The most incisive, focused, and pointed questions came from Sens. Jim DeMint (R-S.C.) and David Vitter (R-La.). Sen. DeMint said he found it “terribly naive” to suggest that the Law of the Sea Treaty would create “a predictable framework.” He compared the LOST Council to the U.N., where the U.S. is often outvoted by a wide margin, and noted the absence of a U.S. veto. He asked Adm. Clark how the U.S. not being signatory to the treaty negatively affected the U.S. military. The Admiral replied that without the navigational rights enshrined in the treaty, the U.S. Navy would need permission at several sensitive maritime points, as as “every time we pass through a strait.” Sen. DeMint briefly interjected that the U.S. enjoys such rights already.
Bernard Oxman argued that the treaty does include a one-nation veto, in section 161.8d, which reads:
Decisions on questions of substance arising under the following rovisions shall be taken by consensus… [Emphasis added] (LOST text here.)
A text search of the treaty for every occurrence of the phrase “questions of substance” did not yield a definition. By setting the bar high enough for what constitutes “of substance,” a majority could well make it impossible for member states holding minority positions to exercise their veto.
Sen. Vitter said he had some real concerns about LOST, especially its arbitration provisions, which, “in the current international environment…are likely to be stacked against us.” He asked Oxman to confirm that if the parties to a dispute cannot choose an arbitrator, then a third party chooses three of five arbitrators. And who could that third party be? “The Secretary General of the United Nations,” said Oxman, which he made sure to point out, is currently South Korean — an irrelevant point, since the position could well be occupied by someone corrupt and hostile to the U.S. Oh, wait, it recently has.
“I think that’s a recipe for disaster for us,” said Sen. Vitter, adding that thee is no “threshold” for defining jurisdiction.
Oxman responded that the treaty does not compel the passing of new laws, but that “Article 213 requires us to enforce those laws” that do exist. Vitter asked, “Then why is it in the treaty?” — to which Oxman responded that the enforcement provisions are “framework provisions.” Here’s what Article 213 says:
States shall enforce their laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources. [Emphasis added.]
Finally, Sen. Vitter closed the hearing by noting that he did not believe that the Committee had considered the treaty properly, especially considering that the mix of witnesses to date has been a lopsided nine for and two against. “I don’t consider that enough,” he said, and suggested that there should be “at least an additional hearing.”