Permission Slip for the Sea
In his 2004 State of the Union Address, President Bush said, “America will never seek a permission slip to defend the security of our country.” Members of both parties and Houses of Congress applauded. But if the U.S. Senate votes to ratify the UN Convention on the Law of the Sea — known as the Law of the Sea Treaty — or its appropriate acronym — LOST — he and his successors are going to need lots of permission slips.
In 1982 Ronald Reagan, concerned about the treaty’s implications for our sovereignty and national security, formally rejected LOST because it did “not satisfy the objectives sought by the United States.” In 1994, William Jefferson Blythe Clinton, anxious to appease One World Government advocates in his own party and at the United Nations, negotiated a parallel “Agreement” that purported to address Mr. Reagan’s concerns — and urged ratification. Since then, LOST has gathered dust in the bowels of the U.S. Senate Foreign Relations Committee. All that may be about to change. The deeply flawed, Soviet-era agreement giving unelected, unaccountable international bureaucrats control over 71 percent of the earth’s surface is now on a fast track to ratification.
Advocates for LOST — among them Senate Foreign Relations Committee Chairman Joe Biden (D-DE) — claim that the Clinton-negotiated parallel “Agreement” eliminates concerns about empowering international organizations to collect heavy fees or interfere with U.S. military or intelligence collection. Yet, a careful reading of LOST’s 202 pages — and the so-called “Agreement” — proves that’s not true.
The United Nations Convention on the Law of the Sea has already created a Byzantine array of international organizations to administer the provisions of LOST. Everything from compliance with global environmental agreements, to the collection of “User Fees” from private companies, to disputes over military operations above, on, or under international waters are subject to mandatory dispute resolution by one or more of these international bodies.
According to the UN, the purpose of LOST is to preserve international waters for “peaceful purposes.” But Articles 19 & 20 of the treaty would proscribe the U.S. Navy from training with weapons, collecting intelligence or interfering with enemy communications in the territorial waters of other states without their expressed permission. Military aircraft are specifically prohibited from taking off and landing in these waters, and severe limitations would be imposed on loading and unloading “any commodity, currency or person” including military equipment. Submarines are required to travel on the surface and “show their flag in territorial waters.” Article 30 states that warships not complying with the laws of a coastal nation can be forced to leave. Disputes over these issues would be adjudicated by international lawyers. Right.
LOST’s proponents discount these concerns by claiming the U.S. will simply exempt “military activities” from the treaty’s compulsory dispute resolution requirements. However, the “opt out” clause in Article 298 fails to define such operations. In our own Congress, intelligence functions are not considered to be military activities, so there is far from certainty that the UN would accept the U.S. position that intelligence operations over, on, or under the seas are indeed military activities. If there is a dispute as to what is or isn’t a military activity, LOST requires the matter to be resolved by international arbitration.
In 2003, Navy Admiral Michael Mullen, now the Chairman of the Joint Chiefs of Staff, told the Senate Foreign Relations Committee that rulings from these arbitration panels “could have an impact on operational planning and activities, and our security.” Last week, in response to questions from Senator David Vitter (R-LA) during a Committee hearing, Professor Bernard Oxman, a witness supporting LOST, admitted that if the parties to a dispute can’t agree on the arbitration panel, the UN Secretary-General will chose the arbitrators. Lawyers in Pyongyang, Havana and Tehran: call Turtle Bay.
LOST also opens the door to a long-sought UN goal: the redistribution of wealth by taxing Americans. The International Seabed Authority (ISA), a bloated, multi-national bureaucracy headquartered in Jamaica, has the mandate to distribute revenues and “other economic benefits” on the basis of “equitable sharing criteria, taking into account the interests and needs of developing States.” In addition to acting as a global IRS, the ISA also decides which companies from what nations will develop mineral resources on the seabed.
In urging ratification, former President Bill Clinton described LOST as “a far reaching environmental accord” that would “harmonize” U.S. laws to “prevent, reduce and control pollution” in the “best practical means.” But Article 213 requires nations to adopt “laws and regulations…to prevent, reduce and control pollution of the marine environment from land-based sources.” Thus, LOST could become a means of enforcing another agreement we never ratified: the Kyoto Protocol on global warming. Al Gore – call your office.
Before casting a vote to ratify LOST, all 100 U.S. Senators should read Article 314 of this onerous treaty and Article II, Section 2 of the U.S. Constitution. The UN-crafted document specifies that amendments to the treaty can be adopted — and therefore enforced — without the consent of any signatory. Yet our Constitution requires that two thirds of our Senate concur in any treaty. Do sixty seven members of this Senate now want to surrender that authority to foreign governments?