One of the most interesting entries into the debate over the Law of the Sea Treaty during the last few days comes from University of Miami law professor Bernard Oxman, who recently testified in favor of LOST before the Senate Foreign Relations committee opposite CEI President Fred Smith. In a letter to the editor responding to a Wall Street Journal op ed opposing LOST by former Reagan Attorney General Edwin Meese and National Security Adviser William P. Clark, Professor Oxman notes that President Reagan stated in 1982 that, “While most provisions of the draft convention are acceptable and consistent with U.S. interests, some major elements of the deep seabed mining regime are not acceptable,” and goes on to argue that now those objectionable provisions have been fixed, so the treaty should be ratified.
Yet it’s hard to see Reagan — or anyone genuinely concerned about American sovereignty — merely dismiss the concerns aired by Sens. Bob Corker (R-Tenn.) and David Vitter (R-La.) during Oxman’s testimony (which I noted in earlier posts) about the treaty in its current form.
Responding to Sen. Corker’s concerns that the treaty could be leveraged by international lawyers to regulate land-based sources of pollution, Oxman said that the treaty said “very little” about land pollution, and that its language on this topic is “very tentative” and mainly in the form of a “hortatory best-effects provision.” The relevant provision, Article 207, states:
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.
It’s not hard to see how such language could be leveraged to force the U.S. to adopt environmental, and other, regulation through the courts, without any input from Congress. As Fred noted at the same hearing, “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.” Such language should make it clear that the treaty has not been “fixed.”