14 Jul 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.
Hear Hear – excellent post! As someone who did his Jessup back in 1979 on a Law of the Sea topic and use to pass Louis Sohn’s office (what an office mess!) this is so heartwarming we might get there.
Best,
Ben
Those in agreement are respected and back reality based policies. Those who disagree are neocons and throw up smoke screens at rag ends. Come on….How about a dispassionate, academically based discussion without the political trash talk so prevalent in contested political circles.
Art, I also wondered at the singling out of “neocons” as the collective foe of the Law of the Sea Convention. That seemed an odd choice and it made me wonder if Chris Borgan simply uses that particular political group as a routine and convenient boogey-man.
As far as Pickering and Clark’s op-ed, yes, it’s true that the rights of passage through straits and archipelagos did not exist as such before the Convention was signed, but so what? Those rights are not now (more than two decades later) under dispute and are most likely part of customary international law.
Art &Gabriel:
Can you point me to some prominent critics of the treaty who are not neocons? Yes, I use the term as a shorthand, but I used it because it accurately describes the most prominent critics. (And probably most critics, full stop.)
And Gabriel, the Treaty is about alot more than straits and archipelagos, that is merely one example, as I assume you know.
Chris
Having cut my teeth in treaty affected policy arguing the merits, or more particularly the lack thereof, of the Biodiversity convention and the Kyoto Protocol against the backdrop of economic dislocations of Biosphere Reserves and World Heritage areas designated under treaties to which we have already acceded, I think the suggestions that you temper your ‘argument by label’ highly appropriate.
Having seen these international regimens in operation it does not surprise me that diehard defenders of American sovereignty remain suspicious of L.O.S.T. as a matter of simply logic rather than adherence to a particular political subculture. I think it unproductive and inaccurate to label opponents of LOST as neocons essentially bent on the unilateral projection of American prerogatives abroad.
While Rabkin has certainly associated himself with support for American force projection unconstrained by diplomatic meddling in circumstances that constitute defense of this country, his work is equally animated by an arguably isolationist strain of resistance to virtually any controlling international authority within the U.S. This is a quite different argument than seeking American convenience on the high seas.
My experience has been that the predominate cultural interest expressed in this debate has actually been the explicit or implicit concern that international regimens amount to interference with a more laissez faire approach to economic development. Thus many opponents of UN style multi-lateralism hate the World Bank and the Kyoto Protocol with equal (and equally ‘means’ based) verve – a much more consistent position than ‘ends’ based NGOs who hate the former and love the latter.
Thus opposition to multilateralism is as much an expression of classic liberal penchants in coalition with traditional strains of isolationism that seem far removed from the halls of neo-conservatism.
To the extent that neo-conservatism is simplistically viewed as imbuing the US government and especially the executive as commander in chief with virtually unchecked power to advance their concept of American ideals abroad, Jack Goldsmith doesn’t appear to be your man either:
While highly respectful of Rabkin’s work and reflexively suspicious of international regimen that seems an implementation of international governance and bureaucracies for economic or environmental management moreso than statement of neutral conventions that might reasonably codify or articulate customary international law, I’m trying to keep an open mind while hearing the arguments on LOST.
Indeed, I tend to credit Rabkin and Goldsmith’s concerns about the definition of “military” given that bureaucrats here define dry land as waters of the united states because of it’s soil type. It doesn’t seem the least bit unlikely, for instance, to me that arguments might be made if we are not engaged in hostilities with the nation whose vessel we seize or the nation for which it is bound that the interdiction is non-military.
There may be specific language that in theory answers these concerns but that was only the simplest of examples I could imagine. I am also interested whether the original concerns about seabed mining limitations and the institution of an international separation royalty payable to the UN or some subsidary have actually been addressed by subsequent conventions as some commentors seem to suggest.
Opinio jailhouse attorney —
Brian
A comment above claims that navigational freedoms reinforced under the Convention are not now under dispute. While the US understandably does not want to highlight claims with which we disagree, we still maintain an active freedom of navigation program, sometimes at significant diplomatic cost, to contest claims that we cannot challenge within the LOS system since we have stayed outside. For example, Oman has continued to claim that as a non-party, the US does not have the right of innocent passage through the Strait of Hormuz. Not that Oman can physically stop US warships, but by keeping that claim alive it keeps open the door for conflicts, both political and military, when straits states oppose actions by the US. Open displays of lack of respect for sovereignty, even claims with which we disagree, can have high costs in terms of building and maintaining the coalitions that we need to maintain maritime security. For example, review the responses from the states bordering the Start of Malacca when the US announced that it was going to provide security for vessels in the strait. While the US makes public claims that the LOS Convention is customary international law, in practice we know that the territorial temptation will always threaten navigational rights unless we participate in the legal regime.