June 6, 2012 | Commentary on International Law
President Reagan so strongly opposed the United Nations Convention on the Law of the Sea that he didn't just not sign the treaty. He very publicly refused to sign it. He also dismissed the State Department staff that helped negotiate it. And in case anyone didn't get the message, he sent special envoy Donald Rumsfeld on a globe-trotting mission to explain his opposition and urge other nations to follow suit.
How odd, then, to hear proponents of the convention (also known as the Law of the Sea Treaty, or LOST) insist that Reagan would gladly sign on today. To hear them tell it, the Gipper's reservations were few, minor and subsequently taken care of in a 1994 agreement now incorporated in the treaty.
But with the treaty again under consideration by the Senate, it's important to note that Reagan's objections to it were anything but trivial. In his view, articulated long before he entered the Oval Office, its fatal flaw was as great as it was simple: LOST posed a direct threat to American sovereignty.
In a 1978 radio address titled "Ocean Mining," he asserted 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."
What had begun as an effort to codify certain navigational rights had, during the course of extended negotiations, morphed into a "constitution for the oceans" that would push nations further along the road to a world government. Of particular concern was Part XI of the treaty, which created supra-national executive, legislative and judicial mechanisms to regulate the mineral resources of the world's oceans.
One of these institutions — the International Seabed Authority — is assigned the power to regulate deep seabed mining and development on the extended continental shelf. In return for "assuring" those rights, the ISA would receive royalties from gas and oil exploration. Those revenues would then be redistributed to poorer countries.
Those who claim that the U.S. is out of step with LOST need to know that in 1983, after rejecting the treaty, Reagan issued an "ocean policy statement" affirming the U.S. intent to abide by most of the pact's provisions, such as navigational rights. After all, most of them merely recapitulate rights established by customary international law. Reagan's statement also proclaimed that the U.S. had a 200-nautical-mile "exclusive economic zone" in conformity with the treaty. No foreign nation has challenged the existence or breadth of that U.S. zone.
The statement specifically took exception to the treaty's deep seabed mining provisions. Some have claimed those provisions were the only ones that troubled Reagan. But his diary entry of June 29, 1982, makes it clear that the problems went far beyond that: "Decided in [National Security Council] meeting — will not sign 'Law of the Sea' treaty even without seabed mining provisions."
After taking office, the Reagan administration tried for months to negotiate extensive changes in the draft treaty. But the effort failed to produce a document the president could sign.
The man who tried to renegotiate the treaty was Ambassador James Malone. In 1984, he explained why Reagan considered LOST to be unacceptable: "The treaty's provisions were intentionally designed to promote a new world order — a form of global collectivism … that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion."
Eleven years later, Malone declared: "This remains the case today." Despite the claims that the 1994 agreement "fixed" the offending deep seabed provisions, the "new and improved" pact remained fundamentally objectionable.
As senators ponder the treaty yet again, they would do well to consider the question: What, exactly, do we gain by joining LOST? In the most recent Senate hearing, Sen. Chris Coons (D-Del.) asked Gen. Martin Dempsey, chairman of the Joint Chiefs: "Does failure to ratify this treaty … in any way compromise the ability of the United States to project force around the world, to support and sustain our allies…? Are we at risk as a result of failure to ratify this treaty?"
Dempsey's response boiled down to "no."
"Our ability to project force will not deteriorate," he said, if we refrain from ratifying the treaty.
Why risk sacrificing U.S. sovereignty under the treaty if it makes us no more secure? After all, what initially established and still ensures freedom of navigation under international law is naval power. To secure navigational freedom, territorial rights and all national and international interests addressed in LOST, we must maintain the strength of theU.S. Navy, not look to an anachronistic pact that is intent on advancing a one-world agenda.
Edwin Meese III, U.S. attorney general in the Reagan administration, is chairman of the Center for Legal and Judicial Studies at the Heritage Foundation.
This article originally appeared in the LA Times on June 5th, 2012.