This Senate May Smile on Faulty Law of the Sea Treaty

COMMENTARY Defense

This Senate May Smile on Faulty Law of the Sea Treaty

Mar 19th, 2021 4 min read
COMMENTARY BY
Steven Groves

Margaret Thatcher Fellow

Steven Groves works to protect and preserve American sovereignty, self-governance and independence.
Pictured: China's navy marks the 120th anniversary of the First Sino-Japanese War Aug. 27, 2014, in Weihai, China. Getty Images / Stringer

Key Takeaways

VanHerck was asked in advance questions whether U.S. ratification of the Law of the Sea Treaty would help protect the nation’s interests in the Arctic.

The U.S. has protected its interests in the Arctic and across the world’s oceans through diplomacy and—let’s be real—by having 11 carrier strike groups.

And yet we are supposed to believe that China and Russia somehow will be dissuaded from Arctic shenanigans only if the U.S. ratifies the Law of the Sea Treaty?

Now that President Joe Biden is in the White House and a fellow Democrat is chairman of the Senate Foreign Relations Committee, will the United States finally ratify the United Nations Convention on the Law of the Sea?

Republicans’ past support for this U.N. convention, also known as the Law of the Sea Treaty, has been tepid at best.

But with the Democrat-controlled Senate looking to end the filibuster—and Sen. Robert Menendez, D-N.J., as committee chairman—what is to stop Democrats from considering other radical measures such as approving treaties on a straight party-line vote?

After all, perhaps Senate Democrats view the Constitution’s requirement that “two thirds of the Senators present concur” to approve a treaty for ratification as a mere suggestion or a quaint nicety.

In any event, proponents of U.S. ratification still have to overcome the main obstacle to joining the Law of the Sea Treaty: the fact that membership in the treaty provides no tangible benefits to the U.S. and carries several disqualifying costs.

One significant flaw of the treaty is that if the U.S. joins, it will be required to give away royalties generated from oil production on the nation’s “extended continental shelf” (the part of the continental shelf beyond 200 nautical miles).

Instead of going to the U.S. Treasury for the benefit of the American people, a portion of those royalties would go to the International Seabed Authority in Kingston, Jamaica, for redistribution to developing and landlocked countries.

Joining the Law of the Sea Treaty also would expose the U.S. to baseless international lawsuits. Other countries could sue the U.S. regarding virtually anything relating to maritime activity, such as alleged pollution of the marine environment.

Regardless of the lack of merits of such a case, the U.S. would be forced to defend itself against such lawsuits at taxpayers’ expense. Any judgment rendered by a U.N. tribunal against the U.S. would be final and could not be appealed.

Indeed, a steady drumbeat has developed for filing a lawsuit against the U.S. for climate change damages if it ever ratifies the Law of the Sea Treaty.

In 2006, William C.G. Burns published a paper titled “Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention,” in which the American University professor cited the treaty’s marine pollution provisions as a basis for a cause of action over rising sea levels and changes in ocean acidity.

Burns identified the U.S. as “the most logical state to bring an action against given its status as the leading producer of anthropogenic greenhouse gas emissions,” but noted regrettably that the U.S. “is not currently a party to the convention.”

The Biden administration will change that if it can, believing that exposing the U.S. and the nation’s taxpayers to frivolous lawsuits is worth the cost of ratifying the Law of the Sea Treaty.

But for what? What does the U.S. get in return for losing oil royalties and litigating costly environmental lawsuits?

The pro-treaty crowd’s answer to that question has been the same since 1982, when the treaty first was adopted: The U.S. Navy needs it.

But for almost 40 years, fans of the treaty have failed to produce a scintilla of evidence that the Navy actually needs the treaty. To the contrary, throughout history the U.S. has protected its maritime interests successfully despite not joining the Law of the Sea Treaty.

The reason is simple: Enjoyment of the treaty’s navigational provisions is not restricted to parties to the treaty. Those provisions represent customary international law, some of which has been recognized as such for centuries. Treaty members and non-members alike are bound by the treaty’s navigational provisions.

A fact-free assertion of the other side’s argument popped up in a Senate confirmation hearing last year for Gen. Glen VanHerck, commander of the North American Aerospace Defense Command, or NORAD.

VanHerck was asked in advance questions whether U.S. ratification of the Law of the Sea Treaty would help protect the nation’s interests in the Arctic.

VanHerck, parroting the Defense Department’s long-held views, answered that U.S. failure to join the Law of the Sea Treaty has allowed “revisionist powers China and Russia to exploit that absence in key diplomatic forums in order to advance their own interests.”

The problem with that position is that the U.S. is a member of the only key diplomatic forum relating to the Arctic. (It’s called the Arctic Council, and the U.S. is a founding member.) The U.S. has protected its interests in the Arctic and across the world’s oceans through diplomacy and—let’s be real—by having 11 carrier strike groups.

And yet we are supposed to believe that China and Russia somehow will be dissuaded from Arctic shenanigans only if the U.S. ratifies the Law of the Sea Treaty?

VanHerck shouldn’t be blamed for his testimony; he’s Air Force, not Navy, for one thing.

But fans of the U.N. Convention on the Law of the Sea will need to come up with something better than deriding the China-in-the-Arctic argument if they are to convince the Senate to approve this treaty.

This piece originally appeared in The Daily Signal