LOST Will Hamstring the U.S. Military

The Law of the Sea Treaty began as an effort by the U.S. Navy to codify favorable navigation “rules-of-the-road” governing transits of territorial waters and international straits. Although only about 40% of the Treaty addresses these issues (the rest concern such unrelated subjects as: exploitation of the seabeds, environmental issues, maritime research, etc., and the various mechanisms created to administer these provisions), a major point of contention about LOST is whether its ratification by the United States will, on net, enhance or harm the equities of America’s military, intelligence and counterterrorism organizations.

Proponents’ Claims:

Due to the largely successful effort to have LOST give the force of international law to satisfactory common international practice with respect to operations at sea, in territorial waters and strategically vital straits around the world, the Navy’s lawyers have been particularly insistent advocates of this Treaty. The other military services and the current civilian leadership of the Pentagon share the Navy view that LOST helps assure the strategic mobility of not only sea-going U.S. forces but also that of combat, airlift, tankers and other aircraft traversing the world’s oceans. Proponents in and out of uniform dismiss concerns about negative implications arising from certain of the Treaty’s obligations and its dispute resolution mechanisms by insisting that military activities are explicitly exempted.

The Facts:

Our military/intelligence operations may not be exempt:

• As a state party to LOST, the United Stateswould be assuming a number of obligations at odds with our military practices and national interests. These include commitments that:
  
  Reserve the oceans exclusively for “peaceful purposes” (Article 88): The United States routinely uses the world’s oceans for military purposes, including waging war against our enemies.
  
  Require states to refrain from “the threat or use of force against the territorial integrity or political independence of any state” (Article 301): As the world’s preeminent maritime nation, America must project power from the sea and does so with some regularity. Some would describe such power projection as contrary to “the territorial integrity or political independence” of states (most recently, for example, attacks from naval forces against the Taliban’s Afghanistan and Saddam Hussein’s Iraq).
  
  Proscribe the use of territorial waters to collect intelligence and conduct other operations (Article 19): For many decades, intelligence vital for American security has been collected on, below and above the oceans – including, in some cases, those considered to be “territorial waters.”
  
  Submarines are required to travel on the surface and show their flags in territorial waters (Article 20). The effectiveness and perhaps the very survival of our submarines would be compromised were they to have to operate on the surface in close-in waters where they can only go with the greatest of stealth.





• In statements in support of LOST, the United States military makes clear that it has no intention of ending such activities, and will not have to do so since “military activities” are exempted from the Treaty. Unfortunately, this position both defies common sense and hard experience with international accords: These articles are wholly without effect if they do not apply to the military and it is predictable that America’s foes will use every opportunity afforded by LOST to ensure they do.





• LOST’s proponents also note that these restrictions are similar to restrictions already applied by the 1958 Convention on the TerritorialSea and Contiguous Zone (1958 Treaty) to which the U.S. is already a party.





• There is, however, a critical difference between the 1958 Convention and the Law of the Sea: LOST establishes international tribunals to interpret and enforce the Treaty’s obligations and obliges states parties to choose one of four means of dispute settlement to resolve “any dispute concerning the interpretation or application of this Convention.” The outcome of such dispute settlement is binding on the parties to the dispute.





• It is true that LOST permits an acceding party to declare “disputes concerning military activities” to be exempt from dispute settlement. But the Treaty does not define “military activities.”





• Proponents of LOST argue that the U.S. may make a declaration that it will define “military activities” for itself. However, this amounts to a reservation to the treaty, which is expressly prohibited by LOST. The Treaty must be accepted or rejected in its entirety.





• At the very least, therefore, such obligations set the stage for injunctions, or other adverse rulings, against the U.S. military to be sought from one LOST dispute resolution agency or another. Given the stacked-deck nature of these mechanisms, it is far from certain that our opponents will fail.





• This applies in spades to things we consider to be “military activities” but that may well be depicted by our opponents in ITLOS or arbitration proceedings as environmentally harmful activities (e.g., charges that Navy sonars are responsible for killing whales and dolphins). Importantly, in the event of any disagreement over whether an activity is military in nature,the Treaty grants to its dispute resolution mechanisms the right to make that determination themselves.





• Even if the military’s own activities were able to be exempted from the Law of the Sea Treaty’s provisions, it is far from clear that exemption would also apply to all of the companies that comprise, for example, the Navy and Coast Guard’s civilian technology supply chain. They would certainly not be spared exposure to dispute resolution demanded by other treaty parties or activist groups alleging violations of LOST-imposed obligation to protect the marine environment. These could be said to arise from products supplied to the U.S. military by civilian companies or perhaps from the industrial and technological processes undertaken by civilian companies to manufacture and deliver those technologies and other supplies to the Navy and Coast Guard.





• The U.S. military has enough problems meeting its environmental compliance requirements under American statutes. It is almost unimaginable how severe the repercussions could be if it and/or its contractors are subjected to “lawfare” – legal initiatives carried out to achieve an adverse effect on our armed forces – rooted, for example, in LOST regulations’ application of the “Precautionary Principle.” The U.S. Navy and Coast Guard could be denied valuable technologies needed to maintain their military preparedness with negative effects on mission performance.





• In short, it is an ill-advised practice for democratic nations to make promises pursuant to international treaties that they do not intend to honor. That is especially true in circumstances where Federal judges may just demand compliance on the basis of the rulings of LOST’s tribunals.

LOST requires strategically significant technology transfers:

• LOST requires the transfer of sensitive, militarily useful technologies to other nations and international organizations hostile to American interests. It does so under the rubric of the sea-bed mining provisions, but the effect of mandatory sharing of, for example, hydrographic data, exploration software and hardware and deep-ocean extraction technology could directly benefit not only this country’s economic competitors. It could also help America’s military adversaries, both actual and potential.





• The so-called “fixes” with respect to technology transfer obligations contained in the 1994 Agreement do not alter this reality. First of all, the Agreement could not and did not amend the Treaty. Secondly, even if it had done so, the Agreement did not purport to modify all areas in which information and technology transfers are required. For example, all relevant information about deposits and geology must still be provided to the International Seabed Authority’s “Enterprise” in order to apply for a permit to develop seabed resources, together with the technology necessary to exploit such resources.
  LOST Can be Used to Limit the Proliferation Security Initiative.





• The Proliferation Security Initiative (PSI) is a multi-country arrangement launched in 2003 for the purpose of permitting the United States and other participants to stop foreign vessels suspected of transporting weapons of mass destruction “in their internal waters, territorial seas, or contiguous zones.” PSI is arguably one of the most effective tools the U.S. government has employed to try to stop the transfer of WMD and their delivery systems. Proponents of the Treaty point out that most of those with whom we partner in the PSI are Treaty members and cite LOST as justification for their participation.





• LOST provides that vessels in these areas enjoy the right of “innocent passage” with only a handful of exceptions. Specifically, LOST’s Article 110 only permits such intercepts in four instances: piracy (i.e., the ship is flying no national flag), slavery, narcotics trafficking and unauthorized radio broadcasting. In addition, LOST provides government-owned ships operating on the high seas complete immunity from the jurisdiction of any foreign country. Since most terrorist-sponsoring nations and their totalitarian enablers have state-owned merchant marines, the Treaty can thus be used to protect proliferation activities on the high seas.
  
  PSI is not compatible with LOST, despite proponents’ claims to the contrary. As a treaty, LOST is binding international law on the parties, whereas PSI is only an informal arrangement between certain nations, and carries no force as international law. The argument that PSI can be executed within the rules of LOST, even though LOST clearly prohibits boarding actions critical to PSI, ignores the fact that LOST outranks PSI in the hierarchy of international law.





• As a result, unless one or more of the Treaty-approved circumstances for an at-sea intercept applies, LOST member states could be precluded from participating in such an action – even when there might be compelling evidence that nuclear or other WMD or their delivery systems were on board. As long as the United States continues not to be a LOST state party, it can always act unilaterally. That option, however, will be foreclosed – and our security possibly endangered as a result – if the Senate consents to the Treaty’s ratification.





• In particular, the Chinese and Russians have strenuously objected to the Proliferation Security Initiative, claiming that it violates LOST. They can be expected to seek mandatory dispute resolution of the matter should the United States become a state party. Should the ruling go against us, a critical tool in the nation’s effort to prevent the spread of nuclear, chemical and biological weapons and their delivery systems could be lost for good.

U.S. security interests are better served by our staying out of LOST:

• Many of the rights of navigation and overflight that LOST supporters claim are “assured” by the Treaty and so valuable to U.S. security are, in fact, already enjoyed thanks to existing, well-functioning international agreements to which the United States is a party.





• The majority of those rights are derived from customary international law, much of which was in place long before LOST was ever negotiated. To the extent that LOST has created any new customary international law, these are laws to which we voluntarily adhere and from which we have benefited since President Reagan rejected the Treaty twenty years ago – without being subject to LOST’s other, high costs.





• Finally, the damage done to the U.S. military by the Law of the Sea Treaty is likely to be compounded by the precedent this accord will establish for “managing” another, arguably even more strategically important so-called “international commons”: outer space. A number of America’s adversaries have long sought to impose arms control or other treaty arrangements that could make it more difficult if not, as a practical matter, impossible for the United States to maintain the access to and control of space required by our national security interests. If this country joins LOST, it will invite these adversaries to adapt the Treaty’s International Seabed Authority as a prototype for determining permissible and impermissible activities in space -- likely in ways that will prove extremely problematic to the United States military and intelligence communities.