Sink the Law of the Sea Treaty
Doug Bandow argues against ratifying the Law of the Sea, arguing that the treaty "is a flawed document, and there would be serious costs from accepting it."
The Authority, though so far of modest size, would suffer from the same perverse incentives that afflict the U.N., since the United States would be responsible for 25 percent of the budget but easily outmaneuvered. Proposals by industrialized signatories to limit their contributions have so far received an unfriendly reception. Still, when it signed the Law of the Sea Treaty, the Clinton administration said there was no reason to worry, because the treaty proclaims that "all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective." Right. Presumably just as cost-effective as the U.N.
Most influential, though, may be support from the U.S. Navy, which is enamored of the treaty's guarantee of navigational freedom. Not that such freedom is threatened now: The Russian navy is rusting in port, China has yet to develop a blue water capability, and no country is impeding U.S. transit, commercial or military.
At the same time, some ambiguous provisions may impinge on freedoms U.S. shipping now enjoys. In Senate testimony last fall, State Department legal adviser William H. Taft IV noted the importance of conditioning acceptance "upon the understanding that each Party has the exclusive right to determine which of its activities are 'military activities' and that such determination is not subject to review." Whether other members will respect that claim is not at all certain. Admiral Michael G. Mullen, the vice chief of naval operations, acknowledges the possibility that a Law of the Sea tribunal could rule adversely and harm U.S. "operational planning and activities, and our security."
Moreover, at a time when Washington is combating lawless terrorism, it should be evident that the only sure guarantee of free passage on the seas is the power of the U.S. Navy, combined with friendly relations with the states, few in number, that sit astride important sea lanes. Coastal nations make policy based on perceived national interest, not abstract legal norms. Remember the luckless USS Pueblo in 1968? International law did not prevent North Korea from seizing the intelligence ship; approval of the Law of the Sea Treaty would have offered the Pueblo no additional protection. America was similarly unaided by international law in its 2001 confrontation with China over our downed EP-3 surveillance plane.
Nor has signing the Law of the Sea Treaty prevented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed excessive by others. Indeed, last October Adm. Mullen warned that the benefits he believed to derive from treaty ratification did not "suggest that countries' attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention."
Critics of the U.S. refusal to sign in 1982 predicted ocean chaos, but not once has an American ship been denied passage. No country has had either the incentive or the ability to interfere with U.S. shipping. And if they had, the treaty would have been of little help. In 1998 Law of the Sea Treaty supporters agitated for immediate ratification because several special exemptions for the United States were set to expire; Washington did not ratify, and no one seems to have noticed. Now Lugar worries that Washington could "forfeit our seat at the table of institutions that will make decisions about the use of the oceans." Yet last October Assistant Secretary of State John F. Turner told the Senate Foreign Relations Committee that America has "had considerable success" in asserting "its oceans interests as a nonparty to the Convention."
Law of the Sea Treaty proponents talk grandly of the need to "restore U.S. leadership," but real leadership can mean saying no as well as yes. Ronald Reagan was right to torpedo the Law of the Sea Treaty two decades ago. Creating a new oceans bureaucracy is no more attractive today.