William R. Hawkins is Senior Fellow for National Security Studies at the U.S. Business and Industry Council.

Negotiations for the United Nations Law of the Sea Treaty (LOST) were conducted from 1973 to 1982.  President Ronald Reagan refused to sign it.  The treaty languished until President Bill Clinton decided to sign it during his last days in office.  It is now being considered for ratification in the U.S. Senate, supported by Democrats and “moderate” Republicans, such as Sen. Richard Lugar, the ranking GOP member of the Foreign Relations Committee.  President George W. Bush is also backing ratification, for reasons which seem at odds with his past statements about the United States not needing a UN “permission slip” to guard its interests.

LOST is arguably the most wide ranging expansion of transnational institution building since the original UN system was established after World War II.  It is meant to govern activities on, over, and beneath the ocean's surface, which covers 70 percent of the planet.  Though its primarily focus is supposedly navigational and transit issues, with proponents claiming it is merely codifying traditional practices, LOST also contains provisions on the regulation of deep-sea mining and the redistribution of ocean wealth to underdeveloped countries.  It also has sections regarding marine trade, pollution (including land-based pollution that can affect the ocean), maritime research, and, of course, its own dispute resolution system – complete with foreign judges – that usurps national sovereignty.  

Under the Treaty, a 12-mile territorial sea limit and a 200-mile exclusive economic zone (EEZ) are established.  The EEZ greatly extends national claims to the seabed and the waters above.  The EEZ’s are supposed to be limited to the exploitation of resources, without restricting the right of “innocent passage” of ships and aircraft through the area.  This transit right includes non-wartime activities of military ships, a major concern of the United States as the world’s leading naval power.  However, evolution towards greater national maritime control in the EEZ is likely.  

When a Chinese fighter rammed a U.S. NAvy EP-3E aircraft over international waters on April 1, 2001, Beijing demanded that the United States bear full responsibility for the incident.   In commenting on negotiations over the release of the crippled EP-3, which had landed on Hainan island, the Chinese embassy in Washington issued a statement that read in part, “The incident happened in the airspace over China's exclusive economic zone (EEZ).  According to the United Nations Convention on the Law of the Sea, overflight over the EEZ of another nation should not violate the general rules of the international law such as the inviolable nature of national sovereignty and territorial integrity....The activities of the U.S. side in the airspace over the waters close to China's coast have seriously harmed China's national security and national defense interests and gone far beyond the limit of the freedom of overflight provided for in the UN Convention on the Law of the Sea.”

The United States held that this was an improper interpretation of LOST, but it is an interpretation that many coastal states will want to have become the standard.  If the United States wants to maintain its naval rights under the traditional “freedom of the seas” doctrine, it should not want to see that doctrine superceded by LOST, where the rules will “evolve” under the usual UN process in ways disadvantageous to America.  As of November 2004, signatories of LOST have the right to modify the treaty.

Liberal “idealists” support LOST because they think international law is the cure for conflict.  The Better World Fund, whose president is ex-Democratic Senator from Colorado Tim Wirth, is a good example.  Wirth told a House committee in February, “The planets are lining
up for something of a multilateral moment.” LOST, however, will simply become another arena for conflict and aggression.  Russia, for example, has already invoked LOST rules to claim a vast part of the arctic.  Moscow asserts that an underwater ridge near the North Pole is really part of Russia's continental shelf, which would allow an extension of Russian territory even beyond the 200 miles limit of the EEZ.  And on the South China Sea, LOST has set off a scramble to grab islands and reefs, as any rock can be used to anchor claims to a larger EEZ.

Beyond the national EEZ, LOST claims that the oceans are “the common heritage of all mankind” and are to be administered by a new UN agency called the International Seabed Authority (ISA).  Thus, the UN advances its claim to represent “all mankind” and assumes the mantle of a governing body for most of the earth’s surface.  President Reagan properly rejected such a notion out of hand.  The ISA will determine who can develop ocean resources, collect taxes (royalties) on those who do, and redistribute the revenue as it sees fit (as well as use it to expand its own bureaucracy and power).  Combined with the dispute settlement system, LOST takes a large step towards creating a supranational governing body for the UN, which will be dominated by anti-Western interest groups and ideologies at odds with vital American national interests.  The scandals and corruption that riddled UNESCO and the UN Oil-for-Food program would be small potatoes next to what would happen if the ISA is placed in charge of the economic development of all the world’s oceans. The ISA and its bureaucrats would prosper, but the maritime economy would likely stagnate.

Some proponents of LOST, including it is sad to say, the U.S. Navy high command, have fallen for the same argument that led to the creation of the World Trade Organization.  The idea is put forward that the U.S. will ultimately control and use the transnational body for its own ends; that the new authority will give greater legitimacy and power to American values and practices.  But attempts to “outsource” American security to a foreign body do not enhance the U.S. position.  The external authority turns, instead, into an obstacle to the projection of America power.  

The Joint Chiefs of Staff sent a badly reasoned letter to the Senate in June, supporting LOST.  The letter claimed that the treaty  “supports the President’s Proliferation Security Initiative.”  But the legal advice the military is relying on is faulty because it does not take into account the real world of power politics at the UN.  The Proliferation Security Initiative (PSI) is a coalition of about 90 nations put together by the United States to interdict the shipment of weapons of mass destruction and related material.  It was assembled by old fashioned diplomacy, outside the confines of the UN or LOST, and can best operate on the basis of shared strategic interests, not abstract international law.

Attempts to bring the PSI within the UN framework failed because certain powers, in particular China, opposed it.  The United States introduced Security Council Resolution 1540 in late 2003 to gain formal acceptance of the PSI.  The resolution was finally adopted in April  2004, but in a modified version that avoided giving any explicit support to the PSI.  Whenever Resolution 1540 mentions “international cooperation,” it is quick to hem such actions in by making it “consistent with international law.”  Cooperation is not to be allowed to grow into a coalition that can act unilaterally – that is, without additional UN permission, which China, or any other power with a veto, can block.  China, which has one of the world’s largest merchant fleets and close ties to rogue states, is not going to let the PSI operate under the cover of international law.  Tying the PSI to the UN or LOST is a sure way to cripple its enforcement.

Indeed, as Republican Sen. James Inhofe – one of the Senate’s leading authorities on national security issues, stated on October 4, “under LOST, boarding a vessel is allowed only if it is suspected of piracy, engaging in slave trade, unauthorized broadcasting, or is not showing or is not willing to reveal its nationality.  Taken literally, as most countries will, a U.S. warship would not be allowed to stop a vessel with a shipment of nuclear energy materials if it is flying a state flag on purportedly legitimate business.”

In the end, with or without the “permission” from outside organizations, America must be able to act to protect itself.  Navy admirals should listen less to lawyers and read more history.  

The advice of former president Theodore Roosevelt, written in 1913, remains a solid guide to U.S. policy today:  “If we cannot protect our own interests with our own navy, then all the arbitration and other treaties that all the international philanthropists of the world can devise will not, in even the smallest degree, protect us.  If we believe otherwise, we shall have a bitter awakening; and if ever that bitter awakening comes, I trust that our people will remember the foolish philanthropists and the recreant congressmen and other public servants at whose doors the responsibility will lie.”

The Senate should sink the Law of the Sea Treaty, so its members do not fall into the ranks of “recreant congressmen” who foolishly trusted the UN to protect American security.  

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