Industry Brief: Law of the Sea Treaty
The Officer, January 18, 2008
By Brooks, Will
ROA's Defense Education Forum hosted a debate on the United Nations Law of the Sea Treaty Oct. 17 at the Minuteman Memorial Building in order to establish the major arguments both for and against this treaty.
The debate featured four panelists: two in favor of the treaty's ratification, CAPT Patrick Neher, USN, and J. Ashley Roach, of the U.S. State Department's Office of the Legal Adviser; two against the treaty, Frank Gaffneyjr., and Lawrence Kogan, President and CEO of the Institute for Trade, Standards, and Sustainable Development.
CAPT Neher and Mr. Gaffney continue their debate in the two essays on these pages.
The Senate Foreign Relations Committee voted 17-4 in favor of the treaty on Oct. 31, sending the treaty to the Senate floor. A treaty requires at least a two-thirds vote in the Senate to ratify it, a feat that may not be possible given growing Republican opposition toward this treaty. President George W. Bush supports the treaty.
Aye: Law of the Sea Convention will enhance our national security.
By CAPT Patrick Neher, USN
We are at war. The president, his war cabinet, the Joint Chiefs of Staff, and the commandant of the Coast Guard agree that joining the Law of the Sea Convention will enhance our national security.
The Convention codifies navigation rights and freedoms essential for the global mobility of our armed forces and the sustainment of our combat troops. Benefits include the following:
* 12 nautical-mile limit to territorial seas;
* innocent passage through territorial seas;
* archipelagic sea lanes passage through island nations such as Indonesia;
* ability to lay and maintain submarine cables for communication;
* warship right-of-approach and -visit;
* sovereign immunity of warships and public vessels;
* transit passage in international straits and their approaches;
* high seas freedoms in exclusive economic zones (EEZs).
The last two are the most important. Transit passage gives us freedom of movement above, on, and below the surface in critical chokepoints such as the Straits of Singapore and Malacca, Hormuz, Gibraltar, and the Bab el Mandeb. Exercising high seas freedoms in foreign EEZs includes conducting military activities.
Our non-party status is hurting us. It denies us a seat at the table when the 155 parties to the Convention interpret or try to amend those rights and freedoms; it denies us use of an important enforcement tool against coastal state encroachment (binding dispute resolution); it prevents us from gaining legal certainty for our extended continental shelf in the Arctic and elsewhere; and it denies U.S. companies access to deep seabed mining sites.
[IF THE U.S. IS AT WAR, WHY DOES IT NEED LEGAL CERTAINTY OVER ITS MILITARY ACTIONS THAT ARE SUPPOSED TO BE EXEMPT FROM LOST TRIBUNALS ANYWAY??]
Convention opponents are wrong. The Convention does not provide the United Nations control over 71 percent of the Earth's surface, nor will an international body levy taxes or regulate the Navy.
[THE NAVY OBVIOUSLY DOESN'T UNDERSTAND EVOLVING INTERNATIONAL ENVIRONMENTAL LAW WELL ENOUGH TO SEE THE EMERGING TAX AND REGULATIONS REGIME COMING FORTH FROM THE UNITED NATIONS]
A U.S. resolution of advice and consent will reject the International Court of Justice and the International Tribunal for the Law of the Sea and remove military activities from dispute resolution. The military activities exemption in the Convention is ironclad; it permits a nationand solely a nation-to completely reject all of the dispute resolution procedures for any matter it determines to be a military activity.
[THIS IS NOT TRUE AS A MATTER OF INTERNATIONAL LAW - EITHER THE INTERNATIONAL TRIBUNAL ON THE LAW OF THE SEA (ITLOS) OR ARBITRAL BODIES CAN UNILATERALLY DETERMINE, FOR JURISDICTIONAL AND SUBSTANTIVE LAW PURPOSES, WHAT TYPES OF ACTIVITIES QUALIFY AS 'MILITARY ACTIVITIES'. THUS THERE IS NO 'IRONCLAD' EXEMPTION] *******
President Ronald Reagan supported the Convention except for six specific objections to the deep seabed mining provisions, and those were fixed in 1994.
[THIS ALSO IS NOT TRUE - THE RECENTLY RELEASED REAGAN DIARIES AND THE PUBLISHED STATEMENTS OF FORMER U.S. AMBASSADOR JAMES MALONE CONTRADICT THESE CLAIMS]***
It is both the original Convention and the 1994 agreement that are before the Senate. We already are formally bound to and abide by innocent passage rules, including submarine passage in foreign territorial seas. The first sentence of Article 110 makes clear that the interdiction authorities it provides, which are substantial, are in addition to other interdiction authorities extant. The Proliferation Security Initiative requires compliance with international law, including the Convention, and almost all our partners are already parties to the Convention. Language reserving the ocean for peaceful purposes and prohibiting use or threat of force in a manner inconsistent with the UN Charter merely restates obligations we already have and fully supported.
ROA has a proud tradition of supporting a strong military policy for the United States, and therefore it should support the Law of the Sea Convention.
CAPT Neher is the director of the International and Operational Law Office of the Judge Advocate General in the Pentagon.
Nay: U.S. Navy will rue the day it urged Law of the Sea ratification.
By Frank J. Gaffney Jr.
As the debate over the ratification of the controversial UN. Law of the Sea Treaty (LOST) moves to the floor of the U.S. Senate, it appears that a principal-if not decisive-consideration will be the insistence by the Navy that it needs this accord to perform its missions. If past experience is any guide, however, the nation's sea services are likely to be victims of this treaty, not beneficiaries of it.
The Navy's enthusiasm for LOST arises from provisions that codify navigation rules of the road deemed essential for the mobility of our forces. If that were all the treaty did, such enthusiasm would be warranted.
Unfortunately, the Law of the Sea Treaty has a host of other provisions as well. Some will be harmful to U.S. sovereignty, representative government, and commercial interests. Even if the accord were an unalloyed blessing for the Navy, these costs to the country would net out far in excess of its putative benefits to the naval service.
For the following reasons, though, it is predictable that the Navy will also be a loser under LOST.
The treaty contains at least six provisions inconsistent with the Navy's standard operating procedures. These impose limits on uses of the oceans, submerged transit of and intelligence collection in territorial waters, interceptions on the high seas, and research and development. There are also sweeping environmental obligations that will affect both the Navy's own activities and those of commercial contractors vital to its equipping, maintenance, and logistics.
When-not if-disputes arise over U.S. conduct at odds with these commitments, we will be obliged to submit to binding, unappealable dispute resolution mechanisms. All four of these mechanisms will be rigged against us, with the deciding votes selected by parties generally unsympathetic to this country.
The Navy is counting on an exemption in the treaty for "military activities" to prevent it from being subjected to these stacked- deck arrangements. While that exemption exists, it is unlikely in practice to protect the Navy's equities.
First, such activities are undefined, allowing a LOST tribunal to determine whether, for example, the use of high-power sonar is a military action or environmental predation. second, Navy contractors enjoy no "military" exemption. Third, notions of "universal jurisprudence" can trump the preferences and even the laws of sovereign nations. At this writing, the U.S. Supreme Court is weighing whether to agree with the Bush Administration that a ruling by the World Court (one of LOST's four designated arbitral tribunals) should override Texas statutes in a criminal case. Navy equities will likely be subject to similar perils if LOST is ratified.
The bottom line is that the Navy has enough trouble at the moment with environmentalists and others using various legal instruments to impede or prevent its activities, a practice increasingly known as "Lawfare." The Navy will come to rue the day if, at its urging, the Senate agrees to the ratification of LOST and subjects this country to still more, and evermore onerous, forms of such warfare by judicial means.
Mr. Gaffney was assistant secretary of defense in the Defense Department of President Ronald Reagan. He is a recipient of the Alfred Thayer Mahan Award for literary achievement from the U.S. Navy League.
WILL BROOKS * DIRECTOR, ROA NAVAL SERVICES SECTION
Copyright Reserve Officers Association Jan 2008
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