Posted on 03/26/2004 11:09:55 PM PST by MegaSilver
In the wake of international terrorism's most-successful strategic attack since September 11, 2001, the differences between Sen. John Kerry and President Bush about how the war on terror should be waged have become as clear as, well, the differences between the outgoing Spanish premier and his successor.
To be sure, even before last Thursday's murderous explosions in Madrid, Senator Kerry and his surrogates were denouncing the war in Iraq on the grounds that President Bush failed to get the U.N.'s permission for it — and then was unable to turn the governance of the country post-Saddam over to the so-called "international community." This theme has, however, received mantra-like repetition by the Democratic candidate and his echo chamber ever since the terrorists took down Spain's government.
The good news is that the Bush administration has finally launched a powerful counterattack. Just about every senior national-security official from President Bush on down has suddenly been made available to explain the logic of removing Saddam Hussein from power as an indispensable part of the war on terror. They and key legislators (like Sen. Jon Kyl of Arizona, chairman of the Senate Republican Policy Committee) have at last gone on offense in response to the ceaseless, direct, and indirect attacks on the Bush team's integrity as it made the case for draining the "swamp" that was Saddam's terrorist-sponsoring, WMD-wielding Iraq.
Perhaps most importantly, President Bush and his advocates have directly challenged Senator Kerry, et.al., with respect to what may prove to be the most important foreign-policy issue of the 2004 campaign: John Kerry's worldview that U.S. freedom of action around the world can safely — and, indeed, as a practical matter must — be subordinated to the U.N.'s superior judgment. In a powerful example of the assault now being inflicted on the Kerry record and candidacy, Vice President Cheney declared yesterday at the Ronald Reagan Presidential Library: "The United States will never seek a permission slip to defend the security of our country."
The bad news is that the Bush administration risks grievously blurring where it stands on the appropriate, limited role of the United Nations in determining our security and other interests with its advocacy of a treaty that President Reagan properly rejected 22 years ago. As was noted in this space on February 26, the administration's declared support for the Law of the Sea Treaty (LOST) caused it to be approved unanimously by the Senate Foreign Relations Committee — even though this accord would constitute the most egregious transfer of American sovereignty, wealth, and power to the U.N. since the founding of that "world body." In fact, never before in the history of the world has any nation voluntarily engaged in such a sweeping transfer to anyone.
This is the case because LOST creates a new supranational agency, the International Seabed Authority (ISA), which will have control of seven-tenths of the world surface area, i.e., the planet's international waters. That control will enable the ISA and a court created to adjudicate and enforce its edicts the right to determine who does what, where, when, and how in the oceans under its purview. This applies first and foremost to exploration and exploitation of the mineral and oil and gas deposits on or under the seabeds — an authority that will enable the U.N. for the first time to impose what amount to taxes on commercial activities.
LOST, however, will also interfere with America's sovereign exercise of freedom of the seas in ways that will have an adverse effect on national security, especially in the post-9/11 world. Incredibly, it will preclude, for example, the president's important new Proliferation Security Initiative. PSI is a multinational arrangement whereby ships on the high seas that are suspected of engaging in the transfer of WMD-related equipment can be intercepted, searched, and, where appropriate, seized. Its value was demonstrated in the recent interception of nuclear equipment headed to Libya.
Similarly, LOST will define intelligence collection in and submerged transit of territorial waters to be incompatible with the treaty's requirements that foreign powers conduct themselves in such seas only with "peaceful intent." The last thing we need is for some U.N. court — or U.S. lawyers in its thrall — to make it more difficult for us to conduct sensitive counterterrorism operations in the world's littorals.
Since my last column on this subject, there have been several notable developments with respect to the Law of the Sea Treaty:
It has become clear that one of the prime movers behind the Bush administration's support for this U.N.-on-steroids treaty is none other than John Turner, a man property-rights activists kept from assuming a senior position in the Interior Department. Correctly seen by that community as a wild-eyed proponent of conservation at the expense of landowners' equities, he was given a consolation prize: a seemingly innocuous post as the State Department's assistant secretary for Oceans and International Environmental and Scientific Affairs. It turns out that in that position — and thanks to his longtime friendship with Vice President Cheney — Turner has greatly advanced what is arguably the most egregious assault on property rights in history.
The United States Navy has trotted out arguments for this treaty that reflect what might be called the River Kwai Syndrome. Like the British senior POW in World War II who couldn't bring himself to blow up a bridge his captors would use to their military advantage, Navy lawyers seem convinced that a bad deal is better than none.
Even though this accord will manifestly interfere with important peacetime naval operations, JAG types tell us they think it will be good for their business if freedom of the seas is guaranteed by a new, U.N.-administered international legal system rather than by U.S. naval power. They speciously assert that a 1994 agreement negotiated by President Clinton fixes the problems that caused President Reagan to reject LOST — never mind that the Clinton accord does not amend or otherwise formally modify one jot of the treaty.
Fortunately, this nonsense will be exposed to critical examination in coming weeks as two Senate committees, Environment and Public Works and Armed Services, hold hearings on LOST. Their chairmen, Sen. Jim Inhofe (R., Okla.) and John Warner (R., Va.), respectively, deserve credit for inviting critics of the treaty (including this author) to provide testimony Indiana Republican senator Richard Lugar refused to permit the Senate Foreign Relations Committee to hear before it approved the resolution of ratification. (Other committees that have equities in this fight — like Governmental Affairs, Commerce, Energy, Intelligence and Finance — have yet to be heard from.) The prospect these hearings and the attendant public scrutiny of the Law of the Sea Treaty will precipitate a time-consuming and politically costly debate has prompted Senate Majority Leader Bill Frist (R., Tenn.) to say that he sees no opportunity for the foreseeable future to bring this accord to the floor. Assuming he is good to his word, still more time will be available to awaken the American people to what is afoot.
Most importantly, one of those people, President George W. Bush, may recently have been awakened to the dangers — political, as well as strategic and economic — inherent in this treaty. In response to a question recently put to him by Paul Weyrich, the legendary conservative activist and president of the Free Congress Foundation, President Bush indicated that he was unaware of the Law of the Sea Treaty and his administration's support for it. It can only be hoped that, as he conducts the promised review of LOST, he will make clear he does not want it ratified, now or ever.
Better yet, President Bush should assign his trusted undersecretary of Arms Control and International Security, John Bolton, the job of arranging for LOST to be "unsigned" — just as he did with respect to the fatally flawed treaty that created the International Criminal Court. Secretary Bolton would be particularly appropriate for this job, since he was also the prime architect of the Proliferation Security Initiative that the Law of the Sea Treaty would eviscerate.
While such developments are generally welcome, one thing curiously has not happened. The alarm about the defective Law of the Sea Treaty has still not been sounded by the likes of Rush Limbaugh and Fox News. It can only be hoped that, as the Senate hearings on LOST start next week, this oversight will be corrected, ensuring that the treaty is deep-sixed, once and for all.
I heard about this on Joseph Farah's show and did a search at freerepublic and this is the most recent post!! Sure is good to have a real conservative talk show host once again.
Does Fox only report what others report first?
More LOST than Mobility
The political fight over the ratification of the United Nations Law of the Sea Treaty (LOST) is threatening to divide those at the highest ranks of the conservative movement. Along with President Ronald Reagan, who rejected the international Treaty in 1982 citing comprehensive flaws, many conservatives today oppose ratification. Yet, curiously, the United States Navy, Department of Defense, and consequently, the Bush Administration have voiced their support for the Treaty and have requested it be sent to the Senate floor. Although their reasoning – namely, that LOST ensures and protects the navigational mobility of U.S. military vessels – is based on important concerns over national security, heedless insistence on this assured mobility has blinded them to the unforeseen secondary effects of signing onto the treaty, such as unprecedented infringements on the sovereignty of the United States.
In 2003 before the Senate Foreign Relations Committee, officials from both the Navy and the Department of Defense testified in favor of LOST. Deputy Assistant Secretary of Defense for Negotiations Policy, Mark Esper, argued, “The Administration supports accession to the Convention because the Convention supports navigational rights critical to military operations.” He continued, “These rights are essential to the formulation and implementation of our national security strategy.” Similarly, Admiral Michael Mullen, Vice Chief of Naval Operations of the Joint Chiefs of Staff, corroborated, “Entry into force [of LOST] for the United States will enhance the worldwide mobility our forces require and our traditional leadership role in maritime matters.”
Prima facie, the Administration puts forth a compelling case. In fact, in 1974 America sought negotiations for a treaty on the law of the sea for this strict purpose: to prevent coastal nations from excessive maritime territorial claims, which could in due course impede U.S. navigation. American delegates, then, aimed to codify a set of universal standards for the establishment of territorial waters. In turn, safe passage through these territorial waters, along with international waters, would be granted, all in accordance with customary international law and previous treaties such as the 1958 Conventions on the Law of the Sea. Thus, the fact that the present-day Treaty ostensibly protects navigational mobility is a diplomatic victory in itself.
The Law of the Sea Treaty, however, is significantly more than just a regime of protected navigational mobility. In fact, provisions specific to navigation and the protection thereof make up less than half of the actual treaty. The remaining provisions effectively create a supranational institution, the International Seabed Authority, to govern and regulate the oceans and also a supranational judicial body, the International Tribunal on the Law of the Sea, to interpret and enforce the treaty. And still others set forth comprehensive environmental regulations, arbitration panels, codes and procedures for the exploitation of the sea bed, protocol for marine scientific research, and also duties for the redistribution of resources and technology.
It seems rather short-sighted then – and perhaps even a bit disingenuous – to merely evaluate LOST on the benefits it provides regarding navigational freedom. The scope of LOST is considerably more than navigation, and while the Bush administration may tout national security concerns in its rhetoric on mobility, a closer look reveals that the Treaty may in fact undermine U.S. security.
For example, among the more problematic extra-navigational provisions are those that create mandatory dispute settlement mechanisms. According to LOST, recourse to four judicial bodies can be made in the event of a maritime dispute: the International Court of Justice, the International Tribunal on the Law of the Sea, or one of two arbitration panels. In all cases, the rulings from these venues are both mandatory and binding. The United States, then, as a signatory to LOST, would be obliged to comply with the decisions of these bodies regarding international ocean policy, which is particularly peculiar in light of the Bush Administration’s insistent avoidance of international courts with compulsory settlement measures.
To anticipate the full effect of these judicial bodies, one only needs to look at a recent ruling by the International Tribunal on the Law of the Sea (ITLOS). In December of 2001, the Tribunal (made up of 21 elected arbiters) heard a dispute submitted by Ireland involving the potential pollution of the Irish Sea by a United Kingdom nuclear power plant. Ireland alleged violation by the U.K. of provisions in LOST, specifically provisions obligating to “protect and preserve the marine environment.” According to the Irish Government, the operational discharges of British Sellafield Mox Plant, a facility that recycles plutonium, could potentially cause radiological contamination of Irish Sea. On this basis, they requested provisional measures from the Tribunal to suspend activities of the Mox plant and the transport of hazardous material to and from Sellafield.
The British disputed whether ITLOS had jurisdiction to even adjudicate the matter – one that involved predominately the activities of a power plant on British sovereign soil. As their defense, Britain claimed that the dispute concerned preexisting regional treaties, which provided mechanisms sufficient to resolve the issue. After all, according to Article 282 of the Treaty itself, disputes where other general, regional, or bilateral treaties exhibit competence can be excluded from the settlement mechanisms. Essentially, Britain argued that ITLOS was not competent to interfere in the regional affairs of the European community. This line of reasoning, consistent with the treaty, sought to effectively circumscribe the jurisdiction of ITLOS to those cases that cannot be resolved bilaterally.
ITLOS, however, did not agree. Instead, they ruled that the preexisting regional treaties cited by the British did not “deal with disputes concerning the interpretation and application” of LOST specifically. In its opinion, the Court stated, “since the [Mox] dispute…concerns the application and interpretation of [LOST] and no other agreement, only the dispute settlement procedures under [LOST] are relevant to that dispute.”
The implications of this jurisdictional decision are sweeping. Essentially, the dispute settlement procedures under LOST are relevant to any dispute concerning the interpretation and application of the Treaty. As a comprehensive treaty that entails virtually every aspect of the oceans and maritime activity, there simply is no limit to this jurisdiction. Any nation that contends a violation of LOST by another can file suit and be tried necessarily under one of the four dispute settlement mechanisms – as demonstrated by the Mox Case. What is more, activities on sovereign soil that may eventually affect the oceans do not reside outside of this purview, notwithstanding the countless activities that actually take place on the sea.
Among the many provisions Ireland cited to demonstrate Britain’s culpability was Article 192, which states, “States have the obligation to protect and preserve the marine environment.” The untold generality of this provision could potentially be employed to indict virtually any U.S. activity that may harm the marine environment, including activities on U.S. soil or even those activities of nuclear powered warships. Vital U.S. interests could be left in the hands of international arbiters – most likely ones who hold contempt for the U.S. and its unparalleled military force.
The military’s evaluation of LOST is a noble but myopic one. Navy officers and officials in the Department of Defense maintain very limited equities regarding LOST (i.e. navigational mobility). And simply because this Treaty confers those protections to its members, all of the Treaty is supported without due consideration of the whole: the International Seabed Authority, the International Tribunal on the Law of the Sea, the environmental regulations, the arbitration panels, along with the other endless codes and procedures prescribed in the Treaty. The negative effects of the Convention on U.S. maritime interests, and perhaps even domestic interests, are without limit and far outweigh the benefits.
Uncompromising protection of US sovereignty and defense of American interests in the face of international threats and detractors has been the primary theme of George W. Bush’s Presidency thus far. Unfortunately, that legacy will stand in jeopardy if the US submits to a clearly restrictive and hostile international treaty on his watch. It would behoove the Bush Administration, then, to abandon its evaluation of LOST on the sole basis of navigational mobility, and consider as well the provisions that will give opponents of US foreign policy the wherewithal to hamper US objectives by way of debilitating “lawfare.” Perhaps then they will understand why Ronald Reagan opposed the Treaty so staunchly 23 years ago, and why it remains just as important to oppose it today.
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