Evidence: Recently Added
When the Bush Administration came into office in January 2001, we began a careful review of all of the treaties that had been submitted to the Senate by the Clinton Administration to determine which treaties the Bush Administration would support and would not support. The Bush Administration did not support all of the treaties that had been supported by the prior Administration. For example, the Bush Administration did not support the Comprehensive Nuclear Test Ban Treaty, which had been strongly supported by the Clinton Administration. We did not support the Kyoto Protocol, which had been signed by the Clinton Administration. Many Bush Administration officials were similarly skeptical of the Law of the Sea Convention because it was a multilateral treaty, and President Reagan had refused to sign it. However, after a year-long interagency review, the Bush Administration concluded that the Convention was in the U.S. national interest and decided strongly to endorse the treaty. In February 2002, the Administration submitted its first Treaty Priority List to this Committee and listed the Law of the Sea Convention as a treaty for which there was an “urgent need for Senate approval.”
Let me emphasize that the Bush Administration did not decide to support the Law of the Sea Convention out of a blind commitment to multilateral treaties or international organizations. No one has ever accused the Bush Administration of an over-abundance of enthusiasm for the United Nations or multilateralism. Indeed, the Bush Administration was especially skeptical of the United Nations and many U.N. bodies, such as the Human Rights Council. And the Bush Administration was especially committed to defending U.S. sovereignty and international freedom of action, particularly after September 11.
The Bush Administration decided to support the Law of the Sea Convention and to provide senior Administration officials to testify in favor of the Convention only after weighing the Convention’s benefits against its risks. We ultimately concluded that, on balance, the treaty was clearly in the U.S. national security, economic, and environmental interests.
It is of particular concern that the LOST model could be used to cripple America’s use of space for national defense. America’s military and intelligence communities have increasingly relied – in fact have become heavily dependent – upon space assets to gather information and support terrestrial forces. Far-sighted U.S. strategists appreciate that space can only become ever-more-important as a theater of operations, with control of activities (commercial as well as military) on earth being determined by control of space.
This country’s adversaries recognize this reality, too, and are attempting to inhibit our use of space – in some cases through active means, in others via the imposition of international laws and regulations (another example of “Lawfare”). U.S. endorsement of LOST would establish a precedent that would undercut American efforts to stave off the latter effort.
It is important to consider as part of the debate over U.S. accession to the Law of the Sea Treaty whether that action would have implications for other so-called “international commons” such as Antarctica, the moon, Outer Space more generally and the Internet.
In fact, the logic of LOST – with its supranational order for the control of a medium used by more than one country – will inevitably be seized upon by America’s foes to demand similar arrangements be instituted for Outer Space or even the Internet. And U.S. ratification of LOST will make it difficult for the United States to argue against accepting binding arrangements for other “international commons.” It was for this reason that President Reagan’s Ambassador to the UN, the late Jeane Kirkpatrick, warned the Senate in 2004 not to consent to ratification of LOST, in part on the grounds that America’s interests in Outer Space could be adversely affected by the LOST precedent.
PSI is not compatible with LOST, despite proponents’ claims to the contrary. As a treaty, LOST is binding international law on the parties, whereas PSI is only an informal arrangement between certain nations, and carries no force as international law. The argument that PSI can be executed within the rules of LOST, even though LOST clearly prohibits boarding actions critical to PSI, ignores the fact that LOST outranks PSI in the hierarchy of international law.
As a result, unless one or more of the Treaty-approved circumstances for an at-sea intercept applies, LOST member states could be precluded from participating in such an action – even when there might be compelling evidence that nuclear or other WMD or their delivery systems were on board. As long as the United States continues not to be a LOST state party, it can always act unilaterally. That option, however, will be foreclosed, and our security possibly endangered as a result, if the Senate consents to the Treaty’s ratification.
In this connection, it must be noted that the Chinese and Russians have strenuously objected to the Proliferation Security Initiative, claiming that it violates LOST. They can be expected to seek mandatory dispute resolution of the matter should the United States become a state party. Should the ruling go against us, a critical tool in the nation’s effort to prevent the spread of nuclear, chemical and biological weapons and their delivery systems could be lost for good.
The United States is the nation with the most to lose – from an economic and national security point of view – from the sort of obligatory technology transfer provisions contained in the Law of the Sea Treaty, including those that would be binding even if the 1994 Agreement has effect.
America has long imposed unilateral export control restrictions precisely for the purpose of preventing transfers that will result in harm to this country. U.S. accession to LOST would require a substantial liberalization, if not wholesale scrapping, of such important self-defense measures.
Actual or potential competitors/adversaries like China, Russia, state-sponsors of terror and even European “allies” understand full well what a technology windfall U.S. adherence to LOST could represent. It would be irresponsible, not to say foolish in the extreme, to believe that none of these parties will take advantage of the opportunity to reap that windfall, to our very considerable detriment.
Equally flawed is the proponents’ insistence that Law of the Sea Treaty tribunals will be unable to interfere with U.S. military activities. Although LOST exempts “disputes concerning military activities” from the purview of its dispute resolution mechanisms, the Treaty does not define “military activities.”
Proponents of LOST argue that the United States can make a declaration that it will define “military activities” for itself. However, this amounts to a reservation to the treaty, which is expressly prohibited by LOST. LOST must be accepted or rejected in its entirety. Furthermore, if the U.S. military were allowed to make such a unilateral determination under LOST, the militaries of other nations would exercise the same option, creating an anarchic situation that would defeat the purposes of LOST altogether. LOST was clearly not intended to allow this to happen.
LOST’s Transnationalist architects have long sought to build up supranational agencies. This treaty allows them to do so in unprecedented ways by: conferring on LOST “organs” responsibility for regulating seven-tenths of the planet (i.e., the world’s oceans and the vast natural resources to be found in and below them); levying what are tantamount to international taxes; and imposing mandatory and un-appealable decisions in disputes that may arise involving parties to the Treaty.
To date, the full, malevolent potential of the Law of the Sea Treaty has been more in prospect than in evidence. Should the United States accede to LOST, however, it is predictable that the Treaty’s agencies will: wield their powers in ways that will prove very harmful to American interests; intensify the web of sovereignty-sapping obligations and regulations being promulgated by this and other UN entities; and advance inexorably the emergence of supranational world government.
It may be that the only check on such undesirable outcomes is for the United States to remain a non-state party to LOST. The latitude such an arrangement affords America to observe Treaty provisions that are unobjectionable – without being bound by those that are – may not only be preferable for this country and its vital interests. It could also help spare other nations the less free, less prosperous and more onerous international order that will emerge if the Transnationalists have their way on the Law of the Sea Treaty.
The Law of the Sea Treaty and its agencies are indisputably linked to the UN, both substantively and organizationally. What benefits one, benefits the other.
On the substantive plane, other UN agencies routinely promote treaties and regulations designed to build on and reinforce LOST’s importance and the authority of its agencies. A recent example is instructive: A report of a UN review conference on progress between 2004 and 2006 in the implementation of the Convention on Biological Diversity “recognizes the United Nations General Assembly’s central role in addressing issues relating to the conservation and sustainable use of biodiversity in marine areas beyond national jurisdiction.”
The report goes on to “recall that United Nations General Assembly Resolution 60/30 emphasized the universal and unified character of the United Nations Convention on the Law of the Sea, and reaffirmed that the United Nations Convention on the Law of the Sea sets out the legal framework within which all activities in the oceans and seas must be carried out, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on the Environment and Development....” (Emphasis added throughout.)
At a practical level, the ties between the UN and LOST are no less palpable. For example: All staff associated with LOST bodies are paid by the UN system. Day-to- day monitoring of activities regulated by LOST is conducted by UN staff employees. Employees of LOST-related agencies participate in the UN pension plan. And, under the terms of the Treaty, the UN Secretary General plays a direct role in choosing the fifth arbiter for five-person special arbitral tribunals that will hear disputes between parties to LOST. He also is responsible for convening conferences to amend the Treaty.
If one were to travel back in time and inform the high-level members of the eighteen agency National Security Council Interagency Task Force which formulated United States oceans policy under Presidents Nixon and Ford during the principal formative Convention process – an effort never matched before or since in the care with which it reviewed United States international oceans interests – that the Convention today in force, powerfully meeting all United States oceans interests, would not yet be in force for the United States nine years after being submitted to the Senate, the news would have been received with incredulity. As this suggests, the Congress should understand that United States oceans interests, including our critical security interests, are being injured – and will continue to be injured – until the United States ratifies the Convention. Among other costs of non-adherence we have missed out in the development of rules for the International Law of the Sea Tribunal and the Commission on the Limits of the Continental Shelf, and in ongoing consideration of cases before the Tribunal as well as ongoing consideration of the Russian continental shelf claim now before the Continental Shelf Commission; we have had reduced effect in the ongoing struggle to protect navigational freedom and our security interests against unilateral illegal claims; and we have been unable to participate in the decisions of the meetings of States Parties. These are not just my conclusions. They are the conclusions of every Chief of Naval Operations and every Secretary of State who has considered these issues and of all the law of the sea experts I work with on a continuing basis.
Clearly, a position that the United States should be unable to enter into international agreements is unacceptable. Such a position would deprive the United States of a fundamental sovereign right. Indeed, it would treat the United States like a child unable to enter into contracts. Nor would such a position be consistent with the Constitution of the United States, which clearly envisages that the United States will be able to enter into international agreements. And, of course, such a position would be absurd in relation to the conduct of international relations by this great Nation. For example, the ability of the United States to enter into the NATO Treaty was of enormous importance to this country. Indeed, NATO may well have prevented World War III. Similarly, with respect to the war for the fourth freedom (the war against terror)10 the United States is a party to many important multilateral anti-terror treaties which delegitimate terrorist activity. In fact, the United States is, as part of the national effort with respect to the Proliferation Security Initiative (PSI), seeking to strengthen one of those, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention), to assist our PSI effort. In relation to oceans issues alone, the United States is party to many multilateral agreements concerning such issues as protection of the marine environment, the protection of whales and fish stocks, and the safety of life at sea. I doubt anyone would suggest that United States leadership in negotiating and adhering to these, or many other such agreements, was wrong.