First, as Senator Lott once warned, ratification of LOST would commit the United States to submit to mandatory dispute resolution with respect to U.S. military and industrial operations. While LOST proponents argue that the United States will choose available arbitration mechanisms to avoid legal decisions from the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS), such arbitration panels are no-less perilous for U.S. interests as the decisive, "swing" arbiters would be appointed by generally unfriendly UN-affiliated bureaucrats. The arbitration panels can also be relied upon to look to rulings by the ICJ or ITLOS to inform their own decisions.
Furthermore, while there is a LOST provision exempting "military activity" from such dispute resolution mechanisms, the Treaty makes no attempt to define "military activity," virtually guaranteeing that such matters will be litigated - in all likelihood to our detriment - before one or another of LOST's arbitration mechanisms. And the rulings of such arbitrators cannot be appealed.
Subjecting our military to the risks of such mandatory dispute resolution is all the more imprudent given that LOST provides the Navy with no navigational rights and freedoms beyond those it already enjoys under customary international law and the U.S. Freedom of Navigation Program. The Navy has successfully protected American interests on the seas for more than two hundred years without the United States becoming a party to LOST - including during the thirty years since LOST was concluded, in 1982. There is no compelling reason to believe that record will be improved upon by entrusting the job to international legal arrangements.
Second, the Law of the Sea Treaty contains provisions that risk putting sensitive - and in some cases, militarily useful - information and technology in the hands of America's adversaries and its companies' commercial competitors. Claims by LOST's proponents that this problem was fixed by a 1994 agreement that was not signed by all LOST's parties cry out for close examination by the Senate and the nation.
Third, the Law of the Sea Treaty entails commitments that have far-reaching implications for U.S. businesses, far beyond the possibility of mandatory technology transfers. These include: embroiling this country in treaties bearing on commercial activities to which it is not a party; wide-ranging, intrusive and expensive environmental obligations; creating standing for foreign nationals to pursue alien torts in our courts; and jeopardizing our rights under the World Trade Organization, which was established after 1994.
Of particular concern is the fact that LOST creates an international taxation regime. It does so by empowering the International Seabed Authority (ISA) to tax Americans for the purposes of meeting its ownadministrative costs and of globally redistributing revenue derived from the exploitation of seabed resources.
It is a travesty to portray atreaty with such clearly sovereignty-sapping provisions as an enhancement to our national sovereignty. LOST should be rejected this time - as President Ronald Reagan did thirty years ago and as Senator Lott urged twenty-five years later.
Frank Gaffney Jr. is the founder and president of the Center for Security Policy and author of War Footing: 10 Steps America Must Take to Prevail in the War for the Free World .
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