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 “understandings” 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 a 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 at the Hudson Institute.