Experts Debunk the Myths of LOST

Samantha Leahy and Allison Cook are interns at Heritage Action for America.

Last week, the Senate’s Foreign Relations Committee – led by Senator John Kerry (D-MA) – held a hearing on the Law of the Sea Treaty (LOST), and showcased two largely contested items: veto power and authority of claims.

The International Seabed Authority (ISA)

Former Secretary of Defense Donald Rumsfeld and The Heritage Foundation’s Steven Groves – both opponents of LOST – stood firm under questioning, arguing that ratifying this treaty would encroach on American sovereignty by allowing a supranational body to collect potential royalties from our labor, and then redistribute those royalties to developing landlocked countries and state sponsors of terrorism, like Iran.

Furthermore, the money is distributed to these countries without any accountability. The beneficiaries will receive the funds without binding parameters of how they should be used. So in theory, hostile nations could use this money in ways that could threaten our national security.

“Veto” Power

John Bellinger, former legal advisor to the White House and State Department, and John Negroponte, former Director of National Intelligence, stood in stark opposition to Groves and Rumsfeld. They attempted to glorify the “authority” of the claimed U.S. veto, but Rumsfeld shed light, stating:

“It is a little confusing because it leaves the impression like the United Nations where we and other countries have a veto in the Security Council – in this instance it’s much more like our role in NATO…where it’s operated by consensus.”

The question of a United States veto power on the council was among Groves’ valid concerns. To truly cast a “veto”, an individual member must have the ability to effectively kill the proposition in question. Proponents of the treaty argued the United States would have this power. According to John Bellinger, the treaty is designed in such a way that “the U.S. would have a veto over any decision relating to administrative, budgetary, and finance matters.”

But at Heritage, international law experts have spent years searching the treaty for any language that points to such claims. While the treaty states that any member of the council can formally object and impede consensus, Groves explains, “The important part is what the treaty is silent about, which is what happens when no consensus can be reached at all.” He went on to explain that the rational explanation to this silence is that the United Nations Assembly, without consulting the council, could pass a resolution to quell the conflict. This proves that the United States would not have a “true veto,” as Bellinger and other treaty proponents seem to believe.

The ability to veto certain measures is of the utmost importance to the United States, which has interests and concerns that other nations may not share. The ability to settle our nation’s disputes in a manner that we deem appropriate is also of grave importance.

Dispute Resolution

The compulsory dispute resolution outlined in Part XV of UNCLOS provides procedural necessities that could potentially back the U.S. into a corner if a dispute arises between member states that cannot reach a voluntary agreement. In the event this all-too-likely situation comes to a front, the U.S. would be subject to defend itself through any of these four mediums: “the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, an arbitral tribunal organized under Annex VII, or a “special” arbitral tribunal organized under Annex VIII.”

“LOST isn’t a magical treaty to resolve disputes,” said an Admiral in the earlier hearing, and indeed it isn’t.  The international tribunals will determine the fate of our citizens, the decisions rendered will be domestically enforceable, and these decisions can never be appealed.

The dispute resolution procedure also provides a mechanism for our domestic activities to come under fire from environmental activists through increased international scrutiny and even lawsuits! The Responsibility and Liability provision explains: “States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.”

Senator Jim DeMint (R-SC) expressed his concerns:

“There’s three-hundred pages with environmental issues that would affect us much more than navigation issues…it’s clear that the US will be subject to suits for the environment and trade that’s out of our control.”

Yet Senator Kerry attempts to trump DeMint, after he has already left the building (a practice that became routine throughout the day):

“There is no ability to have an environmental lawsuit that would have any standing – somebody could bring a suit if they want to try, but it can’t go anywhere because the specific language of the treaty says that no environment – no one is accountable to any environmental standard that you haven’t signed up for internationally – there would be no standing under the direct, overt language of this treaty.”

Is Senator Kerry referring to the “direct, overt language,” such as “States shall adopt laws and regulations to prevent, reduce and control pollution”? If so, this phrase is littered throughout multiple provisions. This treaty is chock full of binding legal agreements and regulations that the US would only fall victim to.

Authority of Claims

But, if we don’t ratify the treaty, say proponents of LOST, then the U.S. would fail to be internationally recognized if we continue to claim territory. It’s a foolish theory concocted by proponents.

Senator Kerry fired at Groves: “We don’t have a claim. There’s no claim. What are you doing? Claiming into thin air? Claiming to God? Who are you claiming to?”

The United States has laid claims regarding the continental shelf since 1945. Proponents of LOST are arguing this idea that territory of the United States will not be “internationally recognized” if we continue to uphold the principle of Freedom of Navigation and reject joining the Convention.

Groves responded: “There is U.S. statute and regulatory framework called the Deep Seabed Hard Mineral Resources Act that allows U.S. companies to apply for licenses from the administrator of NOAA to make a claim in the deep seabed, and countries can move under those statutes and those regulations to make claims and engage in deep seabed mining, so there is a claim.”

Relying on the facts, the United States Navy has admitted that they have “never been successfully denied access to any international strait, archipelagic water or territorial sea.” Regardless of the United States’ adherence to the treaty, the Navy’s international presence will not be threatened. With the reality of the redistribution of our revenue, our Navy’s unrestricted dominance, the absence of a true veto power and judicial participation, Heritage Action believes it is imperative that the United States rejects the treaty.

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