of which would undoubtedly result in similarly adverse rulings against future Navy exercises and operations throughout the world.

U.S. District Court Judge Florence-Marie Cooper, in response to the NRDC’s arguments that the sonar training at issue was in violation of federal environmental law, had previously banned sonar training within twelve nautical miles of the coast, and mandated sonar shutdown procedures when the Navy spotted marine mammals. President Bush responded by exempting the Navy from the statutory requirements, declaring that the exemption would enable the Navy to train for operations essential to national security. Alarmingly, Judge Cooper’s response to this exemption was to declare that it would produce “the absurd result of permitting agencies to avoid their [environmental] obligations by re-characterizing ordinary, planned activities as ‘emergencies’ in the interest of national security…”

The Coalition notes that Judge Cooper’s decision to explicitly reject sonar training as a national security issue and re-frame it as an environmental matter underscores the folly of turning over decisions concerning our military activities to environmentally-oriented judges – either domestic or foreign – and undermines anew the Navy’s argument that the United States should become party to LOST. Ratification of LOST will greatly exacerbate the problems that the military will encounter when performing sensitive military operations in the face of environmental and other objections.

LOST contains numerous, sweeping environmental provisions requiring “protection of the marine environment”, which could create obligations to enact laws stricter than the Clean Air Act or Clean Water Act. These requirements are shaped by the European-derived “precautionary principle,” a legal tenet according to which a country must guarantee that a proposed action will not cause any environmental harm before it can proceed. LOST will subject the United States to the rulings of international dispute resolution bodies on these matters, the findings of which are binding and without appeal. If the United States ratifies LOST, we can expect many more rulings similar to that of Judge Cooper, at the expense of American security and sovereignty.

Wednesday, January 23, 2008

Mugged by legality?

by Frank Gaffney

It is one of the truisms of politics that a conservative is often enough a former liberal who has been “mugged by reality.” The line comes to mind in the wake of President Bush’s decision Thursday to allow the Navy to ignore a federal court order and continue training with powerful sonars off the West Coast of the United States. Case law and court decisions threatened to end this naval training, which is essential to U.S. national security. Having seen how far American judges would go to undermine U.S. interests, the episode should be a wake-up call to the president to resist ratification of the Law of the Sea Treaty, which would subject U.S. maritime interests to international judges who care even less for American security.

For decades, the Navy’s Judge Advocate General Corps has been in a lather to get the United States into the Law of the Sea Treaty (LOST). Were it not for those lawyers’ idée fixe — namely, that U.S. adherence to LOST is essential to the execution of the military’s power-projection and mobility missions — it is unlikely that George W. Bush would have decided to seek the ratification of LOST. His administration — like Ronald Reagan’s did 23 years ago — would have refused to subject the United States to this controversial international accord.LOST’s objectionable provisions include the following:

  • This accord, which its proponents call a “constitution of the oceans” — infringes unacceptably on American sovereignty.

  • The treaty imposes curbs on military operations inconsistent with routine U.S. practice and national-security requirements.

  • It empowers a U.N. agency with authority to exercise control over the world’s oceans, seabeds, and even the airspace above them.

  • This agency — the International Seabed Authority — will have what amounts to the power to impose taxes in the form of various levies and fees, an ominous precedent for any supranational body.

  • It will also be able to decide who will be allowed to develop the resources on and beneath the ocean floor and to require transfers of technology and proprietary data from developed nations’ companies to international bureaucrats and third-world states.

  • Particularly worrisome are numerous, sweeping provisions requiring “protection of the marine environment” that could give rise to obligations to impose stricter environmental requirements than those of the Clean Air Act or Clean Water Act.

  • Underlying all of these requirements is the Luddite “precautionary principle,” a European-derived legal tenet according to which a country must guarantee that a proposed action will not cause any environmental harm before it can proceed.

  • Worse yet, LOST requires that any disputes about the reach and implementation of these and other treaty provisions be submitted to mandatory international dispute-resolution bodies, the findings of which are binding, with no appeal.

The Navy (and its sister services) are already hobbled at the hands of environmental activists using domestic courts to interfere with military operations. The practice has proved to be such an effective asymmetric weapon that it has come to be known as “lawfare.”

A case in point is the 2007 civil suit brought against the Navy by the Natural Resources Defense Council. The NRDC — a leftist organization whose “green” agenda often serves as a cover for anti-military activism — sought an injunction against the sea service on the grounds that its use of high-power sonar constituted violations of federal environmental statutes.

The Ninth Circuit Court of Appeals recently ruled that the Navy’s plan for protecting marine mammals off the West Coast during sonar training was inadequate, and ordered the case back to U.S. District Court Judge Florence-Marie Cooper. Judge Cooper proceeded to ban sonar use within 12 nautical miles of the coast and mandated shutdown procedures when the Navy spotted marine mammals. All this in spite of the fact that the Navy already employs 29 procedures to lessen the impact of sonar on marine life.

So egregious would be the impact of these rulings that the Navy urged President Bush to declare it exempt from the laws that Judge Cooper had interpreted to prevent sonar training. In so doing, he declared the sonar training to be “in the paramount interest of the United States.” He added that, “This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security.”

Fortunately, the president currently enjoys the latitude to prevent the creation of what would amount to sonar-free sanctuaries in strategically sensitive areas (notably, off San Diego), perhaps to be exploited by the very quiet submarines now proliferating in Chinese and other hostile navies. He not only recognized that such threats demand that our sailors receive the most effective sonar training possible; he took steps to ensure that they received that training. Today, the president is able to assign higher priority to their safety — and the nation’s security — than to the alleged impact of sonar on sea-life.

The bad news is that, if Bush’s Navy-impelled call for the Senate to ratify the Law of the Sea Treaty is approved, neither he nor his successors would likely be able to exercise such a waiver. In that event, if environmentalists turn to the Treaty’s tribunals and/or arbitral panels to enforce provisions more restrictive than U.S. laws (a safe bet), the Greens would very likely prevail. Hard experience tells us that international jurists all too often exhibit indifference towards, if not outright hostility to, American equities and positions. Such judges will ignore Navy protestations that they cannot interfere, asserting that the activities in question are not military ones exempted under the Treaty, but environmental predation explicitly prohibited by it.

Sadly, an increasing number of federal judges in this country believe they must submit to the dictates of international tribunals and, for that matter, organizations and conferences. Ironically, the Bush administration itself has filed a brief with the Supreme Court in connection with the now-pending Medellin v. Texas case to the effect that a ruling of the International Court of Justice trumps domestic law.

The current importuning of the Navy to protect its operations from environmental laws should serve as a powerful warning to the president: The national security interests of the United States will be on the line in the future, just as much as they are today. Then, as now, the Navy will be a prime target of those who seek to use “lawfare” to undermine or otherwise interfere with those interests.

By acting to prevent such an action at this juncture, Bush has unwittingly validated the warnings of LOST’s critics. For this reason, among many others, he should withdraw his support for the Law of the Sea Treaty — and give the Navy’s shortsighted, inconsistent, and misguided lawyers who have championed it the old heave-ho.