Article published Nov 13, 2007
November 13, 2007
The Bush administration, together with several unlikely allies — including Sens. Joe Biden of Delaware and Dick Lugar of Indiana, and the majority of the Senate Foreign Relations Committee — are attempting to impose a flawed international agreement on America. The U.N. Law of the Sea Treaty, known by its particularly apt acronym LOST, was wisely rejected 25 years ago by President Reagan and revived by the Clinton administration after several cosmetic changes. The "new" treaty was approved Oct. 31 by a 17-4 Senate Foreign Relations Committee vote. What was wrong with LOST 25 years ago is what's wrong with it now — it would undermine American sovereignty and risk national security by putting American efforts to counteract nuclear-weapons proliferation and international terrorism under the control of foreign judges.
Unfortunately, the Bush administration has embarked on a misguided public-relations campaign, perhaps as an exercise in legacy-polishing, to persuade the American people that enacting this treaty is a national security necessity. Writing in The Washington Times, Deputy Secretary of State John Negroponte and Deputy Defense Secretary Gordon England urged ratification of LOST to ensure that the United States retain "unimpeded maritime mobility — the ability of our forces to respond any time, anywhere, if so required." Senate ratification of LOST, according to Mr. Bush, "will give the United States a seat at the table when the rights that are vital to our interests are interpreted and debated." But the structure of the treaty is so harmful to American interests that it won't make much difference whether American diplomats are at "the table" or not.
Several Republican supporters of the treaty, not allowing facts to get in the way of spin, have attempted to revise what Mr. Reagan actually thought about LOST. Mr. Lugar, ranking member on the Senate panel, asserts that Mr. Reagan's only objections were to a provision of the treaty that imposed a cumbersome bureaucratic system of regulation on seabed mining. The Clinton administration negotiated certain cosmetic changes as an appendix to the treaty — not part of the treaty itself — and joined European countries in pronouncing the treaty to be "OK now." Mr. Lugar is wrong about the flaws in the treaty and he's wrong about what Mr. Reagan objected to, which went well beyond the seabed mining provisions. In "The Reagan Diaries," published earlier this year, the president wrote this diary entry on June 29, 1982: "Decided in [National Security Council] meeting — will not sign 'Law of the Sea' treaty even without seabed-mining provisions." Mr. Reagan further objected to the fact that "national liberation movements" like the PLO would participate in the treaty, and to provisions for the "mandatory transfer of private technology" from industrialized nations to less-developed countries. Edwin Meese, a presidential counselor and attorney general in Mr. Reagan's administration, explains why his former boss felt so strongly that this provision was bad for the United States: "Obligatory technology transfers would equip adversaries with sensitive and militarily useful equipment and knowledge."
But what is most disturbing about the treaty is the damage it would do to U.S. efforts to combat terrorism and to stop the proliferation of weapons of mass destruction. Jeremy Rabkin, a law professor at George Mason University and a foremost scholar on international law, points out that Article 88 of LOST declares that "the high seas shall be reserved for peaceful purposes," and makes no mention of exceptions in time of war. That omission was foolish 25 years ago and it's dangerously lethal in an era of state-supported Islamic jihad. The treatymakes no mention at all of "terrorism," for understandable reasons: The U.N., unlike the rest of us, has been unable even to agree on a definition of terrorism.
LOST would create serious legal problems for U.S. defense planners. Could the U.S. military continue the Proliferation Security Initiative (PSI), a Bush administration program led by John Bolton, the former undersecretary of State for arms control and international security, which focuses on interdicting chemical, biological and nuclear weapons components on the high seas? Under Mr. Bolton, it broke the Pakistan-based A.Q. Khan nuclear proliferation network, collaborators in terror with Libya, Iran and North Korea. Could the United States under LOST intercept planes carrying terrorists, such as the men who murdered an American passenger aboard the Italian cruise ship Achille Lauro in 1985? The answers are not clear.
The United States argues that PSI and the Achille Lauro interception are perfectly legal; terrorists and proliferators of weapons of mass destruction argue that both U.S. actions were illegal. Under LOST, this question would be submitted to international arbitration. Under Article 296, Paragraph 1 of the treaty, the United States would be required to accept the results as authoritative. Under the treaty, for example, in a dispute between, say, the United States and Iran, the two countries would choose an equal number of arbitrators, with the tiebreaking vote made by someone chosen by the U.N. Secretary-General. The Bush administration counters that there are "safeguards" in the treaty that would allow the United States to exempt "legitimate military activities" from the treaty's constraints. But these are empty "safeguards." The United States would be forced to choose between a robust response to terrorism and submitting its judgment to foreign judges who might not be particularly interested in the national security of the United States.
The Senate should defeat the Law of the Sea Treaty, and do so decisively.