It is high time the United States joined 162 other states and the European Union in becoming party to the UN Convention on the Law of the Sea (UNCLOS)—thirty years after the Reagan administration first negotiated the treaty.
On May 23, the White House dispatched its big guns to the Senate Foreign Relations Committee, where Senator Kerry is holding hearings on UNCLOS. The message from Secretary of State Hilary Clinton, Secretary of Defense Leon Panetta and chairman of the Joint Chiefs of Staff, General Martin Dempsey, was unequivocal: Acceding to the treaty is profoundly in the U.S. national interest.
That, of course, is the unanimous view of every one of their predecessors, under both Democratic and Republican administrations.
And yet the treaty continues to face stubborn opposition from a vocal conservative minority of purported defenders of U.S. sovereignty, still trotting out long-discredited talking points.
All of the uniformed services—and especially the U.S. Navy—are solidly behind UNCLOS. American military leaders have always been discriminating when it comes to treaties, traditionally resisting those (like the Rome Statute of the ICC) that might put U.S. servicemen and women at risk. But they support UNCLOS because it will enable, rather than complicate, their mission. Because the United States was the principal force behind the negotiation of UNCLOS, it contains everything the U.S. military wants, and nothing that it fears.
The treaty’s primary value to the U.S. military is that it establishes clear rights, duties, and jurisdictions of maritime states. The treaty defines the limits of a country’s “territorial sea,” establishes rules for transit through “international straits,” and defines “exclusive economic zones” (EEZs) in a way compatible with freedom of navigation and over-flight. It further establishes the “sovereign inviolability” of naval ships calling on foreign ports, providing critical protection for U.S. vessels. More generally, the treaty allows states party to exempt their militaries from its mandatory dispute resolution provisions—allowing the United States to retain complete military freedom of action. At the same time, the treaty does nothing at all to interfere with critical U.S.-led programs like the Proliferation Security Initiative (PSI). Nor does it subject any U.S. military personnel to the jurisdiction of any international court.
Some have argued that UNCLOS has already become “customary international law,” and thus the United States has little to gain from formal accession. But custom and practice are far more malleable and subject to interpretation. Other states may soon push the Law of the Sea into new, antithetical directions if the United States does not ratify the treaty. China, a party to UNCLOS, rejects U.S. interpretations of the treaty’s freedom of navigation provisions, and continues to assert outlandish claims to control over virtually the entire South China Sea. But it is hardly alone. Countries as diverse as Brazil, Malaysia, Peru, and India have resisted freedom of navigation within their EEZs, in contravention of their obligations.
As it has for years, the United States Navy regularly conducts Freedom of Navigation Operations (so-called FONOPS) to challenge excessive claims of territorial exclusivity. But as non-party to the treaty, the United States lacks any legal standing to bring its complaints to an international dispute resolution body. More broadly, U.S. Navy and Coast Guard officials complain, non-membership complicates everyday bilateral and multilateral cooperation with scores of international partners.
If these security benefits were not enough, the U.S. business community is unified in its support for the treaty for two reasons. First, UNCLOS would protect U.S. rights to sole commercial exploitation to all resources on and under its extended continental shelf (that is, beyond two hundred miles). This area—estimated to be twice the size of California—is rich in oil, gas, and other exploitable resources. Second, accession to the treaty would allow the United States to sponsor its own national companies to engage in deep sea-bed mining. Last week, the chairman of Lockheed Martin sent a strongly worded letter to the Senate saying his company wanted to join the race for undersea riches, but could not assume investment risks until it was clear that it would have a clear legal title to its findings.
This coming week, Senator Kerry will hold a second round of hearings on UNCLOS, featuring an array of military commanders, treaty champions like John Bellinger–former legal counselor to the State Department and National Security Council under the George W. Bush administration–and critics, like Steven Groves of the Heritage Foundation. The hearings offer a golden opportunity to put to rest the canards of treaty opponents.
Securing a two-thirds Senate majority will not be easy. Opponents are pulling out all the stops, invoking the GOP’s patron saint to scuttle its prospects. According to Edwin Meese, former attorney general for Ronald Reagan, the Gipper abandoned the treaty as “a direct threat to American sovereignty”—conveniently ignoring that the offending provisions were written out of the current treaty in a 1994 negotiation, precisely to alleviate U.S. concerns.
One enduring shibboleth is that the International Seabed Authority (ISA) created under UNCLOS is an unaccountable supranational bureaucracy that will defy U.S. wishes and redistribute undersea wealth to developing countries. This is pure nonsense, since the United States is the only country guaranteed (if it accedes to the treaty) a permanent seat on the ISA, a body that takes decisions by consensus—giving the United States an effective veto over its decisions. It is true that the ISA collects royalties for deep sea mining, but these remain extremely modest—as one would expect from an arrangement that was effectively negotiated by U.S. oil companies.
Nevertheless, Senator Jon Kyl of Arizona has proposed an enticing but misguided “compromise,” whereby “Congress could enact a statute that makes the navigational parts of the treaty…the law of the land,” and thereby “separate the wheat from the chaff.” This purported solution is a sheer mirage. It would secure no diplomatic or international legal benefits for the United States. Nor would it secure maritime exploration rights to which Lockheed Martin referred. Still, Kyl has already obtained the signatures of twenty-seven colleagues, just seven short of the number needed to scuttle the treaty. Treaty defenders must expose this gambit as an alluring but ultimately destructive siren song.
Senator Kerry has promised that he will delay any vote on UNCLOS until after the election, to avoid the “hurly-burly of presidential politics.” This is a calculated gamble, given the potential constraints of a lame duck congressional session. Champions will need to keep the pressure on, and hold Congress’s feet to the fire to disregard the absurd objections of treaty skeptics.