THE LAW OF THE SEA TREATY:
FATALLY FLAWED & INCONSISTANT WITH AMERICA'S NATIONAL INTEREST
By Frank J. Gaffney, Jr.
I am, by training and experience, a specialist in national security matters, not the environment. As it happens, some of the concerns I have about LOST's defects with respect to the former could also have adverse repercussions of an environmental nature. In this brief testimony, I will try to highlight the Treaty's deleterious implications for the American nation's military, intelligence and self-defense capabilities, while focusing principally on what might be called its negative "environmental impacts."
Unlike other, far less powerful UN entities, however, the International Seabed Authority will operate without the benefit of what amounts to "adult supervision" provided by the UN Security Council. The United States will be, at best, one among many countries represented in the ISA. Conceivably, due to membership rotation, there could be times when the U.S.A. might not even have a vote, to say nothing of a veto over decisions taken by that body.
Not only could those concerns be shunted aside, as the United States would be, at best, outvoted. An international tribunal created to adjudicate and enforce ISA decisions could levy penalties for any efforts to impede such activities, once authorized by the International Seabed Authority, even if we had reason to be fearful that such activities posed an environmental hazard to our coastal areas. Worse yet, the ISA and its tribunal are authorized to ask member states to enforce its judgments, possibly leading to conflict.
Environmental implications could be exacerbated by the ISA's authority to apportion drilling and mining rights to other nations, who may be less scrupulous than American companies in complying with environmental standards and practices this country holds dear. Such apportioning could occur even in situations where this country's companies provide the research, seed investment, and pay the fees -- the first a UN agency has ever been allowed to levy -- associated with securing the required ISA permits.
At the very least, I would respectfully submit that the members of the U.S. Senate cannot responsibly act on the Law of the Sea Treaty until they can satisfy their constituents that turning over to a new UN bureaucracy the authority to make decisions about and generate revenues from what could be billions of dollars worth of ocean-related commerce will not amount -- literally -- to a license to steal on an unprecedented scale.
The rulings of the tribunal set up in Hamburg, Germany, by the Law of the Sea Treaty will, after all, have implications for more than our sovereignty and environment. They could effectively supplant the constitutional arrangements that govern the American nation.
Even without LOST, U.S. courts, as Judge Robert Bork has recently noted, have begun to inject the decisions of international judges and judicial bodies into domestic legal proceedings. LOST and its tribunal could accelerate this phenomena, corroding one of our Republic's more fundamental principles -- namely, that American laws duly fashioned by Congress and signed by the President form the ambit within which U.S. jurisprudence predictably operates.
Such constraints would preclude President Bush's most important recent counterproliferation measure -- the Proliferation Security Initiative (PSI). The same would be true, however, if the crew of the foreign ship was engaged, not in the sort of activity the PSI is meant to interrupt (namely, the covert transfer of weapons of mass destruction and/or related equipment), but in the shipment of heavy crude oil or other toxic materials that could cause an environmental disaster, were the vessel to be blown up or scuttled in or near our waters.
We could, of course, assign this collection task to submerged submarines. The U.S. Navy (which officially supports this treaty) is understandably reluctant to do this, however, given myriad, competing demands on these vessels' time at sea. There is also the problem that LOST deems submerged transit and collection of intelligence (an activity for which the Russians might consider "global warming research" to be but a cover) inside territorial waters to be inconsistent with the Treaty's requirement that foreign vessels conduct themselves in such waters only with "peaceful intent."
In short, our adherence to the Law of the Sea Treaty would legitimate Russia"s objections to our research in important areas of the Arctic and complicate our ability to perform it there.
Suffice it to say, a number of other Senate committees would be very well-advised to emulate Environment and Public Works Committee's initiative in examining the Law of the Sea Treaty's implications for their respective oversight portfolios. In addition to the hearings of Environment and Public Committee and the Armed Services Committee, hearings should be held by the Intelligence, Commerce, Energy, Governmental Affairs, and Finance Committees.
Given the stakes for the nation's equities in the areas for which these panels are responsible, a failure to examine the sorts of hard questions I have raised today is tantamount to a dereliction of duty. I very much hope that your leadership in affording an opportunity for such questions to be posed before the Environment and Public Works Committee will encourage your colleagues on the other Committees to also subject the Law of the Sea Treaty to the critical examination it so clearly requires.
Such reviews will, I am confident, serve further to underscore the points I have made here today about the inadvisability of U.S. ratification of the Law of the Sea Treaty. I recommend that the full Senate not consider this accord until reviews by the relevant Senate Committees have been completed. I further respectfully suggest that, once the necessary oversight has been performed, the Senate vote to reject this clearly defective treaty on national security, sovereignty and economic, as well as environmental, grounds.
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