From the October 29, 2007 National Review Online
October 29, 2007
by John Fonte
Will Americans rule themselves or be ruled by others — this is to be a great question of the 21st century. An opening scene is currently being played out in the U.S. Senate concerning international courts and supranational institutions.
The Bush administration and the leaders of the Senate Foreign Relations Committee are pushing ratification of the United Nations Convention on the Law of the Sea (UNCLOS or LOST). The U.N. convention established a transnational institution, the International Seabed Authority, to regulate maritime activities for over 70 percent of the earth's surface.
Supporters contend that it is in America's interests to join. The core argument is that we need "a seat at the table" to influence the rules. Thus, Sen. Richard Lugar (R., Ind.) declares, "we are allowing decisions that will affect our Navy, our ship operators, our off-shore industries . . . to be made without U.S. representation." Most important, the supporters insist, is that sovereignty and security decisions remain in American hands.
Let us examine the details. Under UNCLOS, disputes between the United States and other parties are settled by "mandatory" (i.e., forced) arbitration. The final decisions are made either by a permanent International Tribunal for the Law of the Sea in Hamburg or by an ad-hoc court. The Hamburg tribunal consists of 21 judges chosen by member nations, many of them unfriendly to the United States. An ad-hoc court would consist of five judges, two chosen by the U.S., two chosen by the other party. The crucial fifth judge is chosen either by the secretary general of the United Nations or the Hamburg tribunal. The decisions are "final" and "binding" with no appeal.
International-law professor Jeremy Rabkin points out that when the Cambodian communists seized the USS Mayaguez in Cambodian waters in 1975, President Ford responded with military force to rescue American sailors and free the ship. He notes this type of action would be problematic under UNCLOS. For example, if a treaty signatory (e.g., China, Burma) seized a U.S. ship in its home waters, under the terms of Law of the Sea Treaty, the U.S. could not free her sailors by force, but would have to submit to mandatory arbitration by the Hamburg tribunal or an ad-hoc court, where the U.S. could very likely lose the case. In any event, vital decisions over American security and American lives would not be made by Americans, but by foreign judges, many of them unsympathetic to American interests (coming as they often do from third-world regimes or EU legal elites).
Supporters argue that member states can claim an exemption from binding arbitration for "military activities." In addition, they point out that the U.S. will attach a special "understanding" to the treaty stating that any interpretation of what constitutes "military activities" will be "defined by the United States."
However, the treaty explicitly forbids any "reservations" by a ratifying member state on substantive issues, and the special "understandings" that the Bush administration plans to add with our ratification will not fly. Under UNCLOS, the Hamburg judges will ultimately decide what is and is not a "military activity."
For example, the U.S. could issue an "understanding" that intelligence-gathering against China is a legitimate "military activity," but the transnational judges would have the last word. What is going to happen when an international tribunal rules against the U.S. and in favor of China in a naval dispute? Is an American administration going to suddenly withdraw from UNCLOS and alienate the so-called "international community"? Unlikely.
A phalanx of serious defenders of American sovereignty have risen to oppose LOST. Many are former Reagnauts including Edwin Meese, William Clark, John Lehman, John Bolton, and the indefatigable organizer, Frank Gaffney, Political opposition is growing. Senators Vitter (La.), Inhofe (Ok.), DeMint (S.C.), Kyl (Ariz.), Sessions (Ala.), Ensign (Nev.), Lott (Miss.), Cornyn (Tex.) and McConnell (Ky.) and Presidential candidates Fred Thompson, Mike Huckabee, Tom Tancredo, and Duncan Hunter have denounced the Treaty. John McCain said he "would probably vote against it." Mitt Romney says that he "has concerns" about the treaty "giving unaccountable international institutions more power."
Retired (and therefore free to speak his mind) admiral James "Ace" Lyons (former Pacific Fleet commander) declared that it is was "inconceivable" why the "Senate would willingly want to forfeit its responsibility for America's freedom of the seas to . . . [an] unaccountable international agency." At the philosophical level, Admiral Lyons speaks for the "warrior ethic" that is currently battling with the "lawyer ethic" for the soul of Navy (and the other armed services).
Indeed, the essential arguments of treaty supporters are pure international lawyerese —we are told that UNCLOS will somehow "guarantee" our maritime rights. Meanwhile the State Department would have a seat at the table with 155 other nations in a "one nation–one vote" situation at the International Seabed Authority. We would have as much influence as we do in the U.N. General Assembly, where we are constantly outvoted.
The ultimate question of democratic politics is who "decides." If LOST is ratified, the "deciders" will be foreign courts, not American elected leaders. At the deeper level, the battle over the Law of the Sea Treaty is another round in what promises to be a century-long conflict over the meaning of democratic decision-making between the forces of American self-government and the supporters of "global governance," the so-called "transnational progressives."
John Fonte is a Senior Fellow and Director of Hudson's Center for American Common Culture.
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