GOP in sneak move to pass U.N. treaty
Critics say 'Law of the Sea' would cripple defense, help terrorists
By J. Michael Waller
2004 Insight/News World Communications Inc.
A United Nations treaty awaiting confirmation before the Senate, national
security experts warn, would, if approved, cripple the U.S. Navy, empower
potential enemies including China, make the nation vulnerable to submarine
cruise-missile attack, and help terrorists.
Nonetheless, momentum has been building stealthily in the Senate to ratify the
treaty. And this time Republicans can't point fingers at their liberal
Democratic colleagues or even at the former Clinton administration.
The culprits behind the sneak move, Capitol Hill sources say, are senior
Republican senators and key figures in the administration of President Bush.
At issue is the U.N. Law of the Sea Treaty, or LOST, which has been in the
works since the 1970s, when the Soviet Union and the so-called Non-Aligned
Movement tried to use the United Nations to wrest control of the seas from the
United States and its allies.
Under LOST, a global U.N. agency called the International Seabed Authority, or
ISA, would take control of the world's oceans, seven-tenths of the earth's
surface. The ISA would not be accountable to dues-paying members but would be a
self-financing entity imposing a tax on countries that exploit natural
resources on the ocean floor.
In 1982, President Ronald Reagan refused to sign the treaty, officially called
the U.N. Convention on the Law of the Seas, UNCLOS. But President Bill Clinton
signed it in 1994, claiming that provisions that attack U.S. interests had been
changed, and asked the Senate to ratify it.
The Republican-controlled Senate sat on it. Today, Senate Foreign Relations
Committee Chairman Richard Lugar, R-Ind., has been quietly but forcefully
pushing LOST through the ratification process under a sense of priorities that
mystifies some of his colleagues.
Lugar's committee has given LOST precedence over consideration of other pending
international agreements to fight weapons proliferation and terrorism. In
October 2003 the liberal Republican held two days of hearings and permitted
only treaty supporters to testify.
After a State Department official working on the Senate staff drafted the
resolution of ratification, Senate sources tell Insight, the committee
"refused" to provide other Senate armed services and intelligence committees
with the text and opposed a State Department briefing sought by an Intelligence
Committee staffer.
Without listing names of those present, the Senate Foreign Relations Committee,
by unanimous consent, advised passage of the treaty. Senate sources say
proponents planned to bring LOST before the full Senate without debate for a
voice vote that would have shielded lawmakers from certain public wrath.
State Department officials and Vice President ***** Cheney say they support the
treaty because it provides an international legal framework for competition for
the oceans' resources.
A U.S. ambassador stated in 2002 that Washington supported ratification,
saying, "We intend to work with the U.S. Senate to move forward on becoming a
party."
Apparently President Bush, preoccupied with waging the war on terrorism and
winning a second term in office, had never even heard of the treaty until
earlier this year, when conservative friends brought it to his attention,
sources close to the president say. By that time the Senate Foreign Relations
Committee "unanimously" had recommended that the treaty be ratified even though
its chairman never allowed a single critic to explain why the U.N. convention
was a bad idea.
The treaty appeared ready to sail through the Senate without the customary
discussion and troubleshooting until a handful of conservatives ran a sword
through it in March. Some met with President Bush and alerted him about their
concerns.
"There is an element within the Bush administration that wants this treaty
ratified," said Free Congress Foundation president Paul Weyrich, who is
appealing to grass-roots activists to show their opposition.
The pro-LOST element, according to Weyrich, gained "the upper hand."
Not for long. Frank Gaffney, president of the Center for Security Policy, blew
the whistle loud and long, and with a handful of others, magnified by
talk-radio hosts including Rush Limbaugh and online news services such as
WorldNetDaily.com, alerted grass-roots conservatives.
Sen. James Inhofe heard the call. Chairman of the Senate Environment and Public
Works Committee, the Oklahoma Republican jumped into action, claiming
jurisdiction over LOST because the convention governed environmental issues and
his committee had not been alerted.
He invited two informed witnesses: Peter Leitner, a senior strategic trade
adviser in the Office of the Secretary of Defense who had been following the
development of the treaty for more than 30 years; and Gaffney, a former senior
Reagan Pentagon official who has dissected other flawed treaties, including the
1997 Chemical Weapons Convention, and was a major force behind the discrediting
and ultimate abrogation of the 1972 Anti-Ballistic Missil Treaty. Unlike Lugar,
Inhofe invited both sides to testify.
That hearing, held March 24, blew a shotgun blast into the treaty's chest and
all but ensured that it would not reach the Senate floor in the near future.
Leitner, who had been part of the U.S. LOST negotiating team, testified as a
private citizen who had written a book about the treaty:
"This seriously flawed document was rightly rejected by President Reagan, as it
embodies a wide range of precedents, obligations and restrictions that are
deleterious to American national- and economic-security interests. Indeed, the
treaty and its many precedent-setting provisions is a direct assault on the
sovereignty of the United States and the supremacy of the nation-state as the
primary actor in world affairs."
As worded, LOST would deny the United States the right to intercept terrorist
vessels or proliferators, according to Leitner. The President's Proliferation
Security Initiative, designed to battle proliferation of weapons of mass
destruction with as little effect on commerce as possible, would be illegal
under the treaty.
"This U.S.-led, multinational program of high-seas interdiction and vessel
boarding is barred by the Law of the Sea Treaty yet it is our overriding
national-security interest to execute," Leitner said.
"Ratification of the treaty would effectively gut our ability to intercept the
vessels of terrorists or hostile foreign governments even if they were
transporting nuclear weapons. We must ensure that we are not binding the
government of the United States to a legal regime that makes us more vulnerable
and trades the lives of our innocent civilians for the sake of participating in
yet another unnecessary treaty."
Even worse, according to Leitner, is what he calls "the creation of yet another
international court where the United States or our citizens can be dragged
before politically motivated jurists to adjudicate and set penalties."
The treaty imposes limitations "on measures we might take to ensure our
national security and homeland defense. If, for instance, foreign vessels
operating on the high seas do not fit into one of three categories (i.e., they
are engaged in piracy, flying no flag or transmitting radio broadcasts), LOST
would prohibit U.S. Navy or Coast Guard vessels from intercepting, searching or
seizing them," Gaffney testified.
So who could be behind such a scheme?
"The most vigorous supporters of the treaty are largely a constellation of
narrow single-interest groups that are willing to overlook treaty shortcomings
as long as their pet rock is included," Leitner says.
And the supporters are not just left-wing activists and bureaucrats. Many in
the oil industry favor the treaty as a way of providing an internationally
accepted regime for underseas drilling. The Navy, still dominated by admirals
who received stars for political correctness under the Clinton administration,
supports the evenhandedness of a multilateral approach to governing the seas.
According to a report by the Congressional Research Service, CRS, of the
Library of Congress, "The increasing number of claims made by other states over
offshore high-seas areas -- such as territorial sea, fishing zones, economic
zones -- were expected to limit freedom of navigation to an unacceptable extent
and increase the likelihood of international disputes over access to the
world's oceans."
LOST limits areas "over which states may claim jurisdiction" and "protects
high-seas freedoms" throughout states' 200-mile exclusive economic zones and
"innocent passage" through territorial seas, as long as those activities (in
the words of the treaty) are not "prejudicial to the peace, good order or
security of the coastal state."
That's all well and good, military analysts say, but the United States "already
benefits" from these provisions "on the basis of customary international law,"
according to the CRS report.
The State Department disagrees with treaty critics.
"As the world's leading maritime power, with the longest coastline and the
largest exclusive economic zone in the world, the United States will benefit
more than any other nation from the provisions of the convention," John F.
Turner, assistant secretary of State for Oceans and International Environmental
and Scientific Affairs, told Inhofe's committee.
His specific testimony, with point-by-point rebuttals of critics, was one of
the most comprehensive and specific pieces of political action yet produced
under the Bush administration.
A professional environmental activist before his State Department appointment,
Turner said that while LOST "addresses seven-tenths of the earth's surface,"
the ISA "does not."
He denied that LOST gives the United Nations the authority to levy taxes but
acknowledged what he called "revenue-sharing provisions" and "administrative
fees" for oil, gas and deep-seabed mining operations.
The ISA, he claimed, "has no authority or ability to levy taxes."
He urged senators not to worry about LOST's International Tribunal for the Law
of the Sea, saying that in a dispute "the United States would elect two forms
of arbitration rather than the tribunal." And he stated that, under the 1994
Clinton amendments, "there is no transfer of wealth and no surrender of
sovereignty."
Turner testified, "The mandatory technology-transfer provisions of the original
convention were eliminated in the 1994 agreement" by President Clinton.
Even the navigational language in LOST is dangerous to U.S. interests. The CRS
report, titled "The Law of the Sea Convention and U.S. Policy," says LOST
compels submarines in territorial seas to "navigate on the surface and show
their flags."
That requirement presents major problems for the United States. Among them, it
would make American submarines vulnerable to attack by forcing them to reveal
their locations by surfacing. It also effectively would prevent the growing
fleet of U.S. and allied special-operations submarines from being used to
infiltrate commandos into hostile areas. The current pre-9/11 language of LOST
would handicap the United States in the global war on terrorism.
As for worries that the treaty might allow Beijing to exert control in the
South China Sea, Turner was soothing: "China has consistently maintained that
it respects the high-seas freedoms of navigation through the waters of the
South China Sea."
Treaty proponents, including Turner, claim that the flawed parts of LOST were
"fixed" in 1994.
In fact, the CRS report offers three pages of unresolved issues. Among them is
a compulsory dispute-settlement requirement that the report says the Senate
"has historically been reluctant to accept," a "still to be examined ...
relationship between the various parts of the Convention and the body of
current U.S. law" and unclear definitions of how the convention "defines and
interprets" its principle that ocean resources "are the common heritage of
mankind."
Meanwhile, administration officials have been unable to answer simple questions
about all of this.
As Weyrich comments, "It is disturbing when the answer provided by the General
Counsel to the question, 'Will Americans be stopped from searching suspicious
foreign ships in our waters?' is, 'I don't know.'"
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