Saturday, September 1, 2007

LOST Creates Dangerous Comments for "International Commons"

The Law of the Sea Treaty’s stated purpose is the establishment of a “legal order for the seas and oceans.” Animating that goal is the proposition that such waters are the “common heritage of all mankind.” To govern, protect and preserve this “international commons,” LOST establishes rules with respect to: navigation of the oceans, marine research, protection of the marine environment and deep seabed mining, among other oceans-related issues. LOST also contains provisions outlining over-flight rights over various parts of the ocean, giving sovereign rights not only to territorial waters and their seabeds, but also to the airspace above them.

LOST establishes supranational agencies associated with the UN. Their role is to manage the maritime “international commons,” implement the Treaty’s various provisions and resolve disputes between state parties as to the application of those provisions. If the disputing parties fail to reach an agreement on their own, they are required to submit to the jurisdiction of one of the LOST tribunals. Additionally, parties to LOST must make payments in various forms to one of the LOST bodies, the International Seabed Authority (ISA), in order to engage in deep seabed exploration and exploitation.

Some have sought also to designate as “international commons” Antarctica, the moon, Outer Space more generally and the Internet. The question occurs: Will U.S. accession to LOST cause this Treaty and its supranational entities to serve as precedents and models for similar multilateral rules and dispute resolution mechanisms to be applied to these other “commons”?

The Proponents’ Claims:

Supporters of the Law of the Sea Treaty appear to have different views about the desirability of using the Treaty’s arrangements as a precedent for other “international commons.” The Bush administration has, for example, resisted UN-led efforts to multilateralize control of the Internet. It has also opposed space arms control agreements that could mutate into agreements governing permissible and impermissible activities in outer space. Presumably, it would not want LOST to become a precedent for the very arrangements it is seeking to block in other contexts.

By contrast, the World Federalist Society (now known as Citizens for Global Security) has explicitly stated in an undated posting on its website: “An organization is already in the process of being developed to control the exploitation of ocean resources, and similar agencies could be created to govern Antarctica and the moon.”

The Facts:

  • U.S. ratification of LOST will make it difficult for the United States to argue against accepting binding arrangements for other “international commons.” The logic of LOST – with its supranational order for the control of a medium used by more than one country – will inevitably be seized upon by America’s foes to demand similar arrangements be instituted for Outer Space or even the Internet. President Reagan’s Ambassador to the UN, the late Jeane Kirkpatrick, warned the Senate in 2004 not to consent to ratification of LOST, in part on the grounds that America’s interests in Outer Space could be adversely affected by the LOST precedent.

  • The LOST model could be used to cripple America’s use of space for national defense. America’s military and intelligence communities have increasingly relied, and in fact have become heavily dependent, upon space assets to gather information and support terrestrial forces. Far-sighted U.S. strategists appreciate that space can only become ever-more-important as a theater of operations, with control of activities (commercial as well as military) on earth being determined by control of space.

    This country’s adversaries recognize this reality, too, and are attempting to inhibit our use of space – in some cases through active means, in others via the imposition of international laws and regulations. U.S. endorsement of LOST would establish a precedent that would undercut American efforts to stave off the latter effort.

  • The same is likely to apply to the Internet – an immeasurably important engine of American technological and commercial competitiveness and, increasingly, a key component of U.S. national security. Other countries have already called for global Internet regulation. For example, in March 2005, China’s ambassador to the United Nations called for international management of the Internet. Seven months later, the UN hosted a conference at which many delegates demanded an end to this country’s exclusive control over the assignment of web addresses and e-mail accounts, in favor of having such roles being performed by one or more UN agencies.

    The problems with such an arrangement are obvious. The Washington Post pointed out that any such agencies would inevitably be caught between free societies that want low barriers to Internet access, and countries such as China and Saudi Arabia, that insist on limiting access. The Post went on to observe: “These clashes of vision would probably make multilateral regulation inefficiently political.” As it happens, the same is true of LOST – and would certainly apply with devastating effect to the Internet if LOST becomes the template for multilateral management of the ether’s “international commons.”

  • Inevitably, American ratification will be a major step towards the Transnational Progressives’ agenda of global, supranational government. One prominent Tranzie, Arvid Pardo, the former Maltan Ambassador to the UN – who is credited with coining LOST’s leitmotif phrase “the common heritage of mankind,” has said that American acceptance of LOST “however qualified, reluctant, or defective, would validate the global democratic approach to decision-making.” On that score, at least, Pardo is absolutely right.

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