THE LAW OF THE SEA TREATY
In 1973, the Law of the Sea Conference was opened under the auspices of the United Nations to draw up a treaty to regulate the oceans as “the common heritage of Mankind.” Nine years later, the UN Convention on the Law of the Sea, better known as the Law of the Sea Treaty (LOST), emerged. Its centerpiece was a new supranational agency, the Seabed Authority which would be modeled on the UN General Assembly. The Authority would have exclusive control over the issuance of licenses for the exploitation of the deep seabed beyond territorial waters. The Authority would also have the power to tax companies engaged in ocean development, the revenues collected to go to the support of the Authority and to projects for Third World economic development. The Authority would also have the power to fix prices, set limits on production and control the marketing of ocean resources. There would also be programs for the mandatory transfer of technology from private corporations operating at sea to the governments of “developing” nations. The “common heritage” had become a UN boondoggle.
President Ronald Reagan refused to sign LOST in 1982. Even before he had become president, Reagan in an October 1978 radio address stated, “no national interest of ours could justify handing sovereign control of two-thirds of the earth's surface to the Third World,” a reference to the majority voting bloc at the UN which would control the Seabed Authority. President Bill Clinton did sign LOST in 1994 when it came into formal existence as an international organization. The U.S. Senate, however, has never tried to ratify it due to the lack of the necessary two-thirds majority in favor.
America’s national sovereignty would be threatened by the dispute resolution system in LOST, which is based on binding arbitration rulings by foreign judges. The final decisions are made either by a permanent International Tribunal for the Law of the Sea in Hamburg or by an ad-hoc court. The Hamburg tribunal consists of 21 judges chosen by member nations, many of whom can be assumed to be unfriendly to the United States. An ad-hoc court would consist of five judges, two chosen by the U.S. and two by the other party to the dispute. The crucial fifth judge would be chosen either by the secretary general of the UN or by the Hamburg tribunal. It would be a perfect arena for the conduct of “lawfare” against the United States as the world's premier sea power.
The notion that the use of international waters is a right that comes from the UN is antithetical to historical American practice based on the “freedom of the seas” doctrine. Freedom of the seas is one of the oldest principles of international law. It is the right to navigate through the global expanse of the oceans as one sees fit. It is also the right to extract resources from the seas by one’s own efforts. It was fully articulated by Hugo Grotius in De Jure Belli ac Pacis in 1625. It is a doctrine well suited to a country with a strong navy like the United States. The reach of coastal states into the ocean realm was limited to 3 miles, the effective range of shore-based artillery.
The ambitions of coastal states to extend the definition of territorial waters were accepted in LOST, which recognizes a 12 mile limit. This is further extended to a 200 mile Exclusive Economic Zone (EEZ) where the coastal state has sole control over all resources. The EEZ could be extended further on the basis of claims to a continental shelf. Though the EEZ is not considered sovereign territory, and there is a right to innocent passage through an EEZ, some countries – most notably China, have advanced an interpretation of LOST that converts EEZs into territorial waters.
Beijing has made this claim in regard to the South and East China seas and the Yellow Sea. In the summer of 2010, the U.S. provided diplomat support to Vietnam and other Southeast Asian nations in their disputes with China in the South China Sea, and deployed an aircraft carrier group in these waters. And in the face of Chinese protests, the U.S. sent a carrier group into the Yellow Sea in November as tensions ran high on the Korean peninsula.
In his confirmation hearing for appointment as Chairman of the Joint Chiefs of Staff before the Senate Armed Services Committee in July 2007, Admiral Mike Mullen claimed LOST protected “the right of unimpeded transit passage through straits used for international navigation, to reaffirming the sovereign immunity of our warships, providing a framework for countering excessive claims of other states, and preserving the right to conduct military activities in exclusive economic zones” and that it “provides the stable and predictable legal regime we need to conduct our operations today and in the future.” But again, this approach acknowledges that these benefits derive from a UN document, not as a right due the United States, to be exercised on behalf of American interests, without the need for a supposedly higher authority.
In October, 2010, Admiral Mullen could still assert these rights without a ratified LOST, saying, “The ability of United States military forces to operate freely on, over and above the vast military maneuver space of the oceans is critical to our national security interests, the military in general, and the Navy in particular.” And in regard to Chinese claims about the Yellow Sea, Mullen stated, “We have never adhered to somebody else's view about expanded territorial waters, which it just isn't. We will always go into international waters, as other countries do throughout the world and we will continue to do that.”
- The idea that the United Nations or any transnational agency controls anything above or beyond the reach of national governments must be rejected as a violation of traditional international law, diplomacy and security which are anchored in the sovereign authority of the nation-state to represent the interests of its own citizens. The U.S. must not do anything that acknowledges the jurisdiction of the Seabed Authority.
- From its first filing in 1998 to the end of 2010, the International Tribunal for the Law of the Sea has resolved only 13 cases. It has not become a legitimate forum for arbitrating international disputes. By staying out of the LOST system, the U.S. helps to prevent any dangerous elevation of its standing.
- The United States must continue to exercise its rights as established by the traditional principle of “freedom of the seas” by sailing its ships through international waters as it sees fit; pushing back against extended claims to territorial waters or any notion that "common" ocean areas are under UN control.
- Those who make maritime policy should remember the realism and wisdom expressed by Theodore Roosevelt at the Naval War College in 1897, “those who wish to see this country at peace with foreign nations will be wise if they place reliance upon a first-class fleet of first-class battleships rather than on any arbitration treaty which the wit of man can devise.”