02 Aug 2007 More Law of the Sea Debate

Doug Bandow had an article in the American Spectator Monday, harshly critical of the Law of the Sea Treaty (LOST):

In short, the LOST is unsalvageable. It reflects the collectivist political environment within which it was first negotiated. Protecting navigational rights and the ocean environment are legitimate, even important, goals, but the provisions advancing these ends should not be paired with creation of a redistributionist regulatory regime for the ocean’s floor.LOST advocates have made much of the president’s support for the convention, and the White House has launched a sustained campaign to co-opt Republican Senators and conservative activists. But the Bush administration long ago abandoned the traditional limited government, market-oriented tenets of conservatism. That it is pushing a treaty that establishes a collectivist system most notable for inefficient bureaucracy simply confirms that the administration has lost its ideological soul. Conservatives must say no to the LOST.

On Tuesday, the American Spectator printed two letters to the editor. The first, by Robert J. McManus of Kile Goekjian Reed & McManus, pllc, says, in part:

…former Secretary of State George Shultz supports accession, and he also sets the record straight on the position of the sainted Ronald Reagan, whose 1982 refusal to sign is often trotted out by the dwindling band of sneering treaty opponents as emblematic of conservative orthodoxy on this issue. Said Shultz: “It surprises me to learn that opponents of the treaty are invoking President’s Reagan’s name… During his administration, with full clearance and support from President Reagan, we made it very clear that we would support ratification if our position on the sea-bed issue were accepted.”…[Bandow] reveals much when he refers to the current Part XI as “redistributionist.” If some form of sharing in resources beyond national jurisdiction be “redistribution,” then he must also believe that such oceanic resources belong exclusively to those with the power and technology to snatch them first. Well, I guess it’s a position.

As general counsel of NOAA, (and a former Alternate U.S. Rep to UNCLOS), I participated in the 1982 decision not to sign the unamended text. I (and the Secretary of Commerce for whom I worked) were criticized at the time for favoring efforts to rewrite Part XI, on the oft-stated grounds that the treaty was simply “unsalvageable” (Bandow’s word). The ensuing 12 years showed that the nay-sayers were wrong, but they will never say die and admit error, and they therefore applaud politically noisy treaty opponents who spread outrageous misstatements about the text of the treaty, on the web and elsewhere.

The second letter was by husband David, who wrote:

Doug Bandow’s “An Administration LOST at Sea” does a great job of outlining many of the shortcomings of the Law of the Sea Treaty. To his list, I’d like to add a few more that are often overlooked.For one, the treaty requires all underwater vehicles to travel on the surface of the water to exercise the right of “innocent passage.” This is a radical departure from previous agreements, which applied only to submarines. This represents a new security threat as it would mean that unmanned underwater vehicles used for mine detection would be required to surface, rendering these vehicles ineffective and making our ships more vulnerable to attack.

Second, the treaty contains provisions that — contrary to proponents’ claims — could harm the marine environment. It requires states that cannot harvest the entire allowable catch in certain areas to make the surplus available to other nations, especially developing nations. Since the treaty makes re-acquiring harvest rights difficult once surrendered to a developing nation, coastal nations may seek to use the entire catch by whatever means are necessary. This may contribute to damage of marine resources.

Third, the treaty has the potential of making oil and gas exploration more difficult, not easier, as its proponents have suggested. The treaty requires state parties to “prevent, reduce and control” pollution of the marine environment, including “through the atmosphere.” A by-product of burning oil and gas is CO2, CO2 is a greenhouse gas, and environmental activists argue that global warming is destroying the coral reefs, home to some of the ocean’s most biologically-diverse eco-systems. You do the math.

For these reasons, and those mentioned by Bandow, the Law of the Sea Treaty needs to be scuttled.

Today, for this blog, David penned a few words in response to Mr. McManus’ letter:

To allay conservative concerns over the Law of the Sea Treaty, Robert J. McManus assures us that Ronald Reagan would back the treaty, citing testimony by George Shultz saying so.Perhaps he missed it while serving as general counsel of NOAA (where, he notes, he “participated in the 1982 decision” not to sign the treaty unless changed – a rather interesting, yet ambiguous choice of words), but conservatives were not entirely convinced of Mr. Shultz’s commitment to conservative principles back when he was Secretary of State. They’re unlikely to be convinced of them now.

The fact is that the Law of the Sea Treaty’s environmental provisions would vastly increase the potential for environmental litigation that could either hold up or stop resource exploration. This doesn’t seem to bother McManus — perhaps not surprising given that this would be a boon to his profession — but it should bother most conservatives. These provisions are at odds with the beliefs of most conservatives, including Ronald Reagan, who once quipped during a visit to Indiana: “If the federal government had been around when the Creator was putting His hand to this state, Indiana wouldn’t be here. It’d still be waiting for an environmental impact statement.”

After winning hard-fought concessions, it can be difficult to watch them go down with the rest of the ship. This may explain why so many of those who worked on the Law of the Sea Treaty are fighting so vociferously for its ratification, despite its obvious shortcomings.

But the ship should be sunk nonetheless.

My two cents: Mr. McManus says George Shultz “sets the record straight on the position of the sainted Ronald Reagan,” claiming that, according to Shultz, Reagan now would back ratification. The record is not as straight as Mr. McManus would have readers believe: Ed Meese says Reagan would still oppose it.