The Law of the Sea Treaty: A Bad Deal for America
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By ratifying UNCLOS, the United States would be submitting itself to a much wider range of international controls than it has in the past. Allowing ITLOS to sit in judgment on U.S. naval tactics or allowing the Authority to press U.S. firms to share strategic technologies with countries like China can only prove damaging to U.S. national security. It may also be detrimental to U.S. economic interests to allow the Authority to place conditions on when and how U.S. firms can search for minerals or commercially valuable microbes in the deep seas. In addition, in the long term, there are serious risks involved to American national sovereignty in accepting the underlying premise of UNCLOS III. The most valuable provisions, regarding transit rights and national regulatory rights in exclusive economic zones, are widely accepted. They have therefore a solid claim to be regarded as customary international law. By ratifying the treaty, the United States would be saying that it cannot retain its rights under customary international law unless it agrees to accept new international institutions that other countries happen to favor. Worse, ratification would seem to endorse the notion that American rights can only be secured by appealing to new international institutions. From there it is only a small step to the claim that further progress on other international matters requires submission to new and more far-reaching international controls, developed and implemented by new supranational organs.
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The United States has a stake in working with other nations to protect the global environment. For that purpose, it has entered into a number of conventions and agreements, such as, for example, conservation agreements to preserve fish stocks in international waters. But it is one thing to agree to a common standard and another thing to be bound by the decisions of an ongoing regulatory council in which the United States can be easily outvoted. It is one thing to agree to submit particular disputes to international arbitration, with the consent of both parties. It is entirely another thing to establish an ongoing court, with mandatory jurisdiction over important matters and an open-ended claim to “advise” on the law apart from particular disputes. It is something else again to embrace a court that, being permanent, may be prey to all the temptations of judicial activism, to extending its authority by enlarging its jurisdiction and winning popularity by playing favorites in its judgments.
The United States has traditionally respected limits on what it can agree to do by treaty. In the past, it has refused to ratify treaties that delegate so much authority to international institutions. By ratifying UNCLOS, we would not only open ourselves to immediate risks and complications regarding actions on the seas, we would also make it harder to resist more ambitious schemes of global governance in the future. We have said in the past that we cannot submit to such impositions on our own sovereignty. President Reagan made this point in rejecting UNCLOS in 1982, pointing to the open-ended regulatory powers of the Authority. If we ratify UNCLOS, we make it much harder to explain—to others, as to ourselves—why we cannot embrace further ventures in “global governance,” like the International Criminal Court or the Kyoto Protocol. We would feed demands for similar international control schemes for Antarctica or Outer Space.