October 10, 2011 | Commentary on International Law
The United Nations Convention on the Law of the Sea, also known as the Law of the Sea Treaty (or LOST), presents a dilemma for some national security conservatives.
On one hand, LOST “codifies” key navigational rights and freedoms that are important to the U.S. Navy—and the Navy brass actively supports ratification of the treaty on those grounds. On the other hand, one could be forgiven for thinking the U.S. Navy’s 11 supercarriers, 75 nuclear submarines, and 200 other vessels, along with nearly 4,000 aircraft and 340,000 active duty personnel, obviate the need for a document that would merely allow us to do what we already do, and what we are entitled to do, with or without codification by the international community, such as it is. Still, when the U.S. Navy and the Joint Chiefs of Staff repeatedly and forcefully argue that something is crucial to the success of U.S. military operations—as they have in the case of LOST—conservatives usually salute.
So why has U.S. membership in the treaty proven so elusive to the Navy? Why have national security hawks in the Senate refused to fall in line? One reason may be that the Navy has been warning for nearly two decades of imminent and dire consequences that would stem from a failure to ratify the treaty (which took effect for signatories in 1994), and those fears have yet to be realized.
Over the years a procession of admirals has warned that the United States cannot guarantee its navigational rights unless it ratifies the treaty. “This may be our last opportunity to ‘lock in’ those critical navigational and overflight rights,” wrote one admiral—in 1995. More than a dozen years later, in 2007, the vice chief of naval operations repeated the same warning to the Senate Foreign Relations Committee: “We need to lock in the navigation and overflight rights and high seas freedoms contained in the Convention while we can.” With a possible Republican majority returning to the Senate in 2013, LOST is back on the front burner. Senator John Kerry is quietly working to recruit the necessary Republican votes to ratify the treaty and seize the “last chance to lock in” our rights under the authority of the United Nations.
The fact of the matter is that the Navy has not only survived but thrived without the supposed benefits of LOST membership. The Continental Congress established the Navy in 1775, and over the ensuing 236 years it has become the greatest maritime force in history. LOST was first adopted at the United Nations in 1982, yet somehow the Navy has managed to protect U.S. maritime interests down to the present day.
On the high seas, the U.S. Navy “locks in” its rights and freedoms—and the rights and freedoms of every other peace-loving, seafaring nation—not by membership in LOST, but by its capacity to sink any ship that would try to deny those rights. When a foreign country makes an excessive jurisdictional claim that interferes with navigation of the seas by military or commercial ships, the United States disputes it through the Freedom of Navigation Program—a combination of diplomatic protest by the State Department and operational assertiveness by the Navy. For example, in 1993 Iran passed a law prohibiting warships from passing through waters it claimed in the Strait of Hormuz without prior authorization. The United States diplomatically protested the law, and our warships transit through Hormuz several times a year without permission from Tehran.
Other nations—including many that are party to the treaty—regularly violate customary international maritime law (and the provisions of LOST) by making excessive claims about the extent of their territorial waters. The Navy just as regularly counters those claims. It operates in the South China Sea, steams through the Straits of Hormuz and Malacca, and transits key archipelagic waters, all contrary to excessive claims made by China, Oman, Indonesia, and the Philippines (all of which, by the way, are signatories of LOST). From 1993 to 2010, the Navy conducted hundreds of Freedom of Navigation operations to challenge excessive maritime claims made by 47 different nations.
When push comes to shove, literally and figuratively, reliance on the good faith of other maritime nations to live up to their commitments under LOST is not the optimal way to secure the Navy’s navigational rights. This was best illustrated in 2009 when China confronted and harassed the USNS Impeccable and Victorious, two Navy support ships with civilian crews operating in international waters, but within China’s exclusive economic zone.
In March 2009 the Impeccable was engaging in lawful surveillance activities in the South China Sea fully 75 miles from Chinese territory when it was confronted repeatedly by the Chinese Navy and various “fishing vessels.” The vessels threatened to collide with the unarmed Impeccable on several occasions and attempted to destroy its towed sonar array. In response, the Obama administration protested to Beijing and sent the USS Chung-Hoon, a destroyer, to escort the Impeccable on its next mission. That is how maritime rights are “locked in.”
What would have happened differently if the United States had been a party to the Law of the Sea Treaty in March 2009? Is it possible that the Impeccable’s skipper could have shooed off the Chinese assault by running to the ship’s gunwale waving a copy of the treaty over his head? If the Senate finally ratifies the treaty, will China actually live up to its LOST commitments and respect the right of our surveillance ships to track Chinese submarines out of their new base on Hainan Island? These questions answer themselves.
Instead of debating a flawed treaty that was rejected by President Reagan almost 30 years ago, the Senate should endeavor to provide the Navy with the resources it needs to preserve its preeminent position on the world’s oceans. That is the only way to ensure that the Navy can successfully prosecute its mission of protecting navigational rights and freedoms on a global basis.
What is ultimately required to secure customary rights on the high seas are the ships, aircraft, missiles, and sailors of the U.S. Navy. Unfortunately, they face ever more cuts by the Obama administration and its allies in Congress.
Ratifying the Law of the Sea Treaty would force the United States to submit to U.N.-administered international tribunals that are as capricious as the U.N. itself. Meanwhile, the real law of the sea is going to be administered as it always has been, by hundreds of thousands of tons of hardened steel. Congress needs to make sure it is U.S.-flagged steel that’s doing the administering.
Michael Goldfarb is a contributing editor to The Weekly Standard. Steven Groves is a fellow at the Heritage Foundation.
First appeared in The Weekly Standard