Reject the Law of the Sea Treaty

LOST oil prophets

2008-07-16T08:34:00.000-07:00

By Ben Lerner

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.

Message from the dolphins?

2008-06-30T14:06:00.000-07:00

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.

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

2008-06-18T06:57:00.000-07:00

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 http://www.cop15.dk/NR/rdonlyres/BE00B850-D278-4489-A6BE-
6AE230415546/0/ArcticOceanConference.pdf (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 http://www.washingtonpost.com/wp-
dyn/content/article/2007/08/06/AR2007080601369.html (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 http://lugar.senate.gov/press/record.cfm?id=284357&& (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 http://www.state.gov/s/d/2007/92921.htm (June 13, 2008).

[5] Editorial, "Twenty-Five Years and Counting," The New York Times, October 31, 2007, at http://www.nytimes.com/2007/10/31/opinion/31
wed3.html?_r=1&oref=slogin (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 http://query.nytimes.com/gst/fullpage.html?res=
9C07E1D6163EF931A1575BC0A9629C8B63 (June 13, 2008).

[6] Editorial, "Oceans at Risk," The New York Times, March 9, 2008, at http://www.nytimes.com/2008/03/09/opinion/09sun2.html (June 13, 2008).

[7] Editorial, "Scramble for the Arctic," The Christian Science Monitor, August 21, 2007, at http://www.csmonitor.com/2007/0821/p08s01-comv.html (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 http://www.whitehouse.gov/news/releases/2007/
05/20070515-2.html (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 http://www.presidency.ucsb.edu/ws/index.php?pid=12332 (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.

Sirens in the Strait

2008-03-21T13:18:00.000-07:00

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.

2008-02-29T13:12:00.000-08:00

Douglas Stone, "Law of the Sea Treaty: Tunnel Vision on the Oceans," Human Events

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

2008-02-07T11:22:00.000-08:00

(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.

Mugged by legality?

2008-01-23T11:38:00.000-08:00

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.

Former Senator George Allen Critcises Law of the Sea Treaty in the Washington Times

2007-12-21T11:11:00.000-08:00

(12/21/07) George Allen, "Throw out LOST," Washington Times

Ambassador John Bolton Speaks on Law of the Sea Treaty at the Heritage Foundation

2007-12-21T11:04:00.000-08:00

The Heritage Video:

Sailor Criticizes Law of the Sea Treaty in WorldNetDaily piece, Worries about UN Power Grab

2007-12-03T10:43:00.000-08:00

"An encrusted artifact on the ocean floor just waiting to be excavated" - that's how Michael Rawlin's describes the Law of the Sea Treaty in his piece on today's WorldNetDaily.com.

In the article, Rawlins, a lifelong merchant marine officer, offers up a poignant sailor's critique of this rusted, dangerous, and generally unseaworthy treaty.

For example, he notes with trepidation the omnipresence in LOST of redistributionist slang like "just and equitable economic order," "for the benefit of mankind as a whole," and "the common heritage of mankind." All of these phrases mean only one thing - competition and entreprenuership under the Treaty are looked at as anachronistic and downright exploitative.

Rawlins goes on to detail some of the more worrisome security provisions in LOST, and to critique the U.S. military's "tunnel-vision support" for it, especially given the the numerous restrictions on American sovereignty and freedom of action that pepper the treaty.

He concludes by noting noting that any treaty which diminishes U.S. rights in the oceans to the level of those wielded by the likes of Cuba and Luxembourg can't be a good thing. We at the Coalition to preserve American Sovereignty feel that he is right.

Latest LOST Update

2007-11-27T07:25:00.000-08:00

(11/26/07) Senator John Kyl, "Law of the Sea Treaty: LOST all Sense," National Ledger

Problems with Law of the Sea Treaty Reaffirmed in WorldNetDaily Piece; Bush Administration Can't Answer Critics

2007-11-16T08:22:00.000-08:00

Advocates for the Law of the Sea Treaty find themselves in an unenviable position - they're unable to answer the questions and concerns of treaty critics. This point was underscored yet again in a piece in today's World Net Daily.

When confronted by a WND reporter about LOST's numerous persisting problems, the best that White House spokesman Dana Perino could muster was a "I understand that there are concerns, but we believe that those have been addressed."

Really? It is curious that if - as the White House claims - all concerns with the Law of the Sea Treaty have been addressed, the entirety of the Senate Republican leadership and every Republican presidential candidate have come out agaisnt it.

Just as worrisome, when asked about whether LOST would hamstring U.S. military operations similar to President Kennedy's blockade of Cuba or President Reagan's invasion of Grenada, Perino could only state that she doesn't comment on hypotheticals. That's a safe move for any administration, but in this case her answer squares perfectly with the actions of other Law of the Sea advocates - avoiding public debate if at all possible and ramming the treaty through the Senate before the country is any the wiser.

The Coalition to Preserve American sovereignty feels that that it is incumbent upon the Adminstration to openly present its case to the country so that the American people can be given a front-row seat to the tragedy that is the Law of the Sea Treaty.

Doug Bandow in Law of the Sea Treaty Interview with Texas Newpaper: "Bad Treaties Never Die"

2007-11-15T10:50:00.000-08:00

On Thursday, Doug Bandow of the Competitive Enterprise Institute weighed in heavily against the Law of the Sea Treaty in a published interview with the Tyler Morning Herald of Tyler, Texas.

Bandow, one of America's foremost experts on LOST and member of the Coalition to Preserve American Sovereignty, runs down the littany of reasons why the treaty ought to resoundingly rejected by the Bush Administration and Congress.

For starters, he notes that LOST will circumvent the tax powers of Congress by allowing the treaty-created International Seabed Authority to levy taxes on U.S. business that work on the Outer Continental Shelf. For those who believe in "No Taxation Without Representation," the is problematic, to say the least.

Bandow goes on to note that our accession to the Law of the Sea Treaty would subject us to a bevy of potentially crippling lawsuits brought by overzealous international lawyers. We could expect a spate of new regulations and restriction that would harm U.S. interests, and could even hamstring our military.

All in all, Bandow argues, the dangers of the LOST far outweigh its benefits: "Enshrining collectivism as international law through creation of a mini-me United Nations would be as foolish as it would be costly."

LOST a Dangerous "Booby Trap," Says NY Sun; Reagan Rejected it on Principle

2007-11-08T07:16:00.000-08:00

Need a clear reminder about what President Ronald Reagan thought of the Law of the Sea Treaty? None clearer than that in today's New York Sun will be found.

In an editorial entitled "George W. Haig," Sun readers are treated to an anecdote from former Reagan official Ken Adelman, who relates that the president's objections to LOST were not based on arcane specifics, but on common sense.

According to Adelman, Reagan refused Secretary of State Alexander Haig's push for the ratification of LOST, calling it "really stupid," and rejected the idea that just because most other nations of the world had signed on, we should ratify it too. His forthright assertions of U.S. sovereignty were, and remain, an indication of what principled governance is all about.

The Sun goes on to chide the Bush Adminstration for walking the path of Secretary Haig and forfeiting U.S. interests to a supranational bureaucracy by pushing for American accession to the Law of the Sea Treaty. It calls the treaty "an ivitation to war" against American interests, and warns that our joining would subject us to "a collection of security, financial, and administrative booby traps."

The Coalition to Preserve American Sovereignty commends the Sun for joining the rising groundswell against U.S. ratification of the LOST, a disastrous document that President Reagan wisely spurned twenty-five years ago.

American Legislative Exchange Council Makes Statement on the Law of the Sea Treaty

2007-11-07T07:36:00.000-08:00

On Monday, November 5th, the American Legislative Exchange Council (ALEC) released a statement which sets forth their opposisition to the Law of the Sea Treaty.

ALEC, a prominent bipartisan coalition of state legislators who advocate for "limited government, free markets, federalism, and individual liberty," indicated their view that the Law of the Sea Treaty represents a grevious threat to American sovereignty, and that our ratification of it would be a colossal error.

The statement highlights a few of the most egregious stipulations of LOST. For example, ALEC notes that the treaty "empowers the International Seabed Authority (ISA) to impose taxes on American companies" and that it "would give the United Nations control over seven-tenths of the world’s surface. We must be cautious because he who rules the sea will rule the land."

The Coalition to Preserve American Sovereignty commends the American Legislative Exchange Council for its stand against American accession to the Law of the Sea Treaty.

View the Full ALEC Statement

Latest LOST Update

2007-11-07T04:00:00.000-08:00

(11/7/07) "Scuttle LOST," Pittsburgh Tribune-Review Editorial

Latest LOST Update

2007-11-05T06:37:00.000-08:00

Saturday's Opinion Journal featured a piece that strikes a heavy blow against ratification of the Law of the Sea Treaty. In it, the writers take the best arguments of Treaty proponents and deftly demonstrate their inadequacy, inaccuracy, or irrelevance.

For example, on the Bush administration's assertions that LOST won't affect U.S. military operations:

"Consider the treaty's potential effects on military activities. The Administration says these are excluded from the treaty and, further, that the U.S. gets to decide what constitutes such activity. But then how to explain Article 20, which states that "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag." How will this affect the ability of U.S. submarines to gather intelligence in coastal waters or deploy special forces on hostile shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter had been built precisely for that purpose."

We could go on, but you should read the piece for yourself. Treaty advocates can't get around points such as these; they can only hope to push LOST through the Senate before the public is any the wiser. The Opinion Journal has helped make sure the Law of the Sea Treaty gets the thorough-going examination it deserves.

Senate Republican Leadership Calls for More Time, More Hearings on LOST

2007-11-02T07:35:00.000-07:00

On Wednesday, October 31st, the Senate Republican leadership made what could be a crucial move in the ongoing struggle to make sure that the Law of the Sea Treaty is given the full, deliberate investigation it deserves.

Senators Mitch McConnell, Trent Lott, John Kyl, Kay Bailey Hutchison, John Cornyn, and John Ensign expressed their wish that Senator Biden back away from forcing a vote on LOST and allow the Senate to conduct "a more thorough and rigourous examination of the Treaty."

The signatories argued that becuase LOST touches on the jurisdictions of so many Senate Committees, and since there are so many new members who have had no exposure to the treaty, that "it is vital that other committees hold hearings to investigate matters within their purview."

View the letter from the Senate Republicans to Senator Biden (PDF)

CPAS Press Release: "Committee Vote Underscores Non-Unanimity on LOST, Urgent Need for Hearings by Other Affected Committees"

2007-11-01T06:08:00.000-07:00

Today, the Senate Foreign Relations Committee voted 17-4 in favor of a Resolution of Ratification for the Law of the Sea Treaty.

This is unsuprising, given the skewed membership of the Committee and the shockingly short shrift given to Treaty opponents during the relevant hearings - two witness, seven minutes each. It is clear therefore that the Foreign Relations Committee failed to exercise its responsibilities of due diligence, and gave LOST little more than a "rubber stamp."

However, a notable coalition of treaty opponents, including the entire Senate GOP Leadership, the entire field of Republican Presidential nominees, and numerous Reagan Cabinet officials are taking strides to ensure that LOST is not going to pass without a fight.

View full the CPAS Press Release (PDF)

Latest LOST Update

2007-10-31T13:36:00.000-07:00

(10/31/07) Harold Furchtgott-Roth, "The Halloween Treaty: Law of the Seas," The New York Sun

CPAS Press Release: "Giuliani Completes Roster of Republican Candidates Opposing LOST, Senate GOP Leadership United in Opposition"

2007-10-31T06:23:00.000-07:00

The Coalition to Preserve American Sovereignty is pleased to announce that Rudy Giuliani has joined the rest of the Republican Presidential Candidates in opposition to the Law of the Sea Treaty.

Giuliani issued a press release on his campaign website in which he stated:

"...I believe that the treaty is fundamentally flawed. I cannot support the creation of yet another unaccountable international bureaucracy that might infringe on American sovereignty and curtail America’s freedoms. I oppose ratification of this treaty as long as it fails to address these concerns."

Republican unity also extends to the Senate, where the GOP leadership unanimously declared their opposition to the Treaty.

View the CPAS Press Release (PDF)

Latest LOST Update

2007-10-30T07:13:00.000-07:00

(10/30/07) Frank Gaffney, "LOST Runs Silent, Runs Deep," Washington Times

(10/30/07) Sen. James Inhofe, "Getting LOST," Washington Times

(10/30/07) Tom Deweese, "Sink the Law of the Sea Treaty," Canada Free Press

(10/30/07) Doug Bandow, "Make Way for a Second UN," The American Spectator

(10/30/07) Paul Weyrich, "Possibly the Final Push for the Law of the Sea Treaty," Townhall.com

(10/30/07) John Fonte, "LOST at Sea," National Review Online

LOST Runs Silent, Runs Deep

2007-10-29T06:33:00.000-07:00

By Frank Gaffney

In over 30 years of working in and watching the ways of
Washington, I must say, I have never seen anything quite like it.

According to Senator Jon Kyl, the entire Senate Republican leadership is now opposed to a controversial treaty supported by the President and an implausible alliance of special interests – from the U.S. Navy to Greenpeace. At a joint press conference last Wednesday, he was one of several Senators to declare that, as a result, supporters would be unable to muster the necessary 67 votes for ratification of the Law of the Sea Treaty (LOST). Yet, it seems not one of the "establishment" media organs felt moved toreport these momentous political developments.

More extraordinary still is the apparent news blackout concerning the fact that virtually every Republican presidential candidate (with the surprising, and hopefully ephemeral, exception of Rudy Giuliani) has announced either outright opposition to the Treaty or deep misgivings about itsinevitable effect: conferring more power on international organizations at the expense of U.S. sovereignty. Apart from a front-page article in the Washington Times last Friday and postings by an array of on-line news outlets, bloggers and a couple of newsletters, the so-called "mainstream media" have denied the American people virtually any information about LOST's growing difficulties.

The seemingly deliberate suppression of bad news concerning an accord favored by the elite is being compounded by a similar lack of transparency on the part of the Senate itself. The chairman of the Senate Foreign Relations Committee, Democratic presidential candidate Joe Biden has scheduled a panel vote on LOST for Wednesday – ignoring a request from one of his colleagues, Sen. David Vitter, for additional hearings and additional testimony from those opposed to the Treaty.

Mr. Vitter recognized the Senate's need to hear from more than two critics of the Treaty – each of whom were given just seven minutes to provide their oral critique. If anything, that necessity became even more urgent after several of the nine proponents from whom the Foreign Relations Committee took testimony, misled the panel (to put it charitably) about various provisions of LOST and their ominous implications.

It might seem unimaginable that Bush Administration officials, such as Deputy Secretary of State John Negroponte and State Department Legal Advisor John Bellinger, could get away with dissembling beforea Senate committee led by a Democrat who wants to be considered a serious contender for the presidency. Perhaps that is happening because Sen. Biden could not find the time to attend either of the two hearings hecalled concerning the Treaty. Neither for that matter did the panel'stwo other active presidential candidates, Democrats Barack Obama and Chris Dodd. Don't bother them with the facts. Let's vote.

Then there is the Senate Select Committee on Intelligence. It did manage to hold a hearing on LOST, but it was a classified session and only featured official witnesses. Unsurprisingly, all of them supportedr atification. What is surprising, though, is Chairman Jay Rockefeller's uncharacteristic acceptance at face value of representations by executive branch officials like Director of National Intelligence Mike McConnell. Based on such testimony, Sen. Rockefeller recently signed a letter with GOP Vice Chairman Kit Bond declaring that U.S. adherence to the Treaty would have no negative implications for U.S. intelligence. While there are strong arguments to the contrary, like Mr. Biden, Sen. Rockefeller has no time for a second opinion that might produce inconvenient truths.

As things stand now, the Foreign Relations Committee's inaccurate and unbalanced record will be the only public one Senators have to go on. Formal requests made by Sen. Jim Inhofe, a senior memberof the Senate's Armed Services and Environment and Public Works committees, asking them to examine the Treaty's myriad repercussions formatters within their jurisdiction are going unanswered. The same is true of similar appeals made to those and six of the Senate's other committees with relevant areas of responsibility by the Coalition to Preserve American Sovereignty.

So, here's what Senators and their constituents need to know as decision-time looms on LOST: Ronald Reagan rejected the Law of the Sea Treaty twenty-five years ago. We have been able to survive ever since without being a party to it, following Mr. Reagan's direction– observing its provisions regarding navigation, with which we can live, and not being bound by those hostile to our interests.

The latter involve, among other things, a supranational, UN-affiliated government of the seas with the power to extendits authority to our interior waters, sovereign territory and even our air. There is no justification for haste, let alone stealth, in trying to make such a treaty the "supreme law of the land."

The Republican leadership, both in Congress and on the presidential hustings, recognizes that what is at stake in LOST amount to defining issues. These leaders learned something from the ugly fiasco that resulted during the elite's recent efforts to foist immigration "reform" on the American people. Much of the public is deeply skeptical of secretive initiatives that would, similarly: undermine U.S. sovereignty; compromise our constitutional, representative form of governmentand its exclusive responsibility for regulating our national affairs; and endanger our security interests and economic competitiveness.

As with immigration, it matters not a whit to millions of American voters that President Bush and the establishment elite support suchdubious initiatives. In the absence of Senate due-diligence andtransparency about LOST, particularly those Senators up for reelection nextyear flout this pivotal part of the electorate at their peril.

CPAS Press Release: "Where's Rudy? Coalition Supports All Other GOP Candidates Who Oppose LOST"

2007-10-26T12:58:00.000-07:00

The Coalition to Preserve American Sovereignty today issued a press release which noted the swell of support among Republican Presidential candidates for the notion that LOST is corrosive of U.S. sovereignty and should be rejected. Thus far, Rudy Giuliani remains the only major Republican candidate to no make a statement repudiated the treaty.

Here's a statement by former Arkanasas Governor Mike Huckabee featured in the release:

"…the dumbest thing we’ve ever done. It’s like taking our sovereignty and handing it over to some international tribunal. What’s wrong with us?...the Law of the Sea Treaty essentially would say that the United States would give up certain controls of its territorial waters, it would give up its sovereign understanding of what it can do within its own seas both at the surface and within the depths, and that we would virtually hand ourselves over to an international body of justice. "

View the CPAS Press Release (PDF)

Russia Can Use LOST to Support Untenable Territorial Claims

2007-09-01T12:22:00.000-07:00

In August of 2007, Russian submarines dropped a Russian flag on the floor of the seabed of the North Pole. This act was a symbolic gesture of Russia’s claim to the Lomonosov Ridge, an underwater ridge that Russia claims is a natural part of its continental shelf – a claim that, if recognized, would entitle Russia to natural resource and energy rights in much of the North Pole region.

Russia is making this claim using a mechanism of LOST, which allows a state party to claim an extension to its continental shelf – and therefore extend its Exclusive Economic Zone (EEZ) – if that state can provide evidence to the Commission on the Limits of the Continental Shelf (a LOST body) showing a natural extension of the shelf as part of its territory. Russia previously made a similar claim before the Commission in 2001, which the Commission did not accept at the time. Russia is now likely to make a second bid based on the data it has recently gathered.

The Proponents’ claims:

“The Russian Government is pursuing a claim under their right to do so as members of the Law of the Sea Convention. This is something that unfortunately, the United States is not in a position to do because we have yet to ratify that convention and it’s one of the reasons why we are interested and supportive of having that treaty be ratified by the U.S. Senate.” U.S. State Department Spokesman, August 2007.

The Facts:

Russia’s claims are completely without technical merit. The Lomonosov Ridge is not an extension of Russia’s continental shelf. Rather, it is a separate geological formation not connected to the Russian shelf and, therefore, providing no basis for Moscow’s territorial claims. Even the Law of the Sea Treaty itself explicitly states that a country’s continental shelf “does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.”

In addition to securing exclusive rights to the Arctic seabed’s natural resources, Russia is likely trying to use its claim to provoke the United States into joining LOST – a treaty that is disadvantageous to the United States. LOST was created by the former Soviet Union and its allies in the Third World as a means of promoting supranational government mechanisms they could control at the expense of their American and other Western adversaries. LOST’s agenda of global wealth redistribution and its negative implications for American sovereignty and U.S. military and economic equities serves the Kremlin’s interests, but not those of the United States.

Given the geological realities and the Treaty’s own terms, the willingness of the Continental Shelf Commission even to consider Russia’ claims to the Arctic seabed is indicative of a serious problem with LOST. The Commission is blatantly ignoring a clear provision of LOST – a troubling indicator of what the U.S. can expect from LOST tribunals.

Since LOST explicitly declares that a country’s continental shelf does not include underwater ridges, the Commission’s readiness once again take up the Russian case begs the question: As so often happens in UN agencies, will political considerations influence the outcome?

The Commission currently has only two Arctic members, Russia and Norway. A simple majority vote by non-Arctic states – perhaps engineered by Russian pressure and/or bribes – could result in decisions that would be binding on all member nations. If the United States were a state party to LOST, it would likely still be outvoted –yet obliged to accept the Commission’s unsatisfactory dictates.

In this case, the consequences of such a decision would be preposterous – even absurd: Russia would have sole economic rights to the vast natural resources of the central Arctic Ocean. This would essentially give Russia a virtual monopoly over the North Pole region.

Acceptance of Russia’s claim would, moreover, invite other countries to make similarly ludicrous claims. If Russia can assert its ownership of a submerged mid-ocean ridge, then Iceland and the Azores would have grounds to stake claims to most of the North Atlantic’s seabeds, since those islands are an integral part of the Atlantic mid-ocean ridge. The same argument could be made by any one of the numerous island countries that are part of an undersea ridge complex.

Importantly, the United States was able to play a role in the Commission’s non-acceptance of Russia’s first claim to the Arctic seabed back in 2001 even though it was not a party to LOST – and, therefore, not at risk of being bound by adverse Commission decisions. This episode demonstrates that, by remaining outside of the Treaty, America can retain its freedom of action (including the use of bilateral diplomacy and more constructive multilateral mechanisms, such as the Arctic Council) and still challenge such over-reaching Russian claims and win.

China can use LOST to counter the U.S.

2007-09-01T12:19:00.000-07:00

Although the People’s Republic of China is a state party to the Law of the Sea Treaty, it has claimed maritime jurisdiction far beyond what the Treaty specifically authorizes. China maintains it is entitled to sovereignty over the entire South China Sea – a critical international sea lane that extends over 3.5 million square kilometers.

Common international practice codified by LOST grants territorial sovereignty to waters extending 12 miles beyond a country’s coastline. The Treaty also recognizes Exclusive Economic Zones (EEZs) extending 200 miles offshore within which the littoral state is able to exercise more limited rights.

LOST recognizes, however, that archipelagic countries and nations with indented coastlines may find it more difficult to draw these boundaries. The Treaty, therefore, allows such countries to draw straight boundary lines across complex coastal features and islands.

China – having a complex, subtly indented coastline and numerous islands throughout the South China Sea – has interpreted LOST to extend China’s maritime territorial borders more than a thousand miles from mainland China. Additionally, when China signed LOST in 1996, it chose to combine the rights of territorial waters under LOST with the rights of EEZs, thereby claiming territorial sovereignty throughout its entire EEZ.

LOST also affords countries the right to establish settlements on any island within their prescribed EEZ, including what amount to man-made islands. China has used this latitude to create, occupy and fortify various artificial atolls, often near rich deposits of natural resources in the adjacent seabeds. Typically, it then declares that LOST entitles them to protected maritime territorial and economic jurisdiction of the region.

The Proponents’ Claims:

LOST applies stable and predictable rules to the uses of the oceans. The best way for the United States to counter excessive off-shore claims by littoral states like China is by having “a seat at the table” – using the rights and mechanisms available to states parties to counter such claims.

The Facts:

China’s aggressive use of LOST’s provisions to justify its outlandish claims to the South China Sea underscores the extent to which – far from being a guarantor of “stability” pursuant to “predictable” rules – the Treaty lends itself to manipulation at the expense of the interests of nations like the United States.

Lacking a veto, an American “seat at the table” will not ensure that the United States can prevent countries like China from acting on the basis of LOST’s lofty but somewhat ambiguous language. It will, however, ensure that America must accede to whatever judgments the majority of member nations adopt – the outcome of which is highly susceptible to Chinese bribes and extortion.

The same would be true of decisions handed down by LOST’s rigged dispute resolution mechanisms should those be used to challenge China’s efforts effectively to transform the South China Sea into a massive, sovereign Chinese lake. Of course, the PRC’s sovereignty over the South China Sea would also make any natural resources in that area – including minerals, oil and gas – property of China.

A South China Sea deemed to be sovereign Chinese territory would also: have direct implications for the strategic mobility of American armed forces; impair the United States’ ability to come to the aid of its democratic allies in East Asia and the Western Pacific; and could subject sea lanes of communications vital for the economies of the United States and its allies to subtle Chinese pressure or more overt interference.

Under these circumstances, the United States has no choice but to contest China’s overreaching claims to the South China Sea. It does have a choice, however, about how best to do that. Given the impossibility, as a practical matter, of securing a satisfactory outcome if it is a state party to LOST, the United States would be well-advised to do work toward that end while remaining outside the Treaty.

LOST is a Backdoor for the Kyoto Protocol

2007-09-01T12:14:00.000-07:00

The Kyoto Protocol is a United Nations treaty that requires party countries to limit their emissions of greenhouse gases, which are thought to contribute to global warming. President Bill Clinton signed the treaty in 1997, but never submitted it to the Senate to be ratified. Both the Bush Administration and many Senators oppose the Kyoto Protocol because of concern that it is less demanding of countries such as China and India – both substantial sources of greenhouse gases – and would unduly strain the American economy.

The Law of the Sea Treaty has been described by President Clinton as “the greatest environmental treaty of all time.” The question occurs: Could LOST be used as a means of compelling the United States to comply with the requirements of the Kyoto Protocol without America formally becoming party to the latter accord?

The Proponents’ Claims:

Admirers of the Law of the Sea Treaty have different attitudes towards the Kyoto Protocol. President Bush has adamantly refused to seek its ratification. Many U.S. businesses – particularly in the energy sector – have historically been opposed to the Protocol, fearing its potentially high costs. Some corporations, however, have taken pains to adopt a more supportive attitude towards capping greenhouse gas emissions in recent years.

Environmentalists, however, are insistent on the necessity of U.S. compliance with Kyoto’s limits. They see in the myriad LOST obligations to protect the marine environment commitments that can be used to curb emissions on land and in the air that could adversely affect the oceans and their ecosystems. As Thilo Bode, Greenpeace International Executive Director, noted in 2000: “Global warming is likely to have a big impact at sea…Solving the environmental problems facing the oceans…is one of the greatest challenges facing humankind…No single action or region can do this alone: it will require comprehensive international cooperation as required by the United Nations Convention on the Law of the Sea.”

The Facts:

LOST’s provisions and mandatory dispute resolution mechanisms would give environmental activists and like-minded governments (notably those in Europe) both grounds and venues to bring action against the United States for violating the Kyoto Protocol – even though America is not a party to that accord.

For example, LOST Article 194 requires states parties to “take…all measures consistent with this Convention that are necessary to prevent, reduce, and control pollution of the marine environment from any source.” This provision goes on to require that such measures address “all sources of pollution of the marine environment…including those from land-based sources, from or through the atmosphere, or by dumping….”

LOST Article 212 goes further, requiring parties to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere….” The sweeping nature of this commitment suggests that the associated implementing legislation will be enormously comprehensive, hugely costly to conform to and wildly controversial in this country.

Matters would be made vastly worse under LOST by the further requirements of the “Precautionary Principle” – a legal tenet that bars any initiative unless it can be proven to do no harm. As the International Seabed Authority’s Regulation 31 puts it: “In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach….”

The prospect that U.S.-generated greenhouse gases will adversely affect the environment – the premise upon which Kyoto is based – could be used to justify action against many shore-based American companies, government entities and military activities (e.g., ballistic missile launches).

American opponents of the Kyoto Protocol should be under no illusion: U.S. accession to the Law of the Sea Treaty risks, at a minimum, embroiling this country in legal actions that could effectively require its compliance with the terms of that accord – even in the continued absence of Senate advice and consent to the latter’s ratification.

LOST Creates "Rigged Game" Decision-Making Mechanisms

2007-09-01T12:08:00.000-07:00

In early August, 2007, Russian submarines planted their country’s flag on the seabed of the North Pole in a symbolic effort to claim that natural resource-rich area. Moscow’s contention rests on the notion that the seabed under the North Pole is an extension of Russia’s continental shelf. Were that the case, according to the terms of LOST, it would be Russian territory.

In response, the State Department, while expressing doubts about the validity of Russia’s claim, has said that the United States continues to “press hard for ratification” of LOST so that this country will be able to participate in the Treaty organizations’ deliberations about the Russian claim. The question is: Given the nature of LOST’s UN-style decision-making mechanisms, would America’s “seat at the table” reliably translate into outcomes acceptable to this country? If not, are there other ways in which the United States can exercise influence in Arctic and other oceans-related matters?

The Proponents’ claims:

Accession to LOST will ensure that the United States has a “seat at the table” when it comes to deciding on the rights that we and others enjoy in the world’s oceans. Without such a role, the America will, for example, have no say about how the Arctic’s resources are divided up and will lose out on the opportunity to secure its own large stake in the polar seabeds. Furthermore, joining LOST to have a “seat at the table” on the question of the definition of the continental shelf – which is covered by LOST – will not expose the U.S. to the risk of adverse decisions on the division of the continental shelf, which is a bilateral negotiations issue that does not fall within LOST jurisdiction.

The Facts:

The only LOST setting in which the United States is guaranteed a “seat at the table” is on the committee that determines the organization’s budget allocations. America may or may not be one of the countries represented on such other multilateral entities as the International Tribunal on the Law of the Sea (ITLOS) or the Commission on the Continental Shelf – which will likely play a role in decisions about the Russian bid.

Even on those LOST bodies where it is represented, the United States will not have a veto. As a result, as with the UN General Assembly, it is likely that the U.S. will find itself frequently out-voted, even on matters of significant importance to it.

Issues concerning the division of the continental shelf will fall under LOST jurisdiction, and the assertion that joining LOST will allow the U.S. to participate in shelf definition deliberations without exposure to adverse decisions on continental shelf division is false. LOST Article 83 sends such disputes to the LOST compulsory dispute mechanisms, where the U.S. could face adverse, binding decisions that cannot be appealed.

There are alternatives to LOST membership that can be used by the United States to achieve satisfactory arrangements with respect to the Arctic without having to subject itself to the high costs of becoming a state party to the Treaty. For example:

Since 1996, the United States has been a member of the Arctic Council, an intergovernmental forum made up of just the Arctic states – the U.S., Canada, Finland, Iceland, Norway, Russia and Sweden. The Council has proven to be an effective instrument for addressing multilateral concerns involving the Arctic and is far more conducive to outcomes satisfactory to the U.S. than LOST’s 22-nation Continental Shelf Commission or its other, still-less-accountable and still-more-U.S.-unfriendly dispute resolution mechanisms.

The United States also has participated since 1996 with an even smaller subset of the Arctic states, namely, Russia and Norway, in the Arctic Military Environmental Cooperation (AMEC)Program. AMEC offers a forum for addressing in a constructive way military/environment-related matters involving Arctic operations, outside LOST’s bureaucratic mechanisms and obligations.

The United States has also demonstrated that it can reach satisfactory understandings regarding oceans-related disputes outside of LOST through bilateral diplomacy. In 1988, the U.S. and Canada negotiated the Arctic Cooperation Agreement, a modus vivendi with respect to the Northwest Passage. The Agreement provided that, although the United States regarded the Passage as an international waterway, it would not send icebreakers or other vessels through it without seeking consent from Canada. For its part, Canada pledged always to give such consent.

The United States is far more likely to achieve results it can live with – in the Arctic seabeds and in other ocean areas – by dealing directly with one or more of the nations immediately involved than by entrusting its equities to UN agencies over which it has effectively no control and that are typically dominated by bureaucrats and/or nations hostile to this country.

LOST Subjects the U.S. to Needless Litigation and Regulation

2007-09-01T12:03:00.000-07:00

A key consideration for American enterprises interested in doing business on or over the world’s oceans is achieving stability and predictability with respect to such activities. The question is: Will the Law of the Sea encourage such conditions? Or will it introduce significant new uncertainties and instabilities likely to prove inimical to the profitable operations sought by such enterprises?

The Proponents’ Claims:

LOST puts into place rules, regulations and an effective international mechanism for managing and enforcing them that will be highly conducive to business. The fact that many corporate leaders in the oil and gas, maritime, trade, mining and related industries are strongly backing the Treaty attests to the accuracy of this assessment. Furthermore, the Deep Seabed Hard Mineral Resources Act prohibits U.S. companies from deep sea mining unless an international legal regime such as LOST is in place.

The Facts:

The Law of the Sea’s charter, its socialist and unaccountable bureaucracy and mandatory dispute resolution mechanism ensure that U.S. businesses will be burdened – perhaps critically so, not advantaged, by this accord. This assessment is not a matter of conjecture. It is borne out by an examination of the regulations already adopted by the Treaty’s agencies.

For example, the ISA’s Regulation 30 dictates that “The contractor [e.g., a mining, oil or gas operation in “the Area”] shall continue to have responsibility for any damage arising out of wrongful acts in the conduct of its operations, in particular damage to the marine environment.” In the hands of hostile arbitrators acting in league with environmental activists, such language could prove devastating to the business in question.

This is particularly the case since LOST applies (among other places in ISA Regulation 31) what is known as the “precautionary principle,” a legal tenet according to which a company or country must guarantee that a proposed action will not cause any environmental harm before it can proceed. As a practical matter, this means that a given business activity can be banned without any scientific proof of harm or cost-benefit analysis.

In fact, LOST’s requirement to “protect the marine environment” would arguably impose stricter environmental requirements than those currently imposed by the federal government through the Clean Air Act or Clean Water Act.

Joining LOST could also expose U.S. businesses to legal action in the United States. If the United States joins LOST, it will be helping to establish the precautionary principle as international law. Such a validation would expose the country and its corporations to lawsuits under the Alien Tort Claims Act, an American law that allows foreign nationals to sue in U.S. courts for violations of international law (in this case, the Luddite precautionary principle).

Moreover, LOST tribunals have jurisdiction over any dispute dealing with an international agreement related to the purposes of LOST, including protection of the marine environment. LOST could therefore be a “back-door” for other countries to impose on the U.S. requirements of countless other treaties that it has not joined.

LOST also recognizes various international bodies that develop international standards – standards to which the U.S. has not agreed. Joining LOST could compel the United States to accept what are essentially EU scientific and environmental standards, to the detriment of American businesses and their competitiveness.

Even if American businesses can get past the various environmental, legal and regulatory impediments in order to exploit the deep seabeds’ natural resources, they would be subjected to what amount to taxes in various forms, including in all likelihood, revenue-sharing on the proceeds of their operations in “the Area.” LOST’s authorities can be expected to insist on intrusive and onerous monitoring of corporate books in order to satisfy themselves that the Treaty’s mandate to redistribute wealth is not being shortchanged.

The claim that the Deep Seabed Hard Mineral Resources Act prohibits U.S. companies from deep seabed mining absent U.S. ratification of LOST is false. The purpose of the Act was to facilitate ocean mining in ackowledgement of the absence of ratification of LOST, not to defer to LOST on the subject.

In short, LOST creates a global regulatory regime that will not only be unstable and unpredictable. It can be counted upon to be inimical to American corporations to the extent that it exposes them to further regulation and possible litigation, some of which will likely be based on treaties and principles to which the United States has not agreed.

Corporate executives who have expressed their support for the Law of the Sea Treaty will be held accountable by their shareholders for having done so, seemingly on the basis of the most superficial understanding of this accord and without the due diligence expected of them.

LOST Will Hamstring the U.S. Military

2007-09-01T11:51:00.000-07:00

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.

LOST Creates Dangerous Comments for "International Commons"

2007-09-01T10:22:00.000-07:00

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.

LOST Empowers the UN

2007-09-01T10:10:00.000-07:00

The formal title for the Law of the Sea Treaty is the “United Nations Convention on the Law of the Sea.” This name bespeaks the important role the supranational organization played in the Treaty’s preparation in UN-sponsored negotiations and, subsequent to its entry into force, in LOST’s administration and implementation.

The official title also reflects the fact that the LOST’s various international governmental agencies are modeled after, and work in much the same manner as, the UN and associated multilateral institutions. In some respects, however, the Treaty departs from past practice by conferring on its agencies unprecedented powers – notably for mandatory dispute resolution and for the management of vast natural resources for which those agencies are given responsibility.

Since the Law of the Sea Treaty entered into force two decades ago, LOST’s executive, legislative and judicial entities have largely operated in obscurity and, with a few exceptions, in uncontroversial ways. The question occurs: Would U.S. accession to LOST precipitate changes in the conduct of the Treaty’s agencies, giving rise perhaps to a formidable new international entity – and, in the process, enhancing the influence and power of the UN and other supranational organizations at the expense of nation-states like ours?

The Proponents’ Claims:

Supporters of the Law of the Sea Treaty fall into two camps on LOST and the UN. The Bush administration downplays the UN’s role in the Treaty. It observes that, just because a treaty was drawn up under UN auspices, does not mean that such an accord cannot serve our interests, citing as examples the UN Anti-Corruption Convention and the UN Convention for the Suppression of Terrorist Bombings. The administration also rejects suggestions that the upshot of U.S. ratification of the Treaty will be an undesirable net increase in the stature and authority of the United Nations and other supranational organizations.

Other LOST advocates, however, regard the Law of the Sea Treaty as a stepping stone to a new world order in which supranational government is the rule. As Bernard Oxman, a former U.S. LOST negotiator has put it:

“It is…ironic that while one of the most significant contributions of the Law of the Sea Convention to the rule of law is its requirement for adjudication or arbitration of disputes, the prospects for global ratification of the Convention may be placed in jeopardy by litigation in this delicate interim period, particularly with or between non-parties, over maritime jurisdictional issues.”

“…I do not dissent from the view that the development of international law benefits from more cases and decisions by the Court."

"My view is simply that, because of its compromissory clauses, a globally ratified Convention promises many more cases in the future, and that it would be unfortunate if one or two cases during this delicate interim period, when so many governments are considering ratification, had the effect of prejudicing that promise.”

These Transnational Progressives are convinced that the subordination of the nation-state to such an order is required to ensure a more just and peaceable world and a more equitable distribution of its resources.

The Facts:

The Law of the Sea Treaty and its agencies are indisputably linked to the UN, both substantively and organizationally. What benefits one, benefits the other.

On the substantive plane, other UN agencies routinely promote treaties and regulations designed to build on and reinforce LOST’s importance and the authority of its agencies. A recent example is instructive: A report of a UN review conference on progress between 2004 and 2006 in the implementation of the Convention on Biological Diversity “recognizes the United Nations General Assembly’s central role in addressing issues relating to the conservation and sustainable use of biodiversity in marine areas beyond national jurisdiction.”

The report goes on to “recall that United Nations General Assembly Resolution 60/30 emphasized the universal and unified character of the United Nations Convention on the Law of the Sea, and reaffirmed that the United Nations Convention on the Law of the Sea sets out the legal framework within which all activities in the oceans and seas must be carried out, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on the Environment and Development…” (emphasis added throughout).

At a practical level, the ties between the UN and LOST are no less palpable. For example: All staff associated with LOST bodies are paid by the UN system. Day-to-day monitoring of activities regulated by LOST is conducted by UN staff employees. And, under the terms of the Treaty, the UN Secretary General plays a direct role in choosing the fifth arbiter for five-person special arbitral tribunals that will hear disputes between parties to LOST. He also is responsible for convening conferences to amend the Treaty.

Hard experience argues against further empowering the United Nations and its affiliates. The UN has a long, and sordid, track-record of engaging in or endorsing behavior and policies that are antithetical to the interests of the United States and other freedom-loving nations. Such behavior is generally perpetrated by majorities of member-states and like-minded, unaccountable international bureaucrats who use the General Assembly’s absurd one-nation/one-vote rules to translate their hostility towards America and its fellow developed nations into policies that vilify the West and seek to redistribute the world’s power and wealth to the developing world.

A small sample of this reprehensible conduct would include: the Oil-for-Food scandal; the infamous “Zionism is Racism” resolution; the creation of the UN Human Rights Council on which countries such as Cuba, China, and Saudi Arabia are allowed to serve; and the convening of the 2001 World Conference against Racism in Durban, South Africa – an event that was nothing more than a forum for anti-Semitism and Israel-bashing. News sources have reported that the UN will be convening in Geneva in late August, 2007, to plan a follow-up to the 2001 Durban conference, with Libya slated to chair the planning committee, and Iran and Cuba serving on the committee as well.

LOST amounts to an attempt to put supranational agencies on steroids. It allows them to: regulate seven-tenths of the planet (i.e., the world’s oceans and the vast natural resources to be found in and below them); levy what are tantamount to international taxes; and impose mandatory and un-appealable decisions in disputes that may arise involving parties to the Treaty.

To date, the full malevolent potential of the Law of the Sea Treaty has been more in prospect than in evidence. Should the United States accede to LOST, however, it is predictable that the Treaty’s agencies will: wield their powers in ways that will prove very harmful to American interests; intensify the web of sovereignty-sapping obligations and regulations being promulgated by this and other UN entities; and advance inexorably the emergence of supranational world government.It may be that the only check on such undesirable outcomes is for the United States to remain a non-state party to LOST. The latitude such an arrangement affords America to observe Treaty provisions that are unobjectionable – without being bound by those that are – may not only be preferable for this country and its vital interests. It could also help spare other nations the less free, less prosperous and more onerous international order that will emerge if the Transnational Progressives have their way on the Law of the Sea Treaty.

LOST Creates International Taxes

2007-09-01T07:45:00.000-07:00

LOST defines the portion of the ocean floor and its subsoil that lies beyond the jurisdiction or sovereignty of any one country as “the Area.” The resources of the Area are defined by the Treaty as the “common heritage of mankind.” Activities in the Area are to be carried out for the benefit of mankind as a whole, with special consideration for the needs of developing nations.

To help manage such activities and ensure their compliance with this goal, LOST establishes an international organization known as the International Seabed Authority (ISA). The ISA regulates seabed economic activities in the Area and is charged with providing for the “equitable sharing” of economic benefits derived from it.

The revenue for this “equitable sharing” – as well as for ISA funding in general – is derived from country payments to the ISA. Contractor countries wishing to exploit Area resources must apply for permission to do so, pay the associated fees, then make arrangements with the ISA for profit-sharing or royalties. These arrangements are in addition to country payments to the ISA in the form of an “annual fixed fee” payable from the day production starts, the amount of which is to be established by the ISA.

In addition to funds obtained through payments to ISA relating to activity in the Area, the ISA also obtains payments under LOST from countries seeking to exploit resources on the portions of their own continental shelves extending beyond 200 miles from the coastline.

The Proponents’ Claims:

The various fees, revenue-sharing arrangements and payments do not constitute “international taxes.” The ISA does not have the authority to impose such taxes.

The Facts:

Were the United States to ratify the Law of the Sea Treaty, its citizens would be taxed without representation. Unlike the familiar levies imposed by the Internal Revenue Service, however, those generated by LOST’s International Seabed Authority will not involve direct taxation of Americans. Instead, we will be taxed indirectly by removing profits from the American business revenue stream for a governmental purpose – namely, to pay its own expenses – and for distribution to developing countries. In some cases, taxpayers may also pick up the tab in the event the U.S. Treasury is assessed fees owed by its corporations and unable to obtain reimbursement from the companies in question.

Proponents of LOST try to minimize the significance of the Treaty’s tax implications by contending that the amounts in question are small. For example, the United States is one of a number of countries that could exploit oil and gas deposits on its continental shelf but more than 200 miles off-shore. Under LOST, such countries would not have to pay the ISA anything for the first five years of production at any given site. In the 6th year they would pay 1% of production, and an additional 1% per annum thereafter, until this tax is capped at 7% in the 12th year of production.

The effort to trivialize such payments misses the point. The principle of no taxation of the American people without representation would be breached by such an arrangement. The rate at which such taxes are levied could easily be increased once the United States is a party to the Treaty. That is particularly true given the tyranny of the majority likely to operate among LOST members who are would-be beneficiaries of any tax-fed redistribution of wealth.

LOST’s champions also note that, with respect to mineral activities in the deep seabed beyond U.S. jurisdiction, an interested company would pay an application fee for the administrative expenses of processing the application. Sums in excess of the cost of processing the application would supposedly be returned to the applicant. They also point to the fact that the Treaty does not specify any royalty requirements for production, suggesting that the U.S. would need to agree to establish any.

The fact remains that LOST requires that a “system of payments” from the contractor country to the ISA be created with respect to the Area, and states that consideration should be given to the adoption of a royalty system or profit-sharing system. No matter what the details of the chosen payment system are, this still amounts to a requirement that would oblige U.S. companies to pay an international body for the right to exploit resources in the Area – a right that the United States currently enjoys without the requirement of such payment.

Finally, defenders of LOST insist that no royalties would go to the UN. Rather, they would be distributed to countries in accordance with a formula to which the United States would have to agree.

Here again, the point is not who would benefit from the international taxes imposed by LOST. To the extent that the revenues flow into supranational bureaucracies that have a tendency to translate their unaccountability into corrupt practices (e.g., the Oil for Food program), that would be undesirable. To the extent they flow to underdeveloped nations that all-too-often suffer under kleptocracies, that too would be undesirable. Either way, Americans whose resources are diverted to one or both of these beneficiaries will be dunned without their assent.

Here again, the precedent created by LOST is as troubling as its provisions’ direct implications. The United Nations and its admirers have been campaigning for years to establish various schemes for imposing international taxes. The effect of actually doing so would be to make the organization less dependent upon the largesse of its member nations – the United States preeminent among them. That, in turn, assures that UN agencies will become still less transparent, accountable and responsible to the publics around the world whom they are nominally supposed to serve.Should the United States become a LOST state party, it will be assenting for the first time to the institutionalization of a mechanism that will allow such agencies to impose international taxes. It will also be advancing markedly the stated ambition of some of the Treaty's framers, best described by the World Federalist Association (a.k.a. Citizens for Global Solutions): "By means of these voluntarily funded functional agencies, national sovereignty would be gradually eroded until it is no longer an issue...Eventually, a world federation can be formally adopted with little resistance."

LOST Mandates Technology Transfer

2007-09-01T07:40:00.000-07:00

The Law of the Sea Treaty contains numerous provisions that involve obligations to share information and technology. The Treaty’s architects had in mind not only the importance of technology transfers to the viability of its various maritime research, environmental and industrial goals. They also saw such transfers as tangible examples of LOST’s agenda more equitably to distribute the world’s wealth, both physical and intellectual.

LOST requires transfers of information, know-how and hardware in such areas as: underwater mapping and bathymetry systems; reflection and refraction seismology; magnetic detection technology; optical imaging; remotely operated vehicles; submersible vehicles; deep salvage technology; active and passive acoustic systems; bathymetric and geophysical data; and undersea robots and manipulators. Many of these technologies are inherently “dual-use,” having both military and civilian applications. Their military applications include: anti-submarine warfare capabilities; strategic deep-sea salvage abilities; and deep-water bastions for sub-surface launching of ballistic missiles.

The Proponents’ Claims:

U.S. accession to the Law of the Sea Treaty will not require it to engage in any undesirable technology transfers. Unacceptable obligations to share such technology were eliminated by the 1994 Agreement that “fixed” the original Treaty.

The Facts:

The Law of the Sea Treaty requires extensive transfers of data and technology – at least some of which could be highly detrimental to America’s industrial competitiveness (including in fields far removed from maritime-related activities) and to the national security. For example:

LOST’s Article 266 mandates that states “cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions” and “endeavor to foster favorable economic and legal conditions for the transfer of marine technology.”

Article 268 requires states to “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”

Article 269 calls for parties to “establish programs of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance.” (Emphasis added.)

Compulsory dispute settlement mechanisms afford further opportunities to obtain sensitive technology and information. Article 6 of Annex VII requires that parties to a dispute “facilitate the work of the arbitral tribunal and…provide it with all relevant documents, facilities and information.” It can therefore be expected that countries may bring the United States or its businesses before arbitral tribunals – without expectation of a favorable result, solely for the purpose of obtaining sensitive technology information.

The 1994 Agreement ostensibly made certain modifications to technology transfer obligations contained in LOST’s Part XI, which governs administration of the deep seabed. It is misleading, however, to suggest that the United States would, as a result, have no difficulties with technology transfer should it become a party to LOST.

For one thing, the 1994 accord could not have amended LOST since the Treaty was not open to amendment until eight years after the Agreement entered into force. For another, there are specific arrangements for amending the Treaty, and the Agreement did not conform to them. Finally, not all of LOST’s state parties have endorsed the Agreement. At the very least, this would allow the non-signatories to insist on the application of the original provisions, including those requiring technology transfers.

Even to the extent the 1994 Agreement can be said to have modified the Law of the Sea Treaty, it did not do so with respect to all of the Treaty’s numerous technology transfer provisions. For example, just the requirements for information-sharing contained in the mandatory dispute-resolution obligations – which are unaddressed by the Agreement – could be sufficient to compel problematic transfers of sensitive data, technology and know-how.

The United States is the nation with the most to lose – from an economic and national security point of view – from the sort of obligatory technology transfer provisions contained in the Law of the Sea Treaty, including those that would be binding even if the 1994 Agreement has effect.

America has long imposed unilateral export control restrictions precisely for the purpose of preventing transfers that will result in harm to this country. U.S. accession to LOST would require a substantial liberalization, if not wholesale scrapping, of such important self-defense measures.

Actual or potential competitors/adversaries like China, Russia, state-sponsors of terror and even European “allies” understand full well what a technology windfall U.S. adherence to LOST could represent. It would be irresponsible, not to say foolish in the extreme, to believe that none of these parties will take advantage of the opportunity to reap that windfall to our very considerable detriment.

LOST and the UN

2007-09-01T07:29:00.000-07:00

“It is…ironic that while one of the most significant contributions of the Law of the Sea Convention to the rule of law is its requirement for adjudication or arbitration of disputes, the prospects for global ratification of the Convention may be placed in jeopardy by litigation in this delicate interim period, particularly with or between non-parties, over maritime jurisdictional issues.”

“…I do not dissent from the view that the development of international law benefits from more cases and decisions by the Court.

"My view is simply that, because of its compromissory clauses, a globally ratified Convention promises many more cases in the future, and that it would be unfortunate if one or two cases during this delicate interim period, when so many governments are considering ratification, had the effect of prejudicing that promise.”

The Law of the Sea Treaty and its agencies are indisputably linked to the UN, both substantively and organizationally. What benefits one, benefits the other.

On the substantive plane, other UN agencies routinely promote treaties and regulations designed to build on and reinforce LOST’s importance and the authority of its agencies. A recent example is instructive: A report of a UN review conference on progress between 2004 and 2006 in the implementation of the Convention on Biological Diversity “recognizes the United Nations General Assembly’s central role in addressing issues relating to the conservation and sustainable use of biodiversity in marine areas beyond national jurisdiction.”

The report goes on to “recall that United Nations General Assembly Resolution 60/30 emphasized the universal and unified character of the United Nations Convention on the Law of the Sea, and reaffirmed that the United Nations Convention on the Law of the Sea sets out the legal framework within which all activities in the oceans and seas must be carried out, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on the Environment and Development…” (emphasis added throughout).

At a practical level, the ties between the UN and LOST are no less palpable. For example: All staff associated with LOST bodies are paid by the UN system. Day-to-day monitoring of activities regulated by LOST is conducted by UN staff employees. And, under the terms of the Treaty, the UN Secretary General plays a direct role in choosing the fifth arbiter for five-person special arbitral tribunals that will hear disputes between parties to LOST. He also is responsible for convening conferences to amend the Treaty.

Hard experience argues against further empowering the United Nations and its affiliates. The UN has a long, and sordid, track-record of engaging in or endorsing behavior and policies that are antithetical to the interests of the United States and other freedom-loving nations. Such behavior is generally perpetrated by majorities of member-states and like-minded, unaccountable international bureaucrats who use the General Assembly’s absurd one-nation/one-vote rules to translate their hostility towards America and its fellow developed nations into policies that vilify the West and seek to redistribute the world’s power and wealth to the developing world.

A small sample of this reprehensible conduct would include: the Oil-for-Food scandal; the infamous “Zionism is Racism” resolution; the creation of the UN Human Rights Council on which countries such as Cuba, China, and Saudi Arabia are allowed to serve; and the convening of the 2001 World Conference against Racism in Durban, South Africa – an event that was nothing more than a forum for anti-Semitism and Israel-bashing. News sources have reported that the UN will be convening in Geneva in late August, 2007, to plan a follow-up to the 2001 Durban conference, with Libya slated to chair the planning committee, and Iran and Cuba serving on the committee as well.

LOST amounts to an attempt to put supranational agencies on steroids. It allows them to: regulate seven-tenths of the planet (i.e., the world’s oceans and the vast natural resources to be found in and below them); levy what are tantamount to international taxes; and impose mandatory and un-appealable decisions in disputes that may arise involving parties to the Treaty.

To date, the full malevolent potential of the Law of the Sea Treaty has been more in prospect than in evidence. Should the United States accede to LOST, however, it is predictable that the Treaty’s agencies will: wield their powers in ways that will prove very harmful to American interests; intensify the web of sovereignty-sapping obligations and regulations being promulgated by this and other UN entities; and advance inexorably the emergence of supranational world government.

It may be that the only check on such undesirable outcomes is for the United States to remain a non-state party to LOST. The latitude such an arrangement affords America to observe Treaty provisions that are unobjectionable – without being bound by those that are – may not only be preferable for this country and its vital interests. It could also help spare other nations the less free, less prosperous and more onerous international order that will emerge if the Transnational Progressives have their way on the Law of the Sea Treaty.

LOST Poses Threats to U.S. Sovereignty

2007-09-01T07:19:00.000-07:00

The Law of the Sea Treaty’s stated purpose is the establishment of a “legal order for the seas and oceans.” To that end, LOST establishes rules governing: navigation of the oceans, territorial waters and straits; marine research; protection of the marine environment; deep seabed mining: and other oceans-related issues.

LOST also establishes UN-affiliated agencies to implement the Treaty, as well as international tribunals to hear disputes between state parties as to the Treaty’s application. If the disputing parties fail to reach an agreement on their own, they are required to submit the matter for resolution to one of LOST’s mechanisms: the International Tribunal on the Law of the Sea (ITLOS), an arbitration panel or a special arbitration panel.

In order to engage in exploitation of the seabeds’ natural resources, parties to LOST must make payments of various kinds to the Treaty’s International Seabed Authority (ISA).

After negotiations on LOST were completed in 1982, the Treaty was rejected by President Reagan. It was subsequently signed by President Clinton in 1994 following the negotiation of a separate accord known as “the Agreement” that is said to have addressed Mr. Reagan’s concerns. To date, the Senate has not consented to the ratification of LOST.

Proponents’ claims:

Far from impinging upon American sovereignty, this treaty actually increases this nation’s sovereign authority and power. In fact, the Law of the Sea Treaty might be better described as a “U.S. land grab.” It expands this country’s sovereignty and sovereign rights over extensive maritime territory and natural resources off its coast. It provides: a 12-mile territorial sea subject to U.S. sovereignty, U.S. sovereign rights over resources within a 200-mile exclusive economic zone, and U.S. sovereign rights over offshore resources (including minerals) to the outer edge of the continental margin, which extends well beyond 200 miles in several areas, including up to 600 miles off Alaska.

The Convention does not harm U.S. sovereignty in other respects either. The dispute resolution mechanism provides appropriate flexibility in terms of both the forum and the exclusion of sensitive subject matter. The deep seabed mining provisions do not apply to any areas in which the U.S. has sovereignty or sovereign rights. Further, these rules will facilitate mining activities by U.S. companies in international waters. And the navigational provisions ensure that U.S. military and commercial vessels have worldwide maritime mobility – without a permission slip.

Proof of the positive effect of LOST on U.S. sovereignty can be found in the very broad support the Treaty enjoys from the U.S. military, environmentalists and affected industries, including oil/gas, fisheries, communications, maritime transportation, ocean manufacturing, etc.

The Facts:

LOST is a vast and complex undertaking, with obligations and implications that go far beyond the codification of common navigation rights and arrangements that were the initial impetus for the Treaty.

During its negotiation, LOST became a vehicle for advancing an agenda promoted by the Soviet Union and so-called “non-aligned movement” during the 1970s, known as the New International Economic Order (NIEO). The NIEO was a classic “united front” effort aimed at undermining the economic and military power of the industrialized West – particularly the United States – in the name of a centrally planned, global redistribution of wealth to the benefit of developing nations.

Toward this end, LOST creates various supranational bodies to develop and enforce its provisions, complete with an executive branch, legislature and judiciary. These agencies operate on the basis of one-nation/one-vote – an arrangement that has proven in the United Nations and elsewhere to be highly disadvantageous to the United States.

The true intent of LOST is made clear by statements from some of those most responsible for its mutation from a navigation agreement to a blueprint for supranational government of 70% of the world’s surface (i.e., the oceans and their seabeds): the World Federalist Association (now known as Citizens for Global Solutions). In an undated white paper on their website, these advocates for world government declare: “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 Citizens for Global Solutions posting goes on to say: “By means of these voluntarily funded functional agencies, national sovereignty would be gradually eroded until it is no longer an issue…Eventually, a world federation can be formally adopted with little resistance.”

This strategy of garroting national sovereignty would be advanced by LOST in several ways. For example:

LOST entails obligations at odds with our national security strategy and operations. These obligations may be enforced by the Treaty’s mandatory dispute resolution mechanisms that are stacked against the United States.

LOST involves unprecedented environmental obligations. These can be used to interfere with the exercise of U.S. sovereignty on the grounds that what is being done on American soil or in its airspace will have negative repercussions for the oceans. Such obligations go far beyond the Kyoto accords and could entail substantial costs.

For example, steps taken to resuscitate New Orleans in 2005 by pumping untold quantities of toxic waste out of Lake Pontchartrain into the Gulf of Mexico could have been prohibited by an edict from a LOST agency. Such a ruling could then have been enforced by U.S. courts increasingly acting under the sway of international tribunals and treaties.

LOST empowers an unaccountable, unrepresentative international agency for the first time to collect what amount to taxes. This step – and the ominous precedent it sets – are an affront to a nation whose genesis was rooted in the principle of “no taxation without representation.”

LOST will allow interference with and the penalization of American businesses. It will impose the “Precautionary Principle” (according to which innovations cannot be introduced unless proven free of any adverse consequences); give standing to Alien Torts claims in U.S. courts; require sharing proprietary information and technology with international bureaucrats and competitors; compromise WTO rights; and give precedence to European-dominated international standards. The costs of such derogations of our sovereignty could be high, perhaps even crippling, for affected businesses.

The U.S. Does Not Need LOST to Protect its Equities

2007-09-01T06:49:00.000-07:00

The only LOST setting in which the United States is guaranteed a “seat at the table” is on the committee that determines the organization’s budget allocations. America may or may not be one of the countries represented on such other multilateral entities as the International Tribunal on the Law of the Sea (ITLOS) or the Commission on the Continental Shelf – which will likely play a role in decisions about the Russian bid.

Even on those LOST bodies where it is represented, the United States will not have a veto. As a result, as with the UN General Assembly, it is likely that the U.S. will find itself frequently out-voted, even on matters of significant importance to it.

Issues concerning the division of the continental shelf will fall under LOST jurisdiction, and the assertion that joining LOST will allow the U.S. to participate in shelf definition deliberations without exposure to adverse decisions on continental shelf division is false. LOST Article 83 sends such disputes to the LOST compulsory dispute mechanisms, where the U.S. could face adverse, binding decisions that cannot be appealed.
There are alternatives to LOST membership that can be used by the United States to achieve satisfactory arrangements with respect to the Arctic without having to subject itself to the high costs of becoming a state party to the Treaty. For example:

Since 1996, the United States has been a member of the Arctic Council, an intergovernmental forum made up of just the Arctic states – the U.S., Canada, Finland, Iceland, Norway, Russia and Sweden. The Council has proven to be an effective instrument for addressing multilateral concerns involving the Arctic and is far more conducive to outcomes satisfactory to the U.S. than LOST’s 22-nation Continental Shelf Commission or its other, still-less-accountable and still-more-U.S.-unfriendly dispute resolution mechanisms.

The United States also has participated since 1996 with an even smaller subset of the Arctic states, namely, Russia and Norway, in the Arctic Military Environmental Cooperation (AMEC) Program. AMEC offers a forum for addressing in a constructive way military/environment-related matters involving Arctic operations, outside LOST’s bureaucratic mechanisms and obligations.

The United States has also demonstrated that it can reach satisfactory understandings regarding oceans-related disputes outside of LOST through bilateral diplomacy. In 1988, the U.S. and Canada negotiated the Arctic Cooperation Agreement, a modus vivendi with respect to the Northwest Passage. The Agreement provided that, although the United States regarded the Passage as an international waterway, it would not send icebreakers or other vessels through it without seeking consent from Canada. For its part, Canada pledged always to give such consent.
The United States is far more likely to achieve results it can live with – in the Arctic seabeds and in other ocean areas – by dealing directly with one or more of the nations immediately involved than by entrusting its equities to UN agencies over which it has effectively no control and that are typically dominated by bureaucrats and/or nations hostile to this country.

Reagan's Concerns with LOST

2007-09-01T06:42:00.000-07:00

Prior to his election to the White House in 1980, Ronald Reagan expressed opposition to the Law of the Sea Treaty then under negotiation. In 1982, President Reagan announced his rejection of the draft treaty and identified a large number of changes required to make it acceptable to his administration. Those changes were not accepted in subsequent negotiations and Mr. Reagan refused to sign what he considered to be a defective accord. In a 1983 Oceans Policy Statement, however, he directed the U.S. government to abide by the non-deep-seabed provisions of the Convention and encouraged other countries to do likewise.

Among the specific concerns with LOST identified by President Reagan in 1982 were: (1) the lack of adequate American influence within the decision-making bodies of the International Seabed Authority (ISA), in charge of regulating deep seabed mining in the oceans; (2) limitations on exploitation of the deep seabed; (3) mandatory technology transfers to the ISA and developing countries; (4) the competitive advantage given to a supranational mining company affiliated with the ISA known as the “Enterprise”; (5) the imposition of financial burdens on deep seabed mining operations; and (6) the potential for the ISA to impose regulatory burdens on the American mining industry.

In 1994, a separate, multilateral agreement was negotiated by the Clinton administration with many, but not all, of the then-parties to LOST. The question occurs: Did the “Agreement” (as it is known) satisfactorily address Mr. Reagan’s objections to the Treaty?

The Proponents’ Claims:

President Reagan’s objections were exclusively concerned with certain deep seabed mining provisions of the Convention. He considered that those provisions could be fixed and specifically identified the elements in need of revision. The 1994 Agreement fixed the relevant deep seabed mining provisions in ways that meet each one of President Reagan’s stated objections.

The Facts:

Ronald Reagan Opposed LOST on Principle

President Reagan was concerned not simply with specific provisions of Part XI of the Law of the Sea Treaty that dealt with deep seabed mining. As his chief negotiator for LOST, the late Amb. James Malone, noted in a Foreign Policy article in 1984: “…Security and economic interests vital to national well-being and the principles that form the foundation of American democracy must be given priority by those individuals entrusted to make public-policy decisions. It was this basic responsibility that made it necessary for the president to decide against U.S. acceptance of the United Nations Convention on the Law of the Sea in 1982.”

Many of President Reagan’s chief lieutenants – including: his National Security Advisor, Judge William Clark; his Counselor and Attorney General, Edwin Meese; his Secretary of Defense, the late Caspar Weinberger; his UN Ambassador, the late Jeane Kirkpatrick; and his Secretary of the Navy, John Lehman – agree that what Mr. Reagan found objectionable about LOST could not be fixed by relatively minor reworking of its provisions related to the International Seabed Authority.

The 1994 Agreement Did Not Amend LOST

Under the Law of the Sea Treaty’s own terms, the Treaty could not be amended for a decade after it entered into force. Since LOST did not enter into force until 1994, it was not available for amendment until 2004 – ten years after the 1994 Agreement was signed.

Even if LOST had been available for amendment, the 1994 Agreement did not conform to the procedures specified by the Treaty for adopting amendments. As a result, the terms of the Treaty have not been formally altered.

Presumably it is for these reasons that the 1994 Agreement does not explicitly amend LOST. Rather, the Agreement states that “The provisions of this Agreement and Part XI [of LOST] shall be interpreted and applied together as a single instrument.”

At the time, a representative of the American ocean mining industry cited this shortcoming in testimony before Congress: “[The 1994 Agreement] does not even purport to amend the Convention. It establishes controlling ‘interpretive provisions’ that will control in the event of a dispute. This is not an approach that gives confidence to prospective investors in ocean mining.”

Neither does the 1994 Agreement require any of the LOST tribunals to abide by the Agreement. This increases the likelihood that such panels, when hearing disputes between parties, will view LOST itself as the basis for resolving the dispute, and not the 1994 Agreement.

That is especially so since roughly sixteen percent of the parties to LOST – fully 25 member countries – have yet to sign the 1994 Agreement. It is far from clear on what basis these countries could be expected to view the Agreement’s purported revisions to the Treaty as legitimate. How, for instance, would resolutions be achieved in disputes between countries that are party to both LOST and the Agreement, on the one hand, and countries that are party only to LOST, on the other? At the very least, the latter could legitimately challenge claims by the United States (or others) to be bound by terms other than those contained in the Law of the Sea Treaty’s agreed text.

The 1994 Agreement’s Shortcomings

The foregoing issues aside, the Agreement falls significantly short of meeting of Mr. Reagan’s concerns even with respect to the problematic sections of LOST that it does address. For example:

The lack of U.S. Influence: The 1994 Agreement requires that any ISA Assembly decisions concerning administrative, budgetary and financial matters must be based on recommendations by the ISA Council. While the Agreement effectively guarantees the United States a seat on the Council, it does not assure this country a veto. To the extent the Council operates on the basis of consensus, America may have what amounts to such leverage. But nothing prevents the Council from acting instead on the basis of majority rule – in which case, Mr. Reagan’s concerns would still apply.

For example, the 1994 Agreement still allows the ISA to amend LOST without American consent. The UN Secretary General can convene a conference, at which the Assembly and Council can vote to accept an amendment to LOST. It then requires the approval of three-fourths of LOST’s states parties to become final. As is often the case in UN settings, the United States could simply be outvoted.

Furthermore, the argument that the United States would have to ratify any “amended treaty” to be bound by its terms ignores the reality of how LOST would likely work in practice. Changes that affect the U.S. could manifest themselves in the form of regulations decided upon within LOST bodies, which would not be ratified externally. Additionally, whether or not LOST is being “amended” in the formal sense would be dependant upon the subjective views of the LOST deliberative bodies. The U.S. could therefore find itself bound by modifications to LOST even without U.S. ratification of such changes.

Mandatory Technology Transfers: Although the 1994 Agreement purports to modify some troubling LOST provisions on the obligatory sharing of sensitive information and technologies, it fails to address, let alone alter, other coercive provisions. These include LOST’s requirement that states parties “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”

Neither does the Agreement speak to LOST’s requirement to transfer information and perhaps technology pursuant to the Treaty’s mandatory dispute resolution mechanisms. Parties to a dispute are required to provide the tribunal with “all relevant documents, facilities and information.” This amounts to an invitation for competitors to bring the United States and/or its companies or adversaries before a LOST tribunal to obtain sensitive data and know-how. These are hardly the sorts of safeguards upon which President Reagan insisted.

LOST’s Implications for U.S. Businesses: Another topic unaddressed by the Agreement is LOST’s requirement that half of each area surveyed by an American mining company must be turned over to the ISA for exploration by the Enterprise – with the ISA choosing which half. President Reagan correctly viewed this arrangement as one that would force American companies to assist competitors.

LOST’s Financial Burdens: Although the 1994 Agreement purports to lessen some of the onerous costs associated with exploiting the deep seabeds’ natural resources, other burdens imposed by LOST go unaddressed. The latter include taxes and fees that companies and countries must pay to the ISA, notably an application fee for required permits, an annual fixed-fee and royalties payments. Likewise, the Agreement does not try to alter the ISA’s authority to redistribute such revenues to other countries on the basis of “equitable sharing,” with special emphasis on developing nations – in other words, the kind of socialist, global wealth-redistribution scheme that Mr. Reagan viscerally opposed.LOST’s Regulatory Burdens: The 1994 Agreement does little to address President Reagan’s concerns about the Law of the Sea Treaty’s regulatory burdens. For example, the ISA still maintains the right to adopt “appropriate rules, regulations, and procedures for…the prevention, reduction and control of pollution and other hazards to the marine environment,” which would undoubtedly impose significant costs on American businesses and promote big (supranational) government.

Taken altogether, it is a canard to claim that the problems with the Law of the Sea Treaty that prompted President Reagan to reject it have been “fixed.” To the extent that the 1994 Agreement has any force and effect, it addresses only some of Mr. Reagan’s concerns. That accord does not even purport to alter much of what the President found unacceptable in this supranational government-empowering treaty. Insofar as the Agreement does not actually amend even those parts of LOST that it does address, it is misleading to contend that the Treaty would now be acceptable to Ronald Reagan – or that it should be to those who share his vision and values.

Lost Mandates Compulsory Dispute Settlement

2007-09-01T06:41:00.000-07:00

LOST departs dramatically from the previous, 1958 convention governing navigation by obligating member states, in the event of disputes, to submit to mandatory settlement mechanisms. These apply not just to issues involving the maritime “rules of the road,” but to any ocean-related disputes that state parties cannot resolve on their own.

Nations are required – at the request of either of the disputing parties – to submit the dispute for resolution by one of several international tribunals: (1) The International Tribunal for the Law of the Sea (ITLOS), (2) an arbitral tribunal or (3) a special arbitral tribunal. Another option is the International Court of Justice (ICJ). If the parties to the dispute cannot agree on a mechanism, the dispute automatically goes to an arbitral tribunal for resolution. Decisions made by any of these bodies are binding upon the disputants, and such decisions cannot be appealed.

The question is: How will mandatory dispute resolution affect U.S. interests?

The Proponents’ Claims:

In the event of disputes, the United States will avoid potential problems with international courts by choosing either arbitration or special arbitration as the dispute mechanisms, thereby assuring decisions amenable to U.S. interests. Military activities will be exempted from consideration by any LOST tribunal and it will be exclusively up to the United States to determine what constitutes such an activity.

The Facts:

LOST proponents in the Bush Administration are right to be worried about international courts given the record of such panels, particularly of the ICJ, to be highly politicized and generally very hostile to American interests.

Unfortunately, the appointment procedures that would apply to the “swing” arbiters in both the regular and special arbitration panels are likely to assure a similar stacking of the deck against the United States. In regular arbitration, each party chooses one panelist, and the three remaining panelists are chosen by the President of the Law of the Sea Tribunal. In special arbitration, each party chooses two panelists, and the remaining panelist is chosen by the Secretary General of the United Nations.

Worse yet, the State Department has acknowledged that arbitration panels would likely look to decisions of the Tribunal to inform their own rulings. As a practical matter, this means that, were the United States to become a party to the Treaty, it would not be able to escape the reach of the Tribunal – despite its determination to forum-shop by choosing arbitration.

Equally untenable is the proponents’ insistence that Law of the Sea Treaty tribunals will be unable to interfere with U.S. military activities. Although LOST exempts “disputes concerning military activities” from the purview of its dispute resolution mechanisms, the Treaty does not define “military activities.”

Proponents of LOST argue that the United States can 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. LOST must be accepted or rejected in its entirety. Furthermore, if the U.S. military were allowed to make such a unilateral determination under LOST, the militaries of other nations would exercise the same option, creating an anarchic situation that would defeat the purposes of LOST altogether. LOST was clearly not intended to allow this to happen.

These considerations, combined with the Treaty’s sweeping environmental obligations, give rise to circumstances in which U.S. Navy and perhaps other military services, their contractors or suppliers seem virtually certain to find themselves embroiled in one or another of LOST’s dispute resolution mechanisms. For example, the Navy’s use of high-powered sonars would certainly be characterized by Washington as a military activity. But the Navy could well be forced to defend the use of such sonars before an unfriendly LOST panel on the grounds that it has harmed the “marine environment,” by killing whales or dolphins.

Worse yet, in the event of any dispute over whether an activity is military in nature, the tribunals created by LOST are permitted to make that determination themselves.

The mandatory and rigged nature of the dispute resolution mechanisms are one of the most important reasons why the United States will be better served by continuing its practice over the past twenty-five years – namely, voluntarily observing those parts of LOST that it finds unobjectionable, but remaining unencumbered by the obligations that are.