Tuesday, November 6, 2007

Law of the Sea Treaty Should be Sunk

The Senate Foreign Relations Committee approved the Law of the Sea Treaty (‘LOST’) by a vote of 17-4 and sent it to the Senate to vote it up or down. President Bush has said he will sign it. As with all treaties, LOST will become the ‘law of the land’ if approved by the Senate and signed by the President; this means it will supersede all other federal and state laws.

Many thought LOST was lost when Ronald Reagan rejected it; no one thought a Republican president would resurrect it; however it is easy to see why. Although former Secretary of State Ed Meese and Reagan’s Attorney General and National Security Adviser, William Clark, were opposed, former Secretary of State James Baker was in favor of it. Since George Bush is now under the spell of James Baker (as he follows Baker’s recommendations on the mid east), it is likely he is following Baker’s advice regarding approval of this unfortunate treaty.

It has been reported that the U.S. Navy is in favor of the treaty "because it creates a framework for navigational rights". However, the U.S. Navy has been doing quite well using "customary law" that has guaranteed freedom of the seas for over three hundred years. Some argue we should approve the treaty otherwise Russia will claim oil rights at the Arctic seabed but the broad Russian claims are actually a result of the treaty. Also, the fact that as a treaty member the U.S "will have a seat at the table" is not persuasive since there are many other "seats’ occupied by members not friendly to the United States. Do we expect countries the like of Cuba, Venezuela, Iran and Zimbabwe will support American interests?

A major problem is that the Law of the Sea Treaty has 320 articles and nine annexes. It is unlikely that Senators, and even the president, have read all 320 articles to know what they are signing the United States on to; no doubt if they actually read it all they would be surprised what they would find.

The administration believes military activities are excluded from the treaty but Article 20 says "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and show their flag." It is difficult to imagine Navy personnel in favor of the treaty are actually aware of this provision that would prevent intelligence gathering or deployment of our forces in hostile shores. Navy sonar equipment would also be prohibited by Article 196 which says countries "shall take all measures to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control".

The government has already been sued by environmentalists over the use of sonar claimed to adversely affect whales and other sea creatures; with the treaty in hand they would surely be able to prevent the Navy from using its vast technologies in the protection of our country.

Many people feel LOST is a "back-door" mechanism for forcing American compliance with the Kyoto Treaty. Although the administration says the treaty does not apply to land-based pollution, Senator David Ritter says "If it is … not covered by the treaty, why is there a section entitled ‘Pollution from Land-Based Sources’? Senator Vitter might also refer to Article 213 which says countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution". Of course, the UN has jumped on board of the ‘man-is causing-global warming’ bus and LOST would bring the United States along for the ride too.

Should the United Nations have authority to levy taxes? If you don’t think so, read Article 13 of the third Annex of the treaty which gives the treaty-formed ‘International Seabed Authority’ the authority to tax as much as 70% of the net proceeds of enterprises engaged in underwater seabed mining, as well as the ability to levy annual million dollar "administrative fees".

About 154 countries have adopted the treaty; how many of these do you suppose are of the economic and military stature of the United States? The treaty was rejected over twenty years ago by our government that did not want to grant the corrupt United Nations control over 70% of the planet’s surface, the senate should reject it now.

1 comment:

Caitlyn said...

I am disappointed to see that you have formulated a position on the LOS Convention that is based on the half-truths and misrepresentations put forth by a small group think tanks largely based in Washington, DC.

I served on President Reagan's interagency review. I also served as a Deputy US Representative on his delegation to the LOS Conference in 1982. I was closely involved in drafting the instructions to the delegations that he approved. I know from that experience that he had a limited number of specific objections whose fixes later became the essential elements of the 1994 Agreement on Implementation. It is with the fixes contained in the 1994 Agreement that President Bush has endorsed the Convention and seeks advice and consent by the Senate.

To say that the US Navy gets along fine under customary international law is false. It was because of weaknesses in customary international law that we started the negotiation process back in 1965. While the Convention establishes new rules that meet our needs, we cannot fully benefit from those rules while staying outside the Convention.

For example, in recent years, several key countries have refused to join the Proliferation Security Initiative or to allow the US to patrol in their waters explicitly because the US is not party to the Convention and as such we have refused to recognize their sovereign rights at sea, even within their own territorial seas. While the US has the military might to do what it wants, it is counter-productive to exert such power against the very states whose cooperation we seek in the global war on terror.

You should also note that customary law of the sea, largely unmodified from the time of Grotius, was irrevocably changed as offshore resources led countries (with the US in the lead) to claim control over the living and mineral resources of the ocean and sea floor. Try as it might, we were unable to unilaterally redefine the body of rights and duties of nations at sea and tried, through a series of international conferences, to reach global agreement to a new ocean legal regime. We achieved much of that agreement in 1982, but still needed to resolve matters related to deep seabed mining. Those matters were finally resolved in our favor in 1994 within the criteria set by President Reagan.

Regarding land based pollution, the details of those provisions limit enforcement to agreements that are 'applicable' to us - that is, those agreements that we have explicitly accepted. The purpose of the provisions is to bring other nations up to the standards we began to set in the 1960s. This is good for us on grounds both of environmental protection and international competitiveness,

The Kyoto argument is a total canard. To be subject to the convention, rules have to be "applicable" to a state - and having not joined Kyoto, its provisions cannot be applicable to us. Wishful thinking on the left does not change the provisions or the meaning of the Convention - and left-wing professors are no more correct in their ideologic views of the convention than are the ideologues of right wing think tanks.

Also, like it our not, the LOS Convention is the only international law that applies to the development and protection of the Arctic Ocean. All other Arctic nations, as well as the maritime states that may use the Northwest Passage and the Northern Sea route are parties to the Convention and have reaffirmed the primacy of the Convention is dealing with Arctic issues. It is the navigation provisions, the fisheries provisions and the continental shelf provisions of the Convention that will guide development of the Arctic and unless we are content to be a second-rate polar power, we will need to be party to the Convention.

I began my involvement in the LOS negotiations as an ocean engineer providing advice on the technology and economics of the fledgling deep ocean mining industry. As I look at the industry now I see the US excluding our own citizens from the very industry that President Reagan sought to foster and protect. No US firm can conduct seabed mining without foreign partners to provide processing technology and no foreign consortium can take on US participants as long as the US is not a party to the Convention.

Finally, as you note, the Convention is a long read - even longer than the 1982 Convention alone because you can not understand the seabed provisions without reading the 1994 Agreement as well. And just as domestic legislation needs to be read in conjunction with legal precedent, the Convention needs to be read with an understanding of the practice and implementation that has occurred since the Convention came into force thirteen years ago. Since that time we have failed to get the full benefits of the Convention both in the bilateral dealings with other states and in the multilateral system for the development of deep seabed minerals.

There is a wealth of experience on the LOS Convention available to draw from. I hope you will tap into it rather than rely on the talking points and "special reports" of the ivory tower opposition.