De­feat the Law of the Sea Treaty

The Washington Times Weekly - - Editorials -

The Bush ad­min­is­tra­tion, to­gether with sev­eral un­likely al­lies — in­clud­ing Sens. Joe Bi­den of Delaware and Dick Lu­gar of In­di­ana, and the ma­jor­ity of the Se­nate For­eign Re­la­tions Com­mit­tee — are at­tempt­ing to im­pose a flawed in­ter­na­tional agree­ment on Amer­ica. The U.N. Law of the Sea Treaty, known by its par­tic­u­larly apt acro­nym LOST, was wisely re­jected 25 years ago by Pres­i­dent Rea­gan and re­vived by the Clin­ton ad­min­is­tra­tion af­ter sev­eral cos­metic changes. The “new” treaty was ap­proved Oct. 31 by a 17-4 Se­nate For­eign Re­la­tions Com­mit­tee vote. What was wrong with LOST 25 years ago is what’s wrong with it now — it would un­der­mine Amer­i­can sovereignty and risk na­tional se­cu­rity by putting Amer­i­can ef­forts to coun­ter­act nu­clear-weapons pro­lif­er­a­tion and in­ter­na­tional ter­ror­ism un­der the con­trol of for­eign judges.

Un­for­tu­nately, the Bush ad­min­is­tra­tion has em­barked on a mis­guided pub­lic-re­la­tions cam­paign, per­haps as an ex­er­cise in legacy-pol­ish­ing, to per­suade the Amer­i­can peo­ple that en­act­ing this treaty is a na­tional se­cu­rity ne­ces­sity. Deputy Sec­re­tary of State John Ne­gro­ponte and Deputy De­fense Sec­re­tary Gor­don Eng­land urged rat­i­fi­ca­tion of LOST to en­sure that the United States re­tain “unim­peded mar­itime mo­bil­ity — the abil­ity of our forces to re­spond any time, any­where, if so re­quired.” Se­nate rat­i­fi­ca­tion of LOST, ac­cord­ing to Mr. Bush, “will give the United States a seat at the ta­ble when the rights that are vi­tal to our in­ter­ests are in­ter­preted and de­bated.” But the struc­ture of the treaty is so harm­ful to Amer­i­can in­ter­ests that it won’t make much dif­fer­ence whether Amer­i­can diplo­mats are at “the ta­ble” or not.

Sev­eral Repub­li­can sup­port­ers of the treaty, not al­low­ing facts to get in the way of spin, have at­tempted to re­vise what Mr. Rea­gan ac­tu­ally thought about LOST. Mr. Lu­gar, rank­ing mem­ber on the Se­nate panel, as­serts that Mr. Rea­gan’s only ob­jec­tions were to a pro­vi­sion of the treaty that im­posed a cum­ber­some bu­reau­cratic sys­tem of reg­u­la­tion on seabed min­ing. The Clin­ton ad­min­is­tra­tion ne­go­ti­ated cer­tain cos­metic changes as an ap­pen­dix to the treaty — not part of the treaty it­self — and joined Euro­pean coun­tries in pro­nounc­ing the treaty to be “OK now.” Mr. Lu­gar is wrong about the flaws in the treaty and he’s wrong about what Mr. Rea­gan ob­jected to, which went well be­yond the seabed min­ing pro­vi­sions. In “The Rea­gan Di­aries,” pub­lished ear­lier this year, the pres­i­dent wrote this diary en­try on June 29, 1982: “De­cided in [Na­tional Se­cu­rity Coun­cil] meet­ing — will not sign ‘Law of the Sea’ treaty even with­out seabed-min­ing pro­vi­sions.” Mr. Rea­gan fur­ther ob­jected to the fact that “na­tional lib­er­a­tion move­ments” like the PLO would par­tic­i­pate in the treaty, and to pro­vi­sions for the “manda­tory trans­fer of private tech­nol­ogy” from in­dus­tri­al­ized na­tions to less-de­vel­oped coun- tries. Ed­win Meese, a pres­i­den­tial coun­selor and at­tor­ney gen­eral in Mr. Rea­gan’s ad­min­is­tra­tion, ex­plains why his for­mer boss felt so strongly that this pro­vi­sion was bad for the United States: “Oblig­a­tory tech­nol­ogy trans­fers would equip ad­ver­saries with sen­si­tive and mil­i­tar­ily use­ful equip­ment and knowl­edge.”

But what is most dis­turb­ing about the treaty is the dam­age it would do to U.S. ef­forts to com­bat ter­ror­ism and to stop the pro­lif­er­a­tion of weapons of mass de­struc­tion. Jeremy Rabkin, a law pro­fes­sor at Ge­orge Ma­son Univer­sity and a fore­most scholar on in­ter­na­tional law, points out that Ar­ti­cle 88 of LOST de­clares that “the high seas shall be re­served for peace­ful pur­poses,” and makes no men­tion of ex­cep­tions in time of war. That omis­sion was fool­ish 25 years ago and it’s dan­ger­ously lethal in an era of state-sup­ported Is­lamic ji­had. The treaty­makes no men­tion at all of “ter­ror­ism,” for un­der­stand­able rea­sons: The U.N., un­like the rest of us, has been un­able even to agree on a def­i­ni­tion of ter­ror­ism.

LOST would cre­ate se­ri­ous le­gal prob­lems for U.S. de­fense plan­ners. Could the U.S. mil­i­tary con­tinue the Pro­lif­er­a­tion Se­cu­rity Ini­tia­tive (PSI), a Bush ad­min­is­tra­tion pro­gram led by John Bolton, the for­mer un­der­sec­re­tary of State for arms con­trol and in­ter­na­tional se­cu­rity, which fo­cuses on in­ter­dict­ing chem­i­cal, bi­o­log­i­cal and nu­clear weapons com­po­nents on the high seas? Un­der Mr. Bolton, it broke the Pak­istan-based A.Q. Khan nu­clear pro­lif­er­a­tion net­work, col­lab­o­ra­tors in ter­ror with Libya, Iran and North Korea. Could the United States un­der LOST in­ter­cept planes car­ry­ing ter­ror­ists, such as the men who mur­dered an Amer­i­can pas­sen­ger aboard the Ital­ian cruise ship Achille Lauro in 1985? The an­swers are not clear.

The United States ar­gues that PSI and the Achille Lauro in­ter­cep­tion are per­fectly le­gal; ter­ror­ists and pro­lif­er­a­tors of weapons of mass de­struc­tion ar­gue that both U.S. ac­tions were il­le­gal. Un­der LOST, this ques­tion would be sub­mit­ted to in­ter­na­tional ar­bi­tra­tion. Un­der Ar­ti­cle 296, Para­graph 1 of the treaty, the United States would be re­quired to ac­cept the re­sults as au­thor­i­ta­tive. Un­der the treaty, for ex­am­ple, in a dis­pute be­tween, say, the United States and Iran, the two coun­tries would choose an equal num­ber of ar­bi­tra­tors, with the tiebreak­ing vote made by some­one cho­sen by the U.N. Sec­re­tary-Gen­eral. The Bush ad­min­is­tra­tion coun­ters that there are “safe­guards” in the treaty that would al­low the United States to ex­empt “le­git­i­mate mil­i­tary ac­tiv­i­ties” from the treaty’s con­straints. But th­ese are empty “safe­guards.” The United States would be forced to choose be­tween a ro­bust re­sponse to ter­ror­ism and sub­mit­ting its judg­ment to for­eign judges who might not be par­tic­u­larly in­ter­ested in the na­tional se­cu­rity of the United States.

The Se­nate should de­feat the Law of the Sea Treaty, and do so de­ci­sively.

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