The American Spectator : The Ultimate in Paper Guarantees

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The Ultimate in Paper Guarantees

By Doug Bandow on 4.17.09 @ 6:07AM

The Law of the Sea Treaty is the last thing that will keep the world safe from piracy -- or Chinese harassment of U.S. Navy ships.

The return of piracy to the high seas demonstrates the limits of international law. The "international community" might agree that it is wrong to seize ships for ransom, but a few thugs with guns in Somalia beg to differ. Paper guarantees can do nothing to stop ocean hijackings.

Yet a Democratic administration and Congress are expected to take early action on the Law of the Sea Treaty, the ultimate in paper guarantees. A complex amalgam of ocean-related provisions joined together in one massive agreement, the LOST was first concocted decades ago. Blocked and then renegotiated, the treaty recently won support from a curious coalition ranging from environmental activists to profit-seeking oil companies.

LOST, which essentially creates a second UN, is an artifact of the collectivist "New International Economic Order" popular in the 1970s, but is being resold as a guarantor of freedom of the seas. The convention obviously doesn't do anything to prevent piracy. Moreover, the recent contretemps between the U.S. and Chinese navies suggests that Beijing hasn't gotten the memo about the LOST's navigational guarantees. Rather, the People's Republic of China argues that the treaty entitles it to restrict American transit in international waters.

Last month, the USNS Impeccable, an unarmed spy ship, was operating 75 miles from the PRC's Hainan Island, which contains a submarine base. Chinese vessels ordered the U.S. vessel to leave and harassed its operations, causing the U.S. Navy to send in a supporting destroyer.

Territorial waters extend only 12 (nautical) miles, but all nations are empowered to exercise control over resources in the so-called Exclusive Economic Zone, which extends 200 miles. Washington's position is clear: the American navy is allowed to conduct activities "in waters beyond the territorial sea of another state without prior notification or consent," according to Department of Defense spokesman Stewart Upton. But Beijing disagrees: "The U.S. claim is totally inaccurate and confuses right and wrong and is unacceptable to China." A defense ministry spokesman called on the U.S. "to respect our legal interest and security concern."

Washington would seem to have the better argument, though Beijing's contention that "peaceful" uses of the ocean do not include spying is plausible. Shen Dingli, director of Fudan University's U.S. Studies Center, contends that "This is no non-harmfully passing by."

Most significant, however, is the fact that the LOST fails to offer the clear, unambiguous protection of navigational freedom as claimed by its proponents. What ensured the Impeccable's ability to complete its mission was the U.S. Navy's power, not the LOST's text.

This is, in fact, a major defect in the case for the treaty. It is true that LOST largely codifies customary international law, which favors free transit. After all, most countries benefit from unrestricted navigation, which encourages global commerce.

However, LOST only offers a paper guarantee. The convention might certify the Impeccable's right to spy 75 miles off of China's Hainan Island, but it does not offer practical protection of the Impeccable's right to do so. If the PRC -- or Brazil, Malaysia, or Pakistan, which also purport to forbid intelligence-gathering within their EEZs -- believes it to be in its interest (and ability) to prevent foreign passage, it isn't going to spend a lot of time interpreting LOST provisions before acting. Geopolitical interest and military capability, not juridical technicalities, will determine the reality on the high seas. (Ironically, Beijing sends its own survey ships into contested waters claimed by Japan as the latter's EEZ.)

Washington and Beijing subsequently agreed on the importance of avoiding similar incidents in the future, but the problem is only likely to grow as the Chinese develop a blue water navy. In fact, about the same time PRC ships were harassing the Impeccable, a Chinese vessel was interfering with the operation of another American ship in the Yellow Sea about 125 miles from China's coast. Last month, Director of National Intelligence Dennis C. Blair told the Senate Armed Services Committee: "In the past several years, they have become more aggressive in asserting claims for the [EEZ] which are excessive under almost any international code." Despite China's adherence to LOST.

Although the treaty's major alleged navigational benefits are more theoretical than real, LOST incorporates significant downsides. Most important, while so-called Part XI governing seabed mining was renegotiated in 1994, the result was only less bad. The system established remains flawed in both principle and practice.

LOST was originally promoted to redistribute wealth from First World democracies to Third World autocracies. The International Seabed Authority would regulate private ocean development, mine the seabed itself through an entity called "the Enterprise," and pay off favored nations and groups hither and yon. The '94 amendments changed none of these objectives.

True, the U.S. now at least has a seat (though no veto) on the ISA's "Council." Explicit provisions for production controls and technology transfers have gone from clear and clearly bad to ambiguous and only possibly bad. But there are other negatives: U.S. Supreme Court Justice John Paul Stevens believes the treaty, if ratified, will have to be treated by U.S. courts as self-enforcing, that is, creating directly enforceable obligations.

He might be wrong, but treaty proponents are talking excitedly among themselves about the new litigation opportunities created by LOST. Professor William C.G. Burns of the Monterey Institute of International Studies wrote that the convention "may prove to be one of the primary battlegrounds for climate change issues in the future." In his view, "the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water" could "give rise to actions under the Convention's marine pollution provisions." Like a good lawyer, he dismissed the argument that the document did not authorize such litigation: "While very few of the drafters of UNCLOS may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future."

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About the Author

Doug Bandow is a Senior Fellow at the Cato Institute and the Senior Fellow in International Religious Persecution at the Institute on Religion and Public Policy. A former Special Assistant to President Ronald Reagan, he is author of Beyond Good Intentions: A Biblical View of Politics (Crossway).

Letter to the Editor View all comments (13) | Leave a comment

Paul Crowley| 4.17.09 @ 6:58AM

=>“The Law of the Sea Treaty is the last thing that will keep the world safe from piracy -- or Chinese harassment of U.S. Navy ships.” [The American Spectator homepage]

The Law of the Sea Treaty, as usual for these documents, is facilitating a good many problems, and potential future crises, around the world.

These two are not examples of them.

Opportunity beckons!

Paul Crowley| 4.17.09 @ 8:00AM

=>“keep the world safe from . . . Chinese harassment of U.S. Navy ships.” [The American Spectator homepage]

Ahhhhhh, the poor darlin’s. . .

Are American sailors, and the sailorettes that ‘love them,’ traumatized by the big, bad, Red Chinese fishing trawlers in the Yellow Sea, East China Sea and South China Sea?

It’s enough to Make One’s Blood Boil!

Young Americans should ponder it. . .

How did pre-reformed-America American sailors ever manage during the Cold War (1946-89)?

And not just such as the two Formosa Straits crises, 1954-64, where the first thermo-nuclear guided missiles were put on American surface warships heavy cruisers), and where Americans were actually fired upon at times, or such as the Liberty indicident of 1967 or the Pueblo incident of 1968. . .

But, also the routine operations at sea during phase II of the Cold War, 1971-89.

The ubiquitous Soviet-Russian trawlers shadowing American ships and task groups throughout the central and western Pacific and Indian Oceans (so much comm gear for a 'fishing smack!'), the Rules-of-the-Road right of way harassment (‘Games of Chicken’ played between American warships with Russian Guided Missile Destroyers & Cruisers, with rapid and continuous course changes, at 25-30 knot speeds, each passing close-abreast to each other. . . ), the 'love tap’ by a Soviet ship of an American Guided Missile Cruiser (the Soviet vessel giving a
‘bump’) in the Black Sea. . .

The Soviet-Russian Naval Brigades [comprised of squadrons of Bear bombers, Badger fighter-bombers, and MiG fighters (foxbats, floggers. . . )] designed and developed to destroy American aircraft carrier task groups (A.K.A., Battle Groups), using American
aircraft carrier task groups for applied training, research & development, and practice, while, simultaneously, American aircraft carrier groups, combined with shore-base naval aircraft, trained to destroy Soviet-Russian Naval Brigades, using each other for practice, in the western Pacific.

Soviet-Russian Naval Brigades and American aircraft carrier task groups, each, respectively, no doubt (but 'neither confirmed nor denied') carrying thermo-nuclear weapons with more combined destructive
power than is held by the WHOLE of the Democratic People’s Republic of Korea (DPRK) (A.K.A. North Korea) today.

An interesting fact:

There were more actual air-to-air battles fought between American naval aviators and foreign pilots flying Soviet-Russian made warplanes, 1971-89 then
there have been air-to-air battles in which Americans have fought AT ALL, 1994 to present (2009). Peace Time was more dangerous for American naval aviators than the pseudo ‘War Time’ of 1995-2009 has been.

[The "fighting women" aviators (which don't exist) of our reformed air forces haven't gotten a chance to do any].

***
Can anyone blame at least some of us older Americans, especially those of us who participated directly in the old Cold War games, pondering the state of the new, reformed America (“USia?”), today, in the post-911 phase of our post-Cold War (1946-89) New World Order?

The new-reformed Americans are so easily Taught To cringe in fear, and effectively bark like Cornered Little Dogs, at the mere mention of North Korean Missiles (ooohhhhh) . . .

Those Red Koreans may fire one at post-reformed-America, “USia!”

[And, It Would Be the Last Thing that miserable little country Ever Did].

The new-reformed Americans are now so easily Taught To effectively bark like Cornered Little Dogs, at the mere mention of Chinese fishing trawlers “harassing” American spy vessels, in the Yellow Sea, the East China Sea, and the South China Sea SPYING on the People’s Republic of China (PRC).

Is it any wonder that some of us wonder at the sight of post-reformed Americans crying out “protest us, protect us,” when we remember the days when the majority of American men were vetarans with prior military service (a rapidly shrinking sub-group of the American population)?

Is it any wonder that some of us ex West-Pacers, who took part in patroling the waters of the western Pacific and Indian Oceans, wonder at the sight of the post-reformed American population reduced to ‘sugar candy-a**es’ and rubes?

But, wait!

On The Other Hand, who are we to talk?

After all, none of us ex West-Pacers ever had to deal with the HORROR of Chinamen on crummy little fishing trawlers, in the Yellow Sea, the East China Sea, or the South China Sea, mooning us!

Paul Crowley| 4.17.09 @ 8:15AM

This is a different country (an understatement, 'to say the least').

There's no lack of courage or even of desire to the good and descent among much of our youth and our population. But the constant stresss and misdirection applied. . .

‘Chicken Hawks’ (“parlor jingoes” to use Teddy Roosevelt’s phrase) and militarized-rubes cheering raw, naked aggression and torture, and ‘sugar candy-a**es’ and rubes cheering them on [to the Left of us, to the Right of us, “liberals,” “conservatives,” and 'libertarian opportunists’ (the worst of both), all around us].

“No Country For Old Men.”

[or middle-aged either]

Something worth-while could have been done with that title.

Too bad that nothing was in the movie with that name.

No country fit for human beings, as now reformed, and being further reformed.

God help the United States of America (U.S.A.).

Paul Crowley| 4.17.09 @ 8:19AM

=>“The CATO Insitute loves pollution and wishes the treat the planet like one big sewer. Undoubtedly Doug Bandow is a teabagger!” [David Mathews| 4.17.09 @ 7:46AM]

The Cato Institute is libertarian.

A creation of the self-named "paleo-libertarians."

There is NOTHING conservative about libertarians.

Thomas| 4.17.09 @ 10:48AM

Somehow the comments on this went astray. The truth is that LOST is a terrible treaty for the United States. It would cede establish rights of passage in international waters to a bureaucracy run by a committee that is essentially answerable to no one. The seabed development clause and the Enterprise clause effectively places the entire seabed under the direct control of an autonomous international body that is not only charged with granting "permits" for seabed development, but is empowered to remove seabed mining operations from companies that have developed them and grant the developed operations to another company, on a whim. The passage clauses limit access to naval vessels that does not exist today [Somalia pirates, not being "government warships" would be granted access to the Gulf of Aden while U.S. naval vessels might not]. The pollution clauses would effectively grant the LOST bureaucracy far reaching control over the economic operations in all countries. If any source of "pollution" in the sea can be traced, in any manner what-so-ever, to operations far from the shoreline of a nation, that activity can be regulated by the committee. An international committee could order a halt to powerplant operation along the east coast if "pollution" from their operations was found in the sea.

The worst part is that only the law abiding signatories of the treaty, such as the U.S., would adhere to its provisions. Just a with the Kyoto Accord, nations, such as the PRC, will disregard whatever provisions of the treaty that they do not want to follow.

This is a bad treaty for U.S. interests.

Big Leo| 4.17.09 @ 2:54PM

Does not wanting to sign a treaty that is being ignored by the people who already signed it make me a conservative?

Paul Crowley| 4.18.09 @ 7:13AM

How did the comment by David Mathews [| 4.17.09 @ 7:46AM] get removed?

How does one remove a comment that's been posted?

Paul Crowley| 4.18.09 @ 8:19AM

=>“The truth is that LOST is a terrible treaty for the United States.” [Thomas| 4.17.09 @ 10:48AM]

Hi Thomas:

I agree that LOST appears to be a terrible treaty PERIOD].
(I claim no expertise and go by what I’m aware of, thus far).

But I don’s necessarily agree for all of the reasons that you’ve listed here.

My concern is over the potential conflicts that LOST is facilitating.

As usual for these kind of treaties, there are way too many ambiguities due to the phrasing: The usual kind of phrasing that is formulated in a manner in which everyone can agree, but that often defines little, clearly.

The kind of items that will lead unavoidable lead to disputes and problems later and require clarification and resolution (which is the nature of all treaties and the reason for courts, international or otherwise).

However, what I find most disturbing, is that in some instances, rather than clarifying questions over sovereignty over maritime regions, the treaty’s definitions only confuse and confound issues further (Japan and Korea and the islands in the straits between them, being an example, among others, that has already been raised and caused a public stir).

->“This is a bad treaty for U.S. interests.” [Thomas| 4.17.09 @ 10:48AM]

The ambiguous 'catch all' phrase, “U.S. Interests,” is, I believe, one of the most destructive phrases in
the English today. There are others and Matthews in the comment he posted, that's now been removed, used some common to the left.

Paul Crowley| 4.18.09 @ 8:26AM

=>“It would cede establish rights of passage in international waters to a bureaucracy run by a committee that is essentially answerable to no one.” [Thomas| 4.17.09 @ 10:48AM]

Hi Thomas:

I don’t entirely agree with this.

“Established rights,” or what are claimed as such, are usually what drive nations to form these international agreements and what international law suits are usually all about.

What one country claims as an “established right,” but that is contested by another, or denied to another. Add in self interest and geo-politics, and what are claimed as “established rights” can be made into a mess, even a war, very rapidly. Which comes
back to the issue of definitions and the ambiguities that I cite as my concern above.

In fact, the allegation of "The American Spectator" of "Chinese harassment" of American naval vessels. The PRC alleges harassment by the U.S.A. via American its naval vessels, that threaten its physical security (not unreasonably, or without some valid points and considerations).

->“a bureaucracy run by a committee that is essentially answerable to no one.” [Thomas|
4.17.09 @ 10:48AM]

I think that this is more an issue of what one thinks of the structure of the United Nations
organization (UN) and international law.

The latter has been in continuous development of being codified, and standardized, for about the last 110 years. The former has been a part of that development since the UN was established in San Francisco in the spring of 1945.

Paul Crowley| 4.18.09 @ 8:44AM

->“The passage clauses limit access to naval vessels that does not exist today [Somalia pirates, not being "government warships" would be granted access to the Gulf of Aden while U.S. naval vessels might not].” [Thomas| 4.17.09 @ 10:48AM]

Hi Thomas:

This is completely unrealistic, to the point of fantasy.

Somalia pirates being granted access to the Gulf of Aden and U.S. naval vessels denied such access, is, I believe, entirely unrealistic, as a concern.

Who would ENFORCE such a decision?

Where would the naval and air forces to do so come from?

Certainly the UN Security Council would not issue a resolution for such an action. Not so long as the U.S.A. retains a permanent veto on the UN Security Council, along with the other Five Powers (Britain, France, Russia and the PRC).

To my knowledge, no military force has been used on the basis of a General Assembly resolution since 1950 when, after return of the Russians to the Secutiry Council, a General Assembly resolution was used as the basis for the American-led UN Command to lauch its offensive into North Korea for purpose of unifying the peninsula.

Look at the world’s naval powers: The U.S.A., Japan, and the countries of the EU are the only real navies in existence today. The PRC and India are both rapidly developing navies and air forces.

Japan and the EU countries are allied with America.
India is a part of the British Commonwealth.

The American, EU, and Japanese navies all operate together.

The Indian navy (now undergoing rapid expansion, including aircraft carriers) has taken part in exercises with this allied group since at least 1972.

Add in the SEATO countries, which now includes Vietnam, and NATO, and one has a naval and military alliance that is dominant in the whole of the Indian and Pacific Oceans.

An alliance that covers the whole of the periphery of the continent of Asia, from southwest Asia (Gulf of Aden, Arabian Sea, Persian Gulf), across the Bay of Bengal, through the straits (Malacca and Lombok. . .) into the Pacific Basin, up through the South China Sea, East China Sea into the Sea of Japan.

These navies patrol this entire region, routinely. The Japanese now explicitly, and in practice, bear the majority of the responsibility in the northwest Pacific.

This represents a combination of naval & air power that are effectively represented by 3 of 5 of the Great Powers on the UN Security Council with permanent veto authority (the U.S.A., Britain, and France).

This is the only bloc of countries that have the capability of projecting Sea Power, and maintaining the sea lanes, world-wide.

Neither Russia nor the PRC have naval forces with the capability to project such sea power and are mainly limited to protection of their own territorial waters.

Somalia pirates being granted access to the Gulf of Aden and U.S. naval vessels denied such access, would require the order of the UN Security Council, the U.S.A., Britain, France, Russia and the PRC, all in agreement, along with the lesser temporary members, and then the combined navies of the U.S.A., its allies and satellites, to ENFORCE this provision against the U.S. Navy.

Good luck.

Paul Crowley| 4.18.09 @ 9:06AM

=>“Does not wanting to sign a treaty that is being ignored by the people who already signed it make me a conservative?” [Big Leo| 4.17.09 @ 2:54PM]

Hi BL:

If this question was directed to Dave Matthews and his comment that he posted:

[David Mathews | 4.17.09 @ 7:46AM].

Then somehow his comment was removed.

I don’t know how one can be able to go about doing that.

I thought that the comment was ridiculous, but If you'd like, then I can re-post it in its
entirety, for reference sake.

If it’s directed to me and my statement about libertarians, then, my comments were directed to Matthews’ comment. He gave some general blather about “conservatives, the treaty, and stated:

“The CATO Insitute [sic] loves pollution and wishes the treat the planet like one big sewer. Undoubtedly Doug Bandow is a teabagger!”

To which I replied only the obvious:

“The Cato Institute is libertarian.

A creation of the self-named ‘paleo-libertarians.’

There is NOTHING conservative about libertarians.”

***
As to your question, then I would say that “not wanting to sign a treaty” due to believing that it “is being ignored by the people who already signed it” (an allegation, no doubt denied by those being so accused, and that I allude to in my comments to Thomas, regarding my dislike of the LOST treaty) would not be enough to determine what one is in this regard, one way or the other.

A Marxist could hold the same position as you do, and there’s certainly not nothing conservative about Marxists, no?

Paul Crowley| 4.18.09 @ 10:29AM

=>“A Marxist could hold the same position as you do, and there’s certainly not nothing [sic] conservative about Marxists, no?”

Another typo. Sorry about that.

Correction:

Just as there’s nothing conservative about libertarians, or the libertarian-creation, the CATO Institute, there’s certainly nothing conservative about Marxists, no?