Hearings - Testimony
Full Committee "United Nations Convention on the Law of the Sea".
Tuesday, March 23, 2004
Frank J. Gaffney, Jr.
President and CEO Center for Security Policy

Mr. Chairman, Members of the Committee: It is a commonplace for witnesses to express their appreciation for the opportunity to testify before this and other panels of the U.S. Congress. Rarely, I suspect, has such an expression been more heartfelt than is mine today. After all, but for Senator Inhofe’s initiative, the Senate may well have taken no testimony at all from critics of the Law of the Sea Treaty (LOST) before this body was asked to debate its merits and consent to its ratification.


Such a situation would be a travesty in terms of Senate procedure and would effectively have precluded what has rightly been called “the World’s greatest deliberative body” from being able to deliberate on this immensely significant accord in an informed way. As a former legislative assistant for Senator Henry M. Jackson and professional staff member for the Armed Services Committee during the chairmanship of Senator John Tower, I have enormous respect for the Senate’s constitutional responsibility to provide a “sanity-check” on international treaties. That role simply cannot be properly performed if, as the Senate Foreign Relations Committee insisted, only official and other supporters of the treaty are permitted to discuss its attributes.


Therefore, Mr. Chairman, please accept my grateful appreciation for your efforts to ensure that the record will reflect not only the enthusiasm for this treaty expressed by its admirers, but also the considered opinions of Americans who believe the Law of the Sea Treaty to be fatally flawed and inconsistent with our national interest.


I am by training and experience a specialist in national security matters, not the environment. As it happens, some of the concerns I have about LOST’s defects with respect to the former could also have adverse repercussions of an environmental nature. In this brief testimony, I will try to highlight the Treaty’s deleterious implications for the Nation’s military, intelligence and self-defense capabilities while focusing principally on what might be called its negative “environmental impacts.”


Unwisely Empowering the U.N.


The first such impact will flow from the mandate the Law of the Sea Treaty provides for a supranational agency to regulate seven-tenths of the world’s surface. This agency, known as the International Seabed Authority (ISA), has the exclusive right to regulate what is done, by whom, when and under what circumstances in subsurface international waters and on the sea-floor. In addition, it will have considerable say over what goes on upon the oceans’ surface, as well. As with all such organizations, it will be staffed by unelected and unaccountable international bureaucrats.


Unlike other, far less powerful UN entities, however, the International Seabed Authority will operate without the benefit of what amounts to “adult supervision” provided by the Security Council. The United States will be, at best, one among many countries represented in the ISA. Conceivably, due to membership rotation, there could be times when it might not even have a vote – to say nothing of a veto – over decisions taken by that body.


Overriding U.S. Environmental Concerns and Practices?


What might such decisions entail? Thanks to the regulatory powers granted by the Law of the Sea Treaty, the ISA could decide, for example, to issue permits for deep-sea oil or gas exploration and exploitation just beyond our 200-mile Exclusive Economic Zone – without regard for the views of members of this Committee, the Congress more generally or the American people who may consider such activities to be environmentally unsound.

Not only could those concerns be shunted aside as the United States would be, at best, outvoted. An international tribunal created to adjudicate and enforce ISA decisions could levy penalties for any efforts to impede such activities once authorized by the International Seabed Authority – even if we had reason to be fearful that such activities posed an environmental hazard to our coastal areas. Worse yet, the ISA and its tribunal are authorized to ask member states to enforce its judgments, possibly leading to conflict.


Environmental implications could be exacerbated by the ISA’s authority to apportion drilling and mining rights to other nations who may be less scrupulous than American companies in complying with environmental standards and practices this country holds dear. Such apportioning could occur even in situations where this country’s companies provide the research, seed investment and fees – the first a UN agency has ever been allowed to levy – associated with securing the required ISA permits.


An Invitation to World-Class Graft?


Worries about the sorts of decisions UN bureaucrats might make that could harm American environmental and other equities have only been heightened by recent press accounts. According to successive investigative reports in the Wall Street Journal, there is evidence of systemic corruption and malfeasance on the part of senior UN personnel – and, in the case of the Secretary General, one of his relatives – in connection with the Iraq Oil-for-Food programs. The House International Relations Committee has announced its intention to investigate this evidence. The Senate would be well-advised to conduct its own inquiry.


At the very least, I would respectfully submit that Senators cannot responsibly act on the Law of the Sea Treaty until they can satisfy their constituents that turning over to a new UN bureaucracy the authority to make decisions about and generate revenues from what could be billions of dollars worth of ocean-related commerce will not amount – literally – to a license to steal on an unprecedented scale.


Eroding America’s Rule of Law


Even if LOST could somehow be prevented from enabling a massive new UN kleptocracy, it will likely have a corrupting effect on one of our most cherished principles: the rule of law.


The rulings of the tribunal set up by the Law of the Sea in Hamburg, Germany will, after all, have implications for more than our sovereignty and environment. They could effectively supplant the constitutional arrangements that govern this Nation.


Even without LOST, as Judge Robert Bork has recently noted, U.S. courts have begun to inject the decisions of international judges and judicial bodies into domestic legal proceedings. LOST and its tribunal could accelerate this phenomena, corroding one of our Republic’s more fundamental principles – namely, that American laws duly fashioned by Congress and signed by the President form the ambit within which U.S. jurisprudence predictably operates.


Disarmed Against Enviro-terrorism?

Yet another “environmental impact” could arise from limitations the treaty imposes on measures we might take to assure our national security and homeland defense. If, for instance, foreign vessels operating on the high seas do not fit into one of three categories (i.e., they are engaged in piracy, flying no flag or transmitting radio broadcasts), LOST would prohibit U.S. Navy or Coast Guard vessels from intercepting, searching or seizing them.


As you know Mr. Chairman, such constraints would preclude President Bush’s most important recent counterproliferation measure – the Proliferation Security Initiative (PSI). The same would be true, however, if the crew of the foreign ship was engaged not in the sort of activity the PSI is meant to interrupt (namely, the covert transfer of weapons of mass destruction and/or related equipment), but in the shipment of heavy crude oil or other toxic materials that could cause an environmental disaster were the vessel to be blown up or scuttled in or near our waters.


Impeding Research on Global Warming?


Finally, I understand that the Russian government is taking the position that U.S. surface vessels may not engage in research concerning global warming – a subject I know to be of considerable interest to you, Mr. Chairman and other members of this Committee – within the Arctic waters they have declared, pursuant to this treaty, to be part of their territorial waters and Exclusive Economic Zone. I am informed that such data collection could be vital to the President’s efforts and yours to understand the true nature, extent and implications of global warming.


We could, of course, assign this collection task to submerged submarines. The U.S. Navy (which officially supports this treaty) is understandably reluctant to do this, however, given myriad, competing demands on these vessels’ time at sea. There is also the problem that LOST deems submerged transit and collection of intelligence (an activity for which the Russians might consider “global warming research” to be but a cover) inside territorial waters to be inconsistent with the Treaty’s requirement that foreign vessels conduct themselves in such waters only with “peaceful intent.”


In short, our adherence to the Law of the Sea Treaty would legitimate Russia’s objections to our research in important areas of the Arctic and complicate our ability to perform it there.


The Bottom Line


Unfortunately, considerations like those I have mentioned are only part of what makes the Law of the Sea Treaty incompatible with U.S. national interests. I would ask that I be permitted to provide for the record several articles that I have recently written that amplify on my concerns with respect to LOST’s defects from a national security and intelligence perspective.


Suffice it to say, Mr. Chairman, a number of other Senate committees would be very well-advised to emulate your initiative in examining the Law of the Sea Treaty’s implications for their respective oversight portfolios. While staff of the Senate Armed Services Committee have indicated that Chairman Warner intends to hold a hearing on this subject next week, the Intelligence, Commerce, Energy, Governmental Affairs and Finance Committees have yet to evidence any interest in following suit.


Given the stakes for the Nation’s equities in the areas for which these panels are responsible, a failure to examine the sorts of hard questions I have raised with you today is tantamount to a dereliction of duty. I very much hope, Mr. Chairman, that your leadership in affording an opportunity for such questions to be posed before this important Committee will encourage your counterparts and colleagues also to subject the Law of the Sea Treaty to the critical examination it so clearly requires.


Such reviews will, I am confident, serve further to underscore the points I have made here today about the inadvisability of U.S. ratification of the Law of the Sea Treaty. I recommend that the full Senate not consider this accord until they are completed. I further respectfully suggest that, once the necessary oversight has been performed, Senators vote to reject this clearly defective treaty on national security, sovereignty and economic, as well as environmental, grounds.



After service in staff positions in the United States Senate from 1976 to 1983, Frank J. Gaffney, Jr. held senior positions in the Reagan Defense from 1983 to 1987. He is currently the President of the Center for Security Policy in Washington.


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