THE LAW OF THE SEA TREATY:
THREAT TO NATIONAL SOVEREIGNTY
By Peter Leitner
Today, I am appearing before you as a private citizen and author. Although I am a Senior Strategic Trade Advisor in the Office of the U.S. Secretary of Defense, my views and statements are my own and do not represent the views of the Defense Department or the U.S. government.
Before I begin, I would like to explain my bona fides. I became involved in Law of the Sea issues first as a student in 1973 and I have pursued the topic ever since. My first master's thesis, The Future of the Nation State (1975), is an analysis of threats to sovereignty posed by the direction the proposed Treaty was beginning to take as well as the rise of multinational corporations. The second thesis, The Impact of Manganese Nodule Exploitation Upon Less Developed Mineral Exporting Nations, is an economic & engineering analysis that was well received as a scene-setter for the struggles that were to come. The third thesis, Determinants of National Claims to Territorial Seas, is a quantitative analysis of the subject. This collection of analytical approaches to the Law of the Sea Treaty and its impacts, if ratified, landed me a job with the U.S. General Accounting Office, where I was hired to be their expert on the treaty.
In 1976, GAO was requested by several Senate Committee Chairmen to independently report on the status of negotiations, as they were deeply distrustful of the official delegation reports authored by the U.S. State Department. As a result, I attended many of the negotiating sessions in New York and Geneva as an observer attached to the U.S delegation. I joined the U.S. delegation in 1977 and reported regularly to Congress on the state of negotiations through 1982. I was present in New York when the Reagan administration's good faith attempt to make the Treaty acceptable was roundly rejected by a coalition of Developing and Communist nations.
Since that time, I have closely tracked the accession process and the development of the International Seabed Authority (ISA). Having long since left the General Accounting Office and transferred to the Department of Defense I became deeply involved in the Export Licensing process. In this capacity I was assigned a case whereby the People's Republic of China was using their status as a socalled "pioneer investor" in ocean mining to justify the acquisition of strategic/export-controlled technology under the guise of prospecting for manganese nodules in the mid-Pacific. Unfortunately, the level of technology they were attempting to acquire greatly exceeded the level of capability that either the United States or our industrialized allies used in undertaking such work. The quality of the side-scanning sonar, deep-ocean bathymetric equipment, cameras, lights, remotely operated vehicles, and associated submersible technology provided them the capability to locate, reach, and destroy or salvage early-warning and intelligence sensors vital to our national security. Additionally, such technology also imparted an offensive capability to our chief potential military adversary by enabling them to map any portion of the ocean or continental shelves to determine submarine routing schemes or underwater bastions where missile-launching or intelligence gathering submarines may operate undetected just off the U.S. coast.
The ultimate nightmare would be a close-in submarine launched cruise missile attack upon the continental U.S.A. to which we are completely vulnerable and defenseless. I fought a long and lonely battle to prevent the Chinese from acquiring this technology, but the zealous advocates of the Treaty in several government agencies saw to it that the technology was provided to the PRC so as not to undermine the "spirit of the Treaty." This experience prompted me to write the book, Reforming the Law of the Sea Treaty: Opportunities Missed, Precedents Set, and U.S. Sovereignty Threatened. This volume is an analysis of the Treaty, the placebo 1994 Agreement, and the military, political, and technological implications arising from them. I followed this publication with an article in World Affairs entitled: "A Bad Treaty Returns: The Case Against the Law of the Sea Treaty."
Today, the specific issue before the Senate Committee on Environment and Public Works concerns the environmental aspects of the Treaty and whether they are in the U.S. national interest. While the Treaty represents an attempt to locate in one place many pre-existing environmental agreements, it is also an attempt to codify traditional state practice. While the environmental provisions were largely viewed as being among the less obnoxious aspects of the Treaty, it was largely because they do very little to advance the environmental protections, aside from setting a symbolic and dangerous precedent by creating a supranational regulatory and taxing organization with its own judicial process and unconstrained enforcement potential. The creation of yet another International Court, where the United States or our citizens can be dragged before politically motivated foreign jurists to adjudicate and set penalties, is not a pleasant prospect.
Imagine, if you will, the scuttling of a Supertanker off our coast and the intentional -- again think of the word "intentional" -- release of millions of gallons of petroleum products into the water column. If done on the Grand Banks it would destroy, for generations, some of the world's most productive fisheries for. If done near a coastal nuclear power plant it, can cause irreversible damage, or at a minimum, force it to shut down for years, since its coolant is dependent upon clean coastal waters. Fears that a terrorist operation may use a ship to spread an air-borne pathogen or toxin such as Anthrax along our densely populated coastline are very real. So, too, is the possibility of utilizing an LNG tanker as an enormous Fuel Air Explosive. The several instances of Container Ships being used to mount terror attacks, such as the suicide bombings in Israel during March, 2004, is a great cause for alarm. Recalling the extensive damage Texas City, Texas and Halifax, Nova Scotia, were subjected to as a result of vessel-borne accidents should never be far from our minds.
The point of all this is that the environmental provisions of the Law of the Sea Treaty are inadequate to address the most likely, and potentially most devastating, environmental threats facing the United States today. Of course, the environmental provisions are also closely coupled with the navigation and high seas articles found elsewhere in the Treaty -- they are, in fact, inseparable. These Treaty provisions afford a measure of immunity and freedom of access to our coastlines that, in the current era, are inimical to our national interests and the health and safety of the American public. While I am not advocating a draconian reversal of hundreds of years of traditional state practices I am stating that we are better off, as a nation, relying on the ambiguities of constantly evolving traditional practice than binding ourselves to a formal treaty that will severely constrain our ability to protect our population from devastating attack.
The United States should take the lead in developing new practices on the oceans that will, at once, facilitate commerce and peacetime deployment of warships, but also protect our shores from the terrorist scourge. The President's Proliferation Security Initiative (PSI) is an example of such modern and creative thinking. This US-led multinational program of high seas interdiction and vessel boarding is barred by the Law of the Sea Treaty, yet it is in our overriding national security interest to execute the program. Ratification of the Treaty would effectively gut our ability to intercept the vessels of terrorists or hostile foreign governments, even if they were transporting nuclear weapons. We must ensure that we not bind the government of the United States to a legal regime that makes us more vulnerable and trades the lives of our innocent citizens for the sake of participating in yet another unnecessary Treaty.
While some may offer hormone-driven arguments that the United States will pursue its interests without regard for Treaty constraints, history and actual practice show us that our legal community will, over time, strangle out unilateral actions in the interest of protecting our decision-makers from exposure to lawsuits or charges in an international court.
Additionally, I would suggest that the U.S.A. may be well served by resurrecting the historic use of Letters of Marque in both the war on Terrorism and the protection of our coastal environment. It is obvious that the U.S. federal government is facing many simultaneous missions that take precedence over traditional offshore environmental protection activities. This necessary overextension, arising from the war on terror, results in shortages of vessels and crews required for environmental patrols. Letters of Marque, last used during the War of 1812, effectively enabled privateers to destroy the Barbary Pirates and is a concept whose time has come, again! American fishermen and merchant seamen idled by quotas, regulation, and predatory foreign competition can be mobilized to patrol the marine environment. They can also be authorized to seize terrorist assets and provide material assistance to the families of Americans victimized by terrorism and awarded punitive damages by U.S. Courts. Such modern-day privateers would be legally deputized to act as agents of the U.S. Courts, the President, Congress, or American state governors to protect the environment or fight terrorism by depriving terrorists of their economic assets.
Finally, I urge all Senators and Senate Committee Chairmen to exercise their inherent oversight rights and responsibilities and fully vet this Treaty for its manifold impacts upon the United States. The Treaty contains taxation, legal, borrowing, natural resource, military, and intelligence issues that need to be explored in depth by the Finance, Judiciary, Interior, Armed Services, and Intelligence Committees. In addition, I would further urge a mandatory review by Homeland Security and law enforcement interests.
The most vigorous supporters of the Treaty are largely a constellation of narrow single interest groups who are willing to overlook Treaty shortcomings, so long as their pet rock is included. There is also an interesting psychological phenomenon I call the "Unrequited Love Syndrome" that characterizes some experts who, after 30 or so years of involvement in the Treaty, would rather accept a defective treaty than leave this world with an unfinished legacy. Only vigorous and complete oversight by the Congress will provide the big-picture assessment necessary to determine whether this Treaty is in our collective national interest.
The United Nations & Its Agencies
The Threat of Radical Islam
More on the Threat of Radical Islam
Terrorism & U.S. Homeland Security
Peter Leitner presented the foregoing statement, on March 24, 2004, as testimony at hearings of the U.S. Senate Committee on
Environment and Public Works -- Committee oversight hearings to examine the United Nations Convention on the Law of the
Sea, i.e., the proposed Law of the Sea Treaty (LOST).
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