Twenty-two years ago, Ronald Reagan determined that the UN Convention on the Law of the Sea (UNCLOS) was, like so much else about the United Nations, irremediably defective. He refused to sign it, let alone seek Senate approval for its ratification.
Twelve years later, Bill Clinton, in his inimitable fashion, judged the Law of the Sea treaty to be good-enough-for government-work. He signed the UNCLOS and asked the Senate to provide its constitutionally mandated “advice and consent” to the treaty’s ratification, blithely asserting that an agreement completed in 1994 “fixed” its flaws. This was a shameful fraud since that agreement does not even pretend to amend the treaty; it merely purports to establish controlling “interpretive provisions” in the event of disputes.
Now, surprisingly, some ten years later, the as-yet-unfixed Law of the Sea treaty has become the most pressing item on the agenda of Senate Foreign Relations Committee Chairman Richard Lugar. So much so that he is giving it precedence over treaties bearing on terrorism, cyber-crime, cooperation in law enforcement and arms trafficking that would appear, on their face, to be far more important.
More surprising still is the intensity of Sen. Lugar’s determination to blow the UNCLOS through the Senate, such that he is engaging in behavior that mocks that institution’s claim to be “the world’s greatest deliberative body”:
• Only proponents were allowed to testify before the Foreign Relations Committee during hearings on the treaty last October.
• Sen. Lugar’s panel has refused to share with several other committees whose equities would be affected by the accord the draft resolution of ratification drawn up for it by a State Department detailee. These include: Intelligence, Armed Services, Commerce, Government Relations and even Finance since the treaty creates a revenue scheme that gives the UN its first opportunity to levy taxes.
• The Foreign Relations Committee even objected to the Intelligence Committee staff receiving a State Department briefing about the treaty.
• If Chairman Lugar has his way, neither Intelligence nor any other committee will have an opportunity to hold their own, objective hearings on UNCLOS before the treaty goes to the Senate floor. In fact, it would have been on the way there before now but for an inability to muster a quorum of the Foreign Relations Committee to report it out.
It would appear that Senator Lugar is going to such lengths in defiance of traditional Senate practice and good governance principles for a simple reason: As a veteran of a number of scarring legislative battles over defective accords, he must recognize that this Law of the Sea treaty cannot stand the light of day. And that is certainly the case.
Among UNCLOS’ fatal flaws are the following:
The treaty’s Articles 19 and 20 attempt explicitly to regulate intelligence and submarine activities in what are defined as “territorial” seas. These are activities vital to U.S. security that we should ensure remain unrestricted at all costs.
UNCLOS mandates yet another UN court to adjudicate disputes under this treaty, including those arising from the aforementioned national security maritime activities. At a time when one such court the International Court of Justice is poised to deny Israel’s legitimate right to build a security fence to impede terrorist attacks, the last thing we should be doing is submitting to the jurisdiction of another one.
Treaty supporters take comfort in the fact that parties are allowed to bar dispute settlement in matters “concerning military activities.” Unfortunately, UNCLOS, does not clearly define the term “military activities.” Hence, as Pentagon official Mark Esper testified last fall, the Bush Administration saw the need for the “United States [to] submit a declaration…that its consent to accession to the Convention is conditioned upon the understanding that each party has the exclusive right to determine which of its activities are ‘military activities’ and that such determinations are not subject to review.” Since the Treaty explicitly bars reservations, though, it is predictable other parties will reject U.S. use of such a declaration.
UNCLOS learns nothing from hard experience with past accords. It bribes prospective parties with guaranteed “transfer of technology and scientific knowledge relating to activities” governed by the treaty. These include, for example, sensitive technologies directly relevant to anti-submarine warfare. President Bush recently described a counterpart provision in the Nuclear Non-Proliferation Treaty (NPT) to have been a “loophole” that has been cynically and systematically exploited to undermine the NPT. His efforts to close that one will not be advanced by opening another.
The Law of the Sea Convention remains as inconsistent with U.S. national security and economic (notably, sea-bed mining) interests as it was when President Reagan rejected it in 1984. It may be good-enough for the UN-uber alles types like Bill Clinton and John Kerry. If the American people understand what is entailed, however, it will not pass muster with them. And that outcome must not be prevented by Dick Lugar’s unworthy run-silent/run-deep gambit.
Frank J. Gaffney, Jr. is the President of the Center for Security Policy and a columnist for the Washington Times.
(This update courtesy of the Center for Security Policy.)