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Bad Puns Aside, What’s Wrong with the Law of the Sea?

In Ben Kurland on August 17, 2012 at 3:22 pm

Thanks to recent Senate action, ratification of the U.N. Convention on the Law of the Sea (UNCLOS) is being discussed again. Senator John Kerry (D-MA), the chairman of the committee, recently convened several hearings regarding UNCLOS (6/28/12, 6/14/12, 6/14/12, 5/23/12) suggesting that it could come to a vote in the near future. Prospects, however, seemingly died when Senators Rob Portman (R-OH) and Kelly Ayotte(R-NH) announced their opposition giving nay-says enough votes (now at 34) to block the two-thirds majority necessary to pass a bill in the Senate.

Puns abounded. Politico called UNCLOS “Sunk” and Foreign Affairs published an article declaring the U.S. an “Outlaw of the Sea”. Opponents had already been referring to it as the Law Of the Sea Treaty, or “LOST”. Darlene Casella even joked that it, “could have been dreamed up by Blackbeard” and that “The Jolly Roger should fly over the Law of the Sea Treaty” because “It is theft of the high seas.”

It is understandable. Political commentators are known for having a weak sense of humor when it comes to puns and a sea-based headline would seemingly be hard to avoid. Jokes aside though, the blockage of UNCLOS in the Senate speaks of a worrying trend in U.S. politics, namely a dismissal or denial of the current international field as it stands.

What about this treaty is so disconcerting? The United Nations Convention of the Law of the Sea is a thirty year old attempt to define the rights and responsibilities of nations regarding the world’s oceans. It was signed in 1982, came into effect in 1994, and to date has 162 parties. President Bill Clinton signed the treaty in 1994 but Senate has yet to ratify it. All-in-all, it acts as the framework upon which the international community can resolve disputes and conduct relations on over 70% of the earth’s surface.

Opposition, however, is often hyperbolic and intensely scornful. In general it relies on arguments that UNCLOS represents an invasion of U.S. sovereignty. Peter Roff, for example, claims that, “In reality the Law of the Sea Treaty is one more step towards a system of global governance under which U.S. sovereignty would be subordinated to an international system managed by an unelected, self-perpetuating form of bureaucratic aristocracy that cares little for democratic traditions.” Phyllis Schlafly claims that the treaty would “subordinat[e] U.S. sovereignty, plus seven-tenths of the world’s surface area, to another entangling global bureaucracy”. Plus, to add good measure to the fear mongering, internationalist plot, Donald Rumsfeld, in his testimony to the Foreign Relations Committee, claimed that UNCLOS is no more than a “sweeping power grab that could prove to be the largest mechanism for the worldwide redistribution of wealth in human history” and John Bolton and Dan Blumenthal warned that ratifying the treaty could “encourage Sino-American strife” and ultimately allow China to block the U.S. from naval and intelligence operations in the South China Sea. Within this rather simple piece of international groundwork, critics have seemingly found a far right gold mine of criticism: an internationalist plot to subordinate Americans to a socialist agenda that will allow China to overtake the United States.

It is scary to think that this is the tenor to which a section of the U.S. will respond to any piece of international agreement. It is not only a worrying trend of isolationism and denial of reality, it is simply wrong. National Security Network has already put together an outstanding “myth vs. fact” regarding the claims of the opposition of the UNCLOS. Namely, it exposes that much of the vitriol is baseless. Claims, for example, that ratification would constrain the United States or its Navy is combated by the fact that Secretary of State Hillary Clinton, Secretary of Defense Leon Panetta, and a host of other top U.S. brass all support ratification. Lest you think this is a partisan affair, so do five former Secretary of States all of which served under Republican Presidents including Henry Kissenger (Nixon), George Shultz (Reagan), James Baker III (George H.W. Bush), Colin Powell (George W. Bush), and Condoleezza Rice (George W. Bush). The Navy has been pushing for ratification for decades because it would give them a codified basis to traverse the world, guarding the shipping lanes and providing the assistance that makes them a global force.

This is not the only treaty that has come up against claims of violation of the United States’ sovereignty. What is worrying is that these claims seemingly have traction. After all, 31 of the 34 Senators who promised to block ratification did so in a letter circulated by Jim Inhofe (R-OK) in which the most biting intellectual and pragmatic criticism of the treaty was that were concerned that, “United States sovereignty could be subjugated in many areas to a supranational government that is chartered by the United Nations under the 1982 Convention.” As the Thomas Wright pointed out in his article for Foreign Affairs, however, most of the concerns of the Senators were addressed in the 1994 rewrite. As he suggests, “as written, UNCLOS would actually increase the United States’ economic and resource jurisdiction. In fact, Ayotte, DeMint, and Portman’s worst fears are more likely to come to pass if the United States does not ratify the treaty. If the country abdicates its leadership role in the ISA [International Seabed Authority], others will be able to shape it to their own liking and to the United States’ disadvantage.” And do not worry about the socialist plot lurking around the corner. Claims that the ISA is really just a social front are combated, as Wright points out, by the fact that “during the 1994 renegotiation, the United States ensured that it would have a veto over how the ISA distributes funds if it ever ratified the treaty.”

So opposition may be misguided, but why then is this a worrying trend in U.S. politics? It is because the ever present automatic opposition to international multilateralism represents a strong misunderstanding of what it means to live in today’s global world. Since the end of the Second World War, the United States has been a leading member in constructing a liberal (in the classical sense) international order built on a rules-based system that benefits the establishment of an international free market. Backtracking on the order that established the current international regime would bring the United States back to the harmful position of isolationism. If the U.S. wants to recover from the current economic woes the answer is not to hide behind convenient calls of sovereignty but to recognize the global nature of the modern economy and establish international policy that maximizes American competitiveness abroad. The U.S. can do this, for example, by ensuring a legal basis for free passage through the straits of Hormuz, providing a framework for negotiating territorial disputes, and, as Marvin E. Odum, President of Shell Oil pointed out, “the Convention establishes a process through which Parties to the treaty can establish internationally-recognized claims over the resources in their extended continental shelf. Without this high degree of legal certainty, any future claims to oil and gas resources of the extended shelf would be vulnerable to legal challenge or subject to dispute.”

What opponents do not seem to realize is that the United States does not own the sea. Yes, The U.S. has the strongest Navy and are miles ahead of other national competitors. The treaty, as Leon Panetta and the other testifying military personnel suggested would strengthen that position by codifying customary law on free navigation of the open seas. Codification is an important step because it helps develop pre-established guidelines for action taking it from nebulous customary law to actual words on paper. It makes little sense to establish and construct an international order that benefits The U.S.’s liberal ideals if it fails to abide by them especially in an area as uncontroversial as maritime law. By the very definition of sovereignty, asserting U.S. sovereignty does not cover the entire globe. Quite simply, you do not get to claim sovereignty to do whatever you want based merely on perceived power. This is especially important because of the assumed lessons taught us previously about presuming American supremacy. The U.S. leads by example, not by exception, even if the U.S. is exceptional.

This has important consequences. Take, for example, the brewing territorial disputes in the South China Sea. By encouraging multilateral discussions based on prior established ground rules, the world can hopefully avoid armed confrontation as rising powers try to delineate previously contested borders. As Thomas Wight writes in Foreign Affairs, “The United States should not take sides in other countries’ disputes, but it can and must insist upon a strong regional framework to ensure that a rising China does not destabilize the status quo.”

As the five former Secretaries of State wrote, “The continuing delay of U.S. accession to the convention compromises our nation’s authority to exercise our sovereign interest, jeopardizes our national and economic security, and limits our leadership role in international ocean policy…” This addresses perhaps the most coherent of claims against ratification of the UNCLOS. As Portman and Ayotte wrote in their letter of opposition, “the terms of the treaty are not only expansive, but often ill-defined.” This is true and many of their concerns on particular items within the treaty are valid. But like all laws, there is a development process. Laws develop as they are implemented, clarified, applied, amended, revoked, vetoed and voted upon. And, as Sec. Panetta pointed out, “If we are not at the table, then who will defend our interests?” After all, the United States would not want to seem lost at sea on this issue.


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