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At this point voices in opposition to the U.N. Convention on the Law of the Sea are few. The companion letter to mine in the U.S. Naval institute Proceedings by a retired Australian admiral characterizes opponents as bigoted, parochial holdouts denying the accepted way for accomplishing world business. I would like to send a link to the article I responded to, as well as the treaty and Frank J. Gaffney’s prior Proceedings article, but it is not available online. Notice the treaty seems frightfully similar to the unending provisions of the “comprehensive immigration reform” act.

As an example of the variety of issues covered, here is one involving economics. Articles 156-161 discuss the governing and managing structure. Beginning at Article 170, the treaty discusses the Enterprise, which is the U.N. own revenue generating entity. I think one pernicious aspect of its existence is found in Annexes to the Law of the Sea Convention 1982-Part 1, Annex III, Article 5, 5 discussing acquiring technology on “fair and reasonable” commercial terms and conditions. Notice the Enterprise initiates complaints about what is “fair and reasonable” and the parties creating the Enterprise render judgment. Yet a private company, which may have developed and patented the technology, lacks an advocate. The process looks to me like an eminent domain hearing turned into a show trial. I would maintain there is a multitude of similar issues. In general these provisions favor large state owned industries and large private corporations, thereby excluding free enterprise by raising the barriers to entry for small individually owned companies serving as the lynch pin of free societies where government dependence and control are minimized.

I would call this the Totalitarian Ruling Elite Preservation and Pension Act. When over 130 independent countries were created after WW II, most suffered, and suffer, from statesmanship found in our juvenile gangs and organized crime families. The U.N. Universal Declaration Human Rights served as the foundation late last year of our President’s coldly received U.N. speech. Hugo Chavez and Mahmoud Ahmadinejad found an appreciative audience as representatives of progressive totalitarianism.

Links:

Treaty: http://www.globelaw.com/LawSea/lsconts.htm

Frank J. Gaffney Jr.: http://www.freerepublic.com/focus/f-news/1863651/posts

Published Letter (without edits):

There are several valid reasons to be skeptical of this treaty, but I will just mention two.

Treaties provide illusions of protection from unreasonable maritime challenges; illusions quickly dispelled by lack of forthright action. Concerning the showdown between U.S. (UNCLOS signed) and P.R.C. (UNCLOS ratified) over the Navy EP-3E, China saw no problem in provoking the incident, notwithstanding UNCLOS and prior treaties defining freedom of the seas. Further antidotal evidence emerges from taking of British (UNCLOS ratified) hostages by Iran (UNCLOS signed). In this day of instantaneous communication, the fact the British captain did not fight his command means senior commanders and politicians, including some masquerading in military uniforms, failed miserably when exerting the authority they had confiscated to protect freedom of the seas. Since Iran is a terrorist state, the first evolutions practiced by Coalition task force units should have been the continuum of actions opposing Iranian provocations in the Persian Gulf and Straits of Hormuz. Iranian boats would not materialize alongside Coalition forces like Klingon Birds of Prey, and one should have expected vigorous resistance to boarding of Iranian vessels in Iraqi waters. The various Iranian intrigues should have elicited timely, consistent, practiced responses not requiring phone calls to politicians half a world away.

The world-changing tragedies of September 2001 make imperative that this treaty be re-evaluated. One of the many problems for interpretation against us could be Articles 19 and 20 defining innocent passage, while within territorial seas. Acts prejudicial to peace of a coastal state include launching and landing aircraft, and using undersea craft for mine detection. Also a self-interested reading of the articles, says using any electronic device other than navigational radar could be considered an act of propaganda or act aimed at collecting information. State Department may assure friendly government relations (remember the U.S.S. Cole), but how many nations can and/or would provide practical sea, air and undersea supremacy guarantees allowing our warships to forgo defensive measures provided by aircraft, boats, sonar, radars and comm... nets?

Supposedly, the “military activities exemption” would allow us to maintain adequate defenses in territorial waters. However, I do not see the “military activities exemption” as one of the articles. A hostile Council should have no problem defining this term to place our ships at risk of terrorism. Dr. Scott C. Truver contends the Convention does not permit an international tribunal to frustrate Navy operations, but without reference to the treaty, he assures us some undefined protocol can (not will) exclude military activities from treaty resolution provisions.

Before ratification is the time to force meaningful treaty changes, rather than later going hat in hand to persuade for modifications in our interest. In reading this treaty, I believe you will find latitude in article language allowing a hostile U.N. Council to write an enormous body of implementing regulations directed against our ships and planes. The present provisions also codify flaccid senior military/political responses by allowing shelter within prospective rulings from an international tribunal, and avoiding authorization for immediate, direct action to confront challenges. These articles and regulations will bind our Sailors as they go into a “harms way” largely undefined in this era of violent peace. When something goes wrong, operators on 285 commissioned ships will pay the price, while 290 plus flag officers, Pentagon lawyers, and politicians in Washington D.C. express profound sorrow and outrage, as all bullet proof their resumes.