Friday, January 18, 2008

A Sinkable Treaty: Why America doesn't need the Law of the Sea


Saturday, November 3, 2007 12:01 a.m.

The Senate Foreign Relations Committee voted 17-4 Wednesday to approve the
Law of the Sea Treaty, meaning it's now up to 34 Senate Republicans to send
this giant octopus of a document back where it belongs. To wit, the bottom
of the ocean.

The U.S. last disposed of the United Nations Convention on the Law of the
Sea--LOST to its critics--when Ronald Reagan was President. This May,
however, the Bush Administration reversed course and declared that the
Gipper's objections had been fixed by a 1994 amendment. We've since had a
debate on these pages over that point, with former Secretaries of State
George Shultz and James Baker in favor, while Ed Meese and William Clark,
Reagan's Attorney General and National Security Adviser, remain opposed.

The best arguments for the treaty come from the U.S. Navy, which likes how
it creates a legal framework for navigational rights. The oil and gas
industry approves of provisions that create an "exclusive economic zone" for
the U.S. out to 200 miles. There's also the potential for development (with
clear legal title) of resources in the deep seabed, which would be managed
by the International Seabed Authority on which the U.S. would be guaranteed
a seat. And, in fact, the 1994 amendment did get rid of some of LOST's most
obnoxious provisions, such as mandatory technology transfers and other
redistributionist nostrums.

Then again, the Navy has been getting along fine by using the "customary
law" that has guaranteed freedom of the seas for three centuries. Treaty
proponents have taken to arguing that, unless we ratify, Russia will lay
claim to oil rights over the Arctic seabed. But Russia's expansive Arctic
claims, possibly including the sea floor under the North Pole, are
themselves a product of the treaty. We also hear that the U.S. must have its
proverbial "seat at the table" in negotiations over such claims. But the
nations with a direct geographic Arctic claim ought to be able to cut a deal
without giving Cuba or Zimbabwe a seat. America's historic experience with
similar multinational bodies (e.g., the U.N. Human Rights Commission) hardly
justifies confidence that having a seat will enhance our influence, rather
than constrain it.

The larger problem is the treaty's sheer size, with no fewer than 320
articles and nine annexes. These cover everything from "Criminal
jurisdiction on board a foreign ship" (Article 27) to "Anadromous stocks"
and "Catadromous Species" (Articles 65 and 66) to the "Jurisdiction of the
Seabed Disputes Chamber" (Article 187). Much of this is anodyne, but perhaps
the Senators should read the fine print before voting. They might be
surprised by what they find.

Consider the treaty's potential effects on military activities. The
Administration says these are excluded from the treaty and, further, that
the U.S. gets to decide what constitutes such activity. But then how to
explain Article 20, which states that "In the territorial sea, submarines
and other underwater vehicles are required to navigate on the surface and to
show their flag." How will this affect the ability of U.S. submarines to
gather intelligence in coastal waters or deploy special forces on hostile
shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter
had been built precisely for that purpose.

The Navy might also ask how its powerful sonars--which some
environmentalists say harm marine life--could run afoul of Article 196. This
states that countries "shall take all measures necessary to prevent, reduce
and control pollution of the marine environment resulting from the use of
technologies under their jurisdiction or control."

Or take concerns that the treaty's requirements on pollution are a back-door mechanism for forcing U.S. compliance with the Kyoto Treaty and other global environmental pacts. Confronted with the argument, an Administration spokesman told the Senate that the treaty did not exercise jurisdiction over land-based pollution. Replied Republican Senator David Vitter: "If it is . .. not covered by the treaty, why is there a section entitled, 'Pollution
from Land-Based Sources'?" A good question, considering that Article 213 notes that countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution. Note our emphasis.

Critics are also right to be concerned about the powers of direct taxation
the treaty confers on the International Seabed Authority
. The details of
this innovation are buried in Article 13 of the treaty's third annex, and contain a mix of "production charges" and annual million-dollar "administrative" fees. Such measures are all but unprecedented for an international organization and have a potential for corruption, especially
when the taxes can run as high as 70% of net proceeds.

Some 154 countries have joined the Law of the Sea Treaty, with the U.S. one of the few holdouts. Critics are being labeled isolationists, or worse. But the U.S. has been abiding voluntarily with the terms of the treaty since 1983, with no ill effect. Twenty-some years ago a former President objected to handing sovereignty over two-thirds of the Earth's surface to another unaccountable international body. Ronald Reagan sank the treaty then; now it's up to 34 Senators to show similar courage.

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