Law of the Sea Up for Senate Vote in October 2007

This post will featured at top of blog all through October. Scroll down for newer enteries.

Update: LOST Justice.

A Navy Lost by Frank Gaffney; Commentor InRussetShadows provided the following excellent links: EU Hides Behind 'Private Standards in Effort to Secure Global Regulatory Control; U.S. LOST at sea?

Oliver North: Permission Slip for the Sea

Foreign Relations Committee Hearing was held onThursday, October 4, 2007 9:30 a.m., C-Span2 "To examine UN Convention on Lw of the Sea, with Annexes..." SD-419 (See: How to find committee hearings). The video presentation has not yet been posted on C-Span.org, and the vote on the treaty has not been announced.

See Agenda for Today's Hearing

Do we want to allow International Law Court judges to make decisions that would trump the Constitution of the United States? What about being only one vote among more than a hundred without the power of the veto? Both of these would effectively nullify U.S. sovereignty and establish European-style socialism.

The United Nations Law of the Sea Treaty is coming up for a quick vote in October with no serious debate. This is another example of one of those treaties concocted by an international body that will not serve the American people as it not concerned with American interests or sovereignty which will significantly diminish in face of United Nations regulations. Because this "treaty" has so dimensions and affects us all to a significant degree, many feel that the Foreign Relations Committee has not only called on too few people, but on the wrong people.

[Listen to The Gathering Storm Report Frank Gaffney was a guest on episode.]

Why is this United Nations Convention so controversial and frightening to many? To start with, the Convention of the Law of the Sea would be under the auspices of yet another layer of bureaucracy within the United Nations and have an adverse effect on the United States.

Senate Floor Schedule (Sidebar) Active Legislation.

The United Nations Convention on the Law of the Sea: The Risks Outweigh the Benefits

LOST: U.S. Senators' spines

Video: Vitter on the Law of the Sea Treaty: Part 1 See the several other videos offered in the right sidebar.

Call your senators (202-224-3121) while you still can!

The Heritage Foundation warns the treaty would have unintended consequences for U.S. interests – including a threat to sovereignty.

The conservative think tank says "bureaucracies established by multilateral treaties often lack the transparency and accountability necessary to ensure that they are untainted by corruption, mismanagement or inappropriate claims of authority. The LOST bureaucracy is called the International Seabed Authority Secretariat, which has a strong incentive to enhance its own authority at the expense of state sovereignty."

"For example, this treaty would impose taxes on U.S. companies engaged in extracting resources from the ocean floor," write Heritage fellows Baker Spring and Brett D. Schaefer. "This would give the treaty's secretariat an independent revenue stream that would remove a key check on its authority. After all, once a bureaucracy has its own source of funding, it needs answer only to itself."

"The United States should be wary of joining sweeping multilateral treaties negotiated under the auspices of the United Nations," say Spring and Schaefer of Heritage. "Specifically, the benefit to U.S. national interests should be indisputable and clearly outweigh the predictable negative consequences of ratification."

If that's not enough to sink this treaty

Other critics fear the treaty will be used as a back-door to implement policies against global warming without any accountability to the American people. Parts of the treaty, they say, mandate international regulation of U.S. economic and industrial activities on land. With that in mind, critics of the treaty believe so-called greenhouse gases could be viewed as ocean pollutants.

Can't you see how well United Nations inspectors would go over in the various economic concerns that the U.N. consider to be polluters!

The Treaty is very vague on some issues, perhaps for a reason. Here is an exchange between Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England put by Sen. David Vitter, R- La., who is leading the opposition to ratification:

For instance, Deputy Secretary of State John Negroponte testified that the U.N. body established by the treaty has "no jurisdiction over marine pollution disputes involving land-based sources."

"Why is there a section entitled pollution from land-based sources?" questioned Vitter.

Vitter also questioned who decides what is considered military activity under the treaty.

"We will decide that. We consider that within our sovereign prerogative," said Negroponte.

"Where does the treaty say that we decide that and an arbitral body does not decide that?" questioned Vitter.

Deputy Secretary of Defense Gordon England answered: "My understanding – and I'll ask my lawyer behind me – that that's in the treaty that we make that determination and that's not subject to review by anyone else."

"It's not in the treaty because I point to Article 298 1b where it simply says disputes concerning military activities are not subject to dispute resolution," explained Vitter. "But it doesn't say who decides what is and what is not a military activity."

England conceded the point.

"We say it is up to us, but nobody else in the world says it is up to us," Said Vitter said.

As for loss of sovereignty

Sen. Jim DeMint, R-S.C., said the United States had special military and commericial interests and as the globe's only superpower, interests that the treaty did not take into account. He said many of the concerns over loss of national sovereignty that surfaced in the recent debate over immigration reform were surfacing once again in the Law of the Sea debate.

This noxious Treaty is coming to the front again after the announcement made by President Bush to seek reintroduction of LOST for ratification to "a small group of trusted Republican grass-roots organizers last week - an announcement that was met with horror and scorn."

As stated earlier, many individuals and groups have tracked his Treaty and hold strong opinions: Eagle Forum leader Phyllis Schlafly, Center for Security Policy President Frank Gaffney in May 2007 at FrontPage:

Regrettably, a new correlation of forces is operating in Washington. The Bush administration is now under the influence of American Transnational Progressives – notably, Foreign Service Officers like Under Secretary of State Nick Burns and his nominal superior, Deputy Secretary John Negroponte. Thanks to Secretary of State Condoleezza Rice’s virtual domination of the international affairs portfolio, the Transie agenda is largely supplanting what once was the Bush 43 version of Reagan’s exceptionalist program for peace through American strength.

To be sure, the leading edge of the sales campaign for LOST will not be the Foreign Service or, for that matter, its allies among various environmental and commercial special interests. (Don’t ask how both the Greens and the deep-sea oil and gas industry can believe that the Law of the Sea Treaty will advance their programs; one of them is surely wrong.)

Rather, the administration is trotting out lawyers and other officials of the armed forces to make the case for LOST. In particular, the Navy, the Marine Corps and the Coast Guard are on record as favoring the treaty. Their argument has a certain superficial appeal: The treaty establishes rules of the road for littoral waters that are better than might otherwise apply and, if we are a party to LOST, we can ensure they stay that way. The alternative, we are told, is that the Navy will have to take risks to assert our rights to untrammeled innocent passage. And, frankly, we no longer have sufficient naval vessels or the political will required to undertake such potentially risky operations wherever necessary.

Sadly, being party to the Law of the Sea Treaty is not going to keep our foes from using it against us. Like those of virtually every other international organization, LOST’s institutions (executive, legislative and judicial, if you please) are rigged-games. The United States will be routinely outvoted or otherwise unable to prevent infringements on its sovereignty and, yes, in all likelihood over time even its military operations.

Some earnest officers insist that should the latter happen, America can always withdraw from the treaty. Don’t count on it. The only instance in memory when such a step occurred was the 1972 Anti-Ballistic Missile Treaty – and that took 20 years to accomplish. Moreover, it could only have occurred because the very survival of the nation could plausibly be argued to require it.

Even if the Navy and its sister sea-services were right about the value of the treaty from their parochial perspectives, roughly 60 percent of LOST’s provisions have to do with the supranational management of two-thirds of the world’s surface and its resources. The argument about whether such arrangements will prove to be in the long-term interest of the nation as a whole should be considered on their merits, not subordinated – let alone ignored – out of misplaced deference to some in the military.

and again in September 2007:

There will be a special irony, however, if Senators fall prey to this seduction and fail in the weeks ahead rigorously to perform their constitutional responsibility for quality control over treaties: Should they superficially consider, and then consent to, ratification of the Law of the Sea Treaty, they will be accelerating dramatically the permanent erosion of their own authority – and that of the Congress more generally.

The reason? LOST was designed three decades ago by the Soviet Union and its so-called “non-aligned” allies to foster supranational entities at the expense of nation states, particularly those with representative governments. The Senate of the United States would be as irrelevant to that sort of world order as national parliaments in Europe have already become, thanks to the transfer of virtually all rule-making authority to the European Union’s bureaucrats in Brussels.

The piece of the world in question starts with its oceans, which the Treaty calls an “international commons” and part of “the common heritage of mankind.” The immediate focus of the socialist, redistributionist agenda shared by many of LOST’s principal architects is evident in the mandate given to the organization charged with exercising control over the seas and the resources that lie beneath them. It entails, among other things, ensuring the just and equitable dispersal of the wealth of the seabeds to the world’s developing and land-locked nations.

To accomplish these lofty goals, the Treaty creates entities with all the trappings of a government – an executive, a legislature and a judiciary. Unlike our constitutional republic, however, such institutions are run by the unelected and the unaccountable. This is all the more worrying insofar as the Treaty reposes in one or more of these institutions the authority to: make binding and un-appealable decisions in case of disputes; levy what amount to international taxes; and “protect the marine environment,” a license to engage in unprecedented, sweeping world-wide regulation.

Make no mistake, though. The seas are only the starting point. For one thing, the internal waters and even land masses are claimed as within the jurisdiction of LOST agencies since what emerges from them in the air and water inevitably affects the “marine environment.”

In addition, the UN and its anti-American majorities are keen to establish similar arrangements with respect to other so-called “international commons,” such as Outer Space and the Internet. They seek to institutionalize “self-financing” arrangements (read, international taxes) that will allow supranational organizations to become even less transparent and accountable. They are determined to impose rule-making authority over national governments, including U.S. Senators.

Attributes of the Law of the Sea Treaty such as these prompted Ronald Reagan to oppose its ratification in the 1970s. After he became President, he officially repudiated all but its acceptable navigation provisions (which the U.S. has voluntarily observed ever since). While the Treaty’s proponents profess that President Clinton’s administration “fixed” what Mr. Reagan found objectionable, rigorous congressional scrutiny would confirm the views of such Reaganauts as Attorney General Ed Meese, National Security Advisor Bill Clark, the recently departed Defense Secretary Caspar Weinberger, UN Ambassador Jeane Kirkpatrick and LOST negotiator James Malone: This treaty remains irremediably defective.

Just because the Soviet Union ceased to exist doesn't mean that global Socialism isn't alive and well. In fact one of the main authors of LOST, the late Elisabeth Mann Borgese, a socialist who ran the World Federalists of Canada, not only admired Karl Marx but was an ardent advocate of the Marxist-oriented New International Economic Order. She has been hailed by her U.N. supporteres as the "Mother of the Oceans" or "First lady of the Seas."

The youngest daughter of the German novelist Thomas Mann, Borgese openly favored world government, wrote for the left-wing The Nation magazine and was a member of a "Committee to Frame a World Constitution." She served as director of the International Center for Ocean Development and chairman of the International Oceans Institute at Dalhousie University in Canada.

The U.N. Environment Program, UNEP, has said Borgese recognized the oceans as "a possible test-bed for ideas she had developed concerning a common global constitution."

Borgese received UNEP's "Environment Prize" in 1987 and was credited with organizing the conferences that "served to lay the foundation" for the United Nations Convention of the Law of the Sea, according to Dalhousie University, which houses her archives.

In a 1995 speech, pro-U.N. Democratic Sen. Claiborne Pell said Borgese's ideas were "embodied in the negotiated texts of the Law of the Sea Convention."

Her ideas included recognizing the oceans as the "common heritage of mankind" and creating an International Seabed Authority to charge U.S. and foreign companies for the right to mine the ocean floor.

In a January 1999 speech, Borgese declared, "The world ocean has been, and is, so to speak, our great laboratory for the making of a new world order."

In an article titled, "The New International Economic Order and the Law of the Sea," she argued that the pact could "reinforce" the goals of the NIEO by giving Third World countries a role in managing access to the oceans.

In a 1997 interview, Canadian Broadcasting Corporation broadcaster Philip Coulter asked Borgese about the collapse of Soviet-style communism and the triumph of the "elites."

Borgese replied "there is a strong counter-trend. It's not called socialism, but it's called sustainable development, which calls ... for the eradication of poverty. There is that trend and that is the trend that I am working on."

The concept of "sustainable development," considered a euphemism for socialism or communism, has been embraced in various pronouncements by the U.N. and even the U.S. government.

In her book, "The Oceanic Circle: Governing the Seas as a Global Resource," she approvingly cites Karl Marx, the father of communism, as someone with "amazing foresight" about the problems faced by urban and rural societies. The book is available from the liberal Brookings Institution in Washington, D.C.

In an article co-authored with an international lawyer, Borgese noted how LOST stipulates that the oceans "shall be reserved for peaceful purposes" and that "any threat or use of force, inconsistent with the United Nations Charter, is prohibited."

She argued LOST prohibits the ability of nuclear submarines from the U.S. and other nations to rove freely through the world's oceans.

[Emphases added]

Some other groups against the Treaty include The Leadership Institute, the Free Congress Foundation, Heritage Foundation, the American Conservative Union, the Competetive Enterprise Institute, Conservative HQ, U.S. Business and Industry Council, Americans for Tax Reform, the Objectivist Center (of Ayn Rand origins).

From: Conservatives Break With Bush on Lost:

At a news conference during the just-completed annual Conservative Political Action Conference (CPAC) in Washington, the letter was announced and/or signed by a Who's Who in the conservative movement, including – but by no means limited to – Keene (ACU), Paul Weyrich (Free Congress Foundation), Frank J. Gaffney Jr. (Center for Security Policy), Fred Smith (Competitive Enterprise Institute), Richard Viguerie (Conservative HQ), Kevin Kearns (U.S. Business and Industry Council) and Grover Norquist (Americans for Tax Reform). Also represented in the letter were Phyllis Schlafly's Eagle Forum and the Objectivist Center (of Ayn Rand origins), and American Survival.

The letter cites President Ronald Reagan, who "wisely refused to sign LOST in 1982, on the grounds that it was the product of an unfriendly international agenda that aimed to redistribute the world's wealth from developed nations like the United States, to developing ones."

Among those at the news conference in the Ronald Reagan Center, site of this year's CPAC gathering, was Reagan-era Ambassador Jeanne Kirkpatrick, known far and wide for having drawn a rhetorical bead on the "Blame America First" crowd.

Kirkpatrick recalled that when President Reagan took office, he was confronted by a LOST that had been signed by his predecessor, Jimmy Carter. Some Reagan advisers, Kirkpatrick said, tried to convince Reagan that as long as Carter had signed the treatu, "we might as well make the best of it and move on."

Reagan, who had a sixth sense about threats to the best interests of America, would have none of that. He saw LOST as "fundamentally open-ended."

Not so incidentally, it is relevant to mention here that one of the "undeveloped" nations that would benefit from this wealth transfer would be Communist China, which has been building a war machine that could turn on us someday. Do you like the idea of your hard-earned tax dollars going toward that dangerous nonsense?

Of course the Law of the Sea (LOST) is being promoted by some very powerful Americans, such as Henry Kissinger

The idea of a so-called "constitution of the oceans" has been around for more than a half century. Secretary of State Henry Kissinger gave LOST its current shape by conceding the so- called parallel system, under which Third World politicians would regulate private miners, forcing the latter to subsidize a separate UN mining operation (now known as the Enterprise).

Indeed, LOST became the leading element of the so-called New International Economic Order, by which rich rulers in poor nations attempted to exploit Western guilt to win generous resource transfers from poor people in rich nations. The West's enemies deployed the standard foreign aid scam, but with creative new rhetoric. A treaty declared all seabed resources to be the "common heritage of mankind," mulcted Western mining companies and their sponsoring nations through fees and royalties, and created a second United Nations to divvy up the spoils.

No surprise that Homeland Security's Michael Chertoff is among the supporters, Secretaries of the Interior and Commerce Dirk Kempthorne and Carlos M. Gutierrez, James Baker III and George Shultz (at WallStreet Journal with subscription), among others. (See a list of supporters and opponents on sidebar at OceanLaw.org

What could be a possible reason for this support? A recent article "U.S. Resistance to Sea Treaty Thaw," The Wall Street Journal, Aug. 22, 2007 (under subscription):

What do the Nature Conservancy, Exxon Mobil Corp, offshore oil drillers, the fishing, shiping and diamond industries President Bush and the U.S. Navy have in common?

Answer: They all support a little known but highly contentious international treaty...The U.S. is now one of the fewer than 40 countries, and the only significant power, not to have joined.

That is now almost certain to change, for three reasons: scarce energy sources, the thawing Arctic ice cap and the U.S. Navy's desire for unfettered access to the world's seaways. These motivations have helped galvanize an odd coalition of environmentalists, oil interests and military brass to persuade enough senators to back the treaty.

The renewed interest has grown more intense amid a scramble to claim undersea territories in the resource-rich Arctic.

Looking to buttress its legal case for ownership of a massive undersea ridge, Russia planted its flag earlier this month on a seabed more than 15,000 feet below the North Pole. Canada, asserting its disputed rights, plans a new fleet of ice-breaking ships and a deepwater Arctic port; yesterday, Canadian Prime Minister Stephen Harper asserted his country's claim to the so-called Northwest Passage along its northern coast during a meeting with Mr. Bush in Quebec. And Denmark is sending a research team to push its own claim to undersea holdings that extend far from Greenland.

All this has put the U.S. in a jam. The Law of the Sea Treaty allows countries -- even nonsignatories -- exclusive rights to the seabed extending 200 nautical miles from their shores. Countries can then present evidence to claim rights to any of their continental shelf beyond that. Claims and disputes fall to one of several arbitration bodies established by the treaty. Without being a party to the treaty, the U.S. has no clear way -- short of threatening force -- to assert its claims.

U.S. officials said the stakes are literally vast. In the Arctic alone, the U.S. could lay claim to more than 200,000 square miles of additional undersea territories. The U.S. Coast Guard Cutter Healy is in the region to continue mapping the ocean floor to help strengthen the U.S. case. By some estimates, the country's total additional undersea holdings, including extensions off the East Coast and the Gulf of Mexico, could exceed 300,000 square miles, or roughly twice the size of California.

Recent estimates have found the Arctic could contain the equivalent of more than 400 billion barrels of oil and gas and massive amounts of another potential energy source, crystallized methane. The U.S. Geological Survey has estimated the amount of carbon found in hydrate form world-wide is "conservatively" twice the amount found in all the world's fossil fuels.

Policy makers in Washington "have generally been slow to champion the treaty," but "under pressure from oil groups and diplomats in his administration, Mr. Bush in May endosed the pact's ratification for the first time. The heads of the Navy, Air Force and Marines followed suit with an unusual joint letter urging Senate passaage.

The Navy, the pact's most ardent supporter, dismisses such claims. "This for us is global mobility. That's what it's all about," says Rear Adm. Bruce MacDonald, the Navy's judge advocate general.

The treaty is now the world's primary legal blueprint for what constitutes international waters and airspace. It grants all navies the right to "innocent passage" through the world's seaways. Yet dozens of countries, from Ecuador and Somalia to China, South Korea and Vietnam, continue to try to limit the rights of warships to pass through their waters.

Joining the pact, Adm. MacDonald said, would give the U.S. a forum to contest such claims. "We need this treaty to lock in the rights we already have."

Administration officials also argue that Washington's failure to sign on to the treaty has, in fact, undercut the Proliferation Security Initiative, a U.S. effort to enlist international help to cut off shipments of nuclear and missile technology to countries such as Iran or North Korea.

Two countries that have declined to join PSI, Malaysia and Indonesia, recently cited Washington's spurning of the Law of the Sea Treaty as their main reason.

Others argue that the U.S. is already losing out in what promises to be a multibillion-dollar opportunity: the undersea mining of copper, zinc, cobalt and even diamonds. John Norton Moore, a top legal expert on the law of the sea at the University of Virginia, said Russian and Chinese firms have already laid claim to some of the biggest undersea mines in the world. Without joining the treaty, the U.S. has no forum in which to stake a claim.

"Our sitting on the sidelines all these years has already cost us," he said.

The military looks at this treaty for the prospective of national security, such as concern about China, and freedom of navigation of the seas, business because of trade, oil, gas and minerals for rights to the seabed, shipping for use of the shipping lanes, etc.

Is it imperative for the U.S. to cede sovereignty to the United Nations to acquire rights? Will the U.S., as Frank Gaffney puts it, fall victim to "a socialist manifesto for the redistribution of wealth" and "no senator who has actually read this treaty would vote for it."

The stakes are great. It appears that matter what decision is made, the United States will lose. Key track of the .

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Update: Commentator "Concerned Lawyer" kindly provided link to The 'LOST 45' UN Environmental Restrictions on US Sovereignty. The text is also included in the commentary following this article.

Always on Watch kindly posted a link to this blog entry at her site here, including a link to another Frank Gaffney article at FrontPage and links to other bloggers.

Here is Gaffney's U.N.'s Big Power Grab which follows this post.

Jane Chastain has some interesting facts at WND:

The driving force behind this treaty is said to be Vice President Dick Cheney, whose buddies in the oil industry see the LOST as payback for not being allowed to drill offshore. They mistakenly see the U.N. as the protection they need to sink millions into undersea oil exploration in international waters.

The treaty also has the support of the Navy. After the Tailhook scandal, can we really be surprised that the Navy has allowed itself to be bullied by a bunch of international lawyers or the administration?

The Bush administration has so many reservations that it is proposing the Senate ratify the treaty with a statement of qualifications, called "understandings." However, the treaty expressly prohibits any reservations.

Disputes under the LOST must (not may) go to binding arbitration, which ultimately can be settled by a judge that sits on the International Tribunal for the Law of the Sea or the U.N. secretary general. How comforting!

The Foreign Relations Committee, where there is very little opposition, has scheduled a final hearing on LOST today. Sen. Jim Inhofe, R-Okla., the ranking member on Environment and Public Works has grave concerns and has asked Chairman Barbara Boxer, D-Calif., to hold a hearing in their committee. Mel Martinez, R-Fla., the ranking member of the Armed Services Sea Power Subcommittee has asked Chairman Ted Kennedy, D-Mass., to do the same. These men desperately need our backup to put the breaks on the LOST or it will be approved on the floor any day now.

Your phone calls defeated the attack that came by land (immigration bill). Now, you must redouble your efforts to defeat this attack from the sea!

Comments

[Informed Lawyer]

The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty

By J. William Middendorf II* and Lawrence A. Kogan**

During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.

These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.

Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.

While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.

Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.

These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.

This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.

More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.

In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.

The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.

* Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.
** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.

[Eleanor]

Informed Lawyer - Thank you for providing the above informative resource.

[Always On Watch]

Thanks for the link, Eleanor.

I'm about to post a link to this posting of yours.

[InRussetShadows]

Ok, so what can we do about this? I'm asking wanting to learn, not asking facetiously.

[Informed Lawyer]

EU Hides Behind 'Private' Standards in Effort to Secure Global Regulatory Control

Developing Countries May Have New Grounds to Bring WTO Actions Against
Europe

PRINCETON, N.J., Oct. 9 /PRNewswire-USNewswire/ -- In the current issue
of the Global Trade and Customs Journal, international trade and regulatory
lawyer Lawrence Kogan details how the European Union and its member states
previously enlisted private European environmental standards bodies to
promote official government sustainable forest management policies that
likely violated the World Trade Organization rights of developing countries
and their industries. In addition, the article describes how these same EU
governments are behind the ongoing efforts of other European pressure
groups to promote, via United Nations agencies and international
standardization organizations, the adoption by global industry supply
chains of overly strict corporate social responsibility standards.

According to Mr. Kogan, "It is no secret that the EU aspires to 'usurp
America's role as a source of global standards,' and to become 'the world's
regulatory capital' and 'standard-bearer.'" Therefore, it is natural that
they would endeavor to employ whatever nontransparent means are available
to push their regulatory control agenda forward." As EU trade commissioner
Peter Mandelson claimed in a prior speech, 'exporting our rules and
standards around the world is one source [and expression] of European
power.'"

Two recent articles appearing in the Financial Times and the Economist
confirm this assessment. "The Commission, the EU's executive body, states
openly that it wants other countries to follow EU rules and its officials
are working hard to put that vision into practice... [T]he Union [has]... a
body of law running to almost 95,000 pages -- a set of rules and
regulations that covers virtually all aspects of economic life and that is
constantly expanded and updated. Compared with other jurisdictions, the
EU's rules tend to be stricter, especially where product safety, consumer
protection and environmental and health [sustainable development]
requirements are concerned."

The European regulatory model is worrisome, emphasizes Kogan,
paraphrasing from one article, especially "because 'it rests on the
[standard-of-proof-diminishing, burden-of-proof-reversing,
guilty-until-proven-innocent, I-fear-therefore-I-shall-ban, hazard-(not
risk)-based] Precautionary Principle', which is inconsistent with both WTO
law and US constitutionally-guaranteed private property rights." As another
article reaffirms, "In Europe corporate innocence is not assumed. Indeed, a
vast slab of EU laws...reverses the burden of proof, asking industry to
demonstrate that substances are harmless...[T]he philosophical gap reflects
the American constitutional tradition that everything is allowed until it
is forbidden, against the Napoleonic tradition codifying what the state
allows and banning everything else."

"Notwithstanding its knowledge of Europe's extraterritorial
activities," warns Kogan, "the 110th US Congress may soon ratify the UN Law
of the Sea Convention without all of its committees possessing oversight
jurisdiction having first adequately reviewed in public hearings its
45-plus environmental regulatory articles -- which also incorporate
Europe's Precautionary Principle! This would essentially open up the
floodgates to a tsunami of costly non-science and non-economics-based
environmental laws, regulations and standards that would abridge Americans'
Fifth Amendment rights, impair U.S. industry's global economic
competitiveness and fundamentally reshape the American legal and free
enterprise systems.

The Institute for Trade, Standards and Sustainable Development (ITSSD)
is a non-partisan non-profit international legal research and educational
organization that examines international law relating to trade, industry
and positive sustainable development around the world. This ITSSD study and
related materials are accessible online at:
http://www.itssd.org/GTCJ_03-offprints KOGAN - Discerning the Forest
from the Trees.pdf,
http://www.itssd.org/Programs/ITSSDAssessmentISO26000Standard.pdf and
http://www.itssd.blogspot.com

[Informed Lawyer]

You and your readers may find enjoyable the following new entry at the ITSSD Journal:

Tuesday, October 23, 2007
European Collectivism at the Expense of U.S. Individual Rights – Resistance is Futile?
http://www.coin.dk/blogs/index.php?title=resistance_is_futile&more=1&c=1&tb=1&pb=1 ****

If the url doesn't work, just paste it into your browser.