LOST Reality

October 8, 2007



By Lawrence A. Kogan, Esq.*

The United Nations Convention on Law of the Sea (UNCLOS) (a/k/a the Law of the Sea Treaty -‘LOST’), the leviathan of all non-science and non-economics-based UN regulatory environmental treaties, has once again resurfaced and reared its ugly head, despite having been deep-sixed’ years ago by the Reagan Administration.

Unfortunately, a legacy-oriented White House is now shepherding it through a kumbaya Congress whose majority enthusiastically embraces collectivist European-style environmental activism and multilateral treaty-making at the expense of U.S. constitutionally protected individualism and private property rights.

Is the White House merely ill-informed, or has it intentionally chosen to ignore the lessons of history? Does it not recall the past decade of highly contentious trade disputes between the U.S. and an environmentally obsessed and protectionist European Union concerning the EU’s blatantly illegal use of the contra-WTO (‘I fear, therefore I shall ban’) Precautionary Principle? Does it not realize that LOST proponents now seek to have this controversial political philosophy incorporated and/or read into the LOST as an irrefutable international legal standard so that the United States will be compelled to adopt it as domestic law too?

If the administration had done its homework, it would have come across the prior congressional testimony of Roger T. Rufe, Jr., a die-hard proponent of the contra-WTO Precautionary Principle. Mr. Rufe is a retired U.S. Coast Guard Vice Admiral and a former CEO of The Ocean Conservancy (OTC), an environmental activist group. He is currently serving at the pleasure of the president as Director of the Department of Homeland Security’s (DHS) Operations Directorate. According to Mr. Rufe, although “the concept ‘precautionary principle’ did not exist at the time UNCLOS was negotiated and... did not appear in the Convention...we [the OTC] urged...the United States...to ensure the appropriate application of this principle to guide decision-making... in future Convention amendments... Fortunately, the convention as a constitution does establish some principles and tools that may provide a framework for future application of the precautionary principle. Moreover, subsequent multilateral agreements related to UNCLOS include the use of the precautionary principle, including the Straddling Stocks Agreement... We think that it ought to be part of the convention” (emphasis added).

The prior Senate testimony of other LOST proponents is also quite revealing. In addition to Mr. Rufe, former Senator Claiborne Pell and current Senator Richard Lugar previously referred to LOST as a new “constitution for the world’s oceans”. In addition, my former law professor, Bernard Oxman, previously testified that LOST is “the most important and comprehensive international environmental agreement in existence” (emphasis added). Also, current Senator John McCain previously testified that the LOST “serves as an umbrella convention under which rules governing all uses of the oceans and their resources are established” (emphasis added). And, a prior report prepared by the International Maritime Organization (IMO), a very influential LOST standards body, explained that LOST is characterized as an ‘umbrella convention’ “because most of its provisions, being of a general kind, can be implemented only through specific operative regulations in other international treaties” (emphasis added). What their testimony does not reveal, however, is that LOST would also govern ALL U.S. commercial and private activities undertaken on dry land and in the air that could possibly affect the marine environment! International regulation/taxation of carbon dioxide emissions ala the Kyoto Protocol anyone??

Furthermore, Professor Oxman admitted in a recent telephone conversation that, “there is no foolproof way to prevent U.S. LOST treaty partners in the future from interpreting the LOST’s environmental provisions more stringently than required by the treaty’s express terms [i.e., pursuant to the contra-WTO Precautionary Principle], and thus, contrary to U.S. national interests”. In other words, he acknowledged that the U.S. would likely encounter stiff opposition from other LOST treaty parties, especially EU member states, and would be unable, for the foreseeable future, to secure more than a few like-minded allies that shared our understanding of the treaty.

Moreover, the prior testimony of Brooks Yeager of the World Wildlife Fund, a well known environmental activist group and proponent of the contra-WTO Precautionary Principle, reveals a plan to use the LOST dispute settlement mechanism to have this disputed principle read and incorporated into the treaty. According to Mr. Yeager, “The jurisprudence emerging out of the dispute settlement system of the LOS Convention has been considerably more promising from an environmental perspective than earlier case law generated by other adjudicative bodies, including the ICJ... Most importantly and consistent with its broad mandate over marine environmental cases, ITLOS has issued provisional measures on three occasions to protect marine environmental interests. And, in all these cases there has been at least implicit reliance upon the precautionary principle...ITLOS has attempted to implement the precautionary principle in several [three] of its provisional measures orders, while side-stepping difficult questions as to the content of the principle, and whether it has entered the pantheon of customary norms relating to environmental protection” since 1999 (emphasis added).

And, Mr. Yeager can surely recall that when he and his fellow activists promoted US ratification of the UN Stockholm Convention on ‘POPS’ back during 2004, they had then also endeavored to have the contra-WTO Precautionary Principle read and incorporated into not only that treaty, but also US federal law. They sought to achieve this result via enactment of implementing legislation that would have amended the US Toxic Substances and Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) so as to minimize the roles played by risk assessment and economic cost-benefit analysis.

Would Mr. Yeager, and those LOST proponents in the US military, the State Department and the congressional majority now have us believe that US LOST ratification will require no implementing legislation to amend the federal Clean Air and Water Acts, the Endangered Species Act, the Marine Mammal Protection Act, the Coastal Zone Management Act, the Marine Protection, Research, and Sanctuaries Act, the Outer Continental Shelf Lands Act, the Deep Seabed Hard Minerals Resources Act, the Ports and Waterways Safety Act, the Act to Prevent Pollution from Ships, the Oil Pollution Act, the National Environmental Policy Act, the Solid Waste Disposal Act, CERCLA, the Invasive Species Act, etc. so that they directly or indirectly reflect the contra-WTO Precautionary Principle?

Please forgive me if I am being overly precautious, but, shouldn’t the U.S. and the American people properly prepare themselves before ratifying the LOST? Isn’t the U.S. Constitution the ‘supreme law of our land’, our territories and our territorial waters, including the continental shelf? Doesn’t the U.S. Constitution supersede and limit for U.S. citizens the scope and application of ALL international treaties to which the U.S. becomes a party? Are not our exclusive private property rights protected by the U.S. Constitution’s Fifth Amendment from uncompensated regulatory ‘takings’, outright expropriations and international taxation, whether emanating from our own government, foreign governments or the UN’s International Seabed Authority? And, what other UN environmental treaties, specific operative regulations and international standards susceptible to EU reinterpretation must the U.S. be concerned about? What have we not been told that needs to be heard? How much more of the LOST regulatory iceberg lurks below the ocean’s surface?

Independent research confirms a negative LOST reality. If ratified by the United States, LOST would likely expose U.S. small and medium-sized companies, individual citizens and the U.S. military’s civilian technology supply-chain to new significant costs and burdens to which they are NOT already subject under current U.S. environmental law. In particular, private property and due process rights would be lost, and military and civilian hi-technologies would be banned, restricted, and/or taxed by domestic and international bureaucracies not subject to U.S. control or oversight, if it is merely possible, without scientific proof being shown, that they pose some possible future hazard to the marine environment. In addition, the status and scope of intellectual property rights underlying products and processes derived and commercialized from discoveries of sea-based bio-organisms would also be governed by UN and other international tribunals rather than by the WTO or WIPO. As a result, the U.S. could undoubtedly lose its global economic competitiveness, and above all, its national sovereignty.

For these and other reasons, the Wall Street Journal appropriately criticized the LOST as being contrary to ‘the U.S. national interest’. It correctly emphasized that if the regulation-laden LOST were ratified, it would likely subject U.S. maritime and economic power “to the whims of a highly politicized U.N. bureaucracy often driven by an anti-American agenda”.

If there were any lingering doubts about the real risk that uncontrollable international bodies, such as the UN’s LOST Secretariat, Seabed Authority and Tribunal, could seriously threaten U.S. constitutionally protected private property rights concentrated along U.S. coastlines, one need only look to the International (U.S.-Canada) Boundary Commission (IBC)’s recent harassment of Washington state residents Shirley-Ann and Herbert Leu.

According to the Seattle, Los Angeles, and Washington Times newspapers, Mr. and Mrs. Leu received a hand-delivered letter this past February from IBC Commissioner Dennis Schornack. It ordered them to remove, at their own expense, a $15,000 concrete retaining wall built pursuant to Blaine, Washington municipal zoning ordinances, on their own clearly marked private property. Apparently, although the wall was 8 feet away from the Canadian border, it encroached 30 inches into a 20-foot boundary vista (ditch) running along their entire lot. In effect, the IBC, an international bureaucracy, claimed that it possessed the sole and absolute authority to condemn and regulate the development of the Leu’s property (and for that matter, all U.S. private property located along the U.S.-Canadian border) without providing the Leus with ‘just’ compensation and ‘due process’ (adequate notice), as required by the U.S. Constitution.

Most remarkably, Mr. Schornack and the commission have argued that since they are not a U.S. government agency subject to the laws of the United States and its Constitution, they are not obligated to compromise on these issues. And, when President Bush stepped in to fire Mr. Schornack, the sole acting U.S. commissioner on the IBC, for not representing the interests of the United States and its citizens, Schornack responded that he represented the international community, had been appointed for life and could not be fired!

What is really going on here? Have LOST proponents avoided discussing the treaty’s many hidden provisions because of the potential for situations like this? Why have they not explained to the American people the costs, risks and benefits associated with ratifying the LOST, or the nuances of the LOST ratification process itself? What are they afraid to tell us what we need to hear?

As the ultimate representative of the American people, both chambers of the U.S. Congress must hold open public hearings on LOST ratification before the Senate gives its advice and consent. It must educate Americans about how the expansive LOST regime, as it will likely be implemented by the U.S., the UN and foreign countries, would directly and indirectly impact their pocketbooks, their rights and their daily lives. Given what has befallen the Leus, a fresh sea breeze is needed to provide some reality and context to what might surely become a surreal experience for many other Americans in the future.

* Lawrence Kogan is President and CEO of The Institute for Trade, Standards and Sustainable Development (ITSSD), a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. ITSSD studies are accessible online at: http://www.itssd.org/ .