Law of the Sea Treaty: Tunnel Vision on the Oceans

Despite a sudden flurry of activity late last year, the rush to ratify the Law of the Sea Treaty (LOST) appears to have slowed — at least for now. With the support of the Bush Administration and a largely somnolent Senate, the Treaty seemed to be — excuse the expression — a “slam dunk” that was only stopped following the outcry of a few respected voices from outside government.

The surprising story here is that the Treaty continues to be supported by a number of usually sensible conservatives and by an Administration relying on the myopic advice of, among others, the Joint Chiefs of Staff.

Dr. Johnson said that a man may be virtuous even if he is narrow, if narrowness is his only vice. That may well be true in considering character, but in a military man it can be deadly: both on the battlefield and in policy debates, if his narrow way of seeing the world and limited horizon of experience compromises his thinking on geopolitics.

Just so with the nation’s top Army, Navy, Air Force and Marine Corps commanders — the Joint Chiefs of Staff — as champions of LOST. No doubt the Treaty offers us some advantages — perhaps even to the military — but when taken as a whole, agreement by the United States would only yield disadvantages over customary international law, whether with respect to our economy, sovereignty or national security.

Unfortunately, President Bush seems to have accepted uncritically the advice of his military experts. The President too often seems to think that as a national leader his duty is simply to listen to his commanders and salute. But a great war leader — and we are at war — a Lincoln or a Churchill, possesses a broader vision. Often, he overrules his military; sometimes he even sacks them.

In this instance, our nation’s military leaders have lined up in support of a Treaty that offers few benefits over the status quo to our military, while compromising our economic advantages and undermining our sovereignty. Today our Navy has broad freedom to navigate the seas, conduct surveillance as necessary, and to supply our military around the globe. But if we become signatories to LOST, these rights may be battered by vote of our co-signatories or entangled in legal disputes; our vibrant capitalism may have to capitulate to the Treaty’s collectivist ethos; and, our sovereignty will be eroded by the regime of taxes and the potentially powerful legal tools of governance that, as a legal matter, may trump our own laws. 

Victims of their own experience, the Joint Chiefs of Staff do not seem to understand the larger issues implicated by the Treaty: that the current lack of statute in sea law is actually an advantage, how engorging international organizations only encourages further growth, and that the constraints placed on our economy and sovereignty inevitably have a pernicious effect on our national security.

In a letter from the Joint Chiefs dated June 26, 2007 to Sen. Joseph Biden (D-DE), Chairman of the Senate Foreign Relations Committee, they tellingly claim that “[n]o country has a greater interest in public order for the world’s oceans” [emphasis added].  They also point to the fact that LOST “codifies navigation and overflight rights and high seas freedoms” but lose sight of the reality that simply because our rights in customary law may be less explicit than those outlined in the Treaty, it does not mean they are non-existent; in fact, their very flexibility has worked well for hundreds of years. They have the force of law and may only be altered with the support of the world’s greatest sea power, the United States — not by majority vote in many cases as under LOST. 

Adhering to the Treaty would give us a seat at the table, as proponents claim, but we would then be bound to uphold treaty commitments that are contrary to our national security interests. These insidious obligations begin with the broadest of commitments to use the oceans exclusively for peaceful purposes and include dangerous provisions like barring the use of territorial waters for intelligence collection or the transit of territorial waters by submerged submarines. 

The Treaty may also require under terms related to sea bed mining the transfer of sensitive technology that has both civilian and military applications. Such technology transfer not only has national security implications but is another way to strip from the U.S. advantages our capital and dynamic, entrepreneurial economy affords.

The Joint Chiefs’ letter claims that ratification is important for “sustaining forward deployed military forces,” but they do not mention that this is often accomplished by ordinary commercial shipping; and while our military’s rights may be largely unhampered — at least on paper — there are opportunities for mischief involving our economic and shipping concerns, which would be subject to lawsuits, especially lawsuits related to environmental regulation, in a way that the military would not.

Astonishingly, the Joint Chiefs claim that LOST “supports the President’s Proliferation Security Initiative” (PSI). Without exploring the fuzzy definition of “supports,” one can only say that in certain crucial respects LOST would compromise the effectiveness of  PSI; in a number of respects but one which goes to the heart of PSI: If we become a signatory to LOST, we would have fewer rights to board vessels on the high seas when they are believed to be carrying WMD, even in some instances where there is compelling evidence that they are doing so. If we do not adhere to LOST, of course, all the rights accorded by PSI — which is an informal agreement between and among certain nations and so subordinate to LOST — would be maintained, as we would be free to continue to act unilaterally.

Another gift of LOST is the danger of  “lawfare,” whereby lawyers sue either in the judicial bodies to be established under LOST or in American courts to prevent or hamper certain military activities in the name of the Treaty’s environmental or other rules and regulations. 

In fact, in an earlier court decision (ruling on an injunction sought by the Natural Resources Defense Council against the U.S. Navy), a federal judge overturned President Bush’s January, 2008 national security waiver that exempted the Navy from U.S. environmental statutes while performing important sonar training off the California coast. That was a purely American case, but it demonstrates the danger we are facing in the legal milieu where judges are increasingly allowing environmental law to take precedence over other values — and where judges are appealing to the reasoning or precedence of foreign legal bodies.

Under LOST, there may well be similar legal proceedings instigated by non-U.S. citizens and tried in an international tribunal established by the Treaty; and because the U.S. Constitution provides that American law may be overborne by the terms of a treaty, in many instances there will be no right of appeal, and U.S. courts can only act as enforcement bodies for foreign tribunals.

And on what basis do the Joint Chiefs assure us that the Treaty will serve “our most important” economic objectives. While the Pentagon has its own means to perform economic analysis, the breadth and depth of such a sweeping economic forecast demands a degree of skepticism. This is characteristic of the Chiefs’ seeming failure to appreciate the implications of the Treaty as a whole: even if there are advantages to the military, we would have to accept the other provisions that are disadvantageous to our economy and our sovereignty, and in that way undermine our national security. 

LOST fosters the idea, per se, of international organizations with increasing transnational jurisdiction. Its bureaucracy will be nourished by royalties on mineral extraction and provide a model for similar agencies to assume authority and impose taxes — and to inexorably devour American institutions and autonomy.

And finally, in a time of war treaty guarantees may mean nothing. Those not as punctilious as the United States about international law may steal a march on us, and in the end — as always — our safety will depend on the raw power of the U.S. military operating only under the constraints dictated by our own needs and morality.

If the Joint Chiefs cannot appreciate the broader implications of LOST, they should only render judgments on the Treaty’s effects on the military. As so often, military men cannot get beyond the tunnel vision of their natural intellectual inclinations and sphere of expertise to understand a whole that is greater than the sum of its parts.

However it comes about, rejecting LOST is crucial to maintaining America’s national security, wealth and independence; and, therefore, crucial to the peace and prosperity of the world.