Protect US sovereignty: Sink the Law of the Sea

George W. Bush has worked hard, particularly since the 9/11 attacks, to emulate the principled, conservative and consequential presidency of one of his most formidable predecessors, Ronald Reagan. So, why would President Bush want to make one of his top foreign policy priorities the ratification of an accord–the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty, or LOST)–that President Reagan rejected 22 years ago?

This decision is all the more puzzling since the Law of the Sea Treaty has not improved with age. In fact, there has been no change to the treaty whatsoever from the document Reagan found wanting.

To be sure, in 1994, the Clinton Administration negotiated a separate accord (called “the Agreement”) that proponents claim “fixed” the Reagan objections. But the truth of the matter is that, like so many other Clinton flim-flams, this one is not the real deal since LOST has not actually been amended at all.

International Taxes

Indeed, fully one-fifth of the states that are party to LOST have refused to be bound by the Agreement. What is more, some that did ratify the 1994 deal made clear their view that the Agreement did not alter the treaty itself.

The question arises: Is the Law of the Sea Treaty any more compatible with our national interests today than it was in 1982? The answer for most Americans–and especially for all conservatives–should be a resounding “No!”

For one thing, it is unimaginable that the United States would choose to expand the power and influence of the United Nations at a time when evidence of the latter’s corruption, malfeasance and inherent anti-Americanism is growing by the day. Yet, that would be the effect of our joining one of the UN’s offshoots–the International Seabed Authority (ISA), a supranational organization created by Part XI of the Law of the Sea Treaty. Reagan specifically cited Part XI when he refused to sign LOST, and for good reasons.

In a move without precedent and with ominous implications, the International Seabed Authority would have the power to impose what amounts to taxes on American citizens. The UN has long sought means to generate revenues without having to rely on donations from member states. If the United States were to become a party to LOST, the Treasury would be charged by the ISA for permits and other fees associated with American commercial exploitation of the seabeds.

Now, it is unclear precisely how the U.S. government would recover such unprecedented international taxes, imposed without real representation, from American companies involved in mining or energy operations in international waters. What is clear, however, is that the taxpayer will be on the hook for at least a quarter of the International Seabed Authority’s annual operating budget, our tithe under the UN formula. And Americans will have to pay the ISA for the privilege of allowing our companies to explore and develop the resources of seven-tenths of the world’s surface–resources that were, until LOST, considered to be exploitable by whomever could gain access to them.

The Jamaica-based international organization that we would be supporting in this fashion would have not only the equivalent of an executive and legislature, but also a judiciary, known as the Law of the Sea Tribunal. While there are, theoretically, some limits on the authority of the other two branches of this supranational institution, discretion about the extent of the tribunal’s jurisdiction is exclusively in its hands.

The rulings of this sort of international court have already begun to erode U.S. sovereignty. As Judge Robert Bork, Phyllis Schlafly and Jeremy Rabkin, among others, have noted in recent months: American jurisprudence is increasingly reflecting decisions handed down by foreign judges who are neither accountable to nor obliged to comply with this country’s rule of law–with negative repercussions for our rights and system of justice.

Particularly worrisome is the fact that the Law of the Sea Tribunal has already indicated its intention to define its jurisdiction broadly. It is predictable that, were the United States to become subject to its edicts, the tribunal would become a preferred venue for non-governmental organizations and unfriendly regimes seeking to use the court’s authority to compel changes in U.S. military and civilian policies.

Treaty proponents argue that problems like this can be mitigated if the United States “has a seat at the table,” by virtue of being a party to LOST. Actually, membership would not assure that there would be a U.S. representative on the tribunal, since not all states’ parties can have nationals serving as judges at any given time.

Still more unlikely is the prospect that–whether we are represented or not–a majority of the Tribunal’s jurists would be supportive of U.S. positions in cases before the court. After all, the Law of the Sea Tribunal–like most of LOST’s other institutions–operates on the basis of one country, one vote. This ensures, as a practical matter, that the same anti-American forces that produced a treaty Reagan found to be unacceptably defective would operate to our detriment.

Obstacles to Intelligence Gathering

Another area of concern arises from the fact that the Law of the Sea Treaty was drafted long before, and without regard to, the sort of global conflict in which we now find ourselves. As a result, LOST will create obstacles to our submerged movements and intelligence collection in territorial waters–activities that may prove critical to our ability to detect and prevent future terrorist attacks.

The treaty similarly makes no provision for stopping and searching on the high seas ships suspected of transporting weapons of mass destruction on behalf of or for use by international terrorists. Although the Bush Administration argues otherwise, several leading LOST member states (including Communist China) have contended that the accord actually prohibits one of the President’s most important measures aimed at preventing the shipment of WMD: the Proliferation Security Initiative (PSI). Given that PSI may be an effective tool for countering one of the most dangerous threats we currently face, it would be irresponsible to join a treaty that could preclude such activity, especially if the question is left to the tender mercies of the Law of the Sea Tribunal.

No less out of step with the times is the obligation the United States would have to assume as a member state to transfer militarily significant technology and information to potential adversaries. Keeping such know-how and data out of unfriendly hands should be among our highest priorities in the War on Terror.

With all these problems, one might reasonably ask: Why in the world would Secretary of State Condoleezza Rice–in answer to a question by Senate Foreign Relations Chairman Richard Lugar (R.-Ind.), who is pushing for ratification of LOST–say during her confirmation hearings that “we very much want to see [LOST] go into force”?

The short answer seems to be that a number of special interests have come together to urge ratification. The Navy thinks LOST will lighten its responsibility for assuring freedom of navigation with an ever-smaller fleet. Oil and gas companies think it will facilitate offshore exploration and drilling. Curiously, for their part, environmentalists expect to be able more tightly to regulate the oceans and to bar activities that endanger the health of their waters, flora and fauna, such as drilling and mining. And the State Department, which never saw a treaty it didn’t like, contends membership in LOST will help President Bush improve ties with Europe and other foreign powers.

It will fall–as is so often the case–to conservatives to ensure that the national interest is protected by defeating a treaty Reagan rightly concluded was unacceptable, and that remains so today. As he once famously put it, it’s time for us to “win one for the Gipper.”