Common Sense on LOST

By Frank Gaffney
Tuesday, June 5, 2012

In recent days, top U.S. cabinet officers have traveled around the world on high-profile diplomatic missions. Ironically, in the process of Secretary of State Hillary Clinton’s visit to the Arctic Circle and Secretary of Defense Leon Panetta’s travels in Asia, they both undercut the case for the United Nations’ controversial Law of the Sea Treaty (LOST) – a case they had jointly made prior to departing in testimony before the Senate Foreign Relations Committee.

Mrs. Clinton took part in a meeting of the Arctic Council whose eight members have territory in that region. Of these, just five – Russia, Canada, Norway, Denmark’s Greenland and the United States – actually have coasts on the Arctic Ocean, and therefore are able to claim rights to the resources offshore.

To be sure, the Secretary of State used the occasion of her joining the other Arctic nations for the purpose of forging a new region-wide search-and-rescue (S&R) agreement to express the Obama administration’s commitment to LOST. She assured her colleagues that the President is determined to overcome opposition in the Senate and the country in order to get the treaty ratified.

Still, this S&R agreement suggests the obvious: It is far easier to achieve understandings in a group of eight – or, better yet, five – nations that have similar, if not identical, interests and a shared understanding of the stakes, than among agroup of 150-plus nations, most of whom do not. If that is true for an accord governing assistance to downed planes and ships lost at sea, it surely is the case when it comes to the disposition of potentially many billions of dollars worth of undersea oil and gas deposits.

Meanwhile, our Defense Secretary was off in Asia trying to shore up America’s alliances in the region without actually saying that China is a threat that needs to be countered there. So he eschewed the President’s much-touted strategic “pivot” from the Middle East and South Asia to the South China Sea – supposedly involving a move in force to parry the PRC’s aspirations for hegemony. Instead, Mr. Panetta employed less offensive terms like “rebalancing” and made commitments about a future U.S. presence in the theater that were deeply discounted in light of ongoing, and forthcoming, sharp cuts in defense spending.

It happens that Secretary Panetta’s enthusiasm for the Law of the Sea Treaty tracks with Team Obama’s public efforts to low-ball the dangers posed by China’s increasingly aggressive behavior towards our Asian friends and allies, and its growing capacity to act coercively due to its growing military capabilities. He and, surprisingly, even senior Navy and other military officers who should know better seem to think that if only the United States were a party to LOST, international law would tame the Chinese dragon.

As one of the nation’s most astute China hands, Gordon Chang, noted recently in his column at World Affairs Journal : “Although Beijing ratified the [LOST] pact in June 1996, it continues to issue maps claiming the entire South China Sea. That claim is, among other things, incompatible with the treaty’s rules. It’s no wonder Beijing notified the UN in 2006 that it would not accept international arbitration of its sovereignty claims.”

Just as common sense argues for using bilateral or, at most, five-party forums to establish arrangements governing the Arctic Ocean’s resources, it strongly militates against the United States allowing itself to be bound to a treaty whose core provisions (i.e., those governing limitations on territorial claims and mandatory dispute resolutions) are already being serially violated by Communist China.

On May 9th, Secretary Panetta nonetheless asserted that “By moving off the sidelines, by sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.” That is simply not so if, as is true of the LOST’s various institutions, we would have but one seat among many, and no certainty that we can decisively “influence bodies that develop and interpret the law of the Sea.”

In fact, thanks to the rigged-game nature of those institutions, such bodies can be relied upon to hamstring us – by, for example, applying environmental regulations over which we have no control to our Navy’s anti-submarine warfare exercises and our domestic emissions into inland air and water that migrates to the international oceans.

Meanwhile, the Chinese will get away with choosing which rules they will abide by and which they won’t. Mr. Chang puts it this way: “[China] is…a signatory to the Nuclear Nonproliferation Treaty, but remains a notorious nuclear proliferator, and it is a member of the World Trade Organization, yet brazenly disregards its trade obligations. And UN sanctions? China openly violates those too, even though it is one of the five permanent members of the Security Council.”

In short, the Obama administration wants Senators to suspend common sense and ignore real and legitimate concerns about the deleterious impact of the Law of the Sea Treaty on our sovereignty, economic interests and potentially even the national security. Will 34 Senators have enough common sense to just say “No”?