Sen. Richard Lugar of Indiana, the Senate Foreign Relations Committee’s ranking Republican member, hit upon an important point that is at the heart of the problems with LOST: seabed mining. He asked Oxman to address the “problem” of seabed resources. “Who do they belong to?” Oxman responded that this would be determined by the Council set up under LOST, which sets regulations for seabed mining, and that the U.S., would deny itself a seat at the table of the rule-setting body by not ratifying LOST.
Moreover, said Oxman, the seabed provisions which President Reagan had found unacceptable had been fixed by the 1994 agreement fixing the treaty. Frank Gaffney retorted that the 1994 agreement “didn’t fix anything,” and then he and Oxman argued back and forth on this point.
Sen. Bob Corker (R-Tenn.) got to an even more important point, however, saying he was “a little concerned” regarding the issues of pollution and global warming, mainly how those could be used to leverage the treaty into inflencing activity on land. He asked Bernard Oxman to address this concern (Corker suggested he had yet to make up his mind on the treaty, saying he was “independent” on the issue, and was at the hearing “trying to learn” more about it.)
In his response, Oxman said that the treaty had been drafted and negotiated by experts on maritime matters, not experts on land activities, and that the treaty said “very little” on pollution on land. The treaty’s language on this, he said, is “very tentative,” and mainly in the form of a “hortatory best-effects provision,” Article 207. This provision reads as follows:
1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.
2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.
3. States shall endeavour to harmonize their policies in this connection at the appropriate regional level.
4. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.
5. Laws, regulations, measures, rules, standards and recommended practices and procedures referred to in paragraphs 1, 2 and 4 shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment. (Text of the treaty here.)
Oxman acknowledged that this is a “valid concern,” but said that treaty would place “no land-based standards” on the U.S.
Corker then asks Frank Gaffney to follow up. Frank said it is “preposterous to say this is hortatory language,” and empahized the treaty’s use of the word “shall.” Indeed, this is what opens the greatest possibility of unforeseen consequences. Fred Smith added further, that, “Hortatory language may not mean much in much of the world, but in America, hortatory language can carry severe consequences, because we take treaties very seriously.”
Fred then asked about New Orleans: Would pumping out so much dirty water in the wake of Hurricane Katrina have exposed the U.S. to legal action over pollution if it had been a sigantory to LOST at the time?