Note: It’s going to take a lot more investigation for me to change my mind on the Law of the Sea Treaty (LOST)… as you know, I’ve opposed this treaty at length on these pages for years… I’ve learned over the years that when Liberal Democrats says “this is good for the county” the opposite is more likely the case, 9 times out of 10. So, I will remain open minded about the so-called amended language and cautious about this treaty. -Steve Foley
Law of the Sea Treaty Essential to American Exceptionalism, Leader Says
September 5, 2012 (Washington, DC)—A conservative group known for its commitment to the principles of American exceptionalism has decided to drop its opposition to the Law of the Sea Treaty (LOST) and is now actively engaged in the fight for that treaty’s ratification. The Institute for Liberty, an organization that was an early-adopter of the Tea Party movement and actively involved in the development and support of that movement, had initially opposed LOST, but upon further study and reflection, decided that its ratification is of utmost importance to America’s global primacy in the future.
“I’ve grown both tired and frustrated at America’s leaders selling short our future opportunities,” said Andrew Langer, IFL’s President. “We cannot keep losing ground to the Chinese and the Russians when it comes to the quest for the world’s resources. The only way we can hope to stay competitive, the only way we can have a seat at the table, is for the US Senate to ratify LOST.”
In supporting LOST, IFL joins such conservative international luminaries as former Secretaries of State James Baker and Condoleezza Rice, numerous retired senior military officials, and leading national business groups like the US Chamber of Commerce, the National Association of Manufacturers, and the American Petroleum Institute.
“Conservatives know that Ronald Reagan had great concerns about the initial Law of the Sea Treaty,” Langer continued. “What many of them don’t know is that the treaty was amended to assuage the concerns raised by Reagan, and many experts say that were Reagan alive today, he’d be calling for the ratification of LOST. Reagan knew that even with the Cold War over, we remain in a race against the former Communist nations—and if we’re going to win, we have to ratify LOST.”
Among other things, LOST covers access to undersea mineral rights for nations that are parties to it. IFL has just launched a new website, and a new video, that encourages people to support ratification. That website can be found at www.LOSTopportunities.org.
- Senator Kelly Ayotte (R-NH)
- Roy Blunt (R-Mo.)
- Richard Burr (R-N.C.)
- John Barrasso (R-Wyo.)
- John Boozman (R-Ark.)
- Saxby Chambliss (R-Ga.)
- Dan Coats (R-Ind.)
- Tom Coburn (R-Okla.)
- John Cornyn (R-Texas)
- Mike Crapo (R-Idaho)
- Jim DeMint (R-S.C.)
- Chuck Grassley (R-Iowa)
- Orrin Hatch (R-Utah)
- Dean Heller (R-Nev.)
- John Hoeven (R-N.D.)
- Jim Inhofe (R-Okla.)
- Senator Johnny Isakson (R-GA)
- Senator Mike Johanns (R-NE)
- Ron Johnson (R-Wis.)
- Jon Kyl (R-Ariz.)
- Mike Lee (R-Utah)
- Jerry Moran (R-Kansas)
- Mitch McConnell (R-Ky.)
- Rand Paul (R-Ky.)
- Senator Rob Portman (R-OH)
- Jim Risch (R-Idaho)
- Pat Roberts (R-Kansas)
- Marco Rubio (R-Fla.)
- Jeff Sessions (R-Ala.)
- Richard Shelby (R-Ala.)
- John Thune (R-S.D.)
- Pat Toomey (R-Penn.)
- David Vitter (R-La.)
- Roger Wicker (R-Miss.)
- Lt. Gen. William G. “Jerry” Boykin, USA (Ret.), former Commanding General, U.S. Army Special Forces Command; former Deputy Undersecretary of Defense for Intelligence
- Adm. Bruce Demars USN (Ret.), former Director Naval Nuclear Propulsion
- Adm. Thomas B. Hayward, USN (Ret.), former Chief of Naval Operations
- Admiral Jim Holloway, USN (Ret.) former Chief of Naval Operations
- Adm. Frank Kelso USN (Ret.), former Chief of Naval Operations
- Adm. G.E.R. Kinnear II, USN (Ret.), former U.S. Member of the NATO Military Committee
- Gen. Richard L. Lawson, USAF (Ret.), former Deputy Commander-in Chief, Headquarters U.S. European Command
- Adm. James “Ace” Lyons, Jr., USN (Ret.), former Commander-in-Chief, U.S. Pacific Fleet
- Lt. Gen. Thomas G. McInerney, USAF (Ret.), former Assistant Vice Chief of Staff, USAF
- Vice Adm. Robert Monroe, USN (Ret.), former Director of Navy Research, Development Testing and Evaluation
- Gen. Carl E. Mundy, Jr., USMC (Ret.), former Commandant, U.S. Marine Corps
- Adm. Leighton “Snuffy” Smith, USN (Ret.), former Commander-in-Chief, U.S. Navy Forces Europe and NATO Allied Forces Southern Europe
- Raul Brito, President, Brito Oil Company
- Steve Dillard, Vice President, Pickrell Drilling Company
- Mike Dixon, Owner, Dixon Oil and Gas, Inc.
- Hon. Dennis Hedke, Owner, Hedke Saenger Geoscience Ltd.
- Bill Johnson, Partner, McCoy Petroleum Corporation
- A. Scott Ritchie III, President, Ritchie Exploration, Inc.
- Scott Stewart, Owner, Bird Dog Oil LLC
Two Senate Armed Services Committee Members Announce Opposition In Letter To Majority Leader Harry Reid, Saying “No International Organization Owns The Seas”
Washington, D.C. – U.S. Senators Rob Portman (R-Ohio), ranking member on the Emerging Threats and Capabilities Subcommittee, and Kelly Ayotte (R-NH), ranking member of the Subcommittee on Readiness and Management Support, sent a letter today to Senate Majority Leader Harry Reid in which they announced their opposition to Senate ratification of the United Nations Convention on the Law of the Sea.
Citing significant concerns about the breadth and ambiguity of the treaty, and more importantly, the risks to U.S. sovereignty due to issues regarding enforcement and adjudication, the two members of the Senate Armed Services Committee stated, “After careful consideration, we have concluded that on balance this treaty is not in the national interest of the United States. As a result, we would oppose the treaty if it were called up for a vote.”
Portman and Ayotte continued, “We simply are not persuaded that decisions by the International Seabed Authority and international tribunals empowered by this treaty will be more favorable to U.S. interests than bilateral negotiations, voluntary arbitration, and other traditional means of resolving maritime issues. No international organization owns the seas, and we are confident that our country will continue to protect its navigational freedom, valid territorial claims, and other maritime rights.”
Because the Constitution requires 67 affirmative votes for the Senate to ratify a treaty, and 31 senators have previously signed a letter in opposition and a 32nd senator announced his opposition, Portman and Ayotte’s announcement makes efforts to ratify the Law of the Sea Treaty dead in the water in this Congress.
The full text of the letter is below.
July 16, 2012
The Honorable Harry Reid
United States Senate
Washington, DC 20510
Dear Mr. Leader:
Recently, there has been renewed interest in the United Nations Convention on the Law of the Sea, a treaty completed in 1982 and modified in 1994. After careful consideration, we have concluded that on balance this treaty is not in the national interest of the United States. As a result, we would oppose the treaty if it were called up for a vote.
Proponents of the Law of the Sea treaty aspire to admirable goals, including codifying the U.S. Navy’s navigational rights and defining American economic interests in valuable offshore resources. But the treaty’s terms reach well beyond those good intentions. This agreement is striking in both the breadth of activities it regulates and the ambiguity of obligations it creates. Its 320 articles and over 200 pages establish a complex regulatory regime that applies to virtually any commercial or governmental activity related to the oceans — from seaborne shipping, to drug and weapon interdiction, to operating a manufacturing plant near a coastal waterway.
The terms of the treaty are not only expansive, but often ill-defined. Article 194, for example, broadly requires nations to “take … all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities.” Article 207 decrees that “tates shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources … taking into account internationally agreed rules.” Article 293 empowers tribunals to enforce not only the treaty provisions but also “other rules of international law not incompatible with .” Because the treaty authorizes international legislative and judicial bodies to give shape and substance to these and other open-ended commitments, the United States would be binding itself to yet-unknown requirements and liabilities. That uncertainty alone is reason for caution.
The treaty’s breadth and ambiguity might be less troubling if there were adequate assurance that it will be enforced impartially and in a manner consistent with U.S. interests. But that is not so. The United States could block some but not all actions of the International Seabed Authority, a legislative body vested with significant power over more than half of the earth’s surface. Further, the treaty’s judicial bodies are empowered to issue binding judgments even over U.S. objections. In some cases, the United States could elect to resolve disputes before a five-member arbitration tribunal, in which we would choose two arbitrators. But the United States would have no hand in selecting the decisive, fifth arbitrator, unless it could agree with the opposing party. Other cases would be decided by the powerful International Tribunal, which is even less accountable to the United States. Comprised of 21 foreign judges with no guaranteed U.S. seat, the tribunal can resolve any dispute concerning interpretation of the treaty. It has compulsory jurisdiction over disputes concerning the seabed beyond national borders and power to grant preliminary injunctive relief whenever it deems necessary “to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment.”
The method of executing tribunal judgments further concerns us. Unlike many international agreements, key provisions of the Law of the Sea treaty are drafted to be “self-executing,” meaning that certain tribunal judgments would automatically constitute enforceable federal law, without congressional legislation or meaningful review by our nation’s judiciary. As Justice John Paul Stevens noted in a concurring opinion inMedellin v. Texas, the Law of the Sea treaty appears to “incorporate international judgments into domestic law” because it expressly provides that decisions of the tribunal “‘shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought.’” In other words, the treaty equates tribunal decisions with decisions of the U.S. Supreme Court. This means that private litigants will likely be able to invoke tribunal judgments as enforceable in U.S. courts — against the government and possibly against U.S. businesses. The United States will have no lawful choice but to acquiesce to tribunal judgments, however burdensome or unfair.
The treaty could also spawn international environmental tort claims directly against U.S. businesses and citizens. A federal law called the Alien Tort Statute (ATS) gives courts the power to hear “any civil action by an alien for a tort … committed in violation of the law of nations or a treaty of the United States.” Remarkably, even though the U.S. has not yet ratified the Law of the Sea treaty, the treaty has already been invoked as a basis for ATS litigation targeting industrial activities. In a 2002 lawsuit brought by residents of Papua New Guinea against a mining corporation, a federal district court in California held that the plaintiffs had stated a valid ATS claim under the environmental provisions of the Law of the Sea treaty. A panel of the Ninth Circuit agreed. Accession to the treaty would only strengthen ATS claims like this 2002 lawsuit by transforming international environmental norms into a binding treaty obligation.
In short, we are deeply concerned about the treaty’s breadth and ambiguity, the inadequate U.S. input in the treaty’s adjudicative bodies, and the automatic enforcement of tribunal judgments in the United States. Against these risks to U.S. sovereignty, however, we have also carefully weighed the potential benefits of the treaty.
As members of the Armed Services Committee, we are mindful that the Defense Department believes this treaty would help secure the navigational freedom of our fleet. We take this recommendation seriously and recognize that the treaty would provide an additional tool to our diplomatic and military leaders in resolving maritime disputes. We also understand the commercial interests associated with treaty accession. Several U.S. businesses have explained that the treaty would enhance investment in energy development and mineral extraction by increasing certainty about ownership claims. Specifically, the treaty would codify rights to resources in the U.S. exclusive economic zone, the extended continental shelf, and the deep seabed. It would also give the United States a formal role in the Commission on the Limits of the Continental Shelf, which is now reviewing claims by treaty members in the Arctic.
At the same time, even treaty proponents recognize that these provisions primarily clarify rights that the United States already possesses under customary international law and has other means of asserting. For example, the treaty’s 200-nautical-mile rule defining coastal states’ exclusive economic zones is consistent with longstanding U.S. claims. Moreover, the United States has successfully used bilateral negotiations with Russia and Mexico to define claims to the extended continental shelf in the Gulf of Mexico and the Arctic. Similarly, the treaty’s navigational regimes reflect the current practices of the U.S. Navy, and we believe that our maritime interests are best secured by maintaining U.S. naval power beyond challenge.
The real issue is not whether the United States will defend its maritime rights, but ratherwho will have the final say on the scope of those rights. We simply are not persuaded that decisions by the International Seabed Authority and international tribunals empowered by this treaty will be more favorable to U.S. interests than bilateral negotiations, voluntary arbitration, and other traditional means of resolving maritime issues. No international organization owns the seas, and we are confident that our nation will continue to protect its navigational freedom, valid territorial claims, and other maritime rights.
On balance, we believe the treaty’s litigation exposure and impositions on U.S. sovereignty outweigh its potential benefits. For that reason, we cannot support the Law of the Sea treaty and would oppose its ratification.
Rob Portman Kelly Ayotte
Ranking Member Ranking Member
Subcommittee on Emerging Subcommittee on Readiness
Threats and Capabilities, and Management Support,
Committee on Armed Services Committee on Armed Services
- to give up proprietary data and technology in order to engage in the exploitation of the resources of the deep ocean sea beds
- to confront a global Environmental Protection Agency that is sure to be far more aggressive in fulfilling its mandate of protecting the marine environment than even our own EPA
- to contend with mandatory dispute resolution mechanisms that will be stacked against this country and used by its adversaries to hamstring us
- to participate in discredited socialist wealth redistribution schemes at the dictates of foreign, unelected and unaccountable bureaucrats and jurists
- Under the terms of the Law of the Sea Treaty, at least some of the permits for deep seabed resource exploration and production will entail sharing of proprietary data and technology. American companies will almost certainly be reluctant to provide such sensitive items to their competitors – either directly or, through international bureaucrats, indirectly.[i] As a result, companies that think LOST may be good for their business interests today may find themselves effectively precluded in the future from tapping the immense natural wealth of the world’s sea beds.
- From its preamble onwards, LOST obligates its parties to facilitate the redistribution of wealth from the developed, maritime nations to the developing and land-locked ones. In this sense, it is of a piece with – and a backdoor means of achieving – the sort of socialist “sustainability” accord that was wisely recently rejected at the “Rio+20” conference on sustainable development.[ii]
- Former Secretary of State Warren Christopher once described LOST as “the strongest, comprehensive environmental treaty now in existence or likely to emerge for quite some time.” [iii] That is the case not only because of its myriad obligations with respect to protecting the marine environment, but also due to the treaty’s mandatory dispute resolution mechanisms that will surely be used to enforce such commitments. Activist organizations (e.g., the Natural Resources Defense Council, Sierra Club, etc.) will be very effective at exploiting the new “hooks” to block exploration and production.
- The Law of the Sea Tribunal established the precedent in a December 2001 ruling in the “Mixed Oxide Fuel (MOX) Plant” case of extending its jurisdiction to alleged pollution emanating from a state party’s interior waters and air columns.[v] The pretext is that such pollution ultimately migrates to the world’s oceans and, therefore, must be regulated.
- Through this device, it is predictable that, if the United States were to ratify this accord, we would be afflicted with business-hostile interference and regulations that would make the record of our domestic Environmental Protection Agency seem tame by comparison. Unaccountable foreign bureaucrats and jurists will surely prove even more intractable than was the EPA when, to cite but one recent example, Shell Oil sought permission to explore off the coast of Alaska. Some federal judges in this country can be expected happily to enforce any rulings engineered by such well-funded international activists. The LOST treaty would become a useful framework for those who have advocated a global EPA under the UN Environmental Program sponsored by Maurice Strong.
- Finally, LOST will provide potentially vast revenue streams to the International Seabed Authority to fund its operations and to “redistribute” to favored nations. The United Nations system has proven to be extremely hostile to our interests, even when we are picking up over twenty percent of its costs. It is frightening to contemplate what a supranational organization dominated by countries that do not like us will do if it becomes self-supporting through LOST-facilitated taxes, fees, and revenue-sharing.
In recent days, top U.S. cabinet officers have traveled around the world on high-profile diplomatic missions. Ironically, in the process of Secretary of State Hillary Clinton’s visit to the Arctic Circle and Secretary of Defense Leon Panetta’s travels in Asia, they both undercut the case for the United Nations’ controversial Law of the Sea Treaty (LOST) – a case they had jointly made prior to departing in testimony before the Senate Foreign Relations Committee.
Mrs. Clinton took part in a meeting of the Arctic Council whose eight members have territory in that region. Of these, just five – Russia, Canada, Norway, Denmark’s Greenland and the United States – actually have coasts on the Arctic Ocean, and therefore are able to claim rights to the resources offshore.
To be sure, the Secretary of State used the occasion of her joining the other Arctic nations for the purpose of forging a new region-wide search-and-rescue (S&R) agreement to express the Obama administration’s commitment to LOST. She assured her colleagues that the President is determined to overcome opposition in the Senate and the country in order to get the treaty ratified.
Still, this S&R agreement suggests the obvious: It is far easier to achieve understandings in a group of eight – or, better yet, five – nations that have similar, if not identical, interests and a shared understanding of the stakes, than among agroup of 150-plus nations, most of whom do not. If that is true for an accord governing assistance to downed planes and ships lost at sea, it surely is the case when it comes to the disposition of potentially many billions of dollars worth of undersea oil and gas deposits.
Meanwhile, our Defense Secretary was off in Asia trying to shore up America’s alliances in the region without actually saying that China is a threat that needs to be countered there. So he eschewed the President’s much-touted strategic “pivot” from the Middle East and South Asia to the South China Sea – supposedly involving a move in force to parry the PRC’s aspirations for hegemony. Instead, Mr. Panetta employed less offensive terms like “rebalancing” and made commitments about a future U.S. presence in the theater that were deeply discounted in light of ongoing, and forthcoming, sharp cuts in defense spending.
It happens that Secretary Panetta’s enthusiasm for the Law of the Sea Treaty tracks with Team Obama’s public efforts to low-ball the dangers posed by China’s increasingly aggressive behavior towards our Asian friends and allies, and its growing capacity to act coercively due to its growing military capabilities. He and, surprisingly, even senior Navy and other military officers who should know better seem to think that if only the United States were a party to LOST, international law would tame the Chinese dragon.
As one of the nation’s most astute China hands, Gordon Chang, noted recently in his column at World Affairs Journal (www.worldaffairsjournal.org/blog/gordon-g-chang/should-us-ratify-un-sea-treaty-because-china): “Although Beijing ratified the [LOST] pact in June 1996, it continues to issue maps claiming the entire South China Sea. That claim is, among other things, incompatible with the treaty’s rules. It’s no wonder Beijing notified the UN in 2006 that it would not accept international arbitration of its sovereignty claims.”
Just as common sense argues for using bilateral or, at most, five-party forums to establish arrangements governing the Arctic Ocean’s resources, it strongly militates against the United States allowing itself to be bound to a treaty whose core provisions (i.e., those governing limitations on territorial claims and mandatory dispute resolutions) are already being serially violated by Communist China.
On May 9th, Secretary Panetta nonetheless asserted that “By moving off the sidelines, by sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.” That is simply not so if, as is true of the LOST’s various institutions, we would have but one seat among many, and no certainty that we can decisively “influence bodies that develop and interpret the law of the Sea.”
In fact, thanks to the rigged-game nature of those institutions, such bodies can be relied upon to hamstring us – by, for example, applying environmental regulations over which we have no control to our Navy’s anti-submarine warfare exercises and our domestic emissions into inland air and water that migrates to the international oceans.
Meanwhile, the Chinese will get away with choosing which rules they will abide by and which they won’t. Mr. Chang puts it this way: “[China] is…a signatory to the Nuclear Nonproliferation Treaty, but remains a notorious nuclear proliferator, and it is a member of the World Trade Organization, yet brazenly disregards its trade obligations. And UN sanctions? China openly violates those too, even though it is one of the five permanent members of the Security Council.”
In short, the Obama administration wants Senators to suspend common sense and ignore real and legitimate concerns about the deleterious impact of the Law of the Sea Treaty on our sovereignty, economic interests and potentially even the national security. Will 34 Senators have enough common sense to just say “No”?
From the Hill:
Sen. Dean Heller (R-Nev.) on Friday became the 27th senator to sign on to a letter opposing passage of the Law of the Sea Treaty, leaving opponents just seven votes shy of the 34 votes opponents need to doom passage of the UN maritime convention.
“We are writing to let you know that we believe this Convention reflects political, economic, and ideological assumptions which are inconsistent with American values and sovereignty,” reads the letter to Senate Majority Leader Harry Reid (D-Nev.).
The full text of the letter is below:
The Honorable Harry Reid
United States Senate
Washington, DC 20510
Dear Mr. Leader,
We understand that Chairman Kerry has renewed his efforts to pursue Senate ratification of the United Nations Convention on the Law of the Sea. We are writing to let you know that we believe this Convention reflects political, economic, and ideological assumptions which are inconsistent with American values and sovereignty.
By its current terms, the Law of the Sea Convention encompasses economic and technology interests in the deep sea, redistribution of wealth from developed to undeveloped nations, freedom of navigation in the deep sea and exclusive economic zones which may impact maritime security, and environmental regulation over virtually all sources of pollution.
To effect the treaty’s broad regime of governance, we are particularly concerned that United States sovereignty could be subjugated in many areas to a supranational government that is chartered by the United Nations under the 1982 Convention. Further, we are troubled that compulsory dispute resolution could pertain to public and private activities including law enforcement, maritime security, business operations, and nonmilitary activities performed aboard military vessels.
If this treaty comes to the floor, we will oppose its ratification.
Jon Kyl (R-Ariz.)
Jim Inhofe (R-Okla.)
Roy Blunt (R-Mo.)
Pat Roberts (R-Kansas)
David Vitter (R-La.)
Ron Johnson (R-Wis.)
John Cornyn (R-Texas)
Jim DeMint (R-S.C.)
Tom Coburn (R-Okla.)
John Boozman (R-Ark.)
Rand Paul (R-Ky.)
Jim Risch (R-Idaho)
Mike Lee (R-Utah)
Jeff Sessions (R-Ala.)
Mike Crapo (R-Idaho)
Orrin Hatch (R-Utah)
John Barrasso (R-Wyo.)
Richard Shelby (R-Ala.)
John Thune (R-S.D.)
Richard Burr (R-N.C.)
Saxby Chambliss (R-Ga.)
Dan Coats (R-Ind.)
John Hoeven (R-N.D.)
Roger Wicker (R-Miss.)
Marco Rubio (R-Fla.)
Jim Moran (R-Kansas)
Dean Heller (R-Nev.)
Originally posted at Center for Security Policy by Frank Gaffney, Jr.
This week, the Obama administration will roll out its big guns in support of President Obama’s latest assault on American sovereignty and security interests: The UN Law of the Sea Treaty (better known as LOST). Of course, when Secretary of State Hillary Clinton, Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey appear before the Senate Foreign Relations Committee on Wednesday, they will appear to be talking about another accord altogether – one that strengthens our sovereignty and is deemed by the U.S. military to be essential to our security.
So which is it?
The proponents are hoping that Senators on and off the Foreign Relations panel will do what they did during what passed for their chamber’s consideration of the New START Treaty in 2010: Take the administration’s word for it; be impressed by the pro-treaty testimonials and lobbying of an array of formereminences and special interests; and largely dispense with the serious scrutiny and check-and-balance vetting the framers had in mind when they entrusted to the Senate the constitutional responsibility to advise and consent to treaties.
If, on the other hand, the members of the U.S. Senate trouble themselves to study, or at least read, the text of the Law of the Sea Treaty, they would immediately see it for what it really is: a diplomatic dinosaur, a throwback to a bygone era when UN negotiations were dominated by communists of the Soviet Union and their fellow-travelers in the Third World.
These adversaries’ agenda was transparent and wholly inimical to American equities. They sought to: establish control over 70% of the world’s surface; create an international governing institution that would serve as a model for bringing nation states like ours to heel; and redistribute the planet’s wealth and technology from the developed world to themselves. LOST codifies such arrangements – and would subject us to mandatory dispute resolution to enforce them via stacked-deck adjudication panels
Fortunately, even if Senators are disinclined to go to school on what the Law of the Sea Treaty entails – and why it cannot possibly serve even the parochial interests of the U.S. Navy or oil and gas industries whose willfully blind support will be much in evidence in the ratification campaign ahead – others are doing their homework. Such efforts are likely to make the timing of the Obama administration’s current quest, shall we say, most inopportune.
First, Dick Morris and his wife, Eileen McGann, have just published an important new book that addresses, among other outrages, LOST as a prime example of the title: Screwed! How Foreign Countries are Ripping off America and Plundering our Economy – and How our Leaders Help Them Do It. In addition to their proven track-record as best-selling authors, Dick’s regular appearances on Fox News ensures that millions who might otherwise be unaware of what is afoot will be on notice and on guard. That markedly improves the chances that those who might try to slip such an assault on our sovereigntythrough in the dark of night will be challenged and held accountable.
Second, Glenn Beck – whose predicted demise as an influential broadcaster with his departure from Fox has proven, thankfully, to be premature – did yeoman work educating the American people about LOST in 2007, the last time a push was made to ensnare us in this accord. In his new and wildly successful reincarnation as a pioneer of internet subscription-based television, Mr. Beck stands to be even more effective in connecting the dots for his audience, and engaging them in opposing LOST.
Third, on June 1st, theaters nationwide will begin showing a documentary by Ami Horowitz called “U N Me” that uses Michael Moore-style humor and intrepid camera-work to lay waste to the United Nations as a corrupt, self-dealing, incompetent and fundamentally anti-American institution. It is hard to believe that anyone who sees this film will want to entrust any more resources, legitimacy or responsibility to such an organization – or to its subsidiaries like LOST’s International Seabed Authority, the Orwellian-named “Enterprise,” the Law of the Sea Tribunal, the Commission on the Limits of the Continental Shelf, etc.
As it happens, even before such important forces are brought fully to bear in opposition to Team Obama’s bid to ram through the Senate this “constitution of the oceans,” the ratification bandwagon hit something of a roadblock. At the initiative of freshman Representative John Duncan (R-Tennessee) and Rep. Jim Jordan (R-OH), who chairs the House Republican Study Committee, the House of Representatives last Friday voted 229-193 to bar millions of dollars the administration had sought to contribute to the funding of LOST organizations. This is the first time either chamber has formally voted in opposition to this agreement and is a salutary shot across the bow of its proponents.
There is, of course, one other factor that should prove problematic in terms of the timing of President Obama’s effort to foist LOST on the American people is that it comes amidst an election in which his presumptive Republican opponent, Mitt Romney, is no fan of this accord. According to an October 2007 report, a spokesman declared that “Governor Romney has concerns with the Law of the Sea Treaty. He believes giving unaccountable international institutions more power is a serious problem.”
Listen to More than the ‘American Anti-Sovereignty Campaign’
A previously organized coalition that actually supports American sovereignty – the Coalition to Preserve American Sovereignty – responded by calling on Sen. Lugar, the Ranking Minority Member on the Senate Foreign Relations Committee, and his Democratic counterpart, Chairman John Kerry, to assure the record reflects the insights of the treaty’s many critics, not just its boosters.
Text of the Letter
10 May 2012
Hon. John Kerry
Chairman, Senate Foreign Relations Committee
444 Dirksen Senate Office Building
Washington, DC 20510-0802
Hon. Richard G. Lugar
Ranking Minority Member, Senate Foreign Relations Committee
446 Dirksen Senate Office Building
Washington, DC 20510-0802
Dear Mr. Chairman and Ranking Member Lugar:
We understand that you will soon convene hearings in connection with possible U.S. ratification of the United Nations’ Law of the Sea Treaty (LOST). It is our view that this accord is seriously defective in a number of respects (several of which are enumerated below.) Accordingly, we write to request that the individuals listed below be afforded an opportunity to testify in connection with the Foreign Relations Committee’s consideration of LOST with respect to the following problematic provisions of that treaty – an opportunity largely not afforded to critics of LOST during the last round of your panel’s hearings on the matter in 2003 and 2007.
First, ratification of LOST would commit the United States to submit to mandatory dispute resolution with respect to U.S. military and industrial operations. While LOST proponents argue that the United States will choose available arbitration mechanisms to avoid legal decisions from the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS), such arbitration panels are no-less perilous for U.S. interests as the decisive, “swing” arbiters would be appointed by generally unfriendly UN-affiliated bureaucrats. The arbitration panels can also be relied upon to look to rulings by the ICJ or ITLOS to inform their own decisions.
Furthermore, while there is a LOST provision exempting “military activity” from such dispute resolution mechanisms, the Treaty makes no attempt to define “military activity,” virtually guaranteeing that such matters will be litigated – in all likelihood to our detriment – before one or another of LOST’s arbitration mechanisms. And the rulings of such arbitrators cannot be appealed.
Subjecting our military to the risks of such mandatory dispute resolution is all the more imprudent given that LOST provides the Navy with no navigational rights and freedoms beyond those it already enjoys under customary international law and the U.S. Freedom of Navigation Program. The Navy has successfully protected American interests on the seas for the past two hundred years without the United States becoming a party to LOST – including during the thirty years since LOST was concluded, in 1982. We see no compelling reason why that record will be improved upon by entrusting the job to international legal arrangements.
Second, the Law of the Sea Treaty contains provisions that risk putting sensitive, militarily useful information and technology in the hands of America’s adversaries and its companies’ commercial competitors. That accord’s proponents would have you believe that there is no problem with technology transfer since the Treaty’s relevant mandates were eliminated by a 1994 agreement relating to the implementation of LOST’s Part XI. Unfortunately, this is another area that cries out for close examination by the Senate and the Nation.
For one thing, it is unclear to what extent the Treaty could be and was amended by the ’94 accord. For another, a number of provisions obligating the transfer of potentially sensitive technology and data were not addressed in the latter agreement. For example, LOST arbitration procedures specify that parties to a dispute would be required to provide an arbitral tribunal with “all relevant documents, facilities and information” – a potential avenue for compelling such transfers.
Third, the Law of the Sea Treaty entails commitments that have far-reaching implications for U.S. businesses, far beyond the possibility of mandatory technology transfers. These include: embroiling this country in treaties bearing on commercial activities to which it is not a party; wide-ranging, intrusive and expensive environmental obligations; creating standing for foreign nationals to pursue alien torts in our courts; and jeopardizing our rights under the World Trade Organization, which was established after 1994.
Of particular concern is the fact that LOST creates an international taxation regime. It does so by empowering the International Seabed Authority (ISA) to tax Americans for the purposes of meeting its own administrative costs and of globally redistributing revenue derived from the exploitation of seabed resources. The wisdom of such compulsory payments to the ISA is highly questionable, considering the poor track record of international organizations’ management of finances. Moreover, the ISA would be unconstrained in its discretion as to which countries or entities were to receive this redistributed American wealth, the recipients of which could include highly corrupt and undemocratic regimes or even countries identified by the Department of State as sponsors of terrorism.
We believe the Foreign Relations Committee’s deliberations on the Law of the Sea Treaty will be incomplete, perhaps misleadingly so, unless they are informed by testimony on these and related points. We formally request that you and your colleagues ensure that the following individuals are afforded an opportunity to provide such testimony:
Donald Rumsfeld Former Secretary of Defense
Edwin Meese Former United States Attorney General
John R. Bolton Former U.S. Ambassador to the United Nations
John F. Lehman Former Secretary of the Navy
William Middendorf Former Secretary of the Navy
Douglas J. Feith Former Under Secretary of Defense for Policy
Admiral James A. Lyons Former Commander-in-Chief, U.S. Pacific Fleet
Vice Admiral Robert Monroe Former Director, Research, Development,
Test and Evaluation
Phyllis Schlafly Eagle Forum
Fred Smith Competitive Enterprise Institute
Frank J. Gaffney, Jr. Center for Security Policy
Doug Bandow Cato Institute
Steven Groves Heritage Foundation
Baker Spring Heritage Foundation
Thomas P. Kilgannon Freedom Alliance
Peter Leitner Author, Reforming the Law of the Sea Treaty
Kevin Kearns U.S. Business & Industry Council
John Fonte Hudson Institute
Jeremy Rabkin George Mason University School of Law
Frank J. Gaffney, Jr.
Coalition to Preserve American Sovereignty