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Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage
National Center for Policy Analsysis ^ | August, 2006 | David A. Ridenour

Posted on 01/11/2007 9:53:52 AM PST by Paul Ross

 # 542  

August 2006



Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage


by David A. Ridenour

 

The "right of innocent passage" is the right of any nation's ships to traverse continuously and expeditiously through the territorial waters of a coastal nation, subject to certain conditions.1  Under the Law of the Sea Treaty, such passage is conditioned on passing in a manner that isn't threatening to "sovereignty, territorial integrity or political independence" or the "good order and security" of that nation.

By this definition, if the Law of the Sea Treaty was a ship, it would fail to qualify.

That's because there are serious flaws in the treaty that - if U.S. ratified the treaty - could place U.S. sovereignty, security and political independence in doubt.

This analysis of the Law of the Sea Treaty will focus on the threats to political independence, particularly as they relate to environmental policy, and to threats to security.

 

Background

The Law of the Sea Treaty, formally known as the Third United Nations Convention on the Law of the Sea, or UNCLOS III, was adopted in 1982.  Its purpose is to establish a comprehensive set of rules governing the oceans and to replace previous U.N. Conventions on the Law of the Sea, one in 1958 (UNCLOS I) and another in 1960 (UNCLOS II), that were believed to be inadequate.2

Negotiated in the 1970s, the treaty was heavily influenced by the "New International Economic Order," a set of economic principles first formally advanced at the United Nations Conference on Trade and Development (UNCTAD).  That agenda called for "fairer" terms of trade and development financing for the so-called under-developed and developing nations.3 

Another way the New International Economic Order has been described is "redistributionist." 

The Law of the Sea Treaty calls for technology transfers and wealth transfers from developed to undeveloped nations.4  It also requires parties to the treaty to adopt regulations and laws to control pollution of the marine environment.  Such provisions were among the reasons President Ronald Reagan rejected the treaty in 1982.  As Edwin Meese, U.S. Attorney General under President Reagan, explained recently, "...it was out of step with
the concepts of economic liberty and free enterprise that Ronald Reagan was to inspire throughout the world."5 

In additional to the economic provisions, the treaty also establishes specific jurisdictional limits on the ocean area that countries may claim, including a 12-mile territorial sea limit and a 200-mile exclusive economic zone limit.6

Some proponents of the treaty believe that the treaty will establish a system of property rights for mineral extraction in deep sea beds, making the investment in such ventures more attractive.7

Notwithstanding concerns raised about the Law of the Sea Treaty - and there have been many - the U.S. Senate Foreign Relations Committee recommended U.S. accession to the treaty in a unanimous vote in March 2004. 

More than two years later, a vote of the entire U.S. Senate has yet to be scheduled.

 

Defense and Security Concerns

One of the concerns raised by critics of the Law of the Sea Treaty is that it could be used to sharply limit U.S. military operations.  Among the examples they cite is Article 20, which stipulates: "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag."8

Proponents of the treaty counter that this provision merely establishes the conditions for invoking a "right of innocent passage" in the territorial waters of another nation.9  The "right of innocent passage" is the right of any nation's ships to traverse continuously and expeditiously through the territorial waters of a coastal nation, subject to certain conditions.10

Because Article 20 doesn't mention "innocent passage," this provision  may provide opponents of U.S. military operations a pretext - albeit a fairly weak one - for claiming that the surfacing requirement applies to all U.S. submarines operating in territorial waters.  Such claims would be unlikely to prevail, as it is fairly clear, based on the context, that this provision deals with innocent passage.

Advocates of the treaty also argue that Law of the Sea Treaty merely maintains the status quo for submarines passing through territorial waters because the United States is already a party to the 1958 Convention on the Territorial Sea and the Contiguous Zone which, they contend, contains similar language.11  U.S. submarines have traversed territorial waters while submerged over the past 48 years, they say, largely unaffected by the Territorial Sea Convention's surfacing requirement.

Where submarines are concerned, they appear to be correct. 

But Article 20 also adds something completely new: The requirement that "other underwater vehicles" navigate on the surface.12  The surfacing requirement would thus presumably apply to Autonomous Underwater Vehicles (AUVs) and Remotely Operated Underwater Vehicles (ROVs), among others (including, presumably, the next generation of such vessels) for the first time.

AUVs, unmanned underwater drones, and ROVs, underwater vehicles controlled by operators at the surface, have numerous military applications, including mine detection and neutralization, surveillance and inspection of underwater installations and topography, among others.13

Some of these activities are otherwise consistent with the Law of the Sea Treaty's definition of "innocent passage."  An AUV or ROV used to detect mines to protect a ship exercising its right of innocent passage, for example, appears to meet the requirement that it engage only in activities with "direct bearing on passage."  But because these vehicles must be submerged to be used effectively they would be considered "prejudicial to the peace, good order and security of the state" by doing so, even though advancing the peace, good order and security is precisely the purpose for which they would be used.

If the U.S. ratifies the Law of the Sea Treaty, the use of AUVs and ROVs for these and other purposes could be reduced.

Opponents of the treaty also contend that it could inhibit the U.S.'s ability to pursue international terrorists and prevent the transportation of weapons of mass destruction on the sea.14  They appear to be correct. 

Article 110 of the Law of the Sea Treaty specifies military ships are "not justified in boarding [a foreign ship] unless there is reasonable grounds for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting...; (d) the ship is without nationality or (e) ...the ship is, in reality, of the same nationality as the warship."  Boarding of ships involved in the illicit drug trade is also permitted.15

Note that boarding of ships engaged in "unauthorized broadcasts" is considered to be justified, but boarding ships carrying terrorists or weapons of mass destruction is not.

Unauthorized broadcasting, by the way, is not only a justification to board, but for certain countries, a requirement under the treaty.16  Policymakers would be wise to remember that the U.S. has itself engaged in "unauthorized broadcasts," using such vessels as the Coastal Messenger, a mobile transmitting station for Voice of America broadcasts behind the Iron Curtain during the 1950s and 1960s.17

The treaty does permit states to pursue, apprehend and board ships for violation of other laws and regulations, too, but only if the state is in "hot pursuit" of the ship.  To qualify as "hot pursuit," such pursuit must begin in the "internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursing State, and may only be continued outside the territorial sea or the contiguous zone" if the pursuit has been uninterrupted.18

States that detain ships for reasons or by means other than those prescribed in the Law of the Sea Treaty could find their actions subject to review and judgment by the International Tribunal of the Law of the Sea (ITLOS) in Hamburg, Germany.

The Law of the Sea Treaty normally gives states the option, by mutual consent, of choosing between ITLOS, the International Court of Justice or "arbitral tribunals" to settle their disputes.  When agreement between the states involved in the dispute can not be reached, an arbitral tribunal would be given jurisdiction in the case.

When provisional measures are sought, however - as they likely would be when ships are detained - the rules are different.  Provisional measures are akin to temporary injunctions - orders requiring one to do something or cease doing something - in the interest of preventing irreparable harm.   Article 290, paragraph 5 of the Law of the Sea Treaty specifies that ITLOS would automatically adjudicate such disputes when states can not reach agreement on the method of adjudication or arbitration "within two weeks from the date of the request for provisional measures."19

As Jeremy Rabkin, professor of government at Cornell University, has noted: "The only important category of dispute where one party can force another to answer before ITLOS is when a ship has been detained on the high seas and the complaining party seeks immediate release."20

The prospects that disputes such as these taken to ITLOS would be ruled in the U.S.'s favor are poor.  Many ITLOS judges, certainly a clear majority, are from countries that have either been openly hostile to the United States or are at best unreliable allies.  Among the countries represented on ITLOS are South Africa, China, Russia, Tanzania, Lebanon, Brazil, Argentina and France.21

ITLOS certainly could complicate the U.S.'s efforts to interdict terrorists and weapons of mass destruction.

For example, if the U.S. chose to act on intelligence information that a foreign-flagged ship (perhaps flying the flag of Syria, Iran or North Korea) was carrying terrorists and boarded the ship, the U.S. could expect to have to answer to ITLOS.

Finally, opponents of the Law of the Sea Treaty contend that Article 88 of the treaty, which stipulates that "the high seas shall be reserved for peaceful purposes" together with Article 301's requirement to refrain from "any threat or use of force against the territorial integrity or political independence of any state" have the potential of unduly constraining U.S. defense operations on the high seas.22 

Proponents counter that warships of all major powers freely travel through the high seas even though the treaty is already in force for nations that have ratified it,23 which, as of this writing, stood at 149 nations.24  But the U.S.'s circumstances are very different than those of the 149 parties to the treaty.  As the world's only remaining superpower, the U.S. is the only nation capable of extended, extensive long-range maritime operations.25  What's more, the U.S. has military obligations that other nations simply do not.  Many of the parties to the treaty26 don't have organized navies.  Others don't have significant ones.27 Consequently, most parties to the treaty have less interest in the military implications of Article 88 than does the United States.  The ratification of the treaty by these nations therefore should not be the yardstick by which the risks to U.S. military interests are measured.

Supporters of the treaty also argue that Article 301 would have little impact on U.S. military operations as the provision is the same as Article 2(4) of the U.N. Charter.28  Although these two provisions are similar, there are some key differences.

For one thing, the bodies responsible for enforcement of the Law of the Sea Treaty's Article 301 and  the U.N. Charter's Article 2(4) are different.

Under the U.N. Charter, the Security Council is the principal enforcement body.  The United States has a permanent seat on the security council and, as such, has veto powers.   Under the Law of the Sea Treaty, enforcement responsibilities fall to such bodies as ITLOS, which, as noted earlier, is unlikely to be favorable to U.S. positions, and the International Seabed Authority (ISA),  with a similarly unfavorable composition.  The ISA's executive body, the Council, is composed of representatives of 36 countries, the majority of which can not be counted on to support U.S. positions.  Its membership includes representatives from the Sudan, Malaysia, China, Indonesia, South Africa, Namibia, Nigeria, Kenya, Guyana, Argentina, Russia and Myanmar (name given to Burma by its military junta), among others.29

Article 301 of the Law of the Sea Treaty also has wording slightly different that the U.N. Charter's Article 2(4), replacing the more objective phrase "shall refrain from the threat" with a more subjective "shall refrain from any threat."  This opens the possibility that U.S. military operations on the high seas could be inhibited when states merely "feel" threatened by them.

It is in this context that provisions such as Article 88 take on greater significance.

The Senate Foreign Relations Committee determined that the risks to U.S. military activity were sufficient enough to address them in its Committee Report.  Among other things, it specified that the Senate's advice and consent for U.S. accession to the Law of the Sea Treaty be subject to the understanding "that nothing in the Convention referring to 'peaceful purposes' impairs the inherent right of individual or collective self-defense or rights during armed conflict."30

Unfortunately, the Committee did not also specify that the Senate's advice and consent to be subject to the understanding that the United States has the inherent right to defend itself during peacetime through pre-emptive action.  Pre-emptive action may be required, for example, if the U.S. learns through reliable intelligence that a specific ship is carrying terrorists, weapons of mass destruction or both.

Even with such conditions, the U.S. would likely gain little advantage.

That's because Article 309 of the treaty specifies that no "reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention."  While states are permitted to declare exceptions pertaining to military activities when ratifying the treaty under Article 298, such declarations would only free States from the dispute resolution process outlined in Articles 286-296.  They would still be obligated to the dispute resolution requirements contained in Articles 279-285.31

 

Environmental Concerns

When the energy industry and environmentalists agree on an issue, one of the two likely doesn't fully comprehend the implications...

...and it's probably not the environmentalists.

Ratification of the Law of the Sea Treaty is supported by much of the energy industry, including "most of its major" trade associations32 and by leading environmental organizations, including Greenpeace, the Natural Resources Defense Council, Environmental Defense and World Wildlife Fund, among others.33

The energy and mining sectors believe the treaty will help move deep sea mining and oil exploration forward by establishing internationally-recognized title to minerals.34 

So why would so many environmental groups with a history of opposing oil and gas exploration endorse this idea?

Answer: They wouldn't.

Opponents of the Law of the Treaty believe that environmentalists are using the treaty as a vehicle to achieve through international institutions that which they can't achieve through domestic ones - namely, more onerous environmental standards.  This is consistent with the statements and actions of environmental groups to-date.  Greenpeace, for example, has said, "The benefits of the U.N. Convention on the Law of the Sea are substantial, including its basic duties for states to protect and preserve the marine environment and to conserve marine living species."35  The Natural Resource Defense Council (NRDC), for its part, cited the Law of the Sea Treaty's environmental provisions as an argument in its challenge of the Navy's use of so-called "intense active sonar" several years ago.  The NRDC said, in part, "The United Nations Law of the Sea Convention... requires States 'to assess the potential effects... on marine environment'... of systems such as high intensity active sonar, and to take all measures 'necessary to prevent, reduce and control pollution of the marine environment from any source'... The danger to marine life from... sonar... is clearly documented."  The Navy ultimately agreed to scale back its use of this sonar technology.

Ratification of the Law of the Sea Treaty appears to carry with it the risk that the United States - and other parties to the treaty - may lose control of their environmental laws.

Nations have already attempted to use the Law of the Sea Treaty's environmental provisions to affect the environmental policies of others.  In 1999, Australia and New Zealand appealed to the International Tribunal of the Law of the Sea (ITLOS) to shut down Japan's experimental southern blue fin tuna fishing program, citing Articles 64 and 116-119.  Although the Tribunal ultimately decided that it lacked jurisdiction in the case, Australia and New Zealand did gain a temporary injunction on the program.36  More recently, Ireland sought ITLOS's help in forcing the United Kingdom to abandon its planned opening of the Sellafield MOX plant, a nuclear fuel reprocessing plant in northern eastern England, arguing that it would contribute to pollution of the North Sea.  Although ITLOS did not rule in Ireland's favor, it ordered both Ireland and the United Kingdom to enter into consultations.37

In a great ironic twist, the Law of the Sea Treaty - supported by many in the energy sector - may give environmentalists a blunt instrument to use against the energy industry. 

Article 212 of the treaty states, in part, "States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere... States, acting especially through competent international organizations... shall endeavor to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution."38  This sounds like a directive to impose Kyoto Protocol-style regulations designed to reduce state emissions of greenhouse gases.  These gases are emitted through the use of the very products the energy industry sells.

Backdoor implementation of the Kyoto Protocol might be advanced by arguing that U.S.'s anthropogenic greenhouse gas emissions (one-quarter of such emissions world-wide) are warming the planet causing irreparable harm to coral reefs, home to the world's most biologically-diverse marine ecosystems.

Alternatively, they could argue that sea levels are rising due to U.S.-induced climate change, causing beach erosion in such countries as the Maldives, Comoros or the Seychelles.  To bolster their case, they might cite Article 194(2) of the treaty which states: "States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment."

Some environmental advocates clearly believe the Law of the Sea Treaty can be used for such purposes.

Writing for Our Planet, a publication of the United Nations Environment Programme, Greenpeace International Executive Director Thilo Bode noted in 2000:

Global warming is likely to have a big impact at sea... Sea levels have risen by an estimated 10-25 centimetres over the last century, and as this continues the waters will cover land and coastal habitats in many countries... Solving the environmental problems facing the oceans... is one of the greatest challenges facing humankind... No single nation or region can do this alone: it will require comprehensive international cooperation as required by the United Nations Convention on the Law of the Sea."39

Opponents of the Law of the Sea Treaty also fear that, should the U.S. ratify the treaty, environmentalists will have an additional avenue for pursuing environmental law suits in U.S. courts.  As the U.S. Supreme Court has stated, "international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for determination."  This seems to leave the door wide open for the use of international law in U.S. courts.40  Further, as Frederic L. Kirgis, writing for the American Society of International Law, notes, "Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States... if they are 'self-executing'... the primary consideration is intent... that the provision become effective as judicially-enforceable domestic law without implementing legislation."41

Whether the Law of the Sea Treaty or specific provisions of the treaty meet this test will undoubtedly be subject of some debate.

 

Conclusion

Sufficient concerns about the implications for U.S. national security and U.S. environmental policy exist that the United States should be wary of acceding to the Law of the Sea Treaty.

     These concerns, in summary, include:    

*     Article 20 would extend the surfacing requirement to vessels not covered under previous conventions, including those that would otherwise qualify for innocent passage such as unmanned vessels used for mine detection and other purposes.

*     The Law of the Sea Treaty would impede the U.S.'s ability to capture international terrorists and confiscate weapons of mass destruction through detention of ships on the high seas.  The treaty specifies that the boarding of ship is not justified except when a ship is believed to be engaged in piracy, unauthorized broadcasting, drug trafficking, is obscuring its nationality or shows no nationality.  Detention of ships in a manner other than those prescribed in the treaty would subject such actions to the judgment of the International Tribunal of the Law of the Sea in Hamburg, Germany.

*     Article 88's stipulation that "the high seas shall be reserved for peaceful purposes" and Article 301's requirement that parties to the convention refrain from "any threat or use of force against the territorial integrity or political independence of any state" may be used to impede U.S. military operations at sea.  The Treaty's opt-out provisions for military activities would only free the U.S. from the requirement to participate in a specific dispute resolution process, not dispute resolution itself.

*     The marine conservation provisions of the treaty could be used by activists to achieve through international institutions that which they haven't been able to achieve through domestic legislation.

*     The conservation provisions may give environmental organizations a new avenue to pursue environmental lawsuits in U.S. courts.

*     The conservation provisions may provide the means for forcing the U.S. to adopt the Kyoto Protocol or similar emissions-control schemes - schemes the U.S. has rejected.



# # #

David Ridenour is vice president of the National Center for Public Policy Research. Comments may be sent to dridenour@nationalcenter.org.

 



Footnotes:

1 Kissi Agyeberg, "Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea," Cornell Law School, Ithaca, New York, 2005.

2 David B. Sandalow, "Law of the Sea Convention: Should the U.S. Join?" The Brookings Institution, Washington, D.C., August 2004.

3 Robert Looney, "New International Economic Order," Prepared for the Routledge Encyclopedia of International Political Economy, 1999.

4 Doug Bandow, "Sink the Law of the Sea Treaty," Cato Institute, Washington, D.C., March 12, 2004.

5 Edwin Meese III, "Reagan Would Still Oppose Law of the Sea Treaty," Human Events, April 25, 2005.

6 Carrie E. Donovan, "The Law of the Sea Treaty," The Heritage Foundation, Washington, D.C., April 2, 2004.

7 David B. Sandalow, "Law of the Sea Convention: Should the U.S. Join?," The Brookings Institution, Washington, D.C., August 2004.

8 United Nations Convention on the Law of the Sea, 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea.

9 Sandalow.

10 Agyeberg.

11 Testimony of John F. Turner, Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, U.S. Senate Environment and Public Works Committee, Washington, D.C., March 23, 2004.

12 Convention on the Territorial Sea and The Contiguous Zone, April 29, 1958.

13 "Design Report: Littoral Warfare Submarine, VT Total Ship Systems Engineering," Aerospace and Ocean Engineering College of Engineering, Virginia Polytechnic Institute, Blacksburg, Virginia.

14 Jeremy Rabkin, "Law of the Sea Treaty: A Bad Deal for America," Competitive Enterprise Institute, Washington, D.C., June 1, 2006.

15 United Nations Convention on the Law of the Sea, 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea.

16 Ibid.

17 "Courier,1952," U.S. Coast Guard.

18 United Nations Convention on the Law of the Sea, 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea.

19 Ibid.

20 Rabkin.

21 International Tribunal of the Law of the Sea, October 1, 2005.

22 Frank Gaffney, "LOST at Sea," Jewish World Review, May 5, 2004.

23 John Norton Moore and William A. Schachte, Jr., "The Senate Should Give Immediate Advice and Consent to the Law of the Sea Convention: Why the Critics Are Wrong," Columbia Journal of International Affairs, Vol. 59, Issue 1.

24 "Chronological Lists of Ratifications of, Accessions to and Successions to the Convention and the Related Agreements as of April 28, 2006," Division for Ocean and the Law of the Sea, United Nations.

25 Force Sustainment from the Sea," Policy Paper, U.S. Department of the Navy, Washington, D.C.

26 Chronological Lists of Ratifications of, Accessions to and Successions to the Convention and the Related Agreements as of April 28, 2006," Division for Ocean and the Law of the Sea, United Nations.

27 Andrew Toppan, Hazegray World Navies Today.

28 Transcript of panel discussion, "Should the U.S. Ratify the Law of the Sea Treaty?" Brookings Institution, Washington, D.C., May 4, 2004.

29 "Composition of the Council 2005-2008," International Seabed Authority, Kingston, Jamaica.

30 "U.N. Convention on the Law of the Sea Report," U.S. Senate Foreign Relations Committee, Washington, D.C., March 11, 2004.

31 United Nations Convention on the Law of the Sea, 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea.

32 Paul L. Kelly, "American Security Interest and the Law of the Sea: Energy Security."

33 "The United States and the U.N. Convention on the Law of the Sea (UNCLOS): Full Steam Ahead," Citizens for Global Solutions, Washington, D.C., March 9, 2005.

34 Moore and Schachte.

35 "Statement in Recognition of the International Year of the Ocean," Greenpeace, Amsterdam, The Netherlands, 1998.

36 "'Phillipe Sands, Unilateralism,' Values and International Law," 2000.

37 International Tribunal for the Law of the Sea (ITLOS): MOX Plant Case (Ireland v. United Kingdom) - Order Related to Request for Provisional Measures, No. 10 (December 3, 2001), American Society of International Law, Washington, D.C.

38 United Nations Convention on the Law of the Sea, 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea.

39 Thilo Bode, "Sea Changes," Our Planet (United Nations Environment Programme), November 2000.

40 Frederic L. Kirgis, "Is Foreign Law International Law," The American Society of International Law, Washington, D.C., October 31, 2005.

41 Frederic L. Kirgis, "International Agreements and U.S. Law," The American Society of International Law, Washington, D.C., May 1997
.



TOPICS: Business/Economy; Constitution/Conservatism; Editorial; Foreign Affairs
KEYWORDS: geopolitics; lawoftheseatreaty; lost; marxism; sovereignty; un
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1 posted on 01/11/2007 9:53:57 AM PST by Paul Ross
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To: Paul Ross

Better posted late than never.


2 posted on 01/11/2007 9:55:05 AM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Paul Ross

I hope our government has the sense to turn it down.
There is nothing there that is in our interests.


3 posted on 01/11/2007 9:58:29 AM PST by BuffaloJack
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To: Paul Ross
In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag."8

This is so like the UN. Will the terrorists abide by these types of principles?

4 posted on 01/11/2007 10:12:09 AM PST by spintreebob
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To: BuffaloJack

Our government supports and pushes LOST.


5 posted on 01/11/2007 10:21:07 AM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Paul Ross

I didn't even want to read the whole thing. I didn't even get halfway through it.

Who in this country would dare sign that into law? If Bush does it, it will be a huge blow in terms of my trust in him.

What would that do to SEAL Delivery Vehicles? Would they have to travel on the surface, possibly dangerously endangering their lives and their mission.

Forget about our own national security. That's pretty much a thing of the past.


6 posted on 01/11/2007 10:21:58 AM PST by wastedyears ("By failing to prepare, you are preparing to fail." - Benjamin Franklin)
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To: spintreebob

They don't write charters that included terrorists and people that don't fly flags. They're special indeed.


7 posted on 01/11/2007 10:23:30 AM PST by wastedyears ("By failing to prepare, you are preparing to fail." - Benjamin Franklin)
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To: Paul Ross

Are they trying to bring this up again? If so, who is saying it should be approved by the U.S.? Algore? Some whack job PhD candidate at Cornell? Some whack job at the Brookings Institution who has little else to do? Are the Democrats trying to revive it and I missed the story? Is anyone paying attention to them? This treaty was declared dead in the water (pardon the pun) in the Reagan administration and Clinton didn't take it anywhere, either. It has not improved with age. Why was this posted at this time?


8 posted on 01/11/2007 10:23:38 AM PST by 3AngelaD (ic.)
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To: wastedyears
If Bush does

He does. Condi even spoke about supporting it at her confirmation hearing.

9 posted on 01/11/2007 10:28:36 AM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: BuffaloJack; navyvet; cva66snipe; Jeff Head
I hope our government has the sense to turn it down. There is nothing there that is in our interests.

Agreed. And there is a whole lot of detriment to doing it...we haven't seen the half of.

Yet the Administration has been quietly pushing this, and pushing it, and pushing it. All at the flunky-level. But an upper-echelon lieutenant, Condileeza Rice, in her confirmation hearings for the Secretary of State position back in '05 stated that this was an Administration priority.

Interesting how the RATs and Kerry never made it an issue, eh? Perhaps a case of "Honor among, a'hem thieves" (as they allow sovereignty to be diluted and weakened). Both Liberals...and this Administration... are for it. A mutual hand-washing exercise...while the country is betrayed.

We now have a DemocRAT Senate. Harry Reid, unlike Bill Frist, will likely be inclined to favor this thing...and have the votes to put it over.

10 posted on 01/11/2007 10:35:27 AM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: 3AngelaD
who is saying it should be approved by the U.S.

You need to do some serious reading on this topic or not comment on something you know nothing about.

I have to get back to schooling, just stopped by while I ate lunch. I can give you how ever many articles you need to satisfy you that the Bush administration is pushing this thing when I come back later today.

11 posted on 01/11/2007 10:35:31 AM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: spintreebob

This isn't a law. It just says that if you go into someone else's territorial waters, and you aren't on the surface, they can treat you like a hostile. It doesn't set us up for criminal prosecution or anything. It's really just saying that if you are on the surface, by international law you have a right to be there and can't be attacked.


12 posted on 01/11/2007 10:38:15 AM PST by CharlesWayneCT
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To: processing please hold

You're right. If snotty. I had no idea Secretary Rice was trying to get this passed. I hadn't read anything about it since something that was in National Review after 9/11. But I'm still not seeing it going anywhere. Is the idea that the Dems, now in control, will pass it? Is there momentum?


13 posted on 01/11/2007 10:41:10 AM PST by 3AngelaD (ic.)
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To: CharlesWayneCT
"This isn't a law.

This is not true. When two of more nations sign a treaty, they agree to treat the terms of the treaty as part of their national law. It would mean that a dispute about a matter would go to an international court (The Hague) or to arbitration. The Treaty is bad for the US.

14 posted on 01/11/2007 10:53:41 AM PST by Parmenio
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To: 3AngelaD
This treaty was declared dead in the water (pardon the pun) in the Reagan administration and Clinton didn't take it anywhere, either. It has not improved with age. Why was this posted at this time?

This Administration remains for it. Only Senate conservatives stood in the way...and they sure weren't in the Senate Foreign Relations Committee...formerly chaired by "Uber-Globalist" Richard Lugar...a not-so-closet RINO.

It passed UNANIMOUSLY under his Committee-stewardship for Pete's sake! Only the Former Senate Majority Chairman, Bill Frist (not the greatest conservative obviously) kept it bottled up...and never presented it to the floor for passage. The votes on the Senate Floor weren't there to pass it then (thank God!).

But NOW, we have a real danger the votes may just might be there...(keeping in mind the RINOs slavering to support it)

Now the President has his Liberal Team in charge in the Senate. Expect trouble.

15 posted on 01/11/2007 11:39:43 AM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Parmenio

I tried to explain that, I guess poorly. What i mean is that this doesn't make it "against the law" to traverse UNDERWATER, it just says that you don't get the benefits of "innocent passage" if you are underwater -- which is they way it has always been.


16 posted on 01/11/2007 12:00:00 PM PST by CharlesWayneCT
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To: Paul Ross

bkmark


17 posted on 01/11/2007 1:05:31 PM PST by traviskicks (http://www.neoperspectives.com/optimism_nov8th.htm)
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To: 3AngelaD
If snotty.

I apologize for that. It's just when I hear the L.O.S.T. rearing it's head again, my blood boils. Again, I apologize.

Give me a few minutes to go to my files and I'll show you some of what I have.

18 posted on 01/11/2007 1:05:46 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: 3AngelaD
1) Under LOST, the UN agency titled Seabed Authority will take control of nearly 70% of all the earth’s surface and natural resources.

http://www.exorthodoxforchrist.com/hidden_agenda_of_law_of_the_sea_treaty_(lost).htm

http://www.house.gov/paul/tst/tst2004/tst040504.htm

Take a look at who opposes LOST.
http://www.thelibertycommittee.org/lost.htm
http://www.newsmax.com/archives/articles/2004/4/22/170426.shtml

Lugar tried sneaking this in, this site is his site.
Rice Endorsement

The ISA could impose international taxes. If you don't like the idea of international bureaucrats levying taxes without your say-so, too bad. Your congressman or senator wouldn't have anything to say about it. World government advocates have been dreaming of this for years.

Law of Sea Treaty must be stopped

I can't find the resoultion Ron Paul brought up for a vote to get rid of LOST and was voted down by our fearless leaders. I have it somewhere.

19 posted on 01/11/2007 1:40:27 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: processing please hold
I didn't see Ron Paul's Resolution either, yet. But I did note this public brou-ha-ha:

Conservatives denounce GOP support of Treaty.

Ron Paul managed to create enough furor over it, that he forced Frist's hand to shuffle it into other committees...where it received a much more critical assessment than Richard Lugar's stacked panel steam-rolling it.

20 posted on 01/11/2007 2:00:23 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Paul Ross

I have it somewhere. I even posted the names of the Senators who shot it down. I'll find it. Lugar, despicable %#@*&^#.


21 posted on 01/11/2007 2:03:05 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Paul Ross
All I could find was this H.R.1146, 'a measure that would end U.S. involvement in the United Nations.'

H.R. 1146

22 posted on 01/11/2007 2:21:40 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: processing please hold; 3AngelaD
Links to all testimony given to the House and Senate Committees on LOST

CRS Issue Brief on LOST

A good explanation on the significance of the continental shelf issue

23 posted on 01/11/2007 2:54:17 PM PST by Ben Ficklin
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To: Paul Ross
There are two things wrong with this article.

First, it has so many "mights" and "coulds", its not credible.

Second, Ridenour and his wife/boss are so dirty with Abramoff money, its best to stay away from them.

24 posted on 01/11/2007 2:58:09 PM PST by Ben Ficklin
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To: Ben Ficklin
First, it has so many "mights" and "coulds", its not credible.

Typical of academic euphemisms. Traditional cautionary understatement.

Second, Ridenour and his wife/boss are so dirty with Abramoff money, its best to stay away from them.

Oh, really? As I recall, the real issue here was special interest money, i.e., "industry" was FAVORING the accession to the LOST treaty! This has far more explanatory power in the persistent administration determination to enact this puppy than anything else we have yet seen. The tail is wagging this dog.

So just how does "Abramoff" money factor into this analysis by Ridenor?

25 posted on 01/11/2007 3:09:38 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Paul Ross
I understand that someone like Ridenour or Paul are going to have a lot of credibility with you.

OTOH, most are going to see the Admiral and the State Dept's international law expert as having more credibility.

As for Abramoff, you will likely be hearing much about him now that the dems control the committees, but if you want to chime in also, go for it.

26 posted on 01/11/2007 3:20:16 PM PST by Ben Ficklin
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To: Ben Ficklin; Eagles Up
OTOH, most are going to see the Admiral and the State Dept's international law expert as having more credibility.

Actually, Ronald Reagan has a hell of a lot more credibility to me than anybody espousing LOST. He took the proper action, not only formally withdrawing from LOST...but firing the passel of liars and UN apologists that had created it / "negotiated it"... with the U.N.

So you must have liked it when Bill Clinton revived it...and ushered it and its partisans back into the State Dept.

Only Reaganite Jesse Helms kept it bottled up for those 8 long years. Thank God for Jesse.

But now they have a new plan of attack, still firmly ensconced in their Foggy Bottom sinecures...exploiting the new players and their ignorance.

27 posted on 01/11/2007 3:27:36 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Paul Ross
Everyone of Reagan's objections were met. The amendment with the changes was signed.

If you don't like the the transit language in the treaty, send Ridenour out to negotiate a special agreement on the Straits of Hormuz with the ayatollah. I'm sure that Fidel is looking forward to sitting down with Ron Paul to discuss the Florida Straits.

28 posted on 01/11/2007 3:58:34 PM PST by Ben Ficklin
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To: Ben Ficklin
Everyone of Reagan's objections were met. The amendment with the changes was signed.

False. He never expressed ALL of his objections. And they were manifestly there. Hence his terminating the whole scam...with prejudice...by firing the negotiators. Which should have been the end of it, but of course Bubba brought it back from the dead.

You apparenlty have no understanding of what is happening with this. None of those promises change the treaty whatsoever, as noted by Frank Gaffney:

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.

All of those wonderful what-we-want-to-hear promises...in the "Agreement" can then be easily reversed at the whim of the UN once we put it in place. And it is much harder for the U.S. to revoke a treaty once ratified. Particularly with a monied special interest group backing it.

And it is clear that Reagan would still oppose it today, as all those familiar with him and his decision have said:

Ed Meese: Reagan Would Still Oppose Law of the Sea Treaty

by Edwin Meese III
Posted Apr 25, 2005 The so-called Law of the Sea Treaty (LOST) is a bad idea whose time should never come up -- at least for the United States and for those who believe in economic liberty and national security. That was the view of President Ronald Reagan in the 1980s and would remain his view today if he were with us to express it.

The actual title of the treaty is “the United Nation’s Convention on the Law of the Sea.” As its name suggests, it gives to the United Nations, through its subordinate organizations established in the treaty, unprecedented economic powers and expansive authority over the commercial and maritime interests of the nations of the world.

As Frank J. Gaffney, Jr., former Defense Department executive and President of the Center for Security Policy, has stated, “…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.”

How did such an idea get started? It began in the 1970s, when Socialism was still raging and considered by some elitists as “the wave of the future.” The United Nations still wore the mantle of hope. Jimmy Carter claimed that the world’s energy supplies would be diminished in just 20 years. Time spent in our cars waiting for rationed gas gave some the sense that perhaps the world’s resources should be subject to greater regulation.

No doubt that to diplomats in Foggy Bottom or Manhattan’s East Side, the Law of the Sea Treaty (LOST) that they painstakingly negotiated, complete with its 17 Parts, 320 Articles, and nine Annexes, was the answer to their dreams.

Proponents of this giant step toward world-level bureaucracy probably could not imagine that the new American president, Ronald Reagan, could reject the treaty and fire the people responsible for negotiating it. But he did. LOST was the creature of a negotiation process dominated by the Soviet bloc and the “non-aligned movement.” It placed its hope on the United Nations bureaucracy. And it was out of step with the concepts of economic liberty and free enterprise that Ronald Reagan was to inspire throughout the world. Time has proven President Reagan right.

Less imaginable is that 23 years later LOST is again being seriously considered by a Republican president and a Republican Senate. It was a bad idea in 1982; it is an unconscionable one now as we protect against new enemies and the internationalist whims of our Supreme Court. A 1994 limited agreement pertaining to deep-sea mining, negotiated by the Clinton administration, but not part of the treaty itself does not make the treaty as a whole any more acceptable.

America’s adherence to this treaty would entail history’s biggest transfer of wealth and surrender of sovereignty. LOST vests in the new international entity the power to regulate seven-tenths of the world’s surface area; to impose production quotas for deep-sea mining, oil production and other harvesting; and to regulate ocean research and exploration.

LOST creates a multinational court system to render and enforce its judgments. This is particularly alarming after a majority of the United States Supreme Court, in Roper v. Simmons, included an unratified international convention as justification for the judicial revision of a portion of our Constitution. Soon the high court will decide whether to honor a decision by the International Court of Justice, under another treaty, that would challenge the conviction of 51 convicted felons and murderers in our prisons who are foreign nationals.

Significantly, LOST creates the authority for an international authority to levy taxes against member countries, ultimately to be paid by taxpayers. This brings the world closer to what United Nations bureaucrats have long wanted -- a source of unlimited income.

Most importantly, the treaty was drafted at a time when positions and actions of nations were relatively predictable. But today new enemies are involved. The sorts of at-sea interdiction efforts central to our new Proliferation Security Initiative (PSI) would be prohibited under LOST. The treaty effectively prohibits two functions vital to American security: intelligence-collection in, and submerged transit of, foreign territorial waters. Mandatory information-sharing would afford enemies data that could be used to facilitate attacks. Obligatory technology transfers would equip adversaries with sensitive and militarily useful equipment and knowledge.

Why has a bad idea, once thought to be dead, now again raised its ugly head? Unfortunately, misguided internationalists have teamed with unrealistic business interests to support the resurgence of LOST.

Some advocates believe that this giant step toward the rigidity of world government would be beneficial for mankind. They minimize the importance of national sovereignty and the value of free market economic decision-making and individualized business negotiations.

There are those in the American oil industry who believe that an international organization will fairly allocate permits for the exploration and exploitation of undersea deposits and they like the idea that the U.S. taxpayers will pay the associated costs.

But experience and common sense demonstrates that whatever inconvenience and expense may be involved in negotiating drilling rights with individual governments on straight business principles cannot justify the creation of a massive international authority susceptible to ideological pressures and potential corruption.

Moreover, much of what the oil industry needs can be achieved through bilateral treaties and the involvement of the international financing system.

Representatives of the U.S. Navy claim that LOST would provide navigation rights that would benefit our country. But the existing 1958 Law of the Seat Treaty already provides such rights without subjecting our naval forces to the compulsory dispute resolution by a UN tribunal, as required by the new treaty. Indeed, LOST provides the opportunity for legal mischief by those forces, both foreign and domestic, who would seek to limit the Navy’s activities.

In short, LOST is an invitation to trial lawyers and their environmentalist front groups to go international, not only against the private sector but also against our military.

The challenge should be clear for those who would follow the principles and implement the vision of Ronald Reagan. The best interests of the United States and of global freedom and opportunity demand that the Law of the Sea Treaty proposed for ratification be sunk, never to surface again.



29 posted on 01/11/2007 4:17:32 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: wastedyears
Who in this country would dare sign that into law?

I found Phyllis Schlafly's piece perhaps the most encompassing coverage of the issue:

EAGLE FORUM:

Defeat the UN Law of the Sea Treaty!

  • United Nations Convention on the Law of the Sea

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VOL. 38, NO. 7 P.O. BOX 618, ALTON, ILLINOIS 62002 FEBRUARY 2005

Defeat the UN Law of the Sea Treaty!

When Senator Richard Lugar (R-IN) asked Condoleezza Rice during her confirmation hearings on January 19 about the UN Law of the Sea Treaty, she replied “for the record” that President Bush “certainly would like to see it passed as soon as possible.” Lugar also squeezed from the new Secretary of State the commitment that she will work with Senate leadership to bring it to a floor vote.

Assuming Rice was authorized to deliver this shocking news, George W. Bush can no longer claim the mantle of the Ronald Reagan legacy. President Reagan refused to sign the United Nations Convention (Treaty) on the Law of the Sea in 1982 and fired the State Department staff who helped to negotiate it. It is even worse today because of additional dangers since 9/11.

The acronym for the Law of the Sea Treaty (LOST) is apt. LOST is the correct word for our sovereignty that would be lost under LOST.

Republicans who oppose this giant giveaway are looking at a stunning historical model. Ronald Reagan became the conservative standard bearer when he led the fight against the Panama Canal Treaty which was supported by incumbent Presidents Gerald Ford (and his Secretary of State Henry Kissinger) and then Jimmy Carter.

We lost the battle to prevent the Panama Canal giveaway by one Senate vote in 1978. But that battle made Reagan the undisputed leader of the conservative movement and multiplied its activists. Hindsight teaches us that the battle was well worth fighting because it brought about the cataclysmic events of 1980: the election of a real pro-American conservative President, the election of a Republican Senate, plus the defeat of most of the internationalist Senators who voted for the giveaway.

Conservatives are currently searching for a man of pro- American principles whom they can support for President in 2008. The Republican Senator or Governor who steps up to the plate can hit a home run if he leads the battle against LOST’s enormous transfer of wealth and power to the unpopular United Nations.

The LOST is grounded in such un-American and un-Republican concepts as global socialism and world government. There is not much of a constituency today for the United Nations, whose officials continually use the UN as a platform for anti-American diatribes, and who just committed the biggest corruption in history (Iraqi oil-for-food).

The report on that scandal by the commission chaired by former Federal Reserve Chairman Paul A. Volker stated that the oil-for-food project “seriously undermined the integrity of the United Nations.” Most Americans would respond: What integrity? The UN never had any integrity — going back all the way to the beginning when it operated as the headquarters for the Soviet espionage network.

The Law of the Sea Treaty is so bad that it is a puzzlement how anyone who respects American sovereignty could support it with a straight face. LOST gives its own creation, the International Seabed Authority (ISA), the power to regulate seven-tenths of the world’s surface area, a territory greater than the Soviet Union ruled at its zenith. LOST would cede sovereign control to the ISA over all the riches at the bottom of all the world’s oceans.

The LOST gives ISA the power to levy international taxes, one of the essential indicia of sovereignty. This ISA power is artfully concealed behind direct U.S. assessments and fees paid by corporations, plus permits paid by the U.S. Treasury, but the proper word is taxes. This plan is touted as a model for other resource-related treaties that aspire to enjoy the power to levy taxes. And, of course, the United States will have to fork up our usual 25% of the ISA’s operating budget (as we do for all UN operations).

The LOST gives ISA the power to regulate ocean research and exploration. This is the power to deny U.S. companies access to strategic ocean minerals that we need for our industries and military defense — access to resources that are freely available to us today under customary international law. The LOST gives ISA the power to impose production quotas for deep-sea mining and oil production so the United States could never become self-sufficient in strategic materials.

The LOST gives the ISA the power to create a multinational court system called the International Tribunal for the Law of the Sea, and to enforce its judgments. The ISA courts would have even wider jurisdiction than the International Criminal Court (to which, fortunately, we do not belong) or the World Trade Organization (which has ruled against the United States a dozen times and forced us to change our tax laws and import duties). There is no guarantee that the United States would even be represented on the Law of the Sea International Tribunal.

This Sea Tribunal is already spreading its wings to try to become a major international court with broad jurisdiction. It’s easy to predict that unfriendly regimes and organizations would file suits to interfere with U.S. commercial or military practices. And, since six of the nine U.S. Supreme Court Justices have indicated a willingness to cite international law and courts, who knows if our own judges would defer to this new UN Sea Tribunal.

The whole concept of putting the United States in the noose of another one-nation-one-vote global organization, which reduces America to the same vote as Cuba, is offensive to Americans. Like other aspirants to global government (such as the World Trade Organization), the ISA has a legislature, an executive, a bureaucracy, busybody commissions, and a powerful court system.

In the post-9/11 world, the notion of signing a treaty that mandates military information-sharing with our enemies plus technology transfers is not only dangerous — it’s ridiculous. The treaty creates restrictions on our intelligence-gathering by submarines, activities that are essential to our military security. And LOST apparently doesn’t permit our stopping and searching on the high seas any vessels suspected of transporting weapons of mass destruction. Communist China has already claimed that LOST would prohibit President Bush’s Proliferation Security Initiative.

Of course, Bill Clinton is for the LOST; he revived it in 1994. We thought we were rid of Bill Clinton (thanks to the 22nd Amendment), but his love affair with UN treaties and global integration has come back to haunt us. The LOST meshes perfectly with his speech to the United Nations in September 1997, in which he boasted of wanting to put America into a “web” of treaties for “the emerging international system.” The people who want to dissolve or diminish American sovereignty and replace it with global governance continue to work toward their one-world goal incrementally through United Nations treaties.

Of course, Foreign Relations Chairman Richard Lugar is for LOST. Like Clinton, he is a Rhodes scholar and an internationalist who never saw a United Nations treaty he didn’t like. Vice President Cheney is an advocate of LOST. He doesn’t have to listen to American voters because he will never again run for office.

Some are claiming that LOST is OK because a Clinton Administration Agreement “fixed” the objections to the Treaty that Reagan rejected. That all depends on what the meaning of “is” is. The truth is that the LOST hasn’t been changed at all, and many other countries have publicly stated that the Agreement doesn’t change the Treaty and they won’t be bound by it anyway.

Lugar’s Senate Foreign Relations Committee hearing about LOST, held without any publicity and with only advocates invited to testify, was an insult to the American people. Majority Leader Bill Frist will forfeit his chance to be in the running for the Republican nomination for President if he schedules a vote before all Senate committees affected by the LOST hold hearings with both sides represented.

The United States is a giant island of freedom, achievement, wealth and prosperity in a world hostile to our values. We have almost everything we need to maintain our safety and economy, but we lack some items that are essential to us in both war and peace such as manganese, cobalt, bauxite, chromium, and platinum, and some of these are at the bottom of the ocean.

The UN Law of the Sea Treaty is a trap that would compel the United States to pay billions of private-enterprise dollars to an international authority while socialist, anti-American nations harvest the profit. The LOST would be a giant giveaway of American wealth, sovereignty, resources needed to maintain our economy, capacity to defend ourselves, and even our ships’ and submarines’ ability to gather intelligence necessary to our national defense.

The LOST would be a sellout of American interests far greater than even Jimmy Carter’s giveaway of the U.S. Canal at Panama. It would be a cave-in to the world-government advocates whose goal is global socialist government in order to integrate American prosperity with Third World poverty until they are leveled.

Tell your U.S. Senators to vote No on the UN Law of the Sea Treaty.


3 pictures of the International Tribunal for the Law of the Sea at Hamburg, Germany
3 pictures of the International Tribunal for the Law of the Sea at Hamburg, Germany

The United Nations Convention (Treaty) on the Law of the Sea is a blueprint for world socialism. It is a document of 208 pages of fine print which gives the International Seabed Authority (called the Authority) total jurisdiction over all the oceans and everything in them, and gives the International Tribunal for the Law of the Sea the power of a super supreme court to decide all disputes. It is difficult to convey the enormity of the power grab because the powers given to these global organizations are so broadly stated and the text of the Treaty is so complex. The Treaty requires forfeiting U.S. sovereignty to global control exercised by the representatives of 148 other nations, most of whom hate or envy America. The following are just a few quotations from the Treaty. It can be read in full on the Internet. Search for Law of the Sea.


United Nations Convention on the Law of the Sea 

PREAMBLE

The States Parties to this Convention, Prompted by the desire to settle . . . all issues relating to the law of the sea . . . the achievement of these goals will contribute to . . . a just and equitable international economic order which takes into account the interests and needs of mankind . . . and, in particular, the special interests and needs of developing countries, whether coastal or land-locked, Desiring by this Convention to develop the principles . . . that the area of the seabed and ocean floor . . . are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole . . . Believing that the codification and progressive development of the law of the sea . . . will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter . . . Have agreed as follows:

Article 1. . . “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction; . . . “activities in the Area” means all activities of exploration for, and exploitation of, the resources of the Area; . . . Article 82 The payments and contributions shall be made annually with respect to all production at a site after the first five years of production at that site. For the sixth year, the rate of payment or contribution shall be 1 per cent of the value or volume of production at the site. The rate shall increase by 1 per cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter. . . The payments or contributions shall be made through the Authority, which shall distribute them to States Parties to this Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and land-locked among them. . .

Article 133 “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed . . .

Article 136 The Area and its resources are the common heritage of mankind.

Article 137 No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridicial person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign right nor such appropriation shall be recognized. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority. No State or natural or juridicial person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area . . .

Article 138 The general conduct of States in relation to the Area shall be in accordance with . . . the principles embodied in the Charter of the United Nations . . .

Article 150 Activities . . . shall . . . be carried out . . . with a view to ensuring: . . . participation in revenues by the Authority and the transfer of technology. . . the enhancement of opportunities for all States Parties, irrespective of their social and economic systems or geographical location, to participate in the development of the resources . . . the protection of developing countries from adverse effects on their economies . . . the development of the common heritage for the benefit of mankind as a whole . . .

Article 151 . . . commercial production shall not be undertaken pursuant to an approved plan of work until the operator has applied for and has been issued a production authorization by the Authority. . .

Article 156 There is hereby established the International Seabed Authority . . .The seat of the Authority shall be in Jamaica. . .

Article 158 There are hereby established, as the principal organs of the Authority, an Assembly, a Council and a Secretariat. . .

Article 159 The Assembly shall consist of all the members of the Authority. Each member shall have one representative in the Assembly . . .Each member of the Assembly shall have one vote. . .

Article 160 The Assembly . . .shall be considered the supreme organ of the Authority to which the other principal organs shall be accountable . . .

Article 166 The Secretariat of the Authority shall comprise a Secretary General and such staff as the Authority may require. . .

Article 183 . . . the Authority, its assets and property, its income, and its operations and transactions, . . . shall be exempt from all direct taxation . . . No tax shall be levied by States Parties on or in respect of salaries and emoluments paid or any other form of payment made by the Authority to the Secretary-General and staff of the Authority, as well as experts performing missions for the Authority. . .


ANNEX III. BASIC CONDITIONS OF PROSPECTING, EXPLORATION AND EXPLOITATION

Article 2 . . . Prospecting shall be conducted only after the Authority has received a satisfactory written undertaking that the proposed prospector will comply with this Convention and the relevant rules, regulations and procedures of the Authority concerning cooperation in the training programmes . . .

Article 5 Every contract for carrying out activities in the Area shall . . . make available . . . on fair and reasonable commercial terms and conditions, whenever the Authority so requests, the technology which he uses in carrying out activities in the Area under the contract, which the contractor is legally entitled to transfer. . .“technology” means the specialized equipment and technical know-how, including manuals, designs, operating instructions, training and technical advice and assistance, necessary to assemble, maintain and operate a viable system . . .

Article 13 . . .the Authority shall be guided by the following objectives: to ensure optimum revenues for the Authority from the proceeds of commercial production; . . .A contractor shall pay an annual fixed fee of $US 1 million from the date of entry into force of the contract. . . .


ANNEX VI. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

Article 1 . . . The seat of the Tribunal shall be in the Free and Hanseatic City of Hamburg in the Federal Republic of Germany. . .

Article 2 The Tribunal shall be composed of a body of 21 independent members . . .

Article 21 The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. . .

Article 33 The decision of the Tribunal is final and shall be complied with by all the parties to the dispute. . .

Article 39 The decisions of the Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought. . .

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30 posted on 01/11/2007 4:32:45 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Ben Ficklin
The Amendment with the changes was signed.

But not recognized by a sizeable fraction of the Authority. And the fundamentals that Reagan opposed, such as the redistributionism explicitly at the core of this socialist enterprise, remain. This triggered this response from Cato:

March 12, 2004

Sink the Law of the Sea Treaty

by Doug Bandow

Doug Bandow is a senior fellow at the Cato Institute. A special assistant to President Ronald Reagan, he served as a deputy representative to the third U.N. Conference on the Law of the Sea.

President Bush has demonstrated his willingness to stand alone internationally. Yet for little better reason than go-along, get-along multilateralism, the administration is now pushing the Senate to ratify the Law of the Sea Treaty, which was just unanimously voted out of Richard Lugar's Senate Foreign Relations Committee. At a committee meeting in February, Lugar noted a wide range of support from American interests "for U.S. accession to be completed swiftly." However, the treaty is a flawed document, and there would be serious costs from accepting it.

The Law of the Sea Treaty originated in the 1970s as part of the United Nations' redistributionist agenda known as the "New International Economic Order." The convention covers such issues as fishing and navigation, but the controversy arose mainly over seabed mining. In essence, the Law of the Sea Treaty was designed to transfer wealth and technology from the industrialized states to the Third World.

Two decades ago, President Ronald Reagan ignored criticism of American unilateralism and refused to sign the treaty. U.S. leadership caused the Europeans and even the Soviet Union to stay out. Many Third World states eventually acknowledged the treaty's many flaws.

But treaties attract diplomats as lights attract moths. The first Bush and Clinton administrations worked to "fix" the treaty, leading to a revised agreement in 1994. Washington signed, leading to a cascade of ratifications from other countries. GOP gains in Congress, however, dissuaded the Clinton administration from pushing for ratification. Now George W. Bush has stepped in where Bill Clinton feared to tread.

Unfortunately, the revised treaty retains many of its original flaws. There is still a complicated multinational bureaucracy that sounds like an excerpt from George Orwell's "1984": At its center is the International Seabed Authority. The Authority (as it calls itself) supervises a mining subsidiary called the Enterprise, ruled by an Assembly, Council, and various commissions and committees. Mining approval would be highly politicized and could discriminate against American operators. Companies that are allowed to mine would owe substantial fees to the Authority and be required to do surveys for the Enterprise, their government-subsidized competitor.

A mandatory transfer of mining technologies to Third World companies has been watered down. However, "sponsoring states" -- that is, governments of nations where mining companies are located-would have to facilitate such transfers if the Enterprise and Third World competitors are "unable to obtain" necessary equipment commercially. Depending on the whims of the Authority, ensuring the "cooperation" of private miners could look very much like mandatory transfers.

The Authority, though so far of modest size, would suffer from the same perverse incentives that afflict the U.N., since the United States would be responsible for 25 percent of the budget but easily outmaneuvered. Proposals by industrialized signatories to limit their contributions have so far received an unfriendly reception. Still, when it signed the Law of the Sea Treaty, the Clinton administration said there was no reason to worry, because the treaty proclaims that "all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective." Right. Presumably just as cost-effective as the U.N.

The treaty's mining scheme is flawed in its very conception. Although many people once thought untold wealth would leap from the seabed, land-based sources have remained cheaper than expected, and scooping up manganese nodules and other resources from the ocean floor is logistically daunting. There is no guarantee that seabed mining will ever be commercially viable.

Yet this has not dimmed the enthusiasm of the Authority. Like the U.N., it generates lots of reports and paper and obsesses over trivia. Protecting "the emblem, the official seal and the name" of the International Seabed Authority has been a matter of some concern. Among the crises the Authority has confronted: In April 2002 the Jamaican government turned off its air conditioning, necessitating "urgent consultations with the Ministry of Foreign Affairs and Foreign Trade." A year later Jamaica used the same tactic in an ongoing battle over Authority payments for its facility. Oh yes, half of the Authority members are behind on their dues.

Were seabed mining ever to thrive, a transparent system for recognizing mine sites and resolving disputes would be helpful. But the Authority's purpose isn't to be helpful. It is to redistribute resources to irresponsible Third World governments with a sorry history of squandering abundant foreign aid.

This redistributionist bent is reflected in the treaty's call for financial transfers to developing states and even "peoples who have not attained full independence or other self-governing status"-code for groups such as the PLO. Whatever changes the treaty has undergone, a constant has been Third World pressure for financial transfers. Three voluntary trust funds were established to aid developing countries. Alas, few donors have come forward to subsidize the participation of, say, sub-Saharan African states in the development of ocean mining. Thus, the Authority has had to dip into its own budget to pay into the funds.

Why, given all this, was the Senate Foreign Relations Committee eager to sign on? The treaty is not without benefits. Provisions regarding the environment, resource management, and rights of transit generally are positive, though many reflect what is now customary international law, even in the absence of U.S. ratification. Lugar notes that "law and practice with respect to regulation of activities off our shores is already generally compatible with the Convention." This would seem to be an equally strong argument for not ratifying the treaty.

Most influential, though, may be support from the U.S. Navy, which is enamored of the treaty's guarantee of navigational freedom. Not that such freedom is threatened now: The Russian navy is rusting in port, China has yet to develop a blue water capability, and no country is impeding U.S. transit, commercial or military.

At the same time, some ambiguous provisions may impinge on freedoms U.S. shipping now enjoys. In Senate testimony last fall, State Department legal adviser William H. Taft IV noted the importance of conditioning acceptance "upon the understanding that each Party has the exclusive right to determine which of its activities are 'military activities' and that such determination is not subject to review." Whether other members will respect that claim is not at all certain. Admiral Michael G. Mullen, the vice chief of naval operations, acknowledges the possibility that a Law of the Sea tribunal could rule adversely and harm U.S. "operational planning and activities, and our security."

Moreover, at a time when Washington is combating lawless terrorism, it should be evident that the only sure guarantee of free passage on the seas is the power of the U.S. Navy, combined with friendly relations with the states, few in number, that sit astride important sea lanes. Coastal nations make policy based on perceived national interest, not abstract legal norms. Remember the luckless USS Pueblo in 1968? International law did not prevent North Korea from seizing the intelligence ship; approval of the Law of the Sea Treaty would have offered the Pueblo no additional protection. America was similarly unaided by international law in its 2001 confrontation with China over our downed EP-3 surveillance plane.

Nor has signing the Law of the Sea Treaty prevented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed excessive by others. Indeed, last October Adm. Mullen warned that the benefits he believed to derive from treaty ratification did not "suggest that countries' attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention."

Critics of the U.S. refusal to sign in 1982 predicted ocean chaos, but not once has an American ship been denied passage. No country has had either the incentive or the ability to interfere with U.S. shipping. And if they had, the treaty would have been of little help. In 1998 Law of the Sea Treaty supporters agitated for immediate ratification because several special exemptions for the United States were set to expire; Washington did not ratify, and no one seems to have noticed. Now Lugar worries that Washington could "forfeit our seat at the table of institutions that will make decisions about the use of the oceans." Yet last October Assistant Secretary of State John F. Turner told the Senate Foreign Relations Committee that America has "had considerable success" in asserting "its oceans interests as a nonparty to the Convention."

Law of the Sea Treaty proponents talk grandly of the need to "restore U.S. leadership," but real leadership can mean saying no as well as yes. Ronald Reagan was right to torpedo the Law of the Sea Treaty two decades ago. Creating a new oceans bureaucracy is no more attractive today.

This article was published in The Weekly Standard, week of March 15, 2004. Copyright (c) 2004, News Corporation, Weekly Standard. All Rights Reserved.

31 posted on 01/11/2007 4:41:13 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Paul Ross
Once again, its who you think has the credibility.

I have posted the links to the testimony and the briefs.

You understand, your position on this and many other issues depend on the assumption that "they" are trying to destroy America.

Of course there is the option of negotiating individual treaties with all the water fronting nations. If we go that route, we better send Gaffney out with Paul and Ridenour.

32 posted on 01/11/2007 4:44:38 PM PST by Ben Ficklin
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To: Ben Ficklin
So are Ed Meese (US Attorney General, Reagan Administration), Doug Bandow (UN Deputy Reagan Administration), Phyllis Schlafly (Eagle Forum and key Reagan Administration confidante), Frank Gaffney (DOD Deputy Secretary Reagan Administration), and Carrie Donovan of the The Heritage Foundation, all in Abramoff's pocket?

Or how about the late Jeane Kirkpatrick, writing for the American Enterprise Institute whose role for the Reagan Administration as U.N. Ambassador was seminal, and had major insight into the thought processes and reasons of Ronald Reagan in his rejection...and why she believes those reasons STILL HOLD SWAY over the purported "fixes."

33 posted on 01/11/2007 5:07:11 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Ben Ficklin
The U.N. Convention on the Law of the Sea, which was open for signature between December 1982 and December 1984, established a legal regime governing activities on, over, and under the world's oceans.

From the article you posted, Ben. Let's give the whole shebang to the damn U.N. Why just give them control of 70% of the Earths surface. They'll be our new masters.

34 posted on 01/11/2007 5:18:09 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Ben Ficklin

It just occured to me, Ben, you're a one worlder. You believe in the NWO. Well, I'll be damned!


35 posted on 01/11/2007 5:20:38 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Ben Ficklin
Once again, its who you think has the credibility.

Yup. Reagan, Kirkpatrick, Bandow, Gaffney, Schlafly, etc.

You understand, your position on this and many other issues depend on the assumption that "they" are trying to destroy America.

Empirically, you have a tough sell trying to convince us of the good will of the U.N. towards the People of the United States, and our rights and liberty.

Perhaps you really do need to do as Jeane Kirkpatrick advised the Senators who thought as you do, that this could all be "fixed from within...by our leading". LOL!

She pointedly invited each and everyone who implicitly obviously thought she was being paranoid...to spend a year sitting in on the Sessions of the General Assembly.

She also noted the fundamentally unchanged nature of the beast here:

Of course, important events affecting the Treaty have occurred in the years following the Reagan Administration and modifications of the Treaty have taken place. But the modifications have not been major. The Treaty is fundamentally the same. On October 7, 1999, President Clinton transmitted to the U.S. Senate the 1982 Convention on the Law of the Sea and the 1994 Agreement relating implementation of Part XI of the Convention. On November 16, 1994, the treaty entered into force but without accession by the United States.

These amendments ...do not address the basic structure or consequences of the Treaty.

I have read much of the discussion of the Treaty and I regret to say that I remain concerned that its ratification will diminish our capacity for self government, including, ultimately, our capacity for self defense.

I particularly found telling this keen reflection:

The notion that the oceans or space are the “common heritage of mankind” was--and is--a dramatic departure from traditional Western conceptions of private property. Most members at upper levels of the Reagan Administration were reluctant to put our foot on that slippery slope.

Hence, the core idea was at odds, and STILL REMAINS SO.

Furthermore, there is a real hazard that the whole enterprise is going to be turned into an engine to tax the United States and make the UN what it dreams of being...a World Government. That tendancy for them to sidestep all limitations and try to milk the U.S. was highlighted by Ambassador Kirkpatrick:

The fact that the expenses of the LOS Prep Com were so readily increased under the U.N. program budget--and by that vote of 132 to 4--illustrated the realism of the U.S. concern about our relative isolation in the U.N., and also about a new trend in the U.N. policy toward defining extraordinary expenses into the U.N.’s core budget. This redefinition is an easy solution to the problem of financing activities for which it is difficult to secure voluntary contributions, and as usually, entails little or no cost to the majority voting to add on expenses.

Clearly, there is nothing in the "fixes" that addresses this.

Here is the whole piece that you should read. A lot of grist in this mill.


Military Implications of the UN Convention on the Law of the Sea
By Jeane J. Kirkpatrick (1926-2006)
Posted: Thursday, April 8, 2004
TESTIMONY
Senate Armed Services Committee  (Washington)
Publication Date: April 8, 2004

 
Thank you for inviting me to testify today on this important issue, which I believe, has broad and important implications. Some of these implications--especially those concerning deep seabed mining and technology transfer--have been the most widely discussed. But I believe the Treaty also raises some constitutional and political issues with broad ramifications and implications, and I continue to think it raises security issues as well.

I hold no position in the United States government today and have no responsibilities in relation to the Treaty. However, I had prolonged and serious dealings with the Law of the Sea Treaty during my years as Ronald Reagan’s Permanent Representative to the United Nations and a member of his Cabinet and National Security Council. I might add that I was also a member of his Commission on Space.

I have been a professor of Government at Georgetown University for most of my professional life. I am now a Senior Fellow at the American Enterprise Institute. I have sought to remain abreast of developments concerning the United Nations. Last year I served as head of the U.S. delegation to the United Nations Human Rights Commission.

Those of us concerned with foreign affairs in the Reagan Administration became deeply involved in the Law of the Sea Treaty, which had been under discussion since 1958 and had nearly been completed by the time Ronald Reagan was inaugurated in January 1981. It is accurate to say that the Reagan Administration believed that the issues raised by the Treaty were basic and important and that both the political and economic stakes were high. I will share some of our experiences and perspectives because I believe they are also relevant today.

The Treaty begins from the assumption that the seabed and its wealth are part of the “common heritage of mankind” and its benefits should be shared by all, protected against exploitation by any country or group, and administered by the United Nations. In 1968, Resolution 2467 was passed and vested jurisdiction over the Treaty in the “Standing Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction.” In 1970, the General Assembly voted by an overwhelming majority to convene a conference on the Law of the Sea. Negotiations took shape when all parties agreed to the notion of a “common heritage,” although disagreements soon emerged between developed and developing countries on technology, sovereignty, and the extent and kind of regulation that should and could be imposed on seabed mining.

Negotiations continued for more than a decade--during which the Treaty came to be viewed as the cornerstone of the New International Economic Order (N.I.E.O.) and of the associated efforts to use U.N. regulatory power as an instrument for restructuring international economic relations and redistributing wealth and power. The General Assembly is the institution through which the N.I.E.O. operates. It operates on the principle of one country, one vote.

During the decade that the Law of the Sea Treaty took shape, the basic assumptions of the N.I.E.O. concerning the obligations of the “North” to the “South” gained wider acceptance and expanded their influence and scope. The regulatory functions of the U.N. grew and the resistance of the industrialized countries was eroded. Then Secretary of State Henry Kissinger had laid out conditions for U.S. participation in the proposed technology transfer--guaranteeing U.S. representation on its governing body and limiting production controls--but these conditions were ignored and eventually dropped by the American government itself.

By the time Ronald Reagan took office, the Law of the Sea Treaty was very nearly completed and a final session was scheduled to begin on March 9, 1981, to be completed by the end of the summer. These plans were interrupted when the Reagan Administration announced before the session opened that it intended to conduct a full-fledged review of U.S. policy with regard to the LOS Treaty and would not be ready to reach its final conclusions by the scheduled time.

The announcement produced both relief and consternation. It should have come as no surprise. The Law of the Sea Treaty was, and I believe, is disadvantageous to American industry--especially in their participation in seabed mining--and to American interests generally.  It should have been no surprise that a pro-business government interested in restoring American power would oppose the Treaty.

Viewed from the perspective of U.S. interests and Reagan Administration principles, it was a bad bargain. However, the Law of the Sea Treaty promised some things that Americans wanted very much: a commitment to freedom of navigation, territorial limits set at 12 miles, establishment of economic zones of 200 miles, and protection of navigation rights of all through international straits. The U.S. also regarded as positive the certain international agreements protecting marine mammals and migratory species. These protections were especially welcome at a time when a good many countries were arbitrarily extending their territorial claims over straits and vital sea lanes. But the Reagan Administration believed that the cost was too high, especially since most of these benefits had been or could be achieved through bilateral agreements or through existing organizations such as the Intergovernmental Marine Consultative Organization of the U.N. Environment Program (UNEP).

The LOS Treaty establishes a sweeping claim of jurisdiction over the seabed and all its mineral wealth. It creates an International Seabed Authority in which it vests control of two thirds of the Earth’s surface. Under the LOS Treaty the power of the Seabed Authority would be vested in an Assembly made up of all participating states and an Executive Council of 36 members elected by the Assembly to represent investors, consumers, exporters of affected minerals, developing states, and all the geographical areas of the world. The formula for representation guaranteed that the industrialized “producer” countries would be a permanent minority. And they would have a majority of obligations. Most importantly, votes of the Assembly would be on the basis of one vote/one country, with a two-thirds majority binding on all parties.

A company desiring to get a contract for seabed exploration would be required to identify two promising sites, one of which would be claimed by the Authority to mine itself or to otherwise dispose of, the other of which may be given to the company. The company would be required to provide its technology to the Authority, which would also be provided to members with the capital necessary for mining. Special taxes would be imposed and special care would be taken to protect existing producers of minerals against competition from minerals available in sea.

Worst of all, there was no guarantee that qualified applicants ready to meet these requirements would be granted permission for mining.

Certain consequences of the LOS Treaty seemed wholly predictable:

  • It vested control over seabed mining in countries that do not possess the necessary technology.
  • Its governing structure guaranteed a permanent majority to the less developed countries of the G-77.
  • It burdened companies who would be interested in mining with unusual costs and obligations and provided various permanent advantages to their competition. Private companies would bear the expense of developing technology, of prospecting, of paying taxes. The Authority would bear none of these. Moreover, the private company would be required to sell its technology to buyers and at prices determined by the Authority. The duration and extent of the mining rights would be determined by the Authority.
  • These regulatory powers would protect markets and prices from the competition of seabed mining.

From the Reagan Administration’s point of view, the most disturbing aspect of the LOS Treaty was the structure of decision making. We felt the U.S. role in decisions should reflect our political and economic interests in the Treaty and our contributions to UN operations. The G-77 was determined to treat all nations alike, and the U.S. as one nation among 180. We were not guaranteed a seat on the 36 member executive council. All questions could be decided by a two-thirds majority vote in the Assembly. Any aspect of the Treaty adopted by consensus could be amended by a simple two-thirds vote. Thus, the G-77, which constitutes two-thirds of the members, could change any aspect of a meticulously negotiated convention.

President Reagan outlined six concerns which needed to be addressed to make the Treaty acceptable to the U.S.: the most important of these were that the Treaty should not deter development of seabed mining; that its decision making structure should reflect and protect economic interests and contributions of participating states; and that it should be susceptible to ratification by the U.S. Senate.

OPEC had stimulated a broad desire for cartelizing other needed mineral products. The LOS Treaty would become an instrument for assisting in the development of such cartels to insure high prices by controlling supplies.

The G-77 was unwilling to accommodate basic American concerns. Bangladesh’s representative Imam UL-Hak spoke for the Group of 77 of which he was chairman. He reproached the Reagan Administration for delaying proceedings asserting that “the U.S. is overly preoccupied with the extension of the Assembly’s power.” The G-77, he underscored, “has consistently rejected the concept of veto, weighted voting, or voting by chambers.”  He chided the U.S. for seeking unequal power. He utterly ignored the unequal contribution the U.S. would make because of its advanced technology. In short, Ul-Hak explicitly rejected each of the Reagan Administration’s concerns. No concessions would be made. Basically, the G-77’s position was that the U.S. could take it or leave it. There were a good many influential Americans who thought we should take it.

But not at top levels of the Reagan Administration. An Interagency Senior Advisory Group on the Law of the Sea was convened in which most departments were represented, including State, Defense, Commerce, Transportation, CIA, NSC, Treasury, Energy, OMB, Interior, and White House staff.  Their conclusions were reported in a memorandum of March 4, 1981:

  1. The LOS was unacceptable;
  2. Both the Treaty and the U.S. delegation must be closely examined;
  3. An immediate review must be undertaken;
  4. The existing delegation must not preempt the Administration’s options.

To this end the decision was made to issue written instructions to the delegation, other nations were to be informed of the review, a new Ambassador to LOS should be appointed, and to insure fidelity to the Administration’s orientations, it was recommended that consideration be given to replacing several high ranking members of the U.S. delegation.

The Administration did not really want to “dash the hopes of mankind,” which they were often accused of. But on the other hand, it did not want to make it impossible for humans to utilize the minerals of the ocean floor. It didn’t want to discourage the development of technology for seabed mining. It didn’t want to encourage the development of new cartels. And it didn’t want to agree to revolutionary doctrines of property. The notion that the oceans or space are the “common heritage of mankind” was--and is--a dramatic departure from traditional Western conceptions of private property. Most members at upper levels of the Reagan Administration were reluctant to put our foot on that slippery slope. But there were a good many Republicans as well as Democrats who thought it important for the U.S. to continue to participate in negotiations.

An influential bipartisan group urged full support and constructive participation in the Law of the Sea Conference. They argued that the Treaty would serve U.S. foreign policy interests, promote the rule of law, friendly relations among states, and the peaceful settlement of disputes. Today, their heirs still believe the treaty will guarantee these benefits.

No American commentator denied that the provisions concerning seabed mining were prejudicial to industrial nations, but they believed we should go along anyway. Many of the strongest proponents of the LOS believed that new global institutions were needed to deal with the global interdependence, which they thought characterized the contemporary world. They would have preferred guaranteed U.S. representation on LOS governing bodies and some sort of veto, such as that possessed by the five permanent members of the Security Council or a rule of consensus which gave all an effective veto power. But they thought we should settle for the treaty as it was.

The Reagan Administration also saw serious constitutional questions. How could the constitutional requirement that treaties be ratified by the Senate be met if the contents of the agreement could be altered by a two-thirds vote of the members? This provision for easy amendment by an Assembly majority made the Treaty an open ended commitment. Henceforth, the United States would be bound by what two-thirds of the Assembly said we should be bound by. That is, we would be bound by decisions of the G-77, a prospect that could not but appall anyone who had taken a good look at decisions and policies endorsed by the G-77 in those years.

Decisions were made by consensus inside the G-77, but the G-77 rejected application of the same principle for decision making in the LOS Assembly. The operation of the rule of consensus inside the G-77 guaranteed that the interests and needs of individual G-77 members would be taken into account, but there would be no parallel institutional arrangement to take account of the interests of developed nations.

In the view of the Reagan Administration, U.S. concerns rested on experience and taxable interests. The Treaty proponents’ case rested on hopes--that the Law of the Sea Treaty would enhance international peace by advancing international cooperation and a sense of obligation that we should do what a majority of nations asked of us. Among Democrats, liberal Republicans, and within the Department of State, these feelings were strong enough to delay a U.S. decision on the Law of the Sea Treaty for nearly two years. Then the U.S. decided not to participate in the Prep Com conference. That decision not to participate in the Prep Com conference confronted us with another decision of importance for U.S. policy vis-à-vis the U.N. system. The General Assembly voted 132 to 4 on a resolution that judged the costs of the LOS Prep Com as falling under the general U.N. budget.

This confronted the U.S. with another, immediate decision.

To pay or not to pay the assessed share of the expenses of the Prep Com conference in which the U.S. would not be participating? As usual, the issue was more complex than it seemed. At the heart was the question of U.S. financial obligations under the U.N. Charter and international law. Is the U.S. required to pay all charges assessed by the U.N.? Is failure to do so a violation of international law?

Some opinions outside and inside the State Department held that failure to pay the assessed portion of the budget constituted a violation of our obligations under the U.N. charter and therefore would be illegal. A bipartisan majority of Congress, however, had passed a law which the President had signed on authorizing withholding a U.S. contribution to any expenditure whose principle purpose was to aid and abet the PLO and SWAPO, which regularly claimed the right to pursue their political goals by force. Some believed we were legally bound to do whatever a U.N. body decided. However that interpretation was not the only one.

The International Court of Justice in the Certain Expenses Case, however, had held that an assessed expense was not automatically valid. To create collective obligation to pay, the expense must be legitimate. Legitimate expenses were those necessary to the implementation of the fundamental principles of the U.N. Charter. Only essential activities tied to the U.N. Charter’s fundamental purposes created an obligation. The grounds cited by the State Department’s legal advisor in 1982 for withholding U.S. contributions to the Prep Com was the relation of the LOS Prep Com to the U.N. Charter. The Prep Com was not created by the General Assembly or the Security Council and was not answerable to the U.N. It was “established by a treaty regime separate from the U.N. Charter.” Therefore, he concluded, “a good case can be made that the LOS Prep Com expenses are expenses of a different entity, not lawful expenses of the U.N. within the meaning of the Charter and thus not properly assessable against non-consenting members. That was a relief.

The fact that the expenses of the LOS Prep Com were so readily increased under the U.N. program budget--and by that vote of 132 to 4--illustrated the realism of the U.S. concern about our relative isolation in the U.N., and also about a new trend in the U.N. policy toward defining extraordinary expenses into the U.N.’s core budget. This redefinition is an easy solution to the problem of financing activities for which it is difficult to secure voluntary contributions, and as usually, entails little or no cost to the majority voting to add on expenses.

The decision of the U.S. not to participate in the LOS Treaty seems to me even better today than when it was made. There has been time to observe the decline of OPEC and the benefits of that decline, time to experience the cavalier fashion in which the G-77 is ready to impose obligatory burdens on developed countries, and there has been an opportunity to see that when the U.S. declines to go along with a scheme that is incompatible with American interests but beloved by the global establishment, the sky does not fall.

The Law of the Sea Treaty was the first of a number of issues in which the Reagan Administration’s convictions and electoral commitments contradicted the orientations of the liberal establishment that is dominant in much of our society. It has proved more difficult to affect the objectives of American policy than reported in standard descriptions of policy making in a democracy.

Of course, important events affecting the Treaty have occurred in the years following the Reagan Administration and modifications of the Treaty have taken place. But the modifications have not been major. The Treaty is fundamentally the same. On October 7, 1999, President Clinton transmitted to the U.S. Senate the 1982 Convention on the Law of the Sea and the 1994 Agreement relating implementation of Part XI of the Convention. On November 16, 1994, the treaty entered into force but without accession by the United States.

The most important modifications of the Treaty dealt with seabed mining. They specifically assert that the provisions dealing with mandatory technology transfer “shall not apply.” These mandatory provisions are replaced by a set of general principles on technology transfer. Modifications also eliminate some of the competitive advantages of the Enterprise, and the terms on which it becomes operative. These amendments are obviously desirable, but they do not address the basic structure or consequences of the Treaty.

I have read much of the discussion of the Treaty and I regret to say that I remain concerned that its ratification will diminish our capacity for self government, including, ultimately, our capacity for self defense.

The end of the Cold War has, of course, also had a significant impact on the contexts in which the LOS will function. The world is no longer divided into East and West confronting one another. This will take some of the hostility out of the North/South competition.

These changes are very welcome but they will not render the United Nations institutions necessarily receptive or supportive of U.S. goals, needs and values. Americans had an opportunity to observe the problems U.N. institutions can confront us with when the U.S. President and Secretary of State sought Security Council support for actions against Saddam Hussein’s continued, repeated violations of the terms of the cease fire, and U.N. sanctions.

The unanimous vote in favor of resolution 1441 made it clear that the entire Security Council agreed about the facts concerning Iraq’s past violations of sanctions. But France announced it was none the less ready to veto any resolution that called for a use of force.

The United Nations is a political body whose many members have strongly held views that are often different than those of the United States.

The United States often finds it difficult to persuade other nations to see the world as we do. Simply making the case does not necessarily solve the problem.

A distinguished Senator suggested today that we should join the Treaty so that we  can be inside it and “lead.”

I suggest that Senators who vote on these issues should spend at least a year in a U.N. body, with the responsibility for passing or preventing the passage of a resolution. It’s enlightening.

Jeane J. Kirkpatrick is a senior fellow at AEI.

Related Links
Listing of All Government Testimony
Senate Armed Services Committee
Also by Jeane J. Kirkpatrick (1926-2006)
Recent Articles
Stirring Up Trouble in Puerto Rico
For a UN Post, a Woman of Superb Qualities
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Right versus Might
International Law and the Use of Force
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You can find this online at: http://www.aei.org/news20262
 

36 posted on 01/11/2007 5:46:14 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: processing please hold; Paul Ross

Yes, I'm part of the big conspiracy. Sec Rice, Bush, the admirals, exxon, we are all in on it. Sorry that I can't give you the names of everyone involved, the list is too long.


37 posted on 01/11/2007 5:51:55 PM PST by Ben Ficklin
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To: Ben Ficklin

Yes, you and they are.


38 posted on 01/11/2007 6:04:26 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Ben Ficklin
Yes, I'm part of the big conspiracy. Sec Rice, Bush, the admirals, exxon, we are all in on it.

Which conspiracy is that? Care to be specific?

39 posted on 01/11/2007 6:08:28 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Ben Ficklin
I have posted the links to the testimony and the briefs.

Uh, that wouldn't happen to be the testimony from the stacked hearings conducted by Senator Richard Lugar...where no critical questioning was conducted, nor opposing testimony invited and received?

A good classification of any such testimony would be "biassed".

40 posted on 01/11/2007 6:12:06 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: processing please hold; Paul Ross
Well no, I'm not a one worlder, but I am a small worlder.

I recognize that the world is getting smaller, that it is reorganizing

I support the political leaders that will get out in front of it and shape it so it benefits me.

41 posted on 01/11/2007 6:15:46 PM PST by Ben Ficklin
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To: Ben Ficklin
Reviewing your "Testimony" link again, I note that the only "open" hearing where opposition was allowed, was the House International Relations Committee, (which could not block the damn treaty even if the House unanimously agreed to oppose it) where it ostensibly featured both strong proponents and opponents of ratification.

But BOTH of your other links were to the Senate Foreign Relations Committee...which is guilty as charged. I note none of the other, more critical Senate Committees where Frist forwarded the Treaty got linked here. Surprise, surprise.

42 posted on 01/11/2007 6:22:12 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Ben Ficklin
I recognize that the world is getting smaller, that it is reorganizing

Is that the new euphemism today used when losing your country's sovernerity---reorganizing? That's exactly what I fight aganist-reorganizing my country.

I support the political leaders that will get out in front of it and shape it so it benefits me.

That's the piece you're not seeing. They don't care about you and me. It won't benefit you, it'll benefit the UN.

43 posted on 01/11/2007 6:26:53 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Ben Ficklin
I support the political leaders that will get out in front of it and shape it so it benefits me.

Your hero, then?

I liked this little description of him...

"His bias is wide open enough to drive an eighteen wheeler through it, and makes the case that inside every Khofi Annan there's an Idi Amin screaming to get out..."


Come to Poppa...show me the Money!

44 posted on 01/11/2007 6:29:42 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Ben Ficklin
Well no, I'm not a one worlder, but I am a small worlder.

How about this one?


45 posted on 01/11/2007 6:32:14 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: processing please hold; Paul Ross
"They don't care about you and me"

Speak for yourself. I'm in on the conspiracy, remember.

46 posted on 01/11/2007 6:34:32 PM PST by Ben Ficklin
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To: Ben Ficklin
I'm in on the conspiracy, remember

Okay, have it your way, but I'm warning you right now...there is no honor among thieves.

President Reagan frequently quoted the Russian proverb, “doveryay, no proveryay,” trust but verify. Of course, he was referring to the Soviets and nuclear missiles at the height of the Cold War but you would do well to heed this advice before trusting your life and liberty to the likes of a World Government run by these Usual Suspects.


47 posted on 01/11/2007 6:44:38 PM PST by Paul Ross (Ronald Reagan-1987:"We are always willing to be trade partners but never trade patsies.")
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To: Ben Ficklin

As you wish.


48 posted on 01/11/2007 6:45:12 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Paul Ross
Don't forget, will rape children.

Photobucket - Video and Image Hosting

49 posted on 01/11/2007 6:51:49 PM PST by processing please hold (ROP and Open Borders-a terrorist marriage and hell's coming with them)
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To: Paul Ross
Protocols, treaties and agreements in the last 50 years have been notable for one constant feature:

They tie the hands of the innocent and are violated with impunity by criminal and terrorist countries.

And, oh yes, the self-appointed arbiters are fourth rate, useless countries with no power other than self-delusion and bluster (i.e.- Belgium and the Netherlands).

50 posted on 01/11/2007 7:34:13 PM PST by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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