October 9, 2007 | Commentary on Legal Issues
It is an impressive testament to the abiding affection and political influence of former President Ronald Reagan that the fate of a controversial treaty now before the U.S. Senate may ultimately turn on a single question: What would Reagan do?
As we had the privilege of working closely with President Reagan in connection with the foreign policy, national security and domestic implications of the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST), there is no question about how our 40th president felt about this accord. He so strongly opposed it that he formally refused to sign the treaty. He even sent Donald Rumsfeld as a personal emissary to our key allies around the world to explain his opposition and encourage them to follow suit. All of them did so at the time.
Proponents of LOST, however, have lately taken -- on these pages and elsewhere -- to portray President Reagan's concerns as relatively circumscribed. They contend that those objections were subsequently and satisfactorily addressed in a multilateral accord known as the Agreement of 1994. To the extent that such assertions may induce senators who would otherwise oppose the Law of the Sea Treaty to vote for it, perhaps within a matter of weeks and after only the most cursory of reviews, we feel compelled to set the record straight.
Ronald Reagan actually opposed LOST even before he came to office. He was troubled by a treaty that had, in the course of its protracted negotiations, mutated beyond recognition from an effort to codify certain navigation rights strongly supported by our Navy into a dramatic step toward world government. This supranational agenda was most closely identified with, but not limited to, the Treaty's Part XI, which created a variety of executive, legislative and judicial mechanisms to control the resources of the world's oceans.
In a radio address titled "Ocean Mining" on Oct. 10, 1978, Mr. Reagan applauded the idea that "no nat[ional] interest of ours could justify handing sovereign control of two-thirds of the earth's surface over to the Third World." He added, "No one has ruled out the idea of a [Law of the Sea] treaty -- one which makes sense -- but after long years of fruitless negotiating, it became apparent that the underdeveloped nations who now control the General Assembly were looking for a free ride at our expense -- again."
The so-called seabed mining provisions were simply one manifestation of the problems Ronald Reagan had with LOST. That was made clear by an entry in his diary dated June 29, 1982, after months of efforts to negotiate extensive changes in the draft treaty text came to naught. On that evening, President Reagan wrote: "Decided in [National Security Council] meeting -- will not sign 'Law of the Sea' treaty even without seabed mining provisions."
The man selected by President Reagan to undertake those renegotiations was the remarkable James Malone. In 1984, Ambassador Malone explained why the Law of the Sea Treaty was unacceptable: "The Treaty's provisions were intentionally designed to promote a new world order -- a form of global collectivism known as the New International Economic Order (NIEO) -- that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion. The Treaty's provisions are predicated on a distorted interpretation of the noble concept of the Earth's vast oceans as the 'common heritage of mankind.'"
Interestingly, Ambassador Malone declared in 1995, "This remains the case today." That statement is particularly relevant insofar as LOST's supporters, including some of our colleagues from the Reagan administration, insist that the 1994 Agreement "fixed" the previously unacceptable Part XI provisions. As James Malone explained to a conference on the Law of the Sea Treaty before his untimely death more than a decade ago:
"All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."
He added, "The regime's structural arrangements place central planning ahead of free market interests in determining influence over world resources; and yet, the collapse of socialist central planning throughout the world makes this a step in the wrong direction."
In a comment that is, if anything, even more true at present, Ambassador Malone observed that: "Today, not only are the seabed mining provisions inadequately corrected, and the collectivist ideologies of a now repudiated system of global central planning still imbedded in the treaty, new and potentially serious concerns have arisen."
Currently, these include: the increasingly brazen hostility of the United Nations and other multilateral institutions to the United States and its interests; the organization's ambition to impose international taxes, which would allow it to become still less transparent and accountable to member nations; the determination of European and other environmentalists to impose the "precautionary principle" (a Luddite, "better safe than sorry" approach that requires proof no harm can come from any initiative before it can be undertaken); the increasing practice of U.S. courts to allow "universal jurisprudence" to trump American constitutional rights and laws; and the use of "lawfare" (multilateral treaties, tribunal rulings and convention declarations) by adversaries of the U.S. military as asymmetric weapons to curtail or impede American power and operations.
Such developments only serve to reinforce the concerns President Reagan rightly had about the central, and abiding, defect of the Law of the Sea Treaty: its effort to promote global government at the expense of sovereign nation states -- and most especially the United States. One of the prime movers behind LOST, the late Elisabeth Mann Borgese of the World Federalist Association (which now calls itself Citizens for Global Solutions), captured what is at stake when she cited an ancient aphorism: "He who rules the sea, rules the land." A U.N. publication lauding her work noted that Borgese saw LOST as a "possible test-bed for ideas she had developed concerning a common global constitution."
While we would not presume to speak for President Reagan, his own words and those of the man who worked most closely with him and us on Law of the Sea matters, Jim Malone, make one thing clear: Even if the 1994 Agreement actually amended LOST (and there are multiple reasons why it did not actually alter so much as a single word of the treaty), Ronald Reagan's belief in the U.S. as an exceptional "shining city on a hill" and his enmity towards threats to our sovereignty in general, and global governance schemes in particular, were such that he would likely encourage the Senate to do today what he did in 1982: Reject LOST.
Judge Clark and Mr. Meese served in several capacities in President Reagan's administration including, respectively, as national security adviser and attorney general.
First appeared in the Wall Street Journal