Conservatives Mobilize Against Law of the Sea Treaty

Angering conservatives on the critical issue of national sovereignty, the Bush Administration is supporting a plan by Senator Joseph Biden, D-De., to stage a Foreign Relations Committee hearing on September 27 in order to usher the controversial U.N. Law of the Sea Treaty to the Senate floor for a quick vote. Biden, chairman of the committee and a Democratic presidential candidate, was a leader of the effort to defeat Bush’s pick of John Bolton as U.S. Ambassador to the U.N.

Conservatives are hoping the facts about President Reagan’s rejection of the measure, mainly on the grounds that it was a socialist trap for America that subjected U.S. companies to a global tax, can eventually persuade 34 Senators to block its ratification.

The treaty has never come to the Senate floor for a vote because of strong opposition from conservatives. Senator Jesse Helms, longtime chairman of the Foreign Relation Committee, blocked it for many years. Then-Senate Republican Majority Leader Bill Frist also kept it away from the Senate floor, insisting that its flaws be exposed and studied by the Senate. Senator James Inhofe, R-Ok., did so, becoming the leading Senate opponent of the pact. But the liberal Democratic takeover of Congress in 2006 moved the measure,formally titled, the U.N. Convention on the Law of the Sea (UNCLOS), up for action. Biden and his advisor and staff director, Antony Blinken, a former Clinton Administration official, have decided that now is the time to act. They are counting on big corporations and the U.S. Navy to make the case for UNCLOS.

UNCLOS establishes a new international legal regime, including an International Tribunal for the Law of the Sea and an International Seabed Authority, to govern activities on, over, and under the world’s oceans. The treaty explicitly governs seven-tenths of the world’s surface and could easily be interpreted to restrict U.S. military activities. Also regarded as an environmental treaty that provides a backdoor for implementing the unratified Kyoto Protocol or global warming treaty, the provisions of UNCLOS would permit international rules and regulations governing economic and industrial activities on the remaining land area of the world in order to combat perceived pollution dangers. The treaty provides for the taxing of U.S. and other corporations which mine the ocean floor, thereby establishing the first independent source of revenue for the U.N.

The push for UNCLOS has been fed by erroneous news accounts that the U.S. would have to ratify the treaty in order to cash in on oil, gas and minerals in the Arctic and other areas. In fact, the UNCLOS tribunal and associated “dispute resolution” panels, which are dominated by foreign judges, are almost certain to issue rulings and decisions that go against American interests.

The Bush Administration has supported UNCLOS for several years, but its decision to back the pact is shrouded in controversy. President Bush was asked about the White House position on the treaty in 2004 and he then expressed surprise that the State Department had convinced Vice President Dick Cheney to endorse it. This year, however, he issued a statement in support of it. Openly working with the Democrats, State Department Legal Adviser John B. Bellinger III has tried, without much success, to convince conservatives that the treaty was somehow “fixed” by a 1994 side agreement negotiated by the Clinton Administration    

Foreign Relations Committee Ranking Republican Senator Richard Lugar, a supporter of UNCLOS, has joined this chorus, insisting that, “President Reagan refused to sign it because of technology transfer provisions and other problems in the section on deep-seabed mining. Later, a hard-fought renegotiation led to changes that met all of President Reagan’s demands.” However, the evidence demonstrates that Lugar is just plain wrong.

First, the new book on Reagan’s diaries includes an entry from the former president in which he talks about refusing to sign UNCLOS “even without seabed mining provisions.” It was clear he opposed UNCLOS on broad grounds.

Second, James L. Malone, speaking as Reagan’s special representative for Law of the Sea negotiations, delivered testimony in 1995 – after the “fix” negotiated by Clinton — rejecting UNCLOS as badly flawed in concept and detail. It is not true that Reagan rejected the treaty only because of the controversial seabed mining provisions, he said. Rather, “The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign,” Malone asserted.

While recognizing the work of those who negotiated the pact, Malone said that:

·        UNCLOS is “potentially hostile to American interests” and “sets up yet another complex and troublesome U.N. bureaucracy to administer the oceans.”

·        Its provisions give Third World countries “preferential treatment at the expense of American interests and force U.S. mining firms to share their profits and provide free mine sites to a new U.N. agency.”

·        The seabed mining provisions were “inadequately corrected” and the “collectivist ideologies of a new repudiated system of global central planning” are “still imbedded in the treaty…”

·        The “bankrupt” concepts of the New International Economic Order are still “maintained” in the treaty.

·        The U.N. bureaucracy created by the treaty will inevitably “grow” over the years.

·        The designation of international waters as the “common heritage of mankind” reflects the “collectivist structure” of the treaty. 

·        The “dispute resolution” provisions of the treaty are defective. The treaty includes tribunals and panels to resolve disputes.

·        Ultimately, it is the U.S. Navy, not a treaty, “that will guarantee American interests.” The U.S. has “protected its navigational interests for over 200 years without a comprehensive law of the sea treaty.”

Malone’s testimony was delivered at a June 30, 1995, conference entitled “Toward Senate Consideration of the 1982 Law of the Sea Convention,” sponsored by the Center for Oceans Law and Policy of the University of Virginia School of Law.

This writer was in contact with Malone into 1996, as he continued to warn against acceptance of the pact.  He passed away several years ago. Malone told me in correspondence that he was very concerned about the issue of “global taxation” envisioned in UNCLOS and, in an article in the November/December 1995 issue of Mining Voice, the magazine of the National Mining Association, referred to how radical environmentalists were anticipating “new taxes” for organizations like the U.N. coming from ocean fishing and transportation and seabed mining. In that article, he warned about the “anti-capitalist, socialist underpinnings” of UNCLOS and other U.N. initiatives.

Malone effectively rebutted Department of Defense claims that the treaty was necessary to protect U.S. navigational rights. “Ultimately,” he said, “the global protection of U.S. navigational rights depends upon the perceived capability and will of the United States to protect those rights.” But does the U.S. still have the perceived capability and will to protect those rights? Since Malone’s testimony, we have witnessed a dramatic decline in the number of Navy ships.  Figures supplied by the American Shipbuilding Association show that the number of U.S. Navy ships has declined from 594 under Reagan to only 276 today

Making a pitch for UNCLOS at the American Enterprise Institute on July 17, 2007, Susan Biniaz of the State Department let the truth slip out. “We don’t have the capacity to be challenging every maritime claim throughout the world solely through the use of naval power. And [we] certainly can’t use the Navy to meet all the economic interests,” she said.

But can the U.S. remain a superpower by passing a treaty and hiring more lawyers to defend America before international panels and tribunals?

This does not seem to be the position of “peace through strength” that Reagan had advocated.