' Frank J. Gaffney, Jr.
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Jewish World Review May 5, 2004 / 14 Iyar, 5764

Frank J. Gaffney, Jr.

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Lost at sea


http://www.NewsAndOpinion.com | Washington will be treated tomorrow morning to the closest thing it is likely to see in the nature of an informed debate about one of the most problematic treaties ever negotiated — the Law of the Sea Treaty (LOST) — at least, that is, if Senate Foreign Relations Committee Chairman Richard Lugar has his way. No fool, Sen. Lugar has understood that the only chance LOST has of ever being ratified by the U.S. Senate is if his colleagues are buffaloed into voting for a giant leap towards "world government" without properly understanding this treaty's myriad, negative implications for U.S. sovereignty, security and economic interests.


Toward that end, Chairman Lugar has been seeking to get LOST on the Senate calendar ever since he rammed it through his committee last February. Since none of the members had been exposed to any critique of the Treaty (only proponents were allowed to testify at two Foreign Relations hearings held last Fall) and since President Bush was said (without his knowledge) to favor ratification, the vote was unanimous and the early action Sen. Lugar hoped for seemed likely.


Fortunately, as this column and others raised an alarm about the seriously troubling contents of an accord born of the Left's long-discredited "New International Economic Order," more and more Americans — in the Senate and out — have expressed serious misgivings about acceding to the Law of the Sea Treaty. Hearings have subsequently been held in Sen. Jim Inhofe's Environment and Public Works Committee and Sen. John Warner's Armed Services Committee and critics were allowed to participate in each. More hearings now appear in the offing in the Senate Intelligence Committee and possibly in one or more House panels.


Yet, tomorrow's event sponsored by the Brookings Institution marks the first time Senator Lugar will be exposed to countervailing arguments, live and in person. He has been asked to give the keynote address. It is to be hoped that he will stay to hear remarks by yours truly and Dr. Peter Leitner, a former member of the U.S. delegation to the Law of the Seas negotiations and an unrivaled expert on the shortcomings of the document that resulted from them.


If so, the distinguished Senator will learn why, 22 years after President Ronald Reagan rejected this treaty, it remains irremediably defective. Mr. Reagan opposed LOST on the grounds that it contained a number of "unacceptable" elements. These included such sovereignty-sapping provisions as: the creation of a supranational agency designed and structured to redistribute to developing nations (which will dominate its deliberations) wealth obtained from international seabeds; the required transfer of militarily relevant technology; and the setting of "undesirable precedents for international organizations."


Such precedents are particularly troubling. For example, for the first time since the UN was founded, a multilateral agency, the International Seabed Authority (ISA), would have the power to raise revenues from U.S. taxpayers if American companies wish to exploit the seabeds' resources. In addition, the ISA would have its own money-making venture, an ocean-mining organization with the Orwellian name "the Enterprise." Its work will be effectively subsidized by exploration, technology and financial resources euchred from states parties' pursuing deep-sea mining.

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In addition, the Law of the Sea Treaty has its own judiciary — the International Tribunal — which can issue edicts and render advisory opinions certain to reflect the hostility its majority will harbor toward the United States. In due course, the Tribunal could conceivably also obtain the means to enforce its rulings. (In the mid-1990's, the Navy's Center for Naval Analysis actually proposed making some U.S. warships and crews available for this purpose — so-called "blue hulls" to go with the UN's "blue helmets.")


Sen. Lugar and other proponents of the Law of the Sea Treaty (including the Navy, State Department and environmentalists who will also be represented at the Brookings meeting) contend that a 1994 pact called "the Agreement" fixed what President Reagan thought ailed the original accord. In fact, it is far from clear whether states parties or the Tribunal will actually interpret the Agreement as amending the 1982 treaty. Even if that issue did not arise, however, the Clinton-negotiated document certainly does not redress such troubling infringements on U.S. power-projection capabilities and national security interests as the following LOST provisions:


  • Article 88's statement that the high seas are "reserved" for peaceful purposes and Article 301's obligation to refrain from "any threat or use of force against the territorial integrity or political independence of any state." Do we really want formally to commit to this?

  • Article 19's proscribing from coastal states' territorial waters such activities as intelligence collection and Article 20's requirement that submarines must navigate those waters on the surface and show their flags — both of which are incompatible with standard U.S. operating practices in peacetime. These have, arguably, rarely been more needed than during the present war on terror.

  • Article 110 establishes that suspicions of terrorism or proliferation are not grounds for boarding ships on the high seas — an ability the United States has recently secured outside the UN ambit as part of President Bush's Proliferation Security Initiative (PSI). China, Russia and India have already denounced the PSI as illegal under the Law of the Sea Treaty.

The UN's conduct in Iraq — from Special Envoy's Lakhdar Brahimi's outrageous denunciation of the U.S. use of force there (seconded by Secretary General Kofi Annan) to the Oil-for-Food scandal — should give Sen. Lugar pause about taking any more giant steps towards "world government." At the very least, it can only be hoped that the Brookings seminar tomorrow, and a larger debate it should foster on Capitol Hill, will give real pause to the U.S. Senate.

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JWR contributor Frank J. Gaffney, Jr. heads the Center for Security Policy. Send your comments to him by clicking here.

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