The Old Man and the Law of the Sea Treaty

It’s always fascinating to watch tenured faculty members leaving their ivory cocoons where they lecture to impressionable teenagers and 20-somethings to come face-to-face with skeptical middle-aged men. Such an encounter occurred last week in one of the few hearings the U. S. Senate Foreign Relations Committee deigned to hold on the Law of the Sea Treaty, the U.N.-generated pact that many fear would cede control of the oceans to that international body.

“You’ve been assured by some venerable scholars who’ve sought for decades to put lipstick on this pig—and you seem eager to accept their assurances,” Fred Smith of the Competitive Enterprise Institute told the committee. One of those “venerable scholars” testified last Thursday but not all committee members found him acceptably reassuring.

The web site of University of Miami law professor Bernard H. Oxman claims he is an arbitrator of choice of some of the 150 nations that signed onto the two-decade-old pact that Ronald Reagan refused to put his presidential signature on. As Accuracy in Media’s Cliff Kincaid reports, Oxman admitted to SFRC member Sen. David Vitter, R-La., that under LOST, the UN could arbitrate disputes between nations.

This admission, though, came only after the professor asserted up and down that the U. S. would have veto power under the treaty. Additionally, he also threw a few ad hominem barbs at Frank Gaffney of the Center for Security Policy, who, along with Smith, was the only other critical witness called by the committee that day out of a roster of 11.

Gaffney, according to Oxman, had “formidable imagination and ingenuity” for suggesting the UN would have control over LOST deliberations. Under questioning by Sen. Vitter, the professor admitted as much himself.

“And there the appointing authority,” Oxman said, “if agreement couldn’t be reached, would be the Secretary-General of the United Nations, currently from South Korea.” LOST contains mandatory dispute resolution clauses that force such outcomes, Gaffney and Smith had pointed out.

“That would be a disaster for the United States,” Sen. Vitter said in response to Oxman’s admission. Originally crafted in the 1970s, LOST was amended in the 1990s at the urging of President Clinton but has not, as yet, been ratified by the Senate.

Of the nearly automatic U N arbitration in LOST, Oxman said, “I don’t think there’s anything in the treaty that gets more specific.” This is the same treaty that Oxman claimed earlier in the meeting that he had “spent well over a decade helping to draft.”

Maybe he didn’t think that anyone would read it. As they showed in their rejoinders and questions, Gaffney, Smith and Sen. Vitter did, as did other committee members present at the hearing—Sens. Jim DeMint, R-S. C., Thad Cochran,R-Miss., Johnny Isaacson, and Lisa Murkowski, R-Alaska.

(The only Democrat present was Sen. Robert Menendez, D-N. J., who might have wished he wasn’t. It should be noted, though, that the ranking Republican on the committee, Sen. Richard Lugar, R-Ind., like Sen. Menendez, ardently supports the treaty, as does the Bush Administration.)

Earlier in the hearing, Oxman had said, in answer to a question from Sen. Cochran, “Although lead pollution is a source of marine pollution, it is not mentioned except in a tentative manner in articles 207, 214 and 297, paragraph 1.” Sen. Vitter questioned Oxman on provisions of LOST that seem to go well beyond the aquatic.

Specifically, he asked the law school professor/treaty doctor about article 213, “Enforcement with respect to pollution from land-based sources.” That section, Oxman replied, merely “requires the United States to follow its own laws.”

“Then why is it in the agreement?” Sen. Vitter asked. “As a framework for other agreements,” Oxman replied.

What other agreements could those be? To his credit, Oxman is one of the few proponents of LOST who will actually cite the pact.

Generally, while critics of the treaty quote directly from it, its advocates usually take pains to avoid doing so. Are they engaging in wishful thinking of the most perilous variety?

“One should never be surprised that people who’ve worked on a project for much of their lives wish it to succeed,” Smith warned the committee. “But this treaty has not been fixed—indeed, given the archaic, collectivist premises at its core—it cannot be fixed.”

“We should give the proponents our thanks for doing their best but you would be irresponsible to allow their Bridge on the River Kwai shortcomings to lead us into ratifying this destructive treaty,” Smith advised the senators present. “The treaty is a weird mixture of some long-established and widely accepted navigational rules for the oceans with an outdated and counter-productive collectivist scheme to make the oceans fund a U N-organized wealth redistribution plan.”

“The treaty would create a socialist entity to develop the oceans, viewed as ‘the common heritage of mankind.’”

Malcolm A. Kline is the executive director of Accuracy in Academia.