Editor’s note: On October 4 Fred Smith of the Competitive Enterprise Institute addressed the Senate Foreign Relations Committee. Smith drew on all the anathemas of the far right to attack a treaty the committee was considering. “Did anyone expect the Endangered Species Act to become a national land use planning act? Did anyone expect Superfund to become one of the most costly green pork barrel measures in history or that the Clean Water Act would compel the Corps of Engineers to ban development throughout any area that might have been or might become at some time a wetland?” With a logic alien to the majority of Americans, Smith was trying to persuade the senators to vote against ratification of the U.N. Convention on the Law of the Sea. In this issue, Ian Williams looks at the funders behind the isolationist rhetoric and the prospect that their money will prevail in the U.S. Senate. Williams is an occasional contributor to the Washington Spectator and has covered the United Nations for The Nation and other publications since 1989.
THE NEED FOR INTERNATIONAL COOPERATION and the rule of law is nowhere more apparent than at the Poles, where global warming is melting ice caps at an unprecedented rate. In 1957, before American isolationism and exceptionalism resurfaced as potent political forces in Washington, the U.S. signed the Antarctic Treaty, which froze all the old territorial claims and kept the icebound continent free from military action and landgrabs. Fifty years later the only change is that more countries have signed on. It has been an extremely successful agreement.
In contrast, the North Pole is heating up in every sense of the word. Russian claims to a significant part of the Arctic seabed are finally speeding up the glacial progress of U.S. ratification of another very successful international instrument: the U.N. Convention on the International Law of the Sea (CLOS). Russia is making its Arctic claim under the CLOS, but the U.S., by refusing to ratify the CLOS, has no standing in the discussions.
The Pentagon and the White House, backed by maritime, oil and telecom lobbies, are pushing for CLOS ratification, but they find themselves battling the same retrograde element of flat-Earthers who have been taking potshots at the treaty since 1982, and who indeed have forced the U.S. delegation to the U.N. into a holding action.
The military and business lobbies’ near-universal support for the CLOS treaty has isolated and exposed the hard-core ideological—indeed faith-based—foundations behind this an other conservative causes. One can understand why lead makers have lobbied against banning lead in paints; tobacco makers against smoking restrictions; and oil and coal companies against carbon emission controls. Their rationale is self-interest. But the extremists who oppose the CLOS treaty have lost industry support in their fight against the treaty.
In September and October, at hearings held by the Senate Foreign Relations Committee, the groups that spoke against ratification, the Competitive Enterprise Institute (CEI) and the Center for Security Policy (CSP), were both known as prominent campaigners against the idea that human activity is a cause of global warming. Both groups now contrive to depict the CLOS as some sort of “stealth” version of the Kyoto Protocol—reminiscent of earlier farfetched accusations of an undersea land grab by the United Nations.
Last year Exxon—Big Oil’s last-ditch CLOS opponent—dropped its financial support for CEI. Yet the campaign against the treaty persists. Now that such opposition to a global treaty has been stripped of the veneer of the rational if amoral self-interest of the industry lobbies, the ideological core of the irrational campaign against multilateralism in any form is plain to see. Barry Goldwater lost the 1964 election, but the people like Richard Mellon Scaife who bankrolled him have remained a force on Capitol Hill, averting ratification of almost every multilateral agreement. They are still funding CEI and CSP, along with much of the conservative project they have kept on the road for decades.
The hard-core lobby now left in the field against ratification of the Law of the Sea treaty reveals the wacko money tail that has been wagging the Republican dog, and, more often than not, converting many Democratic politicians into fawning puppies. The process was described in an e-mail Mike Scanlon, a lobbyist who once worked for Tom DeLay, sent to his Indian tribal clients. It was released by the Senate Indian Affairs Committee when it was investigating disgraced lobbyist Jack Abramoff.
Our mission is to get specifically selected groups of individuals to the polls to speak out AGAINST something. To that end, your money is best spent finding them and communicating with them on using the modes that they are most likely to respond to. Simply put, we want to bring out the wackos to vote against something and make sure the rest of the public lets the whole thing slip past them. The wackos get their information form [sic] the Christian right, Christian radio, mail, the internet, and telephone trees.
HATE-FEST FOR THE U.N.—In the Clinton era, groups like CEI and CSP, backed by mining companies, used a spurious “sovereignty” issue to campaign against what they termed a “U.N. land grab,” by which they meant listing U.S. national parks as UNESCO World Heritage Sites. It was not the prospect of blue United Nations flags flying over the parks that upset them, but rather the red flag against strip mining up to the park’s boundaries.
Similar arguments threaten to sink the Law of the Sea treaty. The CSP’s Frank Gaffney, who writes a column for the Washington Times, got himself into more convolutions than a chambered nautilus as he shifted from calling for total legislative prostration before President Bush and General Petraeus over Iraq, to total disregard for the views of the Pentagon and the White House over the Law of the Sea treaty. Retired Chief of Naval Operations Vernon Clark has described the treaty to the Foreign Relations Committee as “a Magna Carta for the oceans that guarantees navigation freedoms throughout the world’s largest maneuver space.” In contrast, Gaffney fulminated that the “transies” have “created organizations that will be used to implement that world view—a redistributionist, socialist and fundamentally hostile to the United States view.” The U.S. view, is ipso facto that of the Scaife-funded conservative think tanks.
On the face of it, the unprecedented concatenation of a Republican President, the former Republican chair of the Senate Foreign Relations Committee Richard Lugar, and a Democratic majority in the Senate should make ratification of the sea treaty inevitable. But the Senate Foreign Relations hearings on the treaty may as well have been conducted in an octopus’s garden in the shade for all the public exposure they got. Which implies that the Scanlon strategy may be under way: to “bring out the wackos to vote against something and make sure the rest of the public lets the whole thing slip past them.” Senator Jim Inhofe (R-OK), one of the major opponents of treaty ratification, was able to get thirty of his colleagues to sign on to a resolution against “U.N. Global taxes” this January, which is a bit like getting them to sign a resolution against the tooth fairy.
While the sane majority stays silent, the mailboxes of GOP senators will be flooded with letters and e-mails from black-helicopter-spotting backwoodsers who have decided that the goal of the supporters of sea-law ratification “is nothing less than the establishment of world government at the expense of traditional sovereignty.”
CONVENTIONAL WISDOM—It should be evident that the oceans, which cover two-thirds of the globe, need the internationally accepted legal system that the Convention on the International Law of the Sea provides. The sea is the main highway for of all the world’s nations. It is the source of food for many people. And for everybody, the oceans are the priceless resource on which life on Earth depends.
Former Canadian minster of state for external affairs Mark MacGuigan described the convention’s global scope:
The Conference is not merely an attempt to codify technical rules of law. It is a resource Conference: it is a food Conference; it is an environmental Conference; it is an energy Conference; it is an economic Conference; it is a maritime-boundary-delimitation Conference; it is a territorial-limitation and jurisdictional Conference; it is a transportation, communications and freedom-of-navigation Conference; it
is a Conference which regulates all the uses of the ocean by humanity. Most important, it is a Conference which provides for the peaceful settlement of disputing the oceans. It is, in other words, a Conference dedicated to the rule of law among nations.
Since the convention was completed in 1982, 155 states have ratified it, including Britain, Japan and similar oceanic allies—as well as China and Russia. But not the U.S.A.
Until CLOS came into force, there was little anyone could do to police the world’s seas, as they were beyond the jurisdiction of individual nation-states. Indeed, attempts to unilaterally enforce jurisdiction have brought nations to the brink of war in the past. For much of the last century there was no consensus even on what constituted territorial waters. Historically, many states accepted a demarcation of three miles from shore, the outside range of a cannonball. Some did not even accept that. Other countries claimed twelve and by the time the convention was first negotiated, many countries claimed 200 miles. Just as many disputed the concept itself, as the principle of extended territorial waters was in conflict with customary principles of freedom of navigation. Each claim and counterclaim hazarded a shooting war to determine whose claim was more valid.
The convention was the result of intense negotiations in which a constant balancing of interests allowed all parties to feel that they had made substantial gains. The U.S. was not only deeply involved in the drafting, but the other parties did their best to keep it involved in the negotiations, despite the U.S. Senate’s refusal to ratify it. The Law of the Sea is a comprehensive package with no reservations allowed. To claim the legal backing of one part of the convention, countries had to sign on to all seventeen parts, 320 articles and nine annexes. Signatories cannot cherry-pick for parts they like and disregard clauses they find inexpedient.
An outstanding example of the elaborate balance of interests is found in the convention’s pioneering concept of Exclusive Economic Zones (EEZs), which codifies the conditions for states claiming a 200-mile maritime zone, or more in some circumstances, as Russia is now doing. States can make such claims for exploration and exploitation of economic resources, but cannot impede the right of passage of vessels and aircraft of other nations. At the same time the convention codifies a twelve-mile territorial limit and an additional twelve-mile “contiguous zone.” Charts and claims to territorial seas must be lodged with the U.N. in New York. And to claim such rights, nations have to accept the right of innocent or transit passage for vessels. Yet as part of the delicately balanced structure of rights and obligations, coastal states can make regulations about shipping lanes and air routes in order to ensure safe passage.
The EEZs confer obvious advantages, not least of which is unchallenged title to 87 percent of the world’s known undersea hydrocarbon reserves. The coastal shelves are also home to most of the world’s major fisheries. I remember smiling when the U.N. began discussions, over a decade ago, on “highly migratory and straddling fish stocks.” The cumbersome phrase evoked images of fish with fins turning into legs as they made their awkward way to land. Today, there are now little or no “wild” fish on the fish slab. The convention was too late to save, for example, the cod. But it may not be too late to save other species.
It was evident that ocean-bed mining could lead to environmental despoliation, and even military conflict over competing claims. So the convention makes it illegal to mine the deep-sea bed without permission of the International Sea Bed Authority, and no country is supposed to begin mining without ratifying the convention. The issue is moot because economics and technology have not advanced as far as people feared or hoped twenty years ago. U.S. objections to mining restrictions were substantially met in a 1994 redraft. Yet while no one is currently mining the seabed, the prospect of regulation when mining inevitably begins has the conservative groups fuming about socialism.
Seemingly they prefer anarchy.
INCONVENIENT TRUTHS—When whole shorelines can be devastated by the activities of passing ships leaking oil or dumping waste, the question of rules and jurisdiction becomes crucial. On the other hand, if coastal states can impede or detain passing foreign ships, there is an almost unlimited prospect of dangerous disputes, and, at the very least, an impediment to commerce. The convention allows coastal states to inspect and take proceedings against ships suspected of violating anti-pollution regulations. Yet CEI and CSP witnesses at the Foreign Relations Committee inverted the logic of that provision and warned that debris washed into the Gulf of Mexico from Katrina would lay the U.S. open to prosecution if the convention were ratified. If debris washing into the Gulf is an unlikely cause of action, there are ample grounds for prosecuting many people over the government’s response to the hurricane. Internationally, however, there is no real mechanism. And the free-enterprise right to dump garbage, oil and bilge on the high seas has somehow become part of U.S. sovereignty.
LAW, NOT WAR—The very first case to be brought to the Hamburg-based International Tribunal on the Law of the Sea could have been designed to prove the need for multilateral jurisdiction. In 1997 theMV Saiga, an oil tanker registered in St. Vincent and the Grenadines, owned by Cypriots, chartered by Swiss, managed by a Scottish company, officered by Ukrainians and crewed by Senegalese, had been bunkering fishing vessels off the coast when patrol boats from the Republic of Guinea seized the ship and detained the crew. Guinea claimed a customs zone that extended 250 miles from its coast. In the past, no serious legal remedies existed, and there was the ever-present threat of war to resolve such issues. The Tribunal was able to secure the release of the ship and crew on payment of a bond, and after consideration, it threw out the Guinean claim and ordered the ship and its crew freed. Under the convention, Guinea was not entitled to claim more than 200 miles for its exclusive economic zone.
FIRST WAVE?—For decades, conservative ideologues have rallied their forces and their receptive audiences on Capitol Hill to reflexive rejection of the United Nations and any other multilateral agency or convention. The U.S. refusal to ratify the International Criminal Court, the Nuclear Test Ban Treaty, the conventions on landmines, women’s rights and child soldiers, and the Kyoto Protocol, let alone to pay U.N. dues in full and on time, has devalued American diplomatic standing and made a mockery of Washington’s attempts to preach to other so-called “outlaw” states. The Goldwater-era ideologues lurking behind this diplomatic war on the rest of the world have been able to hide behind other groups. The wackos are now in the spotlight.
The Law of the Sea ratification presents a unique opportunity to break the conservative hold on multilateralism. If the Senate cannot ratify the convention with the White House, the Pentagon and former Republican chair of the Senate Foreign Relations Committee onside a Democratic majority, then Americans had best resign themselves to being all at sea in the world of international law. It is just possible that the extremists who see the U.N. as a world government about to occupy and disarm the United States could thwart the two-thirds vote required in the Senate for the treaty to be ratified. For years they’ve succeeded in keeping the convention off the Senate floor despite support from the Foreign Relations Committee. For irrationality to triumph, all that’s needed is for sane men and women to do nothing.