THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume VI, Issue # 133, June 22, 2004
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
THE LAW OF THE SEA TREATY:
FATALLY FLAWED & INCONSISTANT WITH AMERICA'S NATIONAL INTEREST
By Frank J. Gaffney, Jr.
FULL STORY:
It is my considered opinion that the Law of the Sea Treaty (LOST) is fatally flawed and inconsistent with America's national interest.
And this is an opinion shared by many other Americans.
I am, by training and experience, a specialist in national security matters, not the environment. As it happens, some of the concerns I
have about LOST's defects with respect to the former could also have adverse repercussions of an environmental nature. In this
brief testimony, I will try to highlight the Treaty's deleterious implications for the American nation's military, intelligence and
self-defense capabilities, while focusing principally on what might be called its negative "environmental impacts."
UNWISELY EMPOWERING THE UNITED NATIONS
The first such impact will flow from the mandate the Law of the Sea Treaty provides for a supranational agency to regulate
seven-tenths of the world's surface. This agency, known as the International Seabed Authority (ISA), has the exclusive right to
regulate what is done, by whom, when, and under what circumstances in subsurface international waters and on the sea-floor. In
addition, it will have considerable say over what goes on upon the oceans' surface, as well. As with all such organizations, it will
be staffed by unelected and unaccountable international bureaucrats.
Unlike other, far less powerful UN entities, however, the International Seabed Authority will operate without the benefit of what
amounts to "adult supervision" provided by the UN Security Council. The United States will be, at best, one among many countries
represented in the ISA. Conceivably, due to membership rotation, there could be times when the U.S.A. might not even have a vote,
to say nothing of a veto over decisions taken by that body.
OVERRIDING U.S. ENVIRONMENTAL CONCERNS & PRACTICES?
What might such decisions entail? Thanks to the regulatory powers granted by the Law of the Sea Treaty, the ISA could decide, for
example, to issue permits for deep-sea oil or gas exploration and exploitation just beyond our 200-mile Exclusive Economic Zone,
without regard for the views of members of the U.S. Senate Committee on Environment and Public Works, the Congress more generally,
or the American people, who may consider such activities to be environmentally unsound.
Not only could those concerns be shunted aside, as the United States would be, at best, outvoted. An international tribunal created
to adjudicate and enforce ISA decisions could levy penalties for any efforts to impede such activities, once authorized by the
International Seabed Authority, even if we had reason to be fearful that such activities posed an environmental hazard to our coastal
areas. Worse yet, the ISA and its tribunal are authorized to ask member states to enforce its judgments, possibly leading to conflict.
Environmental implications could be exacerbated by the ISA's authority to apportion drilling and mining rights to other nations, who
may be less scrupulous than American companies in complying with environmental standards and practices this country holds dear.
Such apportioning could occur even in situations where this country's companies provide the research, seed investment, and pay
the fees -- the first a UN agency has ever been allowed to levy -- associated with securing the required ISA permits.
AN INVITATION TO WORLD-CLASS GRAFT?
Wall Street Journal,
there is evidence of systemic corruption and malfeasance on the part of senior UN personnel -- and, in the case of the
Secretary General, one of his relatives -- in connection with the Iraq Oil-for-Food programs. The U.S. House International Relations
Committee has announced its intention to investigate this evidence. The U.S. Senate would be well-advised to conduct its own
inquiry.
At the very least, I would respectfully submit that the members of the U.S. Senate cannot responsibly act on the Law of the Sea
Treaty until they can satisfy their constituents that turning over to a new UN bureaucracy the authority to make decisions about
and generate revenues from what could be billions of dollars worth of ocean-related commerce will not amount -- literally -- to a
license to steal on an unprecedented scale.
ERODING AMERICA'S RULE OF LAW
Even if LOST could somehow be prevented from enabling a massive new UN kleptocracy, it will likely have a corrupting effect on
one of our most cherished principles: the rule of law.
The rulings of the tribunal set up in Hamburg, Germany, by the Law of the Sea Treaty will, after all, have implications for more than
our sovereignty and environment. They could effectively supplant the constitutional arrangements that govern the American
nation.
Even without LOST, U.S. courts, as Judge Robert Bork has recently noted, have begun to inject the decisions of international
judges and judicial bodies into domestic legal proceedings. LOST and its tribunal could accelerate this phenomena, corroding one
of our Republic's more fundamental principles -- namely, that American laws duly fashioned by Congress and signed by the
President form the ambit within which U.S. jurisprudence predictably operates.
DISARMED AGAINST ENVIRO-TERRORISM?
Yet another "environmental impact" could arise from limitations the treaty imposes on measures we might take to assure our
national security and homeland defense. If, for instance, foreign vessels operating on the high seas do not fit into one of three
categories (i.e., they are engaged in piracy, flying no flag, or transmitting radio broadcasts), LOST would prohibit U.S. Navy or
Coast Guard vessels from intercepting, searching, or seizing them.
Such constraints would preclude President Bush's most important recent counterproliferation measure -- the Proliferation
Security Initiative (PSI). The same would be true, however, if the crew of the foreign ship was engaged, not in the sort of
activity the PSI is meant to interrupt (namely, the covert transfer of weapons of mass destruction and/or related equipment), but
in the shipment of heavy crude oil or other toxic materials that could cause an environmental disaster, were the vessel to be
blown up or scuttled in or near our waters.
IMPEDING RESEARCH ON GLOBAL WARMING?
Finally, I understand that the Russian government is taking the position that U.S. surface vessels may not engage in research
concerning global warming -- a subject I know to be of considerable interest to the members of the Senate Environment and
Public Works Committee -- within the Arctic waters they have declared, pursuant to this treaty, to be part of Russia's territorial
waters and Exclusive Economic Zone. I am informed that such data collection could be vital to the President's efforts and the
Committee's to understand the true nature, extent, and implications of global warming.
We could, of course, assign this collection task to submerged submarines. The U.S. Navy (which officially supports this
treaty) is understandably reluctant to do this, however, given myriad, competing demands on these vessels' time at sea. There
is also the problem that LOST deems submerged transit and collection of intelligence (an activity for which the Russians might
consider "global warming research" to be but a cover) inside territorial waters to be inconsistent with the Treaty's requirement
that foreign vessels conduct themselves in such waters only with "peaceful intent."
In short, our adherence to the Law of the Sea Treaty would legitimate Russia"s objections to our research in important areas of
the Arctic and complicate our ability to perform it there.
THE BOTTOM LINE
Unfortunately, considerations like those I have mentioned are only part of what makes the Law of the Sea Treaty incompatible
with U.S. national interests. LOST has numerous other defects from a national security and intelligence perspective.
Suffice it to say, a number of other Senate committees would be very well-advised to emulate Environment and Public Works
Committee's initiative in examining the Law of the Sea Treaty's implications for their respective oversight portfolios. In
addition to the hearings of Environment and Public Committee and the Armed Services Committee, hearings should be held by
the Intelligence, Commerce, Energy, Governmental Affairs, and Finance Committees.
Given the stakes for the nation's equities in the areas for which these panels are responsible, a failure to examine the sorts of
hard questions I have raised today is tantamount to a dereliction of duty. I very much hope that your leadership in affording
an opportunity for such questions to be posed before the Environment and Public Works Committee will encourage your
colleagues on the other Committees to also subject the Law of the Sea Treaty to the critical examination it so clearly requires.
Such reviews will, I am confident, serve further to underscore the points I have made here today about the inadvisability of
U.S. ratification of the Law of the Sea Treaty. I recommend that the full Senate not consider this accord until reviews by the
relevant Senate Committees have been completed. I further respectfully suggest that, once the necessary oversight has been
performed, the Senate vote to reject this clearly defective treaty on national security, sovereignty and economic, as well as
environmental, grounds.
LINKS TO RELATED TOPICS:
The United Nations & Its Agencies
Policy Issues Relating to Energy, Environment,
& Natural Resources
Frank J. Gaffney, Jr., is currently President and Chief Executive Officer of the Center for Security Policy. After service in staff
positions in the U.S. Senate from 1976 to 1083, Gaffney held several senior positions in U.S. Department of Defense from 1983
to 1987, during the Presidency of Ronald W Reagan. Gaffney presented the foregoing statement, on March 24, 2004, as
testimony at hearings of the U.S. Senate Committee on Environment and Public Works --hearings to examine the "United
Nations Convention on the Law of the Sea."
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Dr. Almon Leroy Way, Jr., Editor
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