Posted on 08/10/2007 8:11:43 AM PDT by processing please hold
The Law of the Sea Treaty, a k a "LOST," the leviathan of all U.N. regulatory and environmental treaties, has again reared its ugly head, despite having been "deep-sixed" years ago by the Reagan administration.
A legacy-oriented White House is now shepherding it through a Congress whose majority enthusiastically embraces collectivist European-style environmental activism and multilateral treaty-making — at the expense of constitutionally-protected individualism and property rights.
Is the White House merely ill-informed, or has it intentionally chosen to ignore the lessons of history? Does it not recall the past decade of highly contentious trade disputes between the United States and an environmentally-obsessed and protectionist European Union, which operates on what is known as the "precautionary principle" — "I fear, therefore I shall ban."
(Excerpt) Read more at washingtontimes.com ...
I have the treaty at thirty five but it won't let the link be posted. It says read only . If permissible, I can post the opening remarks from '02.
Ping! Whose the FReeper you say beats back all the LOST detractors?
Could we step out of the treaty at a later date? Or is it binding for all time?
In April 2007, Senator Lugar and Senate Foreign Relations Committee Chairman Joe Biden asked President Bush to reiterate his support for the treaty.
On May 15, 2007, Senator Lugar wrote an essay on the importance of moving quickly on the Law of the Sea Treaty.
Also on May 15, the White House released a statement from President Bush urging the Senate to act favorably on U.S. accession to the Law of the Sea Treaty during this session of Congress. The treaty also has the strong support of the U.S. Navy.
The basic tenets of the treaty have been U.S. policy since first enunciated by President Reagan in 1982. Over the next dozen years the U.S. won in negotiations on the questionable aspects of the treaty, and signed on in 1994. The details are in the President's Message transmitting the treaty to the Senate The Adobe Reader logo.. In October 2003, Foreign Relations Committee Chairman Dick Lugar held two comprehensive hearings on the treaty. The full transcripts of those hearings are part of the 187-page committee report The Adobe Reader logo..
In the 109th Congress, Secretary of State Dr. Condoleezza Rice made a strong endorsement of the Law of the Sea Treaty at her confirmation hearing on January 18, 2005. In addition, Chairman Lugar submitted questions for the record to Dr. Rice to follow-up on the Law of the Sea. In her responses, she expresses, among other points, that the Administration supports ratification and how the treaty will benefit national security, the economy, the military, the prevention of weapons of mass destruction proliferation and the Proliferation Security Initiative.
Frantically searching for a legacy in all the wrong places -- amnesty for tens of millions of illegal aliens, the creation of a Palestinian terror state in Israel's backyard, and the undermining of American sovereignty by seeking a global redistribution of America's wealth and power to third-worlders.
There isn't anything even remotely conservative about GWB.
There is an exit clause and the Pres already has permission to use it with no further approval by Congress. Same for the 1967 UN Outer Space Treaty, which is even more onerous in the long term and also is not going to be repealed no matter what.
LOST needs to die a quick death.
That is one of the questions we asked Congressman Hunter for Monday’s Freep conference.
Dubya was known to be a Moderate at the time of 2000 elections and his father also. Chip off the old block.
When Senator Richard Lugar (R-IN) asked Condoleezza Rice during her confirmation hearings about the Law of the Sea Treaty, she replied that President Bush “certainly would like to see it passed as soon as possible.” Assuming she was authorized to deliver that shocking news, George W. Bush can no longer claim the mantle of the Ronald Reagan legacy.
The United Nations Convention on the Law of the Sea was a terrible idea when President Reagan refused to sign it in 1982 and fired the State Department staff who helped to negotiate it. It’s an even worse idea today because of the additional dangers it poses.
The acronym for the Law of the Sea Treaty (LOST) is apt. LOST is the correct word for our sovereignty that would be lost under LOST.
Republicans who oppose this giant giveaway are looking at a stunning historical model. Ronald Reagan became the conservative standard bearer when he led the fight against the Panama Canal Treaty which was supported by incumbent Presidents Ford and then Carter.
We lost the battle to prevent the Panama Canal giveaway by one Senate vote in 1977. But that battle made Reagan the undisputed leader of the conservative movement and multiplied its activists.
Hindsight teaches us that the battle was well worth fighting because it brought about the cataclysmic events of 1980: the election of a real pro-American conservative President plus the defeat of most of the internationalist Senators who voted for the giveaway.
Conservatives are currently searching for a man of pro-American principles whom they can support for President in 2008. The Republican Senator or Governor who steps up to the plate can hit a home run if he leads the battle against LOST’s enormous wealth transfer to the unpopular United Nations.
The LOST is grounded in such un-American and un-Republican concepts as global socialism and world government. There is not much of a constituency today for giving more power and wealth to the United Nations, whose officials just committed the biggest corruption in history (oil-for-food) and continually use the UN as a platform for anti-American diatribes.
The LOST is so bad that it is a puzzlement how anyone who respects American sovereignty could support it with a straight face. LOST would give its own creation, the International Seabed Authority (ISA), the power to regulate seven-tenths of the world’s surface area, a territory greater than the Soviet Union ruled at its zenith.
The LOST would give ISA the power to levy international taxes, one of the essential indicia of sovereignty. This ISA power is artfully concealed behind direct U.S. assessments and fees paid by corporations, but the proper word is taxes.
The LOST would give ISA the power to regulate ocean research and exploration. The LOST would give ISA the power to impose production quotas for deep-sea mining and oil production.
The LOST would give ISA the power to create a multinational court system and to enforce its judgments. The ISA courts would have even wider jurisdiction than the International Criminal Court (to which, fortunately, we do not belong) or the World Trade Organization (which has ruled against the United States a dozen times and forced us to change our tax laws and import duties).
There is no guarantee that the United States would even be represented on the ISA tribunals. The whole concept of putting the United States in the noose of another one-nation-one-vote global organization, which reduces America to the same vote as Cuba, is offensive to Americans.
In the post-9/11 world, the idea of signing a treaty that mandates information-sharing with our enemies plus technology transfers is not only dangerous but ridiculous.
Of course, Bill Clinton is for the LOST; he signed it in 1994. The LOST meshes perfectly with his speech to the United Nations in September 1997, in which he boasted of wanting to put America into a “web” of treaties for “the emerging international system.”
Of course, Foreign Relations Chairman Richard Lugar is for LOST. Like Clinton, he is a Rhodes scholar and an internationalist who never saw a United Nations treaty he didn’t like.
Vice President Cheney is an advocate of LOST. He doesn’t have to listen to American voters because he will never again run for office.
Lugar’s Senate Foreign Relations Committee hearing about LOST, held without any publicity and with only advocates invited to testify, was an insult to the American people. Majority Leader Bill Frist will forfeit his chance to be in the running for the Republican nomination for President if he schedules a vote before all Senate committees affected by the LOST hold hearings with both sides represented.
The real purpose of LOST is to force the United States to use our wealth and technology to mine the riches of the sea and turn them over to a gang of Third World dictators who are consumed with envy of America. Opportunity is knocking for a Republican Senator or Governor who will lead the charge against the LOST.
The Law of the Sea Treaty (”Treaty”) was conceived in 1982 by the United Nations (U.N.) as a method for governing activities on, over, and beneath the ocean’s surface. It focuses primarily on navigational and transit issues. The Treaty also contains provisions on the regulation of deep-sea mining and the redistribution of wealth to underdeveloped countries—as well as sections regarding marine trade, pollution, research, and dispute resolution. The Bush Administration has expressed interest in joining the International Seabed Authority and has urged the U.S. Senate to ratify the Treaty. However, many of former President Ronald Reagan’s original objections to the Treaty—while modified—still hold true today, and many of the possible national security advantages are already in place.
National Security Issues
Under the Treaty, a 12-mile territorial sea limit and a 200-mile exclusive economic zone (EEZ) are established. This sets a definitive limit on the oceanic area over which a country may claim jurisdiction. However, innocent passage—including non-wartime activities of military ships—is protected. Even without the Treaty, these boundaries, and the precedent of safe passage, are protected under multiple independent treaties, as well as traditional international maritime law. Additionally, given the United States’ naval superiority, few countries would attempt to deny safe passage. However, under the Treaty, intelligence and submarine maneuvers in territorial waters would be restricted and regulated.
Environmental and Economic Issues
Former President Reagan refused to sign the Treaty in 1982 due to its innate conflict with basic free-market principles (e.g., private property, free enterprise, and competition). Twelve years later, the Clinton Administration submitted to the U.S. Senate a revised version of the Treaty. This revised version allegedly corrected many of the original objections to the Treaty, but still failed to receive Senate ratification: Therefore, the United States’ provisional participation expired in 1998. The Treaty still requires adherence to policies that regulate deep-sea mining, as well as forcing participants to adopt laws and regulations to control and prevent marine pollution. Additionally, under the Treaty, a corporation cannot bring suit, but must rely upon its country of origin to address the corporation’s concerns before the U.N. agency.
Reagan’s Objections
Former President Reagan’s first objection to the Treaty was the Principle of the “Common Heritage of Mankind,” which dictates that oceanic resources should be shared among all mankind and cannot be claimed by any one nation or people. In order to achieve this goal, the Treaty creates the International Seabed Authority (”Authority”) to regulate and exploit mineral resources. It requires a company to submit an application fee of $500,000 (now $250,000), as well as a bonus site for the Authority to utilize for its own mining efforts. Additionally, the corporation must pay an annual fee of $1 million, as well as a percentage of its profits (increasing annually up to 7%), and must agree to share mining and navigational technology—thereby ensuring that opportunities aren’t restricted to more technologically advanced countries. The decision to grant or to withhold mining permits is decided by the Authority, which consists disproportionately of underdeveloped countries. Technology-sharing is no longer mandatory, however, there are remaining “principles” to guide its use and distribution. Additionally, the Council has been restructured so that the United States has a permanent seat, and developed countries can create a blocking vote.
Secondly, former President Reagan believed that the Treaty would restrict the world’s supply of minerals. The Treaty was originally designed to limit the exploitation of heavy minerals in order to protect the mineral sales of land-locked, developing nations. This is no longer a severe limitation, because production limits to preserve land-based mining have been removed.
The third—and still valid—objection is that mandatory dispute resolution restricts autonomy. Either a U.N. court or tribunal must mandate maritime issues involving fisheries, marine environmental protection, and preservation, research, and navigation. A country may opt out if the dispute involves maritime boundaries, military, or limited law enforcement activities. Submitting to external jurisdiction creates an uncomfortable precedent. Furthermore, it weakens the U.S. argument of autonomy when it refuses to submit to the International Criminal Court. Additionally, a country must petition to be excluded from mandatory jurisdiction requirements.
Carrie E. Donovan is Production and Operations Coordinator in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.
Law of the Sea Treaty threatens sovereignty
Paul Weyrich
November 23, 2004
In 1982, President Reagan decided LOST was a Treaty that would not be in our country’s best interest to ratify, primarily because of his concern regarding the provisions governing deep seabed mining. However, our concern should extend well beyond that. LOST would have our country surrender its sovereignty on the seas to a body called the International Seabed Authority (ISA), whose membership is stacked in favor of Third World nations. If the Senate ratifies LOST, we will have given the ISA the authority to determine what rights our country will have to mine minerals located on the ocean floor and the right to tax their extraction. More than that, we also will have granted the ISA the right to regulate our transfers of military technology, even the right to determine in what situations our Navy can stop a vessel.
Conflicts involving LOST will not be settled by our country’s courts but by an international tribunal.[snip]
http://www.renewamerica.us/columns/weyrich/041123
August 2006
Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage
by David A. Ridenour
The "right of innocent passage" is the right of any nation's ships to traverse continuously and expeditiously through the territorial waters of a coastal nation, subject to certain conditions.1 Under the Law of the Sea Treaty, such passage is conditioned on passing in a manner that isn't threatening to "sovereignty, territorial integrity or political independence" or the "good order and security" of that nation.
By this definition, if the Law of the Sea Treaty was a ship, it would fail to qualify.
That's because there are serious flaws in the treaty that - if U.S. ratified the treaty - could place U.S. sovereignty, security and political independence in doubt.
This analysis of the Law of the Sea Treaty will focus on the threats to political independence, particularly as they relate to environmental policy, and to threats to security.
Background
The Law of the Sea Treaty, formally known as the Third United Nations Convention on the Law of the Sea, or UNCLOS III, was adopted in 1982. Its purpose is to establish a comprehensive set of rules governing the oceans and to replace previous U.N. Conventions on the Law of the Sea, one in 1958 (UNCLOS I) and another in 1960 (UNCLOS II), that were believed to be inadequate.2
Negotiated in the 1970s, the treaty was heavily influenced by the "New International Economic Order," a set of economic principles first formally advanced at the United Nations Conference on Trade and Development (UNCTAD). That agenda called for "fairer" terms of trade and development financing for the so-called under-developed and developing nations.3
Another way the New International Economic Order has been described is "redistributionist."
The Law of the Sea Treaty calls for technology transfers and wealth transfers from developed to undeveloped nations.4 It also requires parties to the treaty to adopt regulations and laws to control pollution of the marine environment. Such provisions were among the reasons President Ronald Reagan rejected the treaty in 1982. As Edwin Meese, U.S. Attorney General under President Reagan, explained recently, "...it was out of step with the concepts of economic liberty and free enterprise that Ronald Reagan was to inspire throughout the world."5
In additional to the economic provisions, the treaty also establishes specific jurisdictional limits on the ocean area that countries may claim, including a 12-mile territorial sea limit and a 200-mile exclusive economic zone limit.6
Some proponents of the treaty believe that the treaty will establish a system of property rights for mineral extraction in deep sea beds, making the investment in such ventures more attractive.7
Notwithstanding concerns raised about the Law of the Sea Treaty - and there have been many - the U.S. Senate Foreign Relations Committee recommended U.S. accession to the treaty in a unanimous vote in March 2004.
More than two years later, a vote of the entire U.S. Senate has yet to be scheduled.
Defense and Security Concerns
One of the concerns raised by critics of the Law of the Sea Treaty is that it could be used to sharply limit U.S. military operations. Among the examples they cite is Article 20, which stipulates: "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag."8
Proponents of the treaty counter that this provision merely establishes the conditions for invoking a "right of innocent passage" in the territorial waters of another nation.9 The "right of innocent passage" is the right of any nation's ships to traverse continuously and expeditiously through the territorial waters of a coastal nation, subject to certain conditions.10
Because Article 20 doesn't mention "innocent passage," this provision may provide opponents of U.S. military operations a pretext - albeit a fairly weak one - for claiming that the surfacing requirement applies to all U.S. submarines operating in territorial waters. Such claims would be unlikely to prevail, as it is fairly clear, based on the context, that this provision deals with innocent passage.
Advocates of the treaty also argue that Law of the Sea Treaty merely maintains the status quo for submarines passing through territorial waters because the United States is already a party to the 1958 Convention on the Territorial Sea and the Contiguous Zone which, they contend, contains similar language.11 U.S. submarines have traversed territorial waters while submerged over the past 48 years, they say, largely unaffected by the Territorial Sea Convention's surfacing requirement.
Where submarines are concerned, they appear to be correct.
But Article 20 also adds something completely new: The requirement that "other underwater vehicles" navigate on the surface.12 The surfacing requirement would thus presumably apply to Autonomous Underwater Vehicles (AUVs) and Remotely Operated Underwater Vehicles (ROVs), among others (including, presumably, the next generation of such vessels) for the first time.
AUVs, unmanned underwater drones, and ROVs, underwater vehicles controlled by operators at the surface, have numerous military applications, including mine detection and neutralization, surveillance and inspection of underwater installations and topography, among others.13
Some of these activities are otherwise consistent with the Law of the Sea Treaty's definition of "innocent passage." An AUV or ROV used to detect mines to protect a ship exercising its right of innocent passage, for example, appears to meet the requirement that it engage only in activities with "direct bearing on passage." But because these vehicles must be submerged to be used effectively they would be considered "prejudicial to the peace, good order and security of the state" by doing so, even though advancing the peace, good order and security is precisely the purpose for which they would be used.
If the U.S. ratifies the Law of the Sea Treaty, the use of AUVs and ROVs for these and other purposes could be reduced.
Opponents of the treaty also contend that it could inhibit the U.S.'s ability to pursue international terrorists and prevent the transportation of weapons of mass destruction on the sea.14 They appear to be correct.
Article 110 of the Law of the Sea Treaty specifies military ships are "not justified in boarding [a foreign ship] unless there is reasonable grounds for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting...; (d) the ship is without nationality or (e) ...the ship is, in reality, of the same nationality as the warship." Boarding of ships involved in the illicit drug trade is also permitted.15
Note that boarding of ships engaged in "unauthorized broadcasts" is considered to be justified, but boarding ships carrying terrorists or weapons of mass destruction is not.
Unauthorized broadcasting, by the way, is not only a justification to board, but for certain countries, a requirement under the treaty.16 Policymakers would be wise to remember that the U.S. has itself engaged in "unauthorized broadcasts," using such vessels as the Coastal Messenger, a mobile transmitting station for Voice of America broadcasts behind the Iron Curtain during the 1950s and 1960s.17
The treaty does permit states to pursue, apprehend and board ships for violation of other laws and regulations, too, but only if the state is in "hot pursuit" of the ship. To qualify as "hot pursuit," such pursuit must begin in the "internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursing State, and may only be continued outside the territorial sea or the contiguous zone" if the pursuit has been uninterrupted.18
States that detain ships for reasons or by means other than those prescribed in the Law of the Sea Treaty could find their actions subject to review and judgment by the International Tribunal of the Law of the Sea (ITLOS) in Hamburg, Germany.
The Law of the Sea Treaty normally gives states the option, by mutual consent, of choosing between ITLOS, the International Court of Justice or "arbitral tribunals" to settle their disputes. When agreement between the states involved in the dispute can not be reached, an arbitral tribunal would be given jurisdiction in the case.
When provisional measures are sought, however - as they likely would be when ships are detained - the rules are different. Provisional measures are akin to temporary injunctions - orders requiring one to do something or cease doing something - in the interest of preventing irreparable harm. Article 290, paragraph 5 of the Law of the Sea Treaty specifies that ITLOS would automatically adjudicate such disputes when states can not reach agreement on the method of adjudication or arbitration "within two weeks from the date of the request for provisional measures."19
As Jeremy Rabkin, professor of government at Cornell University, has noted: "The only important category of dispute where one party can force another to answer before ITLOS is when a ship has been detained on the high seas and the complaining party seeks immediate release."20
The prospects that disputes such as these taken to ITLOS would be ruled in the U.S.'s favor are poor. Many ITLOS judges, certainly a clear majority, are from countries that have either been openly hostile to the United States or are at best unreliable allies. Among the countries represented on ITLOS are South Africa, China, Russia, Tanzania, Lebanon, Brazil, Argentina and France.21
ITLOS certainly could complicate the U.S.'s efforts to interdict terrorists and weapons of mass destruction.
For example, if the U.S. chose to act on intelligence information that a foreign-flagged ship (perhaps flying the flag of Syria, Iran or North Korea) was carrying terrorists and boarded the ship, the U.S. could expect to have to answer to ITLOS.
Finally, opponents of the Law of the Sea Treaty contend that Article 88 of the treaty, which stipulates that "the high seas shall be reserved for peaceful purposes" together with Article 301's requirement to refrain from "any threat or use of force against the territorial integrity or political independence of any state" have the potential of unduly constraining U.S. defense operations on the high seas.22
Proponents counter that warships of all major powers freely travel through the high seas even though the treaty is already in force for nations that have ratified it,23 which, as of this writing, stood at 149 nations.24 But the U.S.'s circumstances are very different than those of the 149 parties to the treaty. As the world's only remaining superpower, the U.S. is the only nation capable of extended, extensive long-range maritime operations.25 What's more, the U.S. has military obligations that other nations simply do not. Many of the parties to the treaty26 don't have organized navies. Others don't have significant ones.27 Consequently, most parties to the treaty have less interest in the military implications of Article 88 than does the United States. The ratification of the treaty by these nations therefore should not be the yardstick by which the risks to U.S. military interests are measured.
Supporters of the treaty also argue that Article 301 would have little impact on U.S. military operations as the provision is the same as Article 2(4) of the U.N. Charter.28 Although these two provisions are similar, there are some key differences.
For one thing, the bodies responsible for enforcement of the Law of the Sea Treaty's Article 301 and the U.N. Charter's Article 2(4) are different.
Under the U.N. Charter, the Security Council is the principal enforcement body. The United States has a permanent seat on the security council and, as such, has veto powers. Under the Law of the Sea Treaty, enforcement responsibilities fall to such bodies as ITLOS, which, as noted earlier, is unlikely to be favorable to U.S. positions, and the International Seabed Authority (ISA), with a similarly unfavorable composition. The ISA's executive body, the Council, is composed of representatives of 36 countries, the majority of which can not be counted on to support U.S. positions. Its membership includes representatives from the Sudan, Malaysia, China, Indonesia, South Africa, Namibia, Nigeria, Kenya, Guyana, Argentina, Russia and Myanmar (name given to Burma by its military junta), among others.29
Article 301 of the Law of the Sea Treaty also has wording slightly different that the U.N. Charter's Article 2(4), replacing the more objective phrase "shall refrain from the threat" with a more subjective "shall refrain from any threat." This opens the possibility that U.S. military operations on the high seas could be inhibited when states merely "feel" threatened by them.
It is in this context that provisions such as Article 88 take on greater significance.
The Senate Foreign Relations Committee determined that the risks to U.S. military activity were sufficient enough to address them in its Committee Report. Among other things, it specified that the Senate's advice and consent for U.S. accession to the Law of the Sea Treaty be subject to the understanding "that nothing in the Convention referring to 'peaceful purposes' impairs the inherent right of individual or collective self-defense or rights during armed conflict."30
Unfortunately, the Committee did not also specify that the Senate's advice and consent to be subject to the understanding that the United States has the inherent right to defend itself during peacetime through pre-emptive action. Pre-emptive action may be required, for example, if the U.S. learns through reliable intelligence that a specific ship is carrying terrorists, weapons of mass destruction or both.
Even with such conditions, the U.S. would likely gain little advantage.
That's because Article 309 of the treaty specifies that no "reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention." While states are permitted to declare exceptions pertaining to military activities when ratifying the treaty under Article 298, such declarations would only free States from the dispute resolution process outlined in Articles 286-296. They would still be obligated to the dispute resolution requirements contained in Articles 279-285.31
Environmental Concerns
When the energy industry and environmentalists agree on an issue, one of the two likely doesn't fully comprehend the implications...
...and it's probably not the environmentalists.
Ratification of the Law of the Sea Treaty is supported by much of the energy industry, including "most of its major" trade associations32 and by leading environmental organizations, including Greenpeace, the Natural Resources Defense Council, Environmental Defense and World Wildlife Fund, among others.33
The energy and mining sectors believe the treaty will help move deep sea mining and oil exploration forward by establishing internationally-recognized title to minerals.34
So why would so many environmental groups with a history of opposing oil and gas exploration endorse this idea?
Answer: They wouldn't.
Opponents of the Law of the Treaty believe that environmentalists are using the treaty as a vehicle to achieve through international institutions that which they can't achieve through domestic ones - namely, more onerous environmental standards. This is consistent with the statements and actions of environmental groups to-date. Greenpeace, for example, has said, "The benefits of the U.N. Convention on the Law of the Sea are substantial, including its basic duties for states to protect and preserve the marine environment and to conserve marine living species."35 The Natural Resource Defense Council (NRDC), for its part, cited the Law of the Sea Treaty's environmental provisions as an argument in its challenge of the Navy's use of so-called "intense active sonar" several years ago. The NRDC said, in part, "The United Nations Law of the Sea Convention... requires States 'to assess the potential effects... on marine environment'... of systems such as high intensity active sonar, and to take all measures 'necessary to prevent, reduce and control pollution of the marine environment from any source'... The danger to marine life from... sonar... is clearly documented." The Navy ultimately agreed to scale back its use of this sonar technology.
Ratification of the Law of the Sea Treaty appears to carry with it the risk that the United States - and other parties to the treaty - may lose control of their environmental laws.
Nations have already attempted to use the Law of the Sea Treaty's environmental provisions to affect the environmental policies of others. In 1999, Australia and New Zealand appealed to the International Tribunal of the Law of the Sea (ITLOS) to shut down Japan's experimental southern blue fin tuna fishing program, citing Articles 64 and 116-119. Although the Tribunal ultimately decided that it lacked jurisdiction in the case, Australia and New Zealand did gain a temporary injunction on the program.36 More recently, Ireland sought ITLOS's help in forcing the United Kingdom to abandon its planned opening of the Sellafield MOX plant, a nuclear fuel reprocessing plant in northern eastern England, arguing that it would contribute to pollution of the North Sea. Although ITLOS did not rule in Ireland's favor, it ordered both Ireland and the United Kingdom to enter into consultations.37
In a great ironic twist, the Law of the Sea Treaty - supported by many in the energy sector - may give environmentalists a blunt instrument to use against the energy industry.
Article 212 of the treaty states, in part, "States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere... States, acting especially through competent international organizations... shall endeavor to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution."38 This sounds like a directive to impose Kyoto Protocol-style regulations designed to reduce state emissions of greenhouse gases. These gases are emitted through the use of the very products the energy industry sells.
Backdoor implementation of the Kyoto Protocol might be advanced by arguing that U.S.'s anthropogenic greenhouse gas emissions (one-quarter of such emissions world-wide) are warming the planet causing irreparable harm to coral reefs, home to the world's most biologically-diverse marine ecosystems.
Alternatively, they could argue that sea levels are rising due to U.S.-induced climate change, causing beach erosion in such countries as the Maldives, Comoros or the Seychelles. To bolster their case, they might cite Article 194(2) of the treaty which states: "States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment."
Some environmental advocates clearly believe the Law of the Sea Treaty can be used for such purposes.
Writing for Our Planet, a publication of the United Nations Environment Programme, Greenpeace International Executive Director Thilo Bode noted in 2000:
Global warming is likely to have a big impact at sea... Sea levels have risen by an estimated 10-25 centimetres over the last century, and as this continues the waters will cover land and coastal habitats in many countries... Solving the environmental problems facing the oceans... is one of the greatest challenges facing humankind... No single nation or region can do this alone: it will require comprehensive international cooperation as required by the United Nations Convention on the Law of the Sea."39
Opponents of the Law of the Sea Treaty also fear that, should the U.S. ratify the treaty, environmentalists will have an additional avenue for pursuing environmental law suits in U.S. courts. As the U.S. Supreme Court has stated, "international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for determination." This seems to leave the door wide open for the use of international law in U.S. courts.40 Further, as Frederic L. Kirgis, writing for the American Society of International Law, notes, "Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States... if they are 'self-executing'... the primary consideration is intent... that the provision become effective as judicially-enforceable domestic law without implementing legislation."41
Whether the Law of the Sea Treaty or specific provisions of the treaty meet this test will undoubtedly be subject of some debate.
Conclusion
Sufficient concerns about the implications for U.S. national security and U.S. environmental policy exist that the United States should be wary of acceding to the Law of the Sea Treaty.
These concerns, in summary, include:
* Article 20 would extend the surfacing requirement to vessels not covered under previous conventions, including those that would otherwise qualify for innocent passage such as unmanned vessels used for mine detection and other purposes.
* The Law of the Sea Treaty would impede the U.S.'s ability to capture international terrorists and confiscate weapons of mass destruction through detention of ships on the high seas. The treaty specifies that the boarding of ship is not justified except when a ship is believed to be engaged in piracy, unauthorized broadcasting, drug trafficking, is obscuring its nationality or shows no nationality. Detention of ships in a manner other than those prescribed in the treaty would subject such actions to the judgment of the International Tribunal of the Law of the Sea in Hamburg, Germany.
* Article 88's stipulation that "the high seas shall be reserved for peaceful purposes" and Article 301's requirement that parties to the convention refrain from "any threat or use of force against the territorial integrity or political independence of any state" may be used to impede U.S. military operations at sea. The Treaty's opt-out provisions for military activities would only free the U.S. from the requirement to participate in a specific dispute resolution process, not dispute resolution itself.
* The marine conservation provisions of the treaty could be used by activists to achieve through international institutions that which they haven't been able to achieve through domestic legislation.
* The conservation provisions may give environmental organizations a new avenue to pursue environmental lawsuits in U.S. courts.
* The conservation provisions may provide the means for forcing the U.S. to adopt the Kyoto Protocol or similar emissions-control schemes - schemes the U.S. has rejected.
I solidly believe that we need a Constitutional Amendment that places the authority of all treaties below the US Constitution and states that any clause or treaty that goes beyond what is permitted by the Constitution can not be enforced.
It saddens me to say it, but, I agree. Bush of 2000 - 2004 is no more.
Where’s the exit clause?
No more Amendments. Leave the Constitution as it is so we don't $#%^% it up even more.
Does this sound familiar?
Shades of the "comprehensive" immigration reform bill, a/k/s shaft the American citizen.
Who runs this country, Congress or the American people? That is not a trick question. The doofuses in DC think they do, having forgotten what "Representative Constitutional Republic" means. Lest they forget entirely, let's remind them.
If you don't represent us, our only option is to replace you!
Is that clear enough?
There is always an exit clause. Not even Congress would be so dense as to commit the country for all eternity. Would they?
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