Law of the Sea Treaty

Concerned about America’s unilateralistimage abroad, Secretary of State Condoleezza Rice has declared that the president wants to see the controversial Law of the Sea Treaty “pass as soon as possible.” Americans would be better off if the administration allowed the treaty to sink beneath the waves, where it belongs.

One of President Reagan’s notable achievements was derailing the omnibus convention. The treaty has been styled as a constitution of the oceans.

Although many of the treaty’s provisions are uncontroversial, it was largely developed in the 1970s when Third World states were campaigning to mulct wealth and technology from the industrialized West. Mr. Reagan rejected the convention.

Unfortunately, bad treaties never seem to go away. The Clinton administration signed an agreement to revise the treaty in 1994. The Republican takeover of Congress ended ratification hopes, but now Republican members seem less likely to resist the Bush administration’s importunings.

The Senate should stand firm against the treaty.

Covenants dealing with economic resources, the environment and navigation generally offer positive advances or reflect existing international law. In many cases, however, most of the benefits are achievable without the treaty.

Moreover, some treaty proponents see the convention as a “living” document. For instance, the U.N. Division for Ocean Affairs and the Law of the Sea explained that the treaty “is not, however, a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.” Creative international jurists could wreak enormous havoc.

Of greatest importance in today’s unsettled security environment is free transit.

The treaty purports to guarantee freedom of navigation, but many of its provisions reflect customary international law. Moreover, the treaty is neither unambiguous nor will it prevent other nations from challenging the United States whether America is in or out of the treaty.

For instance, several countries, including major players such as Brazil, China, and India, have made extensive ocean claims opposed by other states as excessive. In Senate testimony, Adm. Michael G. Mullen, vice chief of naval operations, warned that the United States should not expect that “countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention.”

The Bush administration also has emphasized that it expects the United States to have exclusive authority over military operations. But there is no guarantee that other states, especially when American “unilateralism” is under widespread attack, will respect Washington’s determination. The United States might face an adverse treaty tribunal decision asserting jurisdiction over American naval activities — such as the Proliferation Security Initiative. An adverse ruling, warned Adm. Mullen, could harm “operational planning and activities, and our security.”

The treaty’s navigation provisions are a classic example of Arthur Conan Doyle’s famous dog that didn’t bark. Two decades ago, treaty proponents forecast disorder on the seas after America’s rejection of the agreement. U.S. vessels continue to freely transit the seas.

Friendly relations with the few states that sit astride important sea lanes are more likely than an abstract multilateral treaty to ensure U.S. passage. In any case, the only certain guarantee of free transit is the Navy.

At the same time, the treaty retains many of its original worst flaws.

Convention advocates routinely claim that seabed mining is no longer an issue. The Clinton administration did improve the treaty, assuming the “fix” is juridically sound — not all parties have ratified the amendments. But the changes do not address the essential character of treaty.

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