Statement of Frank Gaffney: Hearing on the Law of the Sea Convention (October 4, 2007)
[ Page 16 ]
It is of particular concern that the LOST model could be used to cripple America’s use of space for national defense. America’s military and intelligence communities have increasingly relied – in fact have become heavily dependent – upon space assets to gather information and support terrestrial forces. Far-sighted U.S. strategists appreciate that space can only become ever-more-important as a theater of operations, with control of activities (commercial as well as military) on earth being determined by control of space.
This country’s adversaries recognize this reality, too, and are attempting to inhibit our use of space – in some cases through active means, in others via the imposition of international laws and regulations (another example of “Lawfare”). U.S. endorsement of LOST would establish a precedent that would undercut American efforts to stave off the latter effort.
[ Page 11-12 ]
Even though LOST permits a state party to declare “disputes concerning military activities” to be exempt from dispute settlement, such a declaration would very likely be the beginning of the process, not its end.
As I have noted earlier, the Treaty does not define “military activities.” At the very least, therefore, were the United States freely to assume the foregoing obligations, it would set the stage for injunctions, or other adverse rulings, against the U.S. military to be sought from one LOST dispute resolution agency or another. Given the stacked-deck nature of these mechanisms, it is far from certain that our opponents will fail.
This applies in spades to things we consider to be “military activities” but that may well be depicted by our opponents in ITLOS or arbitration proceedings as environmentally harmful activities (e.g., charges that Navy sonars are responsible for killing whales and dolphins). Importantly, in the event of any disagreement over whether an activity is military in nature, the Treaty grants to its dispute resolution mechanisms the right to make that determination themselves.
[ Page 13 ]
The Law of the Sea Treaty requires extensive transfers of data and technology – at least some of which could be highly detrimental to America’s industrial competitiveness (including in fields far removed from maritime-related activities) and to the national security. For example:
• LOST’s Article 266 mandates that states “cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions” and “endeavor to foster favorable economic and legal conditions for the transfer of marine technology.”
• Article 268 requires states to “promote the acquisition, evaluation and dissemination of marine technological knowledge and facilitate access to such information and data.”
• Article 269 calls for parties to “establish programs of technical cooperation for the effective transfer of all kinds of marine technology to States which may need and request technical assistance.” (Emphasis added.)
• Compulsory dispute settlement mechanisms afford further opportunities to obtain sensitive technology and information. Article 6 of Annex VII requires that parties to a dispute “facilitate the work of the arbitral tribunal and...provide it with all relevant documents, facilities and information.” It can therefore be expected that countries may bring the United States or its businesses before arbitral tribunals – without expectation of a favorable result, solely for the purpose of obtaining sensitive technology information.
The object of these provisions is consistent with the socialist, redistributionist and one-world vision that animated many of LOST’s negotiators: No matter what the costs may be to U.S. security and business interests, the fruits of marine research, exploration and exploitation of “the Area” – the waters covered by the Treaty – and the associated technology must be shared with developing nations, land-locked states and “geographically challenged” countries.
[ Page 19 ]
The United States was able to play a role in the Commission’s non- acceptance of Russia’s first claim to the Arctic seabed back in 2001, even though it was not a party to LOST – and, therefore, not at risk of being bound by adverse Commission decisions. This episode demonstrates that, by remaining outside of the Treaty, America can retain its freedom of action (including the use of bilateral diplomacy and more constructive multilateral mechanisms, such as the Arctic Council) and still challenge such over-reaching Russian claims and win.
[ Page 20 ]
LOST will allow interference with and the penalization of American businesses, including those that conduct research for, equip and provide logistical support to the U.S. military. It will: impose the “Precautionary Principle” (according to which innovations cannot be introduced unless proven free of any adverse consequences); give standing to Alien Torts claims in U.S. courts; require sharing proprietary information and technology with international bureaucrats and competitors; compromise WTO rights; and give precedence to European- dominated international standards. The costs of such derogations of our sovereignty could be high, perhaps even crippling, for affected businesses – including those supporting our armed forces.
[ Page 20 ]
Finally, this accord will establish problematic precedents for “managing” other, no-less-strategically-important “international commons,” including Outer Space. A number of America’s adversaries have long sought to impose arms control or other treaty arrangements that could make it more difficult if not, as a practical matter, impossible for the United States to maintain the access to and control of space required by our national security interests. If this country joins LOST, it will invite these adversaries to adapt the Treaty’s International Seabed Authority as a prototype for determining permissible and impermissible activities in space – likely in ways that will prove inconsistent with the United States’ military and intelligence requirements.
The Law of the Sea Treaty’s compulsory dispute resolution requirements and procedures are particularly problematic when taken together with a number of obligations the accord entails that are at odds with our military practices and national interests. These include commitments that:
- Reserve the oceans exclusively for “peaceful purposes” (Article 88): The United States routinely uses the world’s oceans for military purposes, including waging war against our enemies.
- Require states to refrain from “the threat or use of force against the territorial integrity or political independence of any state” (Article 301): As the world’s preeminent maritime nation, America must project power from the sea and does so with some regularity. Some would describe such power projection as contrary to “the territorial integrity or political independence” of states (most recently, for example, attacks from naval forces against the Taliban’s Afghanistan and Saddam Hussein’s Iraq).
- Proscribe the use of territorial waters to collect intelligence and conduct other operations (Article 19): For many decades, intelligence vital for American security has been collected on, below and above the oceans – including, in some cases, those considered to be “territorial waters.”
- Oblige submarines to travel on the surface and show their flags in territorial waters (Article 20). The effectiveness and perhaps the very survival of our submarines would be compromised were they to have to operate on the surface in close-in waters where they can only go with the greatest of stealth.
- Bar any maritime research except that conducted for peaceful purposes and require the coastal state’s permission for that performed in territorial waters (Article 240). Classified oceans research, including some conducted covertly, is indispensable to the U.S. Navy’s mission.
In statements in support of LOST, the United States military makes clear that it has no intention of ending such activities, and insists that it will not have to do so since “military activities” are exempted from the Treaty’s dispute resolution mechanisms. Unfortunately, this position both defies common sense and hard experience with international accords: These articles are wholly without effect if they do not apply to the military and it is predictable that America’s foes will use every opportunity afforded by LOST to ensure they do.
[ Page 18 ]
Since LOST explicitly declares that a country’s continental shelf does not include underwater ridges, the Commission’s readiness once again take up the Russian case begs the question: As so often happens in UN agencies, will political considerations influence the outcome?
The Commission currently has only two Arctic members, Russia and Norway. A simple majority vote by non-Arctic states – perhaps engineered by Russian pressure and/or bribes – could result in decisions that would be binding on all member nations. If the United States were a state party to LOST, it would likely still be outvoted, yet be obliged to accept the Commission’s unsatisfactory dictates.
In this case, the consequences of such a decision would be preposterous – even absurd: Russia would have sole economic rights to the vast natural resources of the central Arctic Ocean. This would essentially give Russia a virtual monopoly over the North Pole region.
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Inevitably, American ratification will be a major step towards the one- worlders’ agenda of global, supranational government. One prominent Transnationalist, Arvid Pardo, the former Maltan Ambassador to the UN who is credited with coining LOST’s leitmotif phrase “the common heritage of mankind,” has said that American acceptance of LOST “however qualified, reluctant, or defective, would validate the global democratic approach to decision-making.” On that score, at least, Pardo is absolutely right.