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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 Americas 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 LOSTs 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 administrations Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOSTs 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 militarys 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, Maltas 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, Singapores former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as a global constitution for [the worlds] 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 Reagans 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 earths 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 militarys 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 militarys 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 militarys 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 Europes PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOSTs largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOSTs 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 Europes use of the precautionary principle to dominate international economic affairs.

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