Washington Times Letter to the Editor
November 14, 2007
The editorial "Defeat the Law of the Sea Treaty" (yesterday) contained four errors.
First, President Reagan supported the convention except for six specific objections to Part XI on deep seabed mining. Those objections were fixed in the 1994 agreement formally modifying Part XI, to which the United States is a signatory.
Mandatory technology transfer was rescinded outright in Section 5, paragraph 2 of the agreement annex.
Second, the convention's provisions on "peaceful purposes" do not constrain U.S. military activities. They restate binding obligations we already have and support under the U.N. Charter. The negotiating history on this point is clear.
In 1976, Ecuador attempted to turn the "peaceful purposes" provisions into arms control obligations. They went nowhere. Why does The Washington Times raise today a long-discredited and failed socialist argument from the 1970s?
[THIS ARGUMENT IS EVEN MORE RELEVANT TODAY GIVEN THE NETWORK OF HUNDREDS OF RELATED TREATIES THAT HAVE GONE INTO FORCE SINCE 1994, EACH OF WHICH CONTAIN TOP-DOWN, CENTRALIZED REGULATORY PROVISIONS REMINISCENT OF SOCIALISM]**
Third, the convention not only supports the Proliferation Security Initiative (PSI), but not being a party hinders efforts to recruit PSI countries.
But you don't have to believe me: As then-Under Secretary John Bolton testified before the Senate in 2005, "the PSI statement of interdiction principles says very clearly that any actions taken pursuant to PSI would be done in accordance with existing national and international authority. And of course all of our other core group members of the PSI are states party to the Law of the Sea Treaty."
The PSI interdiction of the vessel BBC China, which broke the back of Libya's weapons of mass destruction program, was conducted in accordance with the Law of the Sea Convention.
Fourth, our maritime interdictions as well as all our military activities will be exempt from dispute resolution. Article 298.1 of the convention expressly provides that it is the right of a state, and solely the state, to pre-emptively and completely reject all the dispute resolution procedures for activities it determines are military activities.
[THIS DEPENDS ON WHETHER THE ANNEX VII AND ANNEX VIII ARBITRATION TRIBUNALS, OR THE INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA (ITLOS), WHOSE JURISDICTION, IF INVOKED BY ANOTHER UNCLOS PARTY ALLEGING A VIOLATION, DEFINES THE ACTIVITY IN QUESTION AS 'MILITARY' OR 'OTHER THAN MILITARY' - SOMETHING THAT IS NOT ASSURED]***
All permanent members of the United Nations Security Council (except us) and numerous other countries have taken the military activities exemption. They, like us, would never accept a court or tribunal acting ultra vires beyond the limits of the convention itself. And by the way: Iran is not a party to the convention; like us, North Korea, Libya and Syria they are on the outside.
Also, the Senate resolution will reject the World Court and International Tribunal for the Law of the Sea, and instead choose arbitration for dispute resolution of nonexempt issues.
The Times should know better than to repeat myths on important national security matters. 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.
CAPT. PATRICK J. NEHER
Judge Advocate General's Corps
Director, international and operational law