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More LOST than Mobility By: Ryan Peterson
FrontPageMagazine.com | Friday, May 20, 2005

The political fight over the ratification of the United Nations Law of the Sea Treaty (LOST) is threatening to divide those at the highest ranks of the conservative movement.  Along with President Ronald Reagan, who rejected the international Treaty in 1982 citing comprehensive flaws, many conservatives today oppose ratification.  Yet, curiously, the United States Navy, Department of Defense, and consequently, the Bush Administration have voiced their support for the Treaty and have requested it be sent to the Senate floor.  Although their reasoning – namely, that LOST ensures and protects the navigational mobility of U.S. military vessels – is based on important concerns over national security, heedless insistence on this assured mobility has blinded them to the unforeseen secondary effects of signing onto the treaty, such as unprecedented infringements on the sovereignty of the United States.

In 2003 before the Senate Foreign Relations Committee, officials from both the Navy and the Department of Defense testified in favor of LOST.  Deputy Assistant Secretary of Defense for Negotiations Policy, Mark Esper, argued, “The Administration supports accession to the Convention because the Convention supports navigational rights critical to military operations.”  He continued, “These rights are essential to the formulation and implementation of our national security strategy.”  Similarly, Admiral Michael Mullen, Vice Chief of Naval Operations of the Joint Chiefs of Staff, corroborated, “Entry into force [of LOST] for the United States will enhance the worldwide mobility our forces require and our traditional leadership role in maritime matters.” 

Prima facie, the Administration puts forth a compelling case.  In fact, in 1974 America sought negotiations for a treaty on the law of the sea for this strict purpose:  to prevent coastal nations from excessive maritime territorial claims, which could in due course impede U.S. navigation.  American delegates, then, aimed to codify a set of universal standards for the establishment of territorial waters.  In turn, safe passage through these territorial waters, along with international waters, would be granted, all in accordance with customary international law and previous treaties such as the 1958 Conventions on the Law of the Sea.  Thus, the fact that the present-day Treaty ostensibly protects navigational mobility is a diplomatic victory in itself.


The Law of the Sea Treaty, however, is significantly more than just a regime of protected navigational mobility.  In fact, provisions specific to navigation and the protection thereof make up less than half of the actual treaty.  The remaining provisions effectively create a supranational institution, the International Seabed Authority, to govern and regulate the oceans and also a supranational judicial body, the International Tribunal on the Law of the Sea, to interpret and enforce the treaty.  And still others set forth comprehensive environmental regulations, arbitration panels, codes and procedures for the exploitation of the sea bed, protocol for marine scientific research, and also duties for the redistribution of resources and technology. 


It seems rather short-sighted then – and perhaps even a bit disingenuous – to merely evaluate LOST on the benefits it provides regarding navigational freedom.  The scope of LOST is considerably more than navigation, and while the Bush administration may tout national security concerns in its rhetoric on mobility, a closer look reveals that the Treaty may in fact undermine U.S. security.


For example, among the more problematic extra-navigational provisions are those that create mandatory dispute settlement mechanisms.  According to LOST, recourse to four judicial bodies can be made in the event of a maritime dispute:  the International Court of Justice, the International Tribunal on the Law of the Sea, or one of two arbitration panels.  In all cases, the rulings from these venues are both mandatory and binding.  The United States, then, as a signatory to LOST, would be obliged to comply with the decisions of these bodies regarding international ocean policy, which is particularly peculiar in light of the Bush Administration’s insistent avoidance of international courts with compulsory settlement measures.


To anticipate the full effect of these judicial bodies, one only needs to look at a recent ruling by the International Tribunal on the Law of the Sea (ITLOS).  In December of 2001, the Tribunal (made up of 21 elected arbiters) heard a dispute submitted by Ireland involving the potential pollution of the Irish Sea by a United Kingdom nuclear power plant.  Ireland alleged violation by the U.K. of provisions in LOST, specifically provisions obligating to “protect and preserve the marine environment.”  According to the Irish Government, the operational discharges of British Sellafield Mox Plant, a facility that recycles plutonium, could potentially cause radiological contamination of Irish Sea.  On this basis, they requested provisional measures from the Tribunal to suspend activities of the Mox plant and the transport of hazardous material to and from Sellafield.


The British disputed whether ITLOS had jurisdiction to even adjudicate the matter – one that involved predominately the activities of a power plant on British sovereign soil.  As their defense, Britain claimed that the dispute concerned preexisting regional treaties, which provided mechanisms sufficient to resolve the issue.  After all, according to Article 282 of the Treaty itself, disputes where other general, regional, or bilateral treaties exhibit competence can be excluded from the settlement mechanisms.  Essentially, Britain argued that ITLOS was not competent to interfere in the regional affairs of the European community.  This line of reasoning, consistent with the treaty, sought to effectively circumscribe the jurisdiction of ITLOS to those cases that cannot be resolved bilaterally.


ITLOS, however, did not agree.  Instead, they ruled that the preexisting regional treaties cited by the British did not “deal with disputes concerning the interpretation and application” of LOST specifically.  In its opinion, the Court stated, “since the [Mox] dispute…concerns the application and interpretation of [LOST] and no other agreement, only the dispute settlement procedures under [LOST] are relevant to that dispute.” 


The implications of this jurisdictional decision are sweeping.  Essentially, the dispute settlement procedures under LOST are relevant to any dispute concerning the interpretation and application of the Treaty.  As a comprehensive treaty that entails virtually every aspect of the oceans and maritime activity, there simply is no limit to this jurisdiction.  Any nation that contends a violation of LOST by another can file suit and be tried necessarily under one of the four dispute settlement mechanisms – as demonstrated  by the Mox Case.  What is more, activities on sovereign soil that may eventually affect the oceans do not reside outside of this purview, notwithstanding the countless activities that actually take place on the sea. 


Among the many provisions Ireland cited to demonstrate Britain’s culpability was Article 192, which states, “States have the obligation to protect and preserve the marine environment.”  The untold generality of this provision could potentially be employed to indict virtually any U.S. activity that may harm the marine environment, including activities on U.S. soil or even those activities of nuclear powered warships.  Vital U.S. interests could be left in the hands of international arbiters – most likely ones who hold contempt for the U.S. and its unparalleled military force.


The military’s evaluation of LOST is a noble but myopic one.  Navy officers and officials in the Department of Defense maintain very limited equities regarding LOST (i.e. navigational mobility).  And simply because this Treaty confers those protections to its members, all of the Treaty is supported without due consideration of the whole:  the International Seabed Authority, the International Tribunal on the Law of the Sea, the environmental regulations, the arbitration panels, along with the other endless codes and procedures prescribed in the Treaty.  The negative effects of the Convention on U.S. maritime interests, and perhaps even domestic interests, are without limit and far outweigh the benefits.


Uncompromising protection of US sovereignty and defense of American interests in the face of international threats and detractors has been the primary theme of George W. Bush’s Presidency thus far.  Unfortunately, that legacy will stand in jeopardy if the US submits to a clearly restrictive and hostile international treaty on his watch.  It would behoove the Bush Administration, then, to abandon its evaluation of LOST on the sole basis of navigational mobility, and consider as well the provisions that will give opponents of US foreign policy the wherewithal to hamper US objectives by way of debilitating “lawfare.” Perhaps then they will understand why Ronald Reagan opposed the Treaty so staunchly 23 years ago, and why it remains just as important to oppose it today.

Ryan Peterson is the John Tower National Security Fellow at the Center for Security Policy.

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