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U.S. LOST at sea?

James Lyons
October 5, 2007

From the days of our Founding Fathers, history has shown no president wants to leave a legacy of surrendering U.S. national sovereignty to a supranational organization. But this will become the case if the Senate — spurred by Delaware Democrat Joseph Biden — ratifies the Law of the Sea Treaty (LOST) now before it without proper debate by the Armed Services or Appropriations committees.

Sen. Biden wants to cut off debate and fast-track LOST. He is misguided. It is inconceivable to this naval officer why the Senate would willingly want to forfeit its responsibility for America"s freedom of the seas to the unelected and unaccountable international agency that would be created by ratification of LOST.

The power of the U.S. Navy, not some anonymous bureaucracy, has been this nation's guarantee of our access to and freedom of the seas. I can site many maritime operations — from our blockade of Cuba in 1962, to the reflagging of ships in the Persian Gulf, to our submarine intelligence-gathering programs — that have been critical to maintaining our freedom of the seas and protecting our waters from encroachment. All those examples would likely have to be submitted to an international tribunal for approval if we become a signatory to this treaty.

In a word, this is incomprehensible. Given the current war on terror, we cannot deny our Navy the ability to carry out legitimate naval intercept operations against vessels carrying possible nuclear weapons or other weapons of mass destruction. But such actions would be subject to LOST's arbitration deliberations — a process that in most cases would be decided unfavorably against the United States.

Regardless of what is promised by LOST's proponents, the Clinton administration did not fix the treaty's objectionable clauses. For example, ratification of LOST would subsequently require the United States to submit to mandatory dispute resolution with respect to the ability of the U.S. Navy to conduct its customary maritime operations unfettered.

Further, although LOST allows a party to exempt itself from disputes concerning "military activities," the Treaty does not define such activities, and it is therefore far from certain any U.S. decision to exempt itself from such dispute resolution will be honored by the other parties or dispute resolution bodies — particularly in light of the fact any supposedly exempt "military activity" can be framed as an "environmental activity" by those hostile to the United States.

The military's supply chain is also vulnerable to compulsory dispute resolution in this regard. The military can also be adversely affected by the LOST requirement that all state parties take all measures necessary to "prevent, reduce and control pollution of the marine environment from any source" (Article 194). This requirement could also adversely affect the military's civilian supply chain and the industrial processes involved with supplying the military.

Signers must refrain from even the threat of force against the territorial integrity or political independence of any state. Both Iran and North Korea would fall under this requirement. LOST requires submarines to travel on the surface and show their flag in territorial waters. This constraint would damage the Navy's ability to conduct many of its vital intelligence-gathering operations.

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