Irony of ironies: The principal champion of the Law of the Sea Treaty (LOST) is the United States Navy. Yet predictably few organizations would suffer more than America's naval forces from a supranational government of the oceans empowered by U.S. accession to that treaty.
The absurdity of this situation was on display last week as the Navy's former senior officer, retired Chief of Naval Operations Vernon Clark, testified before the Senate Foreign Relations Committee. Adm. Clark waxed on about LOST as "a Magna Carta for the oceans that guarantees navigation freedoms throughout the world's largest maneuver space." The committee's ranking Republican, Sen. Richard Lugar of Indiana, declared in about as many words that, if the Navy wants the treaty, the Senate should give it to them. Period.
Fortunately, a necessary corrective was offered the next day by another distinguished retired four-star, Adm. James "Ace" Lyons. In an article in The Washington Times' Commentary pages, the former Pacific Fleet commander in chief declared: "It is inconceivable to this naval officer why the Senate would willingly want to forfeit its responsibility for America's freedom of the seas to the unelected and unaccountable international agency that would be created by ratification of LOST."
Adm. Lyons appreciates a reality apparently overlooked by those promoting the Navy's official line on LOST: The treaty entails obligations that are at odds with the U.S. sea services' routine operations; involve sweeping commitments to protect the "marine environment" the Navy will almost certainly contravene; and institute several tribunals to prosecute complaints that arise in these or other areas.
Of all institutions, the Navy should be alive to the dangers that such a treaty entails. After all, the service's civilian leader, Secretary Donald Winter, for one has expressed grave concerns about the impact domestic environmentalists and their litigiousness currently have on Navy and Marine Corps' operations.
Such challenges are likely to pale by comparison with the edicts handed down by multilateral tribunals whose deciding votes are, in every instance, selected by international bureaucrats (in the case of one arbitral panel, by the U.N. secretary-general himself). A recent paper written by Dr. Jeremy Rabkin for the American Enterprise Institute under the provocative title, "Do We Really Want to Place the U.S. Navy Under International Judicial Supervision?" makes clear that, by so doing, we would open ourselves to expanded attacks via "Lawfare" — the technique of using treaties, courts and international law as an asymmetric weapon against us:
"It is estimated that the United States has more practicing lawyers than all other countries put together. Separation of powers and an active, independent judiciary invite challenges to decisions of officials in the executive branch, just as we scrutinize and challenge so many other institutions in our society. What that means is that it is much harder for the United States to shrug off international legal claims than it may be for more centralized or repressive countries such as China."
Faced with this worrisome prospect, the Navy's lawyers blithely contend the Law of the Sea Treaty permits "military activities" to be exempted from the mandatory dispute resolution mechanisms. On this basis, they believe the U.S. can continue with impunity practices flatly prohibited by various treaty provisions. (These include, for example, requirements that the seas be used and marine research be performed exclusively for peaceful purposes; submarines transit territorial waters on the surface; and no collection of intelligence take place within those waters).
What would happen if, despite our protests, the treaty's arbitral panels wind up being used as other LOST enthusiasts clearly intend, as a means of interfering with the Navy's activities? How about if the arbitrators assert their jurisdiction and judge the Navy — or perhaps, as Adm. Lyons suggested, civilian contractors essential to equipping its forces or their logistics — to be violating one or more provisions of the accord? A uniformed lawyer recently had a remarkable, if wholly impracticable, answer: "We'll abrogate the treaty."
Could it be that the Navy's official stance on LOST is less an accurate indication of the merits of that treaty than a measure of the increasingly parlous state of the nation's sea service? In a characteristically insightful Sept. 21 New York Times op-ed, best-selling author and visiting professor at Annapolis, Robert Kaplan wrote: "China['s]... production and acquisition of submarines is now 5 times that of America's. Many military analysts feel it is mounting a quantitative advantage in naval technology that could erode our qualitative one. Yet the Chinese have been buying smart rather than across-the-board. In addition to submarines, Beijing has focused on naval mines, ballistic missiles that can hit moving objects at sea, and technology that blocks G.P.S. satellites. The goal is 'sea denial': dissuading American carrier strike groups from closing in on the Asian mainland wherever and whenever we like."
The fact Adm. Ace Lyons felt compelled to do the almost unthinkable — break ranks with Navy colleagues of decades duration — is a shot across the proverbial bow: Those in the Senate tempted to justify their inattention to the details of the Law of the Sea Treaty on the grounds that the military "wants" it now must fulfill their constitutional responsibility to provide rigorous quality control on this accord. If they do so, they are bound to act as Ronald Reagan did and reject this defective treaty, sparing both the Navy and the nation its negative repercussions.