Will the World’s Greatest Deliberative Body Actually Deliberate About UNCLOS

The decision to ratify a treaty presents a policy choice. Few choices in life, public policy or foreign relations are wholly favorable or unfavorable. As former Secretary Condoleezza Rice reminded us, we must not let our desire for the perfect blind us to the good.

The question the Senate must answer is whether, on balance, it is in the US interest to ratify the Law of the Sea Convention. Respect for our Constitutional treaty process—to say nothing of our civic responsibility—cautions that we should reserve judgment until the Convention has been given a full and fair hearing on the merits.

To properly assess the Convention’s merits, we have a right to expect that the Senate and the experts it calls to testify in this latest round of hearings will examine and debate some of the following issues:

• What role, if any, should intervening changes in the geostrategic environment (including changed national security, energy, economic and environmental factors) play in deciding whether ratification of this 1982 convention will serve the national interest?

• What changes can we expect in the geostrategic environment in the next 5-10 years and even beyond, and how should that affect today’s decision?

• What role, if any, should the president’s National Ocean Policy, with its ecosystem-based management and “bottom-up” approach to coastal and marine spatial planning, play in our decision regarding the LOS Convention?

• What role, if any, should changing Arctic conditions play in assessing national interests vis-à-vis the LOS Convention? How will our status with respect to the LOSC affect our role on the Arctic Council?

• What conclusions can be drawn about the meaning and effect of the Convention from state practice and tribunal decisions, both before and after its entry into force in 1994?

• Do the proposed 2007 Senate declarations and understandings (which are largely based on Secretary of State Warren Christopher’s 1994 analysis of the Convention) accurately reflect the present U.S. position? Are they consistent with the understandings of other states and relevant international organizations and tribunals? If not, does that pose a risk to U.S. interests?

• Are claims that the U.S. will be able—as a non-party—to enjoy the Convention’s navigation and overflight rights as a matter of customary law theoretically and empirically sound? Will customary law extend those same navigation rights to the growing fleet of U.S. unmanned aerial, surface and subsurface vehicles?

• And, finally, does the Convention include any “deal breakers”—fatal flaws that the U.S. simply cannot accept no matter what how significant the potential benefits of accession?

Supplementing the existing record with answers to these questions will improve the prospects for a responsible decision by the Senate; one consistent with our national interests and in accord with the contemporary geostrategic environment.