Another Perspective

LOST Trade Routes

Should the U.S. Navy be on patrol for the UN's Law of the Sea Treaty?

By 3.5.12

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There is never a good time to deny the United States Navy maximum capability to defend American interests, but now is a particularly bad time. Iran's determination to acquire nuclear weapons and China's continuing escalation of its military buildup will have significant implications for key trade routes like the Strait of Hormuz (through which 20% of all globally traded oil passes) and the South China Sea (through which 50% of goods transported between continents by ship passes). We will need our Navy to deter or challenge Iran and China if necessary, to keep those waterways stable and thereby fend off further damage to the global economy. With the Navy already taking a serious hit to its abilities thanks to the Obama administration's FY 2013 defense budget proposal, the last thing we need is a mechanism that compounds the damage to that force's effectiveness. But that is what we would be getting with ratification of the United Nations Convention on the Law of the Sea (aka Law of the Sea Treaty, or LOST), a topic that 66 Members of the House of Representatives, led by Rep. Jeff Flake (Arizona-6th District) and Rep. Jim Jordan (Ohio-4th District), recently sought to address.

The Navy has long favored U.S. ratification of LOST, arguing primarily that accession to LOST would enhance the Navy's navigational rights and freedoms, and most recently as argued by Admiral Samuel Locklear, President Obama's nominee to lead the U.S. Pacific Command, that joining LOST would strengthen America's "credibility" in solving maritime disputes and promoting rule of law on the world's oceans. Both these assertions are questionable given the harsh realities of how LOST is likely to work in practice and how adversary nations -- whether parties to the treaty or not -- are likely to go about advancing their own strategic ambitions, irrespective of what LOST may have to say about it.

LOST creates major opportunities for other nations to interfere with the Navy's mobility through the use of mandatory dispute resolution mechanisms -- the options here, according to Article 287 of the treaty, include the International Court of Justice, the International Tribunal for the Law of the Sea, an arbitration panel, or a special arbitration panel. Countries with political or strategic agendas against the United States would have substantial incentive to haul the U.S. before one of these bodies, even if the chances of actually winning the dispute were slim. Politically, any number of countries would be more than happy to score propaganda points using the imagery of confronting the U.S. before a "judicial" body of any kind; strategically, as part of the dispute resolution process, the U.S. could find itself having to turn over sensitive information that could benefit the accusing nation, even if the latter ultimately loses the dispute at hand.

The Navy, for its part, has said it will avoid such dispute resolution mechanisms by asserting that its conduct on the oceans constitutes "military activity," a concept the treaty indicates state parties can invoke, per article 298 of the treaty, to avoid having to appear before such bodies. But the treaty does not define "military activity," which means that the dispute resolution bodies themselves -- consistent with Article 288's declaration that these forums themselves get the last word on any disagreement over whether they have jurisdiction -- get to determine whether U.S. conduct falls within that category, much in the same way that an American court ultimately decides whether it has jurisdiction over a dispute, even if the defendant asserts otherwise.

The Navy has also asserted that even if it cannot avoid getting pulled into mandatory dispute resolution, it will simply choose the "arbitration panel" option. But when one delves into the weeds of LOST, it becomes clear that even these arbitration panels could easily turn into anti-American political exercises. In the case of the five-person arbitration panel (see LOST Annex VII), one state chooses a panelist, the opposing state chooses one, and if the disputants cannot agree on the remaining panelists, those spots are filled by the President of the International Tribunal of the Law of the Sea. The same largely holds for a special arbitration panel (see LOST Annex VIII), only in that forum, the lack of consensus on a fifth, potentially tie-breaking panelist means that person is chosen by the Secretary General of the United Nations.

So, in other words: China accuses the United States of violating LOST because of some benign activity in a part of, say, the South China Sea that China claims as its territory, and takes the dispute before either an arbitration panel or special arbitration panel. The U.S. chooses one or two panelists, China chooses another one or two, and because the U.S. and China cannot agree on who should fill remaining vacancies on the panel (not an unlikely scenario), those critical, possibly tie-breaking spots are filled either by the president of some other LOST tribunal, or the U.N. Secretary General. What could go wrong? 

Given the stacked-deck nature of these LOST tribunals, American accession to LOST is an awfully big risk for the Navy to take. But the assumption of such risk is even more questionable when one considers that accession to LOST not only will not give the Navy anything by way of rights and freedoms that are not already available to it (as the Heritage Foundation's Steven Groves has explained comprehensively), but also will do nothing to address Chinese or Iranian aggression on the world's oceans, and may in fact be counterproductive in dealing with both.

Adm. Locklear's recent testimony that American membership in LOST will help promote oceanic rule-of-law, and that our non-membership lessens our credibility to help solve maritime disputes, necessarily begs the question of whose behavior we will be affecting with our enhanced credibility on such matters should we accede to LOST. It is difficult to believe that China and Iran, currently posing highly consequential maritime challenges through their military posturing in critical trade zones, will be moved by the United States becoming a party to the treaty. China has already demonstrated repeatedly its willingness to manipulate LOST's lofty yet ambiguous text to justify outlandish claims to the entire South China Sea -- claims that, as some analysts have pointed out, the United States could wind up inadvertently legitimating through its own accession to the treaty.

Iran, for its part, has repeatedly threatened to close the Strait of Hormuz and send oil prices skyrocketing in retaliation for sanctions. LOST's Article 38 prohibits closing international straits, but Iran not being a party to the treaty (having signed but not ratified it) views itself as not being bound by its terms -- and is therefore highly unlikely to be moved by U.S. accession to LOST. Even if Iran was a party to LOST, it is difficult to argue with much credibility that a theocratic dictatorship that oppresses its own people, persecutes religious minorities, threatens the only democracy in the region with genocide, and has been clandestinely pursuing its own nuclear weapons program over the objections of much of the international community would let its actions be guided by what LOST may have to say. The Navy actually illustrated this reality, though without acknowledging such, when it responded to Iran's threats to close the Strait not by rushing to push for emergency American ratification of LOST or by lamenting its inability to respond in the absence of ratification, but rather by sending the USS Abraham Lincoln on through -- a maneuver consistent with customary international law (as LOST merely codifies) and made possible by the superiority of the United States Navy.

Those Members of Congress who signed the Flake-Jordan letter have drawn attention to the negatives of LOST at an especially important time. As the letter points out, whatever marginal benefits may accrue for the Navy as a result of U.S. accession to LOST will be overshadowed by the treaty's profound negatives, including those affecting the Navy directly. With the Navy's ability to ensure the free flow of trade more important than ever, we literally cannot afford to have it boxed in by the uncertainties of LOST. 

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About the Author

Ben Lerner is Vice President for Government Relations at the Center for Security Policy in Washington, D.C.