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LOST Justice By: Frank J. Gaffney Jr.
The Washington Times | Wednesday, October 17, 2007

I am not a lawyer. But you don't need to be one to recognize a legal train-wreck in the making. And that is what recent events portend if the U.S. Senate agrees to ratify the U.N. Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST) in the next few weeks.

Consider two ominous indicators of trouble ahead. The first was evident in the lengthy discussion justices of the U.S. Supreme Court had last week during their consideration of a Texas court case in which "universal jurisprudence" aspires to trump American law. As the brilliant prosecutor-turned-essayist, Andrew McCarthy, put it in Human Events (http://www.humanevents.com/article.php?id=22836), the matter before the Supremes in Medellin v. Texas is the following:

"Mexico sued the United States in the World Court and (surprise) won by a vote of 14-1 — with international jurists, who hail from such human-rights bulwarks as China, Egypt and Sierra Leone, ruling that the United States had treated its detainees shabbily. As if this weren't rich enough, the tribunal further presumed to order the United States to review and reconsider the convictions and sentences of 51 Mexican nationals on death row."

In other words, the stacked deck International Court of Justice (a k a World Court) sought to override laws involving the death penalty democratically adopted by the people of Texas.

Even The Washington Post found the spectacle of President Bush aligning himself with the transnationalists in this case to be an unacceptable derogation of U.S. sovereignty. In an Oct. 11 editorial, the paper declared, "The justices should again reaffirm the supremacy of U.S. courts to decide questions of U.S. law, including treaties." The editorial concluded with the wishful thought: "With any luck, the country won't soon have to face another constitutional mess of this type."

The second straw in the wind came in the form of an Oct. 14 op-ed in The Washington Times by Tom Donahue, president of the U.S. Chamber of Commerce. In it, he appealed to the Supreme Court to resolve punitive damages litigation arising from the devastating 1989 oil spill in Alaska caused when the Exxon Valdez ran aground. Mr. Donahue argues that, "The Supreme Court should take the case to settle and reaffirm the longstanding law of the sea" on a question of corporate responsibility for a ship captain's conduct. Otherwise, "Plaintiffs' lawyers will pocket millions, perhaps even billions of dollars. The losing defendants, of course, would have to pass their losses on to customers in the form of higher prices. Jobs losses might well follow, pension funds and individual workers who owned the company's stock could take a hit and America"s competitiveness would suffer in the global marketplace. It is the Supreme Court's responsibility to prevent that."

These commentaries have two things in common. (1) The sources are both on the record in support of the Law of the Sea Treaty. And (2) if the United States becomes a party to LOST, the problems they seek to alleviate will become much, much worse.

After all, the treaty identifies the World Court as one of four "arbitral tribunals" that must be used to resolve disputes under LOST. Just as in the Medellin case, the deck will be stacked against the United States in all of these panels. Worse, the accord dictates their rulings are binding and final.

In other words, Medellin may indeed prove to be the "last time" the Supreme Court confronts such a "constitutional mess" — but only because its right to do so will be permanently circumscribed by the Law of the Sea Treaty. And, far from being able to render definitive judgments on law of the sea matters like those raised by the Exxon Valdez case, our justices hereafter may be reduced to serving as little more than bailiffs for their international betters, enforcing edicts handed down from Hamburg or The Hague.

One would hope even laymen in the U.S. Senate, to say nothing of the attorneys who populate the membership of its Judiciary Committee, would want to consider carefully such implications of the Law of the Sea Treaty.

For that matter, one would expect those who serve on the Senate's armed services, intelligence, homeland security, finance, energy and environment committees to want to do the same — if for no other reason, to understand how their respective jurisdictions will be diminished by this accord.

Sadly, as of this writing, not one of these committees has indicated a willingness to perform due diligence on LOST. Such behavior is all the more irresponsible in the face of evidence uncovered by the intrepid Cliff Kincaid of America's Survival: Environmental and other plaintiffs' lawyers are preparing precisely the sorts of suits of which Tom Donahue warns for the day when the U.S. accedes to the Treaty and can be targeted (http://www.usasurvival.org/docs/burns.pdf). Only, at that point, the Supreme Court will no longer be "responsible for preventing that."

As with Medellin, President Bush has aligned himself with the transnationalists on the Law of the Sea Treaty. Now it is up to the American people to ensure that our government — particularly our legislature and our courts — continue exclusively to rule us, in accountable ways pursuant to our republican constitution. We must start by ensuring that our senators do their homework on LOST — and then reject its ratification.

Frank J. Gaffney, Jr. is the founder, president, and CEO of The Center for Security Policy. During the Reagan administration, Gaffney was the Assistant Secretary of Defense for International Security, the Deputy Assistant Secretary of Defense for Nuclear Forces and Arms Control Policy, and a Professional Staff Member on the Senate Armed Services Committee, chaired by Senator John Tower (R-Texas). He is a columnist for The Washington Times, Jewish World Review, and Townhall.com and has also contributed to The Wall Street Journal, USA Today, The New Republic, The Washington Post, The New York Times, The Christian Science Monitor, The Los Angeles Times, and Newsday.

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