Law of the Sea Meets ‘Legacy Time’

As the Bush Administration spends more and more time creating its legacy, the worst collection of initiatives are those that whittle away at American sovereignty.  President Bush is many things to many people but he is most clearly a multinationalist.  He is playing too nice with UN-types and Europeans eager to diminish our sovereignty in the name of supranational authority.  This clearest example is the Law of the Sea Treaty (LOST), conceived back when socialism was considered the future.  It now serves as the proxy for other, failed efforts, such as the Kyoto Protocol on “global warming.”

While the focus on LOST is over the rules it establishes for ocean travel and deep-seabed mining as well as the submission to United Nations’ taxing (fee levying”) authority, few are looking at the green pages interspersed among the others.  With far less detail there is clearly as much environmental authority included to crush the US economy in LOST as there is in the Kyoto “global warming” treaty.  Every reason the Senate has for not ratifying Kyoto applies to the Law of the Sea Treaty, but with even greater urgency because — despite the rejection of LOST by President Reagan — President Clinton signed it and now Bush is urging the Senate to ratify the pact before he leaves office.

The United States signed Kyoto on November 12, 1998 and never rescinded that signature. There is nothing in the Constitution or law impeding the Senate from voting on the duly signed Kyoto today.  One of the most important reasons they have not done so is the surrender of US sovereignty to foreign regulators and courts that are not responsible to American voters and circumscribed by our Constitution. 

Both Kyoto and LOST purport to regulate Parties’ land-based pollution, and as such also provides a vehicle for far-reaching unconstitutional regulatory regimes.  Unlike Kyoto, however, LOST has a Tribunal, one which made clear in an early ruling that it will decide its own scope and jurisdiction for Parties subject to its authority, ad hoc.  This Tribunal would have authority over Americans and their economy, and would be unaccountable under our laws or limited by our Constitution.

It seems certain that Kyoto — if ratified — would ultimately prove enforceable (against the U.S.), pursuant to a 1920 Supreme Court decision in Missouri v. Holland which held that that treaties trump state law.  This would be done domestically, in U.S. courts, which is admittedly not great comfort.

LOST has a more immediate prospect of imposing its terms on us including Kyoto-style “global warming” provisions that we have elected not to adopt. This is found in Section 207, “Pollution from land based sources”, requiring that we “shall adopt laws and regulations” to prevent, among other things, “global warming” or otherwise emissions of compounds that could, e.g., increase ocean acidity.  This is followed by other lengthy environmental Articles and an even more detailed Section 6 mandating enforcement of LOST’s requirements.

Trial lawyers and pressure groups cannot get this authority soon enough, given that this means LOST governs, for example, how much coal we can burn — it has even already been used to block construction of a planned nuclear power plant in Europe, which only emits water vapor.  As such it represents attainment of the environmentalists’ long-sought goal of inserting the global judiciary into our energy supply mix.

This ugly truth has prompted LOST enthusiasts to go to great lengths to dismiss the plain language of the “pollution” provisions, telling us that to take them literally is being overly technical.  One of them who testified before a Senate panel this month is also on record in a European journal counseling LOST’s Parties and Tribunal to exercise restraint in imposing the pact’s authority until the U.S. safely on board as a ratified party..

This Senate has limited itself to two hearings on LOST, both heavily stacked in favor of treaty proponents, with even Republican Senators, like Bob Corker (Tenn.) most loudly proclaiming an open mind and desire to learn only to dismiss opponents as they sought to answer his queries.  This may be a more even platform than the U.S. will receive should the Senate ratify, but was unseemly nonetheless.

The Bush administration is working with Democrats, reliable multinationalists such as Richard Lugar (R-Ind.), and apparently newcomers looking to make a name such as Corker to push LOST thru to the floor.  It currently waits approval by the Foreign Relations Committee. Further hearings, as Sen. David Vitter (R-La.) is likely to request, would put the lie to such assurances, and reveal that “hortatory” language is found not in mandatory Articles but, say, the “Preamble”.  So they are being resisted.

For example, LOST’s Preamble asserts that we aspire to “realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked.”  You should prepare to respect that language, as the Senate seems unaware that at urging of none other than the U.S., the Preamble to the WTO agreement’s nod to “sustainable development” was soon elevated to an enforceable right.

In sum, not only is claim that LOST’s Kyoto-style provisions are “merely hortatory” unsupportable, but the U.S. is firmly on record arguing against there being any such thing as “mere hortatory language” when it comes to these agreements.  It seems a safe bet that the UN’s LOST Tribunal will agree.

If one believes that we should reverse longstanding policy, both of the past two administrations and a decade of Senate inaction, to now become subject to Kyoto-style terms, then submitting to the Law of the Sea Treaty makes perfect sense.

If, however, one does not believe that Kyoto is a good deal for America, then the consistent position is to oppose subjecting the U.S. to the Law of the Sea Treaty.  It is utterly inconsistent to be both opposed to Kyoto and in favor of LOST as written.

The United States has signed over 400 treaties that the Senate has decided against ratifying.  This number is too high and the practice of gesture-signatures must stop.  But the number should not be reduced by ratifying what is likely the worst among all of them, the Law of the Sea Treaty.