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September 27, 2007

The Law of the Sea Treaty is a Bad Idea

Former Secretaries of State James Baker and George Shultz had an op-ed in the Wall Street Journal yesterday entitled "Why the 'Law of the Sea' Is a Good Deal." They take the usual strategy for LOST advocates: touting treaty benefits that we already possess under customary international law and domestic law.

My response to the secretaries is in the extended entry, for those of you who are into that kind of thing.

Our participation would increase our ability to wage the war on terror. The convention assures maximum maritime naval and air mobility, which is essential for our military forces to operate effectively. It provides the stability and framework for our forces, weapons and materials to be deployed without hindrance -- ensuring our ability to navigate past critical choke points throughout the world.

It's almost insulting that the secretaries start with the War on Terror, as if the mere invocation of those words will line people up in support of whatever they are selling. In this case, they ignore the the fact that the passage of ships through straits within territorial waters, "critical choke points," has long been protected under customary international law. For example, in the 1949 Corfu Channel Case, the ICJ held that "there is no right for coastal States to prohibit [innocent] passage through straits in time of peace."

LOST incorporates this rule of customary law, but goes further in providing exceptions. For example, LOST member states can deny innocent passage to ships which engage in "any threat or use of force violation of the principles of international law embodied in the Charter of the United Nations." Given the incorrect-but-widespread perpetuation of the "Illegal Iraq War" meme, it is not a stretch to imagine states attempting to apply this provision of the treaty against the U.S.

What happens if we join the treaty and another state raises an objection to our passage? According to the Treaty, we are required to take our dispute to a new international court, the International Tribunal for the Law of the Sea. Somehow, the secretaries pass that off as a good thing:

Some say it's good enough to protect our navigational interests through customary law. If that approach fails, then we can employ the threat of force or the use of it. However, because customary law is vague, it does not provide a strong foundation for critical national security rights. Meanwhile, the use of force can be risky and costly. Joining the convention would put our vital rights on a firmer legal basis, gaining legal certainty and legitimacy as we operate in the world's largest international zone.

Only there is no guarantee that the Tribunal will be impartial. Even worse, by the time the Tribunal can be convened, it is a certainty that the U.S. will already have moved its ships through the contested area. Any decision by the Tribunal will be mere post-hoc sniping. In other words it doesn't make a confrontation between the U.S. and other countries any less likely.

The convention also provides substantial economic benefits to the United States. It accords coastal states the right to declare an Exclusive Economic Zone -- an area where they have exclusive rights to explore and exploit, and the responsibility to conserve and manage, living and non-living resources extending 200 nautical miles seaward from their shoreline. Our nation's EEZ is larger than that of any country in the world -- covering an area greater than the landmass of the lower 48 states. This zone can be extended beyond 200 nautical miles if certain geological criteria are met. This has potentially significant economic benefits to the U.S. where its continental shelves may be as broad as 600 miles, such as off Alaska, an area containing vast natural resources.

Here again, the secretaries ignore the fact that EEZs and EEZ extensions have been customary international law for years. President Reagan knew that when he declared the treaty superfluous and executed Proclamation 5030, establishing a 200 mile EEZ for the U.S. Most other countries around the world followed suit. Control of continental shelf resources extends even further back in time. On this date in 1949, President Truman signed Executive Order 9633 and Proclamation 2667, making "the continental shelf beneath the high seas but contiguous to the coasts of the United States ... subject to its jurisdiction and control."

Accession would increase our influence by allowing us to nominate experts for the technical bodies that apply the convention's terms, address proposals to amend the convention from within (rather than from the sidelines), and increase our credibility as a leader in international ocean policy.

So it doesn't really hurt us not to ratify the treaty, unless we want to play with the treaty terms. The secretaries gloss over the idea that we might just not care about the treaty terms if we weren't a party. As far as credibility in international ocean policy goes, we have both the largest mercantile maritime operation and the largest blue-water navy in the world. Our credibility and relevance is not in any danger.

As a non-party, however, the U.S. has limited options for disputing claims such as these and is stymied from taking full advantage of resources that could be under U.S. jurisdiction. Similarly, lack of participation in the convention is jeopardizing economic opportunities associated with commercial deep-sea mining operations in international waters beyond exclusive economic zones -- opportunities currently being pursued by Canadian, Australian and German firms.

The U.S. retains all the traditional options of public diplomacy for interacting with foreign states. Passing on the opportunity to pick judges for the ITLOS or experts for treaty organs is no loss. Furthermore, the secretaries participate in shameful rhetorical slight of hand when they note that Canadian, Australian, and German firms are pursuing deep-sea mining operations. That's true, but none of those firms are using the LOST procedures to do it.

From top to bottom, Baker and Shultz mislead readers and ignore the current state of the law. LOST advocates should be telling us what we actually gain from the treaty, not expounding on the codification of laws from which we already benefit.

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posted by Gabriel Malor at 01:36 PM

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