The American Spectator

He cites the Treaty’s expansive definition of marine pollution, writing that “the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water” could “give rise to actions under the Convention’s marine pollution provisions.”

“While very few of the drafters of [the Treaty] may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future. At the very least, the spectre of litigation may help to deepen the commitment of States to confront the most pressing environmental issue of our generation,” Burns wrote.

By being publicly honest, Professor Burns violated the earlier injunction from Bernard Oxman, a long-time LOST supporter at the University of Miami. Writing in the European Journal of international Law in 1996, Prof. Oxman warned that “global ratification [of LOST] is by no means assured.”

Thus, Oxman explained, it was important for advocates not to unduly worry governments about the potential obligations they would be incurring: “this suggests restraint in speculating on the meaning of the convention or on possible differences between the Convention and customary law.”

Indeed, he acknowledged that the Convention “is an easy target” because “[l]ike many complex bodies of written law, it is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting, not to mention a potpourri of provisions that any one of us, if asked, would happily delete or change.”

But in Oxman’s telling all that mattered was ratifying the Treaty. So it was “essential to measure what we say in terms of its effect on the goal.” He explained that “[e]xperienced international lawyers know where many of the sensitive nerve endings of governments are. “Where possible, they should try to avoid irritating them.”

ONE OBVIOUS “sensitive nerve ending” is LOST’s purported control over land-based pollution. Article 207 of the Treaty directs: “States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.”

States also “shall take other measures as may be necessary to prevent, reduce and control such pollution.”

Some LOST advocates simply deny the obvious. Deputy Secretary of State John Negroponte last year claimed that there was “no jurisdiction over marine pollution disputes involving land-based sources,” directly contradicting the Treaty text.

Others claim that the provision is merely hortatory. Yet Lawrence Kogan, of the Institute for Trade, Standards, and Sustainable Development, wrote an extensive analysis for The ITSSD Journal, warning that several provisions created a potential cause of action and could “be used to commence litigation against the U.S.” in various international forums.

Still, Treaty advocates contend that such actions would fail. They dismiss a suit by Ireland against Great Britain over domestic-source pollution because of Britain’s supposed failure to raise the best defense.

Maybe they are right, but we won’t know until their theory is tested. Moreover, argues Kogan, “whether or not an adverse ruling is secured, such other LOST party could help to shape/influence future U.S. governmental legislative and/or regulatory action.”

More significantly, it is pretty clear that Treaty supporters are not being straight with the rest of us. The World Wildlife Fund and Don Kraus of Citizens for Global Solutions have told environmentalists that they should back LOST because it could help halt Russian pollution of the Arctic. How can the convention bind Russia but not America?

One Treaty proponent recently sent an email — which ended up in my hands — about the consequent difficulty of allaying “conservative fears” of LOST being “some kind of green Trojan Horse.”

Supporters of the Convention have a clear agenda. Declared the UN’s Division for Ocean Affairs and the Law of the Sea: LOST is not “a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”

Where might that “dynamic and evolving body of law” end up? Facile assurances from Treaty proponents need to be verified and not trusted. The U.S. Senate has an obligation to answer that question before it ratifies this horror show of a treaty.