Posted on 03/24/2005 7:35:12 PM PST by Retain Mike
Commentary
"River Kwai Syndrome" Plays in Law of the Sea
Frank J. Gaffney Jr.
Proceedings, March 2005
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In 1957, Hollywood created the unforgettable image of military men throwing themselves into a construction project, having lost sight of the fact that the result could be used by the enemy to the grave detriment of their comrades and country. Unfortunately, nearly 50 years after The Bridge on the River Kwai entered the public consciousness, the Navy seems afflicted with the same syndrome as it encourages U.S. ratification of the controversial U.N. Convention on the Law of the Sea.
The Navy's official support for this convention (better known as the Law of the Sea Treaty, or LOST) is not new. Navy lawyers have argued for more than two decades that the treaty would be in the service's interest, codifying international law concerning freedom of navigation, even though it was negotiated in a diplomatic context openly hostile to U.S. military and economic might and dedicated to reducing U.S. advantages. Even when President Ronald Reagan determined the treaty was not in the larger national interest, the Navy urged U.S. accession.
Today, LOST supporters claim the treaty has been "renegotiated" to erase Reagan objections regarding seabed mining and sovereignty issues. In fact, LOST's current text is identical to the one President Reagan rejected in 1982.
Given LOST's objectionable pedigree, the absence of skepticism among the U.S. military services is alarming. The Joint Chiefs of Staff should take a much harder look at this vast and controversial treaty while they can. At minimum, they should ask themselves: If LOST is a treaty about the Navy's combat mobility and national security, why is the ratification effort being led by State Department environmentalists and whaling foes?
In the absence of such reflection, the Navy's abiding enthusiasm for LOST is doubly pernicious. Treaty proponents are using it to suppress critics and impel the Senate's approval as soon as possible. Should that happen, the effect will be to provide the Navy's foes—both at home and abroad—with a powerful weapon for impeding, or blocking, the Navy's performance of vital missions:
LOST gives opponents legal grounds for challenging Navy operations such as intelligence collection in and submerged transit of territorial waters. LOST does not include suspicion of terrorism or weapons of mass destruction as legitimate reasons for intercepting and boarding ships on the high seas, the essence of President George W. Bush's Proliferation Security Initiative. LOST requires "international cooperation" with respect to whales, creatures some contend are threatened by the Navy's use of certain active antisubmarine sonars. If the United States is a party to LOST, it will face two unpalatable choices when its activities in these and other areas are challenged by nongovernmental organizations or unfriendly governments: It can submit to compulsory dispute resolution, or it can take up the issue with the treaty's Law of the Sea Tribunal.
For good reason, the United States historically has refused to agree to compulsory dispute resolution, a position previously endorsed by the U.S. Senate. It should continue to do so.
As with other politicized international panels (notably, the World Court and World Trade Organization), the United States should expect to find itself outvoted in LOST's multilateral tribunal. At the least, the Law of the Sea Tribunal will produce new judicial rulings that will prove problematic in their own right. They also will be cited by activist judges in this country in rulings against U.S. naval and other interests. Frankly, State Department and Navy lawyers are likely to encourage preemptive self-restraint in the interest of avoiding adverse findings by the tribunal—in the process, effectively preventing the execution of potentially critical missions.
LOST's proponents blithely point to language allowing parties to exclude "military activities" and assert that we alone will decide what constitutes such activities. In practice, however, the tribunal has complete latitude to determine its jurisdiction. Given the decidedly anti-American trend in U.N.-related bodies of late, it is folly to believe the Law of the Sea Tribunal's judges will respect our efforts to protect Navy and Marine brown-water operations and sea basing by declaring them outside the treaty.
Fortunately, the United States and its Navy can continue to enjoy freedom of navigation without becoming party to the Law of the Sea regime. Just as it has done for the past 22 years, the United States can conform to international law in this area and address bilaterally any issues that arise (as was done with the EP-3 incident with China in 2001). Such an approach maximizes U.S. leverage and minimizes the risks associated with multilateral compulsory dispute resolution or tribunals.
The good news is there is growing awareness in the Senate and among the naval services' supporters that the Law of the Sea Treaty is defective on national security, sovereignty, economic, and judicial grounds. As a result, the U.S. military has an opportunity to withdraw its support for LOST—support that is as misplaced today as was helping the Japanese build a strategically critical bridge over the River Kwai in World War II.
Frank Gaffney held senior positions in the Reagan Defense Department. He currently is president of the Center for Security Policy in Washington, D.C.
When is this idiocy going to finally be LOST for good??
I don't know but someone needs to drive a stake into the heart of this thing for good. As usual we are our own worst enemies it seems.
This global bureaucracy will justify control of land use to "protect" the marine environment. It isn't hard to see. Many oceanic species breed in estuaries within the United States. Estuarine health isn't doing very well for a number of reasons (many of which politicized science will conveniently miss). The estuaries are fed by rivers. The rivers are lined with cities.
Marine sanctuaries and global biospheres are model for what is planned for LOST. If all we accomplish is to alter the treaty to gain protection for our military, we will have missed the point.
LOST is a straitjacket fully capable of crippling this nation (which certainly affects its ability to defend itself). That the White House says it knows nothing about it belies the fact that, according to the email I get from ALRA, the White House and Chuck Hagel are the instigators in pushing this treaty through in the dark of night after the Reagan Administration had rejected it out of hand.
RE: Given LOST's objectionable pedigree, the absence of skepticism among the U.S. military services is alarming.
I get the impression that a vast majority of our current military leadership subscribe to fictions such as "we are beyond the end of history" (Francis Fukuyama) and "there will be no more wars between great powers thanks to the Golden Straightjacket and the Fast World (Thomas L. Friedman)"
With such grave errors in overall strategy, I can see them making this blunder.
Please provide a link for this. Thank you.
I don't think I can provide a link, because you have to go through a member login. I can do a link to the Naval Institute site. Is that what you want?
Great points! I'm not sure I can come up with the mental energy and time I would like for the Naval warfare issues, so I will leave those aspects of the treaty to you.
Family emergency, so Sunday did not work. Try again on Tuesday.
The Naval Institute site is www.usni.org.
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