We are set to take a policymaking trip down memory lane with the Bush Administration urging accession to the Convention on the Law of the Sea in a recent statement made by the President on the issue. The Treaty was crafted from 1973 to 1982 and 154 countries have become signatories to it, along with the European Community.
In 1982, President Reagan refused to sign the Treaty, claiming specific objections to its terms. Those objections have not been resolved.
As Carrie Donovan points out, the Treaty allows for the regulation of intelligence and submarine activities even when they are conducted in territorial waters. Additionally, the Treaty's mandatory dispute resolution provisions under the auspices of the United Nations naturally raise sovereignty questions and the fact that the United Nations is hardly a model international institution does little to raise one's confidence in placing jurisdiction on maritime issues in the hands of the U.N.
Over three years ago, Doug Bandow highlighted additional problems with the Treaty, including the fact that the United States would be putting up approximately 25% of the funds for the International Seabed Authority, which would regulate mining and mineral extraction, while at the same time receiving an inordinately small share of voting rights. This, as Bandow notes, is a typical problem with U.N.-sponsored institutions; they rely heavily on American funding while denying the United States the commensurate amount of power to influence the activities of those institutions. In addition, while the Treaty has some attractive provisions regarding freedom of navigation, there is no impediment whatsoever to America's power to navigate the high seas now or in the immediate future given the overwhelming state of American naval superiority. So in the end, the Treaty's guarantees of freedom of navigation do little—if anything—to advance American interests.
In rebutting this editorial written by Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England in favor of the Law of the Sea Treaty, David Ridenour argues that contrary to Negroponte's and England's assertions, the Treaty could carry with it the potential for a negative environmental impact and that any remaining concerns regarding freedom of navigation and innocent passage are addressed by the 1958 Convention on the Territorial Sea. Indeed, when one examines the 1958 Convention, one finds that it contains a full section—Section III—on the issue of innocent passage. The 1958 Convention's guarantee of rights concerning innocent passage are very broad and generous and they render the Law of the Sea Treaty's guarantees regarding innocent passage as valuable as those offered to the United States by the Treaty regarding freedom of navigation. Furthermore, in this editorial, Ridenour notes that the Treaty would require technology transfers from developed to undeveloped countries, a provision that raises both intellectual property concerns and problems with dual-use technology potentially falling into the wrong hands.
So why is the Bush Administration pushing for passage of this treaty? Deputy Secretaries Negroponte and England list the following as one rationale in their editorial:
"Accession makes sense from the perspective of U.S. leadership on the world stage. Joining the convention would give the nation a seat at the table, a voice in the debates, to help shape the future development of oceans law, policy and practice. Accession would also give the United States better opportunities to keep a close watch on other nations' efforts to exercise their rights under the law of the sea and to counter excessive claims if necessary."
I take it then that the Bush Administration is going to work to ratify the Kyoto Protocol. And it will place Americans under the jurisdiction of the International Criminal Court. And it will go back to observing the Anti-Ballistic Missile Treaty. Because, after all, every one of these moves "would give the nation a seat at the table, a voice in the debates, to help shape the future development" of policy and "would also give the United States better opportunities to keep a close watch on other nations' efforts."
Well, of course that's not going to happen. And if anyone suggested the Negroponte-England rationale for acceding to the Law of the Sea Treaty as a rationale for agreeing to Kyoto, the jurisdiction of the International Criminal Court and the re-establishment of the Anti-Ballistic Missile Treaty, they would be laughed out of policymaking circles. Fair arguments can be made for joining any one of these treaties. But those arguments need to be made on the substance of the treaties, not just because "all the cool countries are doing it."
The Law of the Sea Treaty remains flawed. It does little to advance American interests when it comes to freedom of navigation, it could prove environmentally harmful, it restricts American military and intelligence naval operations and it calls for technology transfers that could run afoul of intellectual property laws and be dangerous to boot. President Reagan was right to reject calls to sign the Treaty in 1982. The Bush Administration should reverse course and refuse to push for the enactment of the Treaty in the present day.