July 2007
The Law of the Sea Treaty: Help or Hindrance?
The George W. Bush administration is urging the U.S. Senate to consent this summer to the Convention on the Law of the Sea, a complex and sprawling treaty that governs shipping, navigation, mining, fishing, and other ocean activities. Deputy secretary of state John Negroponte and deputy defense secretary Gordon England have hailed the convention as a measure to enhance U.S. security on the high seas. Critics, however, fear it will constrain the U.S. military's naval counterterrorism efforts by subjecting them to review by foreign judges.
How would the convention affect the U.S. military's ability to prosecute the War on Terror? Does it undermine or enhance U.S. sovereignty and security? On July 17, please join AEI for a conference to examine these and other questions. Moderator Ronald Rotunda of the George Mason University School of Law was joined by Susan Biniaz of the State Department, Rear Admiral John Crowley of the U.S. Coast Guard, and Jeremy A. Rabkin of the George Mason University School of Law and the AEI Council of Academic Advisers.
Jeremy A. Rabkin
George Mason University School of Law
AEI's Council of Academic Advisers
Included in the Convention on the Law of the Sea (UNCLOS) are elaborate provisions for dispute resolution through the International Tribunal for the Law of the Sea (ITLOS). The State Department is proposing entering this treaty with “reservations” on this matter, but reservations alone will not be enough. These provisions pose a serious threat to U.S. efforts in the global War on Terror as it potentially subjects seizures by the Navy and the Coast Guard to international judicial controls. In the whole range of American treaties, there is nothing like this one, in which we have committed to an international court matters of national security. When this treaty was negotiated in the 1970s, it was a very different world. In our current context, we have to worry about terrorism in a way we would never have imagined. For example, were the Navy to seize a ship suspected of involvement with terrorism or illicit shipment of weapons of mass destruction, the flag state of the ship could appeal under UNCLOS for its prompt release after ten days to ITLOS, thus allowing this international tribunal ultimate say in the legality of a U.S. military intervention.
Rear Admiral John E. Crowley
U.S. Coast Guard
We entered into negotiations on UNCLOS at a time when increasing sea claims and closing of straits and passages around the world impeded our naval forces in their work. The first provision of UNCLOS ensures unimpeded travel not only of our warships but also of vessels carrying troops, supplies, and other support in the War on Terror. The treaty also includes a number of other provisions: the continuation of fisheries, the navigation of our merchant naval vessels in support of environmental issues, and the constancy needed for conducting deep seabed mining. Where once there was doubt as to whether or not it would be applied, the Law of the Sea has arrived, and it is viable and robust, providing the freedom to conduct the kind of operations we need to conduct. In a time of vulnerability to terrorism, it is even more crucial that we have these treaty rights. The treaty was never intended for military activities, but far from inhibiting the military, it will enable it. Unimpeded travel is necessary to the United States as it enhances the ability of the Navy and Coast Guard to protect U.S. interests around the world.
Susan Biniaz
U.S. Department of State
The Bush administration strongly supports joining UNCLOS. For the past two decades, we have been abiding by the treaty and even trying to persuade other countries to join it. The two major arguments for joining are national security and economic interest. As the United States is the foremost maritime power in the world, freedom of navigation is intrinsically related to our national security interests. Beyond that, the other provisions of the convention are good for us. Joining would help the United States by putting us on the side of concrete treaty law rather than just customary law, allowing us to combat the claims of others, legitimizing our Department of Defense, maximizing U.S. influence in the interpretation of the rules, and promoting cooperation on other security initiatives we are promoting. Furthermore, UNCLOS is favorable to the United States economically through expanded rights to our continental shelf. The risks of not being a party of the convention outweigh the risks of joining. We currently do not have a proxy fighting for our interests within UNCLOS and we are in a weaker position to secure cooperation on initiatives such as the Proliferation Security Initiative because we are not a part of UNCLOS.
AEI Koch Associate Catherine Horn prepared this summary.
