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Mugged by Legality?
A recent case should dissuade Dubya from ratifying the Law of the Sea treaty.


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It is one of the truisms of politics that a conservative is often enough a former liberal who has been “mugged by reality.” The line comes to mind in the wake of President Bush’s decision Thursday to allow the Navy to ignore a federal court order and continue training with powerful sonars off the West Coast of the United States. Case law and court decisions threatened to end this naval training, which is essential to U.S. national security. Having seen how far American judges would go to undermine U.S. interests, the episode should be a wake-up call to the president to resist ratification of the Law of the Sea Treaty, which would subject U.S. maritime interests to international judges who care even less for American security.

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For decades, the Navy’s Judge Advocate General Corps has been in a lather to get the United States into the Law of the Sea Treaty (LOST). Were it not for those lawyers’ idée fixe — namely, that U.S. adherence to LOST is essential to the execution of the military’s power-projection and mobility missions — it is unlikely that George W. Bush would have decided to seek the ratification of LOST. His administration — like Ronald Reagan’s did 23 years ago — would have refused to subject the United States to this controversial international accord.

LOST’s objectionable provisions include the following:

  • This accord, which its proponents call a “constitution of the oceans” — infringes unacceptably on American sovereignty.

  • The treaty imposes curbs on military operations inconsistent with routine U.S. practice and national-security requirements.

  • It empowers a U.N. agency with authority to exercise control over the world’s oceans, seabeds, and even the airspace above them.

  • This agency — the International Seabed Authority — will have what amounts to the power to impose taxes in the form of various levies and fees, an ominous precedent for any supranational body.

  • It will also be able to decide who will be allowed to develop the resources on and beneath the ocean floor and to require transfers of technology and proprietary data from developed nations’ companies to international bureaucrats and third-world states.

  • Particularly worrisome are numerous, sweeping provisions requiring “protection of the marine environment” that could give rise to obligations to impose stricter environmental requirements than those of the Clean Air Act or Clean Water Act.

  • Underlying all of these requirements is the Luddite “precautionary principle,” a European-derived legal tenet according to which a country must guarantee that a proposed action will not cause any environmental harm before it can proceed.

  • Worse yet, LOST requires that any disputes about the reach and implementation of these and other treaty provisions be submitted to mandatory international dispute-resolution bodies, the findings of which are binding, with no appeal.

The Navy (and its sister services) are already hobbled at the hands of environmental activists using domestic courts to interfere with military operations. The practice has proved to be such an effective asymmetric weapon that it has come to be known as “lawfare.”

A case in point is the 2007 civil suit brought against the Navy by the Natural Resources Defense Council. The NRDC — a leftist organization whose “green” agenda often serves as a cover for anti-military activism — sought an injunction against the sea service on the grounds that its use of high-power sonar constituted violations of federal environmental statutes.

The Ninth Circuit Court of Appeals recently ruled that the Navy’s plan for protecting marine mammals off the West Coast during sonar training was inadequate, and ordered the case back to U.S. District Court Judge Florence-Marie Cooper. Judge Cooper proceeded to ban sonar use within 12 nautical miles of the coast and mandated shutdown procedures when the Navy spotted marine mammals. All this in spite of the fact that the Navy already employs 29 procedures to lessen the impact of sonar on marine life.

So egregious would be the impact of these rulings that the Navy urged President Bush to declare it exempt from the laws that Judge Cooper had interpreted to prevent sonar training. In so doing, he declared the sonar training to be “in the paramount interest of the United States.” He added that, “This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security.”

Fortunately, the president currently enjoys the latitude to prevent the creation of what would amount to sonar-free sanctuaries in strategically sensitive areas (notably, off San Diego), perhaps to be exploited by the very quiet submarines now proliferating in Chinese and other hostile navies. He not only recognized that such threats demand that our sailors receive the most effective sonar training possible; he took steps to ensure that they received that training. Today, the president is able to assign higher priority to their safety — and the nation’s security — than to the alleged impact of sonar on sea-life.

The bad news is that, if Bush’s Navy-impelled call for the Senate to ratify the Law of the Sea Treaty is approved, neither he nor his successors would likely be able to exercise such a waiver. In that event, if environmentalists turn to the Treaty’s tribunals and/or arbitral panels to enforce provisions more restrictive than U.S. laws (a safe bet), the Greens would very likely prevail. Hard experience tells us that international jurists all too often exhibit indifference towards, if not outright hostility to, American equities and positions. Such judges will ignore Navy protestations that they cannot interfere, asserting that the activities in question are not military ones exempted under the Treaty, but environmental predation explicitly prohibited by it.

Sadly, an increasing number of federal judges in this country believe they must submit to the dictates of international tribunals and, for that matter, organizations and conferences. Ironically, the Bush administration itself has filed a brief with the Supreme Court in connection with the now-pending Medellin v. Texas case to the effect that a ruling of the International Court of Justice trumps domestic law.

The current importuning of the Navy to protect its operations from environmental laws should serve as a powerful warning to the president: The national security interests of the United States will be on the line in the future, just as much as they are today. Then, as now, the Navy will be a prime target of those who seek to use “lawfare” to undermine or otherwise interfere with those interests.

By acting to prevent such an action at this juncture, Bush has unwittingly validated the warnings of LOST’s critics. For this reason, among many others, he should withdraw his support for the Law of the Sea Treaty — and give the Navy’s shortsighted, inconsistent, and misguided lawyers who have championed it the old heave-ho.

— Frank J. Gaffney is president of the Center for Security Policy in Washington.



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