Bush Officials Deceive Senators at Hearing on U.N.’s Law of the Sea Treaty; Sen. Vitter Cites Proof that Pact Is a Back-door Global Warming Treaty 

At a September 27 hearing into the U.N.’s Law of the Sea Treaty, Bush Administration officials repeatedly misled the Senate about the provisions of the pact, now up for ratification. The United Nations Convention on the Law of the Sea (UNCLOS) has been described as the most comprehensive treaty ever. It is a global trap that could affect the industrial, economic and military activities of the U.S. Its alleged benefits -- such as the right to navigation on the high seas and rights to transit through international straits -- are already available to the U.S. through what is called customary international law.

The hearing demonstrated that UNCLOS can and would be used to force the U.S. to implement the provisions of the (unratified) global warming treaty by reducing industrial carbon dioxide and other greenhouse gases. The U.S. Senate voted 95-0 in 1997 to reject many of the principles behind the global warming treaty.

During the September 27 hearing, State and Defense Department officials were left either speechless or caught up in embarrassing contradictions about the impact of this international agreement on America’s security, economy, and sovereignty.

One major area of concern is how the treaty could be used against the U.S. in a back-door effort to implement the (unratified) global warming treaty, with the result being higher gas prices for the American people and perhaps even energy rationing. The Law of the Sea treaty creates a tribunal and various bodies, including dispute resolution or arbitral panels, to resolve conflicts which may arise. Major parts of the treaty mandate international regulation of U.S. economic and industrial activities on land. Greenhouse gases, for example, could be viewed under the terms of the treaty as contributing to pollution of the oceans.

State Department Officials Caught in Falsehoods

Deputy Secretary of State John Negroponte told the Senate committee that the U.N. body established by the treaty has “no jurisdiction over marine pollution disputes involving land based sources.” He said, “that’s just not covered by the treaty.” Negroponte’s sidekick, State Department Legal Adviser John B. Bellinger III, said, “It clearly does not allow regulation over land-based pollution sources. That would stop at the water’s edge.” But Vitter shot back, “…why is there a section entitled pollution from land-based sources?” Not only is there a section by that name, Vitter pointed out, but there is a section on enforcement. The section is Article 207, “Pollution from land-based sources.” (see actual provisions of treaty at the end of this report).

Top U.S. State Department officials are either ignorant or are trying to mislead the U.S. Senate and the American people about the ramifications of this treaty. In either case, we are sunk if this treaty goes through.

Here is some of the exchange on this point:

Senator David Vitter: “Another concern is regulation of domestic activity.  It seems to me the treaty clearly states jurisdiction over land-based pollution sources. Why do we want to open that Pandora’s box?”

Bellinger: “Senator, I think it clearly does not allow regulation over land-based pollution sources. That would stop at the water’s edge. At least dispute resolution involving them, there can be limitations on the pollution that could emanate, but as far as the ability of any other country to complain and bring us to dispute resolution over pollution that would come from land, that’s not permitted under the treaty.”

Vitter: “Article 213 says states shall enforce their laws and shall – mandatory – adopt laws and regulations and take other measure to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution. Sounds to me like the Kyoto Protocol is an international standard and we shall pass laws to enforce that.”

Bellinger: “Well this is not a back-door way to subject us to the Kyoto Protocol. There is no way that those standards could be standards that someone could subject us to in dispute resolutions.”

Vitter: “Why? It says we shall do this. We shall pass laws to enforce international environmental standards. So why couldn’t a state take us to dispute resolution, saying ‘you’re not doing that. You need to heighten environmental laws A,B,C, D and E?’”

Negroponte: “There are some environmental issues that are the subject of international agreements, such as ocean dumping, for example. But when you talk about land-based pollution, our view is that that’s just not covered by the treaty, Senator. That’s the point. We believe there is no jurisdiction over marine pollution dispute involving land based sources.”

Vitter: “If it is completely not covered by the treaty, why is there a section entitled Pollution from land-based sources?”

Bellinger: “It’s just the dispute resolution. The treaty has not – a number of general hortatory provisions. But the dispute resolution mechanisms are extremely limited for this very reason. We wanted dispute resolution to have things we could use in our favor – if our vessels were seized.’

Vitter: “Let me follow up on your answer. You say it’s not dispute resolution. Section Six – enforcement.  First article: enforcement with respect to pollution from land-based sources. Why is that article there if there is no enforcement with regard to pollution from land-based sources?”

Bellinger: “I think on this gets sufficiently technical. We’ve worked our way through the treaty. We are confident that pollution from land-based sources would not be subject to the jurisdiction of the tribunals or arbitral panels. But we’re happy to write it down for you on paper and get it to you Senator.”

Vitter: “I would point you to Section Six, Article 213. Section six, which is about enforcement with respect to pollution from land-based sources  It seems to me the very title of that article at least sets up a prima facie case that your statement isn’t correct.”

It was absolutely clear to anyone paying attention that Negroponte and Bellinger either had no real understanding of what was in the treaty or didn’t want to tell the American people what was really in it. But it’s hard to believe they didn’t know what was in it. The treaty has been around for decades and Bellinger claimed that the State Department had studied it extensively.

This makes Title 18, Section 1001, of the U.S. Code relevant. It is a federal crime to make false statements to a congressional committee. However, none of the witnesses at the hearing was put other oath.

In the end, as we could see, under withering fire from Vitter, Bellinger insisted that the controversy was too “technical “to discuss at the hearing and that he would submit something in writing. Senator Jim Webb, chairing the hearing, suggested he do so, attempting to save Bellinger from further embarrassment.

State Department Legal Adviser Bellinger had told the Senators that “This is not a back-door way to subject us to the Kyoto [global warming] Protocol.” But Vitter, by citing actual provisions of the treaty, had proven that the truth is exactly the opposite.  It is clear that UNCLOS can be used by the United Nations and other governments and non-governmental organizations to try to force the U.S. to implement the provisions of the unratified global warming treaty by reducing the discharge of industrial carbon dioxide and other greenhouse gases. This legal strategy could dramatically affect the industrial, economic and military activities of the U.S. 

It is absolutely clear that radical legal activists intend to use UNCLOS to sue the United States on the grounds that the U.S. emits too many greenhouse gas emissions which they say have polluted the oceans of the world. The use of UNCLOS for this purpose was openly advertised by Dr. William C.G. Burns in the article entitled, “Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention.”  Litigation against the U.S. is “unavoidable,” it argues, and UNCLOS “may prove to be a primary battleground for climate change issues in the future.”

The treaty refers to taking action against “all sources of pollution of the marine environment,” including “the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping…” (Section 1. Article 194. Measures to prevent, reduce and control pollution of the marine environment.)

Speaking at the March 29, 2007, annual conference of the American Society of International Law, Dr. Burns explained that, “…the heating in the oceans associated with climate change would likely be construed by a dispute resolution body as the introduction of energy under this definition, since the Law of the Sea Convention has already construed the introduction of heated waste water in a similar manner.”

 “The key to it is that there is a definition of pollution under it and you are not supposed to pollute the oceans,” Burns explained in an interview. The key “is whether…carbon dioxide is a form of pollution. The argument I make is…CO2 is going to lower the pH of the ocean and mess up the ability of coral reef organisms to form reefs and affect other species that form shells – like the snails I’m talking it. The Law of the Sea Tribunal has before defined heated waste water as pollution. I would think that heating of the ocean and having heat-related impacts would fall under the rubric of pollution. Once you get that, under the Law of the Sea Convention, then there’s all of these proscriptions in terms of preventing pollution that the parties are required to do… Those obligations then kick in and then create obligations to ameliorate those impacts.” 

(You can listen to this interview at www.USAsurvival.org).

Asked about the reaction of the Bush Administration to his arguments for using UNCLOS to sue the U.S., he said:

“They already know about this. We‘ve talked to Justice about this. I don’t think they’re terribly concerned. I think they either think that a tribunal won’t take it [the case] or if they do…they’ll just walk away from it.” (emphasis added).

However, the Tribunal has already taken such a case. In the MOX case (Ireland v. United Kingdom), the International Tribunal for the Law of the Sea ruled that "the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention…" In the case, the Irish government used UNCLOS to try to stop the production of mixed oxide fuel (MOX) at the Sellafield nuclear plant in Britain. Ireland alleged that the UK failed to protect the marine environment from radiation resulting from the manufacture of MOX. The UK was ordered to cooperate fully with Ireland. Irish Environment Minister Martin Cullen declared, “"We now have a UN referee overseeing the implementation of Britain's obligations.”  

One former Law of the Sea Treaty negotiator told us:

”There are a lot of pollution provisions in the convention. It sounds like they can do more with it than the negotiators intended. Since they didn't get their global warming treaty (ratified by the U.S.), I worry about treaty provisions on emissions and anthropogenic (human-caused) inputs into the ocean that cause pollution. They could turn this into a global warming issue. Could they bring a case against us because we have pipes that put out sewage or air pollution that finds its way into the ocean?”

Vitter also caught Bush Administration officials saying other things that were untrue. He caught them in evasions and obfuscations over the claim that U.S. military and intelligence activities on the high seas cannot be restricted by the treaty.  U.S. officials are making that claim in a declaration in the Senate resolution of ratification. It is one of 24 declarations or understandings being made by the U.S. for a treaty that administration witnesses repeatedly claimed would provide “legal certainty” about what nations can and cannot do on the high seas. If the treaty is so definitive and clear, then why is there a need for 24 declarations and understandings? To make matters worse, these declarations and understandings have no legal validity under the treaty. 

Here’s some of the exchange on this point:

Vitter: “Who decides what is and what is not a military activity?”

Negroponte: “We will decide that.  We consider that within our sovereign prerogative.”

Vitter: “Where does the treaty say that we decide that and an arbitral body does not decide that?”

Deputy Secretary of Defense Gordon England: “My understanding – and I’ll ask my lawyer behind me – that that’s in the treaty that we make that determination and that’s not subject to review by anyone else.”

Vitter: “It’s not in the treaty because I point to Article 298 1b where it simply says disputes concerning military activities are not subject to dispute resolution. But it doesn’t say who decides what is and what is not a military activity.”

England: “You’re right.”

Once again, an administration witness had been caught saying something that was not true.

When Vitter asked whether the U.S. considered intelligence activities to be military activities, England said he thought so but quickly motioned for his lawyer to come forward. But his lawyer didn’t seem to be in any rush to come to the microphone.  Bellinger piped in that it would be “up to us.” Vitter countered that other signatories to the treaty will disagree, leading to inevitable disputes about what the U.S. could do. 

Administration officials falsely and repeatedly claimed that the international bodies set up by the treaty have no official involvement with the United Nations. In fact, the International Seabed Authority and the International Tribunal for the Law of the Sea have written and formalized agreements with the U.N. Their employees even belong to the U.N. pension fund. The treaty itself has numerous references to the authority of the U.N., emphasizing how the pact is to be implemented in accordance with the U.N. Charter.

Senator Richard Lugar, the top Republican on the Senate committee and long-time advocate of the treaty, turned in an embarrassing performance as well. Lugar, who has accepted campaign contributions from the Citizens for Global Solutions, a pro-world government lobby, attacked critics of the pact as conspiracy theorists who were exaggerating the dangers of the pact. He attacked an ad taken out by America’s Survival, Inc. (ASI) in the September 26 Washington Times, saying it was misleading. In fact, the claims were based on the text of the treaty and official U.N .documents.

It is apparent that this treaty is being rushed through the Senate, despite the abundant evidence that it will backfire against America and undermine our sovereignty, security and national economy.

Ratification, therefore, is an open invitation to subject the U.S. to global litigation before domestic and international courts. The effect would be to raise energy prices on average Americans and undermine economic growth, while taking decision-making authority away from Congress and putting it in the hands of global authorities.