Debunking the Fear-Mongering on the Law of the Sea Treaty

Thomas Pickering, probably the most respected career diplomat of his generation, and Vern Clark, a retired U.S. Navy admiral and former chief of U.S. naval operations, have an op-ed in today’s Times debunking the fear-mongering on the Law of the Sea Treaty.

Pickering and Clark note some of the Treaty’s advantages:

The treaty provides our military the rights of navigation, by water and by air, to take our forces wherever they must go, whenever it is necessary to do so. Our ships — including vessels that carry more than 90 percent of the logistic and other support for our troops overseas — are given the right of innocent passage through the territorial seas of other states. In addition, the treaty permits American warships to board stateless vessels on the high seas.

The treaty also provides an absolute right of passage through, over and under international straits and through archipelagoes like Indonesia. These rights — the crown jewels of the treaty — did not exist before 1982, when the Convention was concluded. Our security and economic interests are tied directly to these rights.

But, as we know, various neocons obscure the actual Treaty with a smoke screen of scary-talk. Sovereignty at Risk! WMDs Rampant. [Insert your particular boogey-man here.] Clark and Pickering bring back a note of reality-based foreign policy:

The treaty is more favorable to our security interests now than we could achieve if we started all over again today. Yet as the debate over ratification takes place, you will see and hear arguments against it that are confected of half-truths and imagination.

The treaty does not authorize a “United Nations navy” or “United Nations taxes.” We are not giving away American sovereignty by ratifying it, nor would joining it hinder our intelligence activities. An international institution would not control the world’s oceans.

The Reagan administration objected to certain treaty provisions related to seabed mining. But a 1994 agreement fixed all flaws in the original Convention. The treaty now guarantees appropriate American influence with a permanent seat on the decision-making body. It eliminates earlier provisions that would have required countries to share technology. And it generally facilitates access to mining on reasonable commercial terms. With the modifications enacted in 1994, the treaty now meets all the criteria established by President Reagan in 1982 to make the treaty in the interest of the United States.

What’s left for people opposing the treaty are the rag-ends of an argument. Daniel Drezner, in a comment, to Peter Spiro’s post on the recent Goldsmith/Rabkin op-ed, notes that the Law of the Sea Treaty might have some marginal impact on one aspect of our interdiction program. And so he asks, why the push to ratify?

While Drezner is more thoughtful in his criticism, many neocons who are allergic to international law consistently miss an important point. Joining international regimes not only binds a country, but also opens up avenues of influence and power projection. At the very least, it keeps your state from being out of the loop as new regimes–regimes that may affect you–are bineg designed and implemented. As Clark and Pickering explain:

Our nation will be in a much stronger position to advance its military and economic interests if we ratify the treaty. We can guide and influence the interpretation of rules, protecting our interests and deflecting inconsistent interpretations. The agreement is being interpreted, applied and developed right now and we need to be part of it to protect our vital interests in the area of security and beyond.

Of course this doesn’t mean you join every treaty, but if a treaty is in your overall interest (as the Law of the Sea Treaty is) even if there are some provisions you disagree with, it is to your advantage to take a seat at the table to guide treaty design, implementation, and interpretation. It allows you to maximize the parts of the treaty that you like, and minimize those that you do not. If you stay out, then state practice evolves around you (including those aspects that you don’t like) and you have very little political leverage to affect it.

As Drezner notes, we already conform our state practice with 98% percent of the Treaty. Ratification would allow us to lock-in passage rights and commitments from other countries that are of great value. Domestically the treaty has bipartisan support and, moreover, the Navy and other key departments and bureaus have long supported it. We should put our national interest before the unfounded fears of a few ideologues.

It is time to ratify the Law of the Sea Treaty.